Murray NO and Others v Humansdorp Co-Operative (1697/19) [2021] ZAECGHC 97 (2 November 2021)

Murray NO and Others v Humansdorp Co-Operative (1697/19) [2021] ZAECGHC 97 (2 November 2021)

The court found that both the application for leave to appeal and the conditional cross-appeal raised substantial and complex issues that were not frivolous. There are reasonable prospects that another court may reach a different conclusion regarding whether the payment constituted a disposition without value under section 26 of the Insolvency Act, the validity and payment of the guarantees, and the source of the funds. Accordingly, leave to appeal to the Supreme Court of Appeal is granted to both parties.

Citation
[2021] ZAECGHC 97
Parties
Applicant: Cloete Murray N.O. and Others; Applicant: Thomas van Zyl N.O.; Applicant: Raphael Brink N.O.; Applicant: Caron-Ann Schroeder N.O.; Respondent: Humansdorp Co-Operative
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
2 November 2021
Case Number
1697/19
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Conditional Cross Appeal Following Judgment
Outcome
Leave to appeal to the Supreme Court of Appeal is granted to the applicants; conditional leave to cross-appeal is granted to the respondent; costs of the applications are costs in the appeals.
Judges
I.T. Stretch
Legal Topics
Leave to Appeal, Insolvency Act Section 26, Disposition Without Value, Liquidation, Costs Orders
Civil Procedure Commercial and Corporate Leave to Appeal Insolvency Act Section 26 Disposition Without Value Liquidation Costs Orders

Case Brief

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Parties

Cloete Murray N.O. and Others

Applicant

Thomas van Zyl N.O.

Applicant

Raphael Brink N.O.

Applicant

Caron-Ann Schroeder N.O.

Applicant

Humansdorp Co-Operative

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and Conditional Cross Appeal Following Judgment

Legal Issues

  1. 1 Whether the applicants have reasonable prospects of success on appeal regarding the finding that the payment was a disposition without value under section 26 of the Insolvency Act.
  2. 2 Whether the guarantees were validly issued and paid, and whether Cape Concentrate's funds were used to repay Tyefu Trust's debts to the respondent.
  3. 3 Whether the respondent's conditional cross-appeal regarding the source and nature of the payment should be granted.

Ratio Decidendi

The court found that both the application for leave to appeal and the conditional cross-appeal raised substantial and complex issues that were not frivolous. There are reasonable prospects that another court may reach a different conclusion regarding whether the payment constituted a disposition without value under section 26 of the Insolvency Act, the validity and payment of the guarantees, and the source of the funds. Accordingly, leave to appeal to the Supreme Court of Appeal is granted to both parties.

Court Disposition

Leave to appeal to the Supreme Court of Appeal is granted to the applicants; conditional leave to cross-appeal is granted to the respondent; costs of the applications are costs in the appeals.

Orders

  • The applicants are granted leave to appeal to the Supreme Court of Appeal.
  • The respondent is granted leave to cross-appeal to the Supreme Court of Appeal.