Mthatha Mall (Pty) Ltd v Tititi Boutique (Pty) Ltd (In Liquidation) (521/2020) [2020] ZAECGHC 75 (30 June 2020)

Mthatha Mall (Pty) Ltd v Tititi Boutique (Pty) Ltd (In Liquidation) (521/2020) [2020] ZAECGHC 75 (30 June 2020)

The court held that, in terms of section 359 of the Companies Act 1973, all civil proceedings against a company in liquidation are suspended until a liquidator is appointed. The applicant's claim for eviction arose before the commencement of the winding-up, but no liquidator had yet been appointed, and the applicant could not give the required statutory notice. Therefore, two jurisdictional facts were absent: appointment of a liquidator and notice to the liquidator. Any order for eviction granted at this stage would be void. The applicant's attempt to obtain relief against Lornaweb (Pty) Ltd, alleged to be occupying through the respondent, was rejected because Lornaweb was not joined as a...

Citation
[2020] ZAECGHC 75
Parties
Applicant: Mthatha Mall (Pty) Ltd; Respondent: Tititi Boutique (Pty) Ltd (In Liquidation)
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
30 June 2020
Case Number
521/2020
Procedural Posture
Urgent Application / Application for Eviction of Respondent Company in Liquidation; Interlocutory Determination on Competence of Relief Prior to Appointment of Liquidator
Outcome
Application suspended until appointment of a liquidator; costs of postponement on 2 June 2020 awarded against Ms Paledi personally.
Judges
G H Bloem
Legal Topics
Company Liquidation, Eviction Proceedings, Winding Up Procedure, Notice to Liquidator
Civil Procedure Commercial and Corporate Company Liquidation Eviction Proceedings Winding Up Procedure Notice to Liquidator

Case Brief

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Parties

Mthatha Mall (Pty) Ltd

Applicant

Tititi Boutique (Pty) Ltd (In Liquidation)

Respondent

Procedural Posture

Urgent Application / Application for Eviction of Respondent Company in Liquidation; Interlocutory Determination on Competence of Relief Prior to Appointment of Liquidator

Legal Issues

  1. 1 Whether the court can grant an eviction order against a company in liquidation prior to the appointment of a liquidator.
  2. 2 Whether the applicant complied with statutory requirements for instituting proceedings against a company in liquidation.
  3. 3 Whether relief can be granted against a third party allegedly occupying through the respondent without joinder.

Ratio Decidendi

The court held that, in terms of section 359 of the Companies Act 1973, all civil proceedings against a company in liquidation are suspended until a liquidator is appointed. The applicant's claim for eviction arose before the commencement of the winding-up, but no liquidator had yet been appointed, and the applicant could not give the required statutory notice. Therefore, two jurisdictional facts were absent: appointment of a liquidator and notice to the liquidator. Any order for eviction granted at this stage would be void. The applicant's attempt to obtain relief against Lornaweb (Pty) Ltd, alleged to be occupying through the respondent, was rejected because Lornaweb was not joined as a...

Court Disposition

Application suspended until appointment of a liquidator; costs of postponement on 2 June 2020 awarded against Ms Paledi personally.

Orders

  • The application is suspended until the appointment of a liquidator.
  • Bulelwa Paledi shall pay the wasted costs occasioned by the postponement on 2 June 2020, including costs of an opposed application for postponement, on the scale as between party and party.