Murray and Others NNO v African Global Holdings (Pty) Ltd and Others (306/2019) [2019] ZASCA 152; [2020] 1 All SA 64 (SCA); 2020 (2) SA 93 (SCA) (22 November 2019)

Murray and Others NNO v African Global Holdings (Pty) Ltd and Others (306/2019) [2019] ZASCA 152; [2020] 1 All SA 64 (SCA); 2020 (2) SA 93 (SCA) (22 November 2019)

The Supreme Court of Appeal found that the companies in question were commercially insolvent at the time the resolutions for voluntary winding-up were passed. The evidence showed that the withdrawal of banking facilities rendered the companies unable to pay their debts and continue trading, satisfying the test for commercial insolvency. Consequently, the winding-up was valid under the Companies Act 61 of 1973, not the 2008 Act. The appointment of the liquidators by the Master in Pretoria was valid, as the Master at the main seat has jurisdiction throughout Gauteng, including Johannesburg. The High Court's proceedings were improperly treated as urgent, and the liquidators were denied...

Citation
[2019] ZASCA 152
Parties
Appellant: C Murray N.O.; Appellant: R F Lutchman N.O.; Appellant: T Oosthuizen N.O.; Appellant: C Murray; Appellant: R F Lutchman; Appellant: T Oosthuizen; Respondent: African Global Holdings (Pty) Ltd; Respondent: Companies and Intellectual Property Commission; Respondent: Master of the High Court, Johannesburg
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 November 2019
Case Number
306/2019
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg
Outcome
Appeal upheld; application dismissed with costs, including costs of two counsel.
Judges
Wallis, Mokgohloa, Plasket, Nicholls, Gorven
Legal Topics
Voluntary Winding Up, Commercial Insolvency, Appointment of Liquidators, Personal Costs Orders, Jurisdiction of Master, Creditors Voluntary Winding Up
Commercial and Corporate Civil Procedure Voluntary Winding Up Commercial Insolvency Appointment of Liquidators Personal Costs Orders Jurisdiction of Master Creditors Voluntary Winding Up

Case Brief

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Parties

C Murray N.O.

Appellant

R F Lutchman N.O.

Appellant

T Oosthuizen N.O.

Appellant

C Murray

Appellant

R F Lutchman

Appellant

T Oosthuizen

Appellant

African Global Holdings (Pty) Ltd

Respondent

Companies and Intellectual Property Commission

Respondent

Master of the High Court, Johannesburg

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether the companies in question were solvent or commercially insolvent at the time of voluntary winding-up.
  2. 2 Whether the resolutions for voluntary winding-up were valid under the Companies Act 61 of 1973 or Companies Act 71 of 2008.
  3. 3 Whether the appointment of liquidators by the Master in Pretoria was valid given the registered offices of the companies.

Ratio Decidendi

The Supreme Court of Appeal found that the companies in question were commercially insolvent at the time the resolutions for voluntary winding-up were passed. The evidence showed that the withdrawal of banking facilities rendered the companies unable to pay their debts and continue trading, satisfying the test for commercial insolvency. Consequently, the winding-up was valid under the Companies Act 61 of 1973, not the 2008 Act. The appointment of the liquidators by the Master in Pretoria was valid, as the Master at the main seat has jurisdiction throughout Gauteng, including Johannesburg. The High Court's proceedings were improperly treated as urgent, and the liquidators were denied...

Court Disposition

Appeal upheld; application dismissed with costs, including costs of two counsel.

Orders

  • The appeal is upheld with costs, such costs to include those consequent upon the employment of two counsel.
  • The order of the High Court is altered to read: 'The application is dismissed with costs, such costs to include those consequent upon the employment of two counsel.'