Nel NO and Others v Master of the High Court and Others (290/2000) [2002] ZASCA 4; 2002 (3) SA 354 (SCA) (8 March 2002)

Nel NO and Others v Master of the High Court and Others (290/2000) [2002] ZASCA 4; 2002 (3) SA 354 (SCA) (8 March 2002)

The Supreme Court of Appeal held that the concursus creditorum established by the grant of the provisional winding-up order did not terminate upon the discharge of that order and its immediate replacement by a final order at the instance of another creditor. The court found that there was no break in the status of the company or the concursus, as the orders were intended to take effect simultaneously. The winding-up process that commenced on the date of the original application continued uninterrupted, and all creditors must calculate their claims as at that date. The appeal was allowed, and the order of the court a quo was set aside and replaced with a declaration that the winding-up and...

Citation
[2002] ZASCA 4
Parties
Appellant: Basil Nel NO and 2 Others; Respondent: The Master of the High Court and 2 Others
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
8 March 2002
Case Number
290/2000
Procedural Posture
Civil Appeal / Appeal From Court a Quo
Outcome
Appeal allowed with costs, including costs of two counsel. The order of the court a quo is set aside and replaced with a declaration that the winding-up and concursus creditorum commenced on 7 April 1998.
Judges
Zulman, Streicher, Nugent
Legal Topics
Winding Up of Companies, Concursus Creditorum, Companies Act Interpretation
Commercial and Corporate Civil Procedure Winding Up of Companies Concursus Creditorum Companies Act Interpretation

Case Brief

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Parties

Basil Nel NO and 2 Others

Appellant

The Master of the High Court and 2 Others

Respondent

Procedural Posture

Civil Appeal / Appeal From Court a Quo

Legal Issues

  1. 1 Does the discharge of a provisional winding-up order and its immediate replacement by a final winding-up order at the instance of another creditor terminate the existing concursus creditorum?
  2. 2 Is there a break in the status of the company and the concursus creditorum when the orders are made in immediate succession?

Ratio Decidendi

The Supreme Court of Appeal held that the concursus creditorum established by the grant of the provisional winding-up order did not terminate upon the discharge of that order and its immediate replacement by a final order at the instance of another creditor. The court found that there was no break in the status of the company or the concursus, as the orders were intended to take effect simultaneously. The winding-up process that commenced on the date of the original application continued uninterrupted, and all creditors must calculate their claims as at that date. The appeal was allowed, and the order of the court a quo was set aside and replaced with a declaration that the winding-up and...

Court Disposition

Appeal allowed with costs, including costs of two counsel. The order of the court a quo is set aside and replaced with a declaration that the winding-up and concursus creditorum commenced on 7 April 1998.

Orders

  • It is declared that the winding-up of Prop Plant Hire (Pty) Limited commenced on 7 April 1998.
  • It is declared that the concursus creditorum in respect of the company commenced on 7 April 1998.