Ngcobo v Torre and Others (8275/2007) [2008] ZAGPHC 390 (4 December 2008)

Ngcobo v Torre and Others (8275/2007) [2008] ZAGPHC 390 (4 December 2008)

The court found that the plaintiff was entitled to one quarter of the liquidator's fee confirmed in the second liquidation and distribution account, as no valid agreement to the contrary was proved and no lawful direction by the Master deprived him of his entitlement. The defendants' special pleas failed: the alleged forfeiture was not substantiated, and prescription did not apply as the cause of action arose only when the defendants appropriated the fee in April 2006. The defendants knowingly took the plaintiff's share, constituting misappropriation recoverable under the condictio furtiva. The plaintiff's alternative claim succeeded, and the defendants were ordered to pay him his share...

Citation
[2008] ZAGPHC 390
Parties
Plaintiff: Loriam Ngcobo; Defendant: P G Torre; Defendant: G B Ntshweni; Defendant: T J H Potgieter
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
4 December 2008
Case Number
8275/2007
Procedural Posture
Civil Trial / First Instance Judgment
Outcome
Plaintiff's alternative claim against the first and third defendants upheld; special pleas dismissed.
Judges
B.R. Southwood
Legal Topics
Liquidator Remuneration, Unjust Enrichment, Condictio Furtiva, Prescription Act, Joint Liquidators, Companies Act
Commercial and Corporate Civil Procedure Delict Liquidator Remuneration Unjust Enrichment Condictio Furtiva Prescription Act Joint Liquidators +1 more

Case Brief

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Parties

Loriam Ngcobo

Plaintiff

P G Torre

Defendant

G B Ntshweni

Defendant

T J H Potgieter

Defendant

Procedural Posture

Civil Trial / First Instance Judgment

Legal Issues

  1. 1 Whether the plaintiff is entitled to a share of the liquidator's fee confirmed in the second liquidation and distribution account.
  2. 2 Whether the Master directed that the plaintiff forfeit his fees upon resignation as liquidator.
  3. 3 Whether the plaintiff's claim against the defendants has prescribed under the Prescription Act.

Ratio Decidendi

The court found that the plaintiff was entitled to one quarter of the liquidator's fee confirmed in the second liquidation and distribution account, as no valid agreement to the contrary was proved and no lawful direction by the Master deprived him of his entitlement. The defendants' special pleas failed: the alleged forfeiture was not substantiated, and prescription did not apply as the cause of action arose only when the defendants appropriated the fee in April 2006. The defendants knowingly took the plaintiff's share, constituting misappropriation recoverable under the condictio furtiva. The plaintiff's alternative claim succeeded, and the defendants were ordered to pay him his share...

Court Disposition

Plaintiff's alternative claim against the first and third defendants upheld; special pleas dismissed.

Orders

  • The first defendant is ordered to pay the plaintiff R543,587.78 plus interest at 15.5% per annum from 11 April 2006 to date of payment.
  • The third defendant is ordered to pay the plaintiff R543,587.78 plus interest at 15.5% per annum from 11 April 2006 to date of payment.