Nedbank Ltd v Cooper NO and Others (2538/2010) [2013] ZAFSHC 6; 2013 (4) SA 353 (FB) (11 February 2013)

Nedbank Ltd v Cooper NO and Others (2538/2010) [2013] ZAFSHC 6; 2013 (4) SA 353 (FB) (11 February 2013)

The court held that, in terms of section 348 of the Companies Act, the winding-up of Marlim Group (Pty) Ltd is deemed to have commenced on 4 February 2009, the date the application was lodged. The cession of the Momentum policies was in securitatem debiti, meaning Marlim retained dominium in the right to the surrender value, which remained an asset of the estate until the proceeds were paid out. Therefore, the proceeds vested in the estate upon liquidation, and the liquidators were entitled to levy fees on those proceeds. The liquidation and distribution account, as well as the applicant's claims, must be drawn as at the deemed date of liquidation, not the date of provisional winding-up....

Citation
[2013] ZAFSHC 6
Parties
Applicant: Nedbank Limited; Respondent: Chavonne Badenhorst St. Clair Cooper N.O.; Respondent: Tsiu Vincent Matsepe N.O.; Respondent: The Master of the High Court
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
11 February 2013
Case Number
2538/2010
Procedural Posture
Civil Application / Judgment on Stated Case Under Rule 33(1)
Outcome
Application dismissed except for leave to rectify claims; costs to be costs in the administration of the Marlim estate.
Judges
Van Zyl, R
Legal Topics
Company Liquidation, Cession in Securitatem Debiti, Liquidation and Distribution Account, Commencement of Winding Up, Concursus Creditorum
Commercial and Corporate Civil Procedure Company Liquidation Cession in Securitatem Debiti Liquidation and Distribution Account Commencement of Winding Up Concursus Creditorum

Case Brief

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Parties

Nedbank Limited

Applicant

Chavonne Badenhorst St. Clair Cooper N.O.

Respondent

Tsiu Vincent Matsepe N.O.

Respondent

The Master of the High Court

Respondent

Procedural Posture

Civil Application / Judgment on Stated Case Under Rule 33(1)

Legal Issues

  1. 1 Whether the proceeds of the first and second Momentum policies vested in the Marlim estate upon liquidation.
  2. 2 Whether the liquidators were entitled to levy fees on the proceeds of the policies.
  3. 3 Whether the liquidation and distribution account should be drawn as at the deemed date of liquidation (4 February 2009) or the date of provisional winding-up (26 February 2009).

Ratio Decidendi

The court held that, in terms of section 348 of the Companies Act, the winding-up of Marlim Group (Pty) Ltd is deemed to have commenced on 4 February 2009, the date the application was lodged. The cession of the Momentum policies was in securitatem debiti, meaning Marlim retained dominium in the right to the surrender value, which remained an asset of the estate until the proceeds were paid out. Therefore, the proceeds vested in the estate upon liquidation, and the liquidators were entitled to levy fees on those proceeds. The liquidation and distribution account, as well as the applicant's claims, must be drawn as at the deemed date of liquidation, not the date of provisional winding-up....

Court Disposition

Application dismissed except for leave to rectify claims; costs to be costs in the administration of the Marlim estate.

Orders

  • The relief sought by the applicant in paragraphs 27.1 to 27.3 of the amended stated case dated 15 February 2012 is dismissed.
  • Leave is granted to the applicant that the first liquidation and distribution account pertaining to Marlim Group (Pty) Ltd (In Liquidation) (Master’s reference: B33/2009) be re-opened by the Master in terms of Section 408 of the Companies Act, 61 of 1973, solely for the purpose of allowing applicant to rectify its...