Ramodike NO and Another v MGG Productions (Pty) Ltd (38218/2018) [2020] ZAGPJHC 199 (17 August 2020)

Ramodike NO and Another v MGG Productions (Pty) Ltd (38218/2018) [2020] ZAGPJHC 199 (17 August 2020)

The court found that section 46 of the Insolvency Act is not ambiguous and that its application requires an assessment of whether set-off was effected in the ordinary course of business. In this case, the set-off was implemented when the parties changed their trading terms to a cash basis, which the court considered to be in the ordinary course of business. The court distinguished section 46 from other impeachable transaction provisions in the Insolvency Act, noting that section 46 does not require court involvement and is primarily invoked by parties with a financial interest. The court followed the approach in previous judgments, which interpret 'ordinary course of business' broadly to...

Citation
[2020] ZAGPJHC 199
Parties
Applicant: Trevor Mahlasale Ramodike NO; Applicant: Solomon Stanley Issoker Botkanyo NO; Respondent: MGG Productions (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
17 August 2020
Case Number
38218/2018
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 16 January 2020.
Outcome
Application for leave to appeal dismissed with costs.
Judges
DP de Villiers
Legal Topics
Insolvency Act Section 46, Impeachable Transactions, Set Off, Ordinary Course of Business
Civil Procedure Commercial and Corporate Insolvency Act Section 46 Impeachable Transactions Set Off Ordinary Course of Business

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Parties

Trevor Mahlasale Ramodike NO

Applicant

Solomon Stanley Issoker Botkanyo NO

Applicant

MGG Productions (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 16 January 2020.

Legal Issues

  1. 1 Whether the court erred in interpreting section 46 of the Insolvency Act by considering the mischief addressed by the section and other impeachable transactions.
  2. 2 Whether the court incorrectly applied the facts to the law regarding set-off in the ordinary course of business.

Ratio Decidendi

The court found that section 46 of the Insolvency Act is not ambiguous and that its application requires an assessment of whether set-off was effected in the ordinary course of business. In this case, the set-off was implemented when the parties changed their trading terms to a cash basis, which the court considered to be in the ordinary course of business. The court distinguished section 46 from other impeachable transaction provisions in the Insolvency Act, noting that section 46 does not require court involvement and is primarily invoked by parties with a financial interest. The court followed the approach in previous judgments, which interpret 'ordinary course of business' broadly to...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.