Stander NO and Another v Wouter Raymond Bouwer t/a Bouwer & Heyns Legal Cost Consultants (34450/2011) [2012] ZAGPPHC 148 (3 August 2012)

Stander NO and Another v Wouter Raymond Bouwer t/a Bouwer & Heyns Legal Cost Consultants (34450/2011) [2012] ZAGPPHC 148 (3 August 2012)

The court found that the payment of R750,000.00 to the respondent was made after the commencement of winding-up and constituted a disposition of KLS's property as contemplated by section 341(2) of the Companies Act. The payment was not made in the ordinary course of business but was intended to prefer selected creditors, including the respondent, to the detriment of the general body of creditors. The respondent failed to discharge the onus of proving circumstances justifying validation of the payment. The court exercised its discretion against validation, declared the disposition void, and ordered repayment of the amount with interest. The court also awarded costs, including those for...

Citation
[2012] ZAGPPHC 148
Parties
Applicant: Coenraad Louwrens Stander N.O.; Applicant: Ignatius Clement Mikateko Shirilele N.O.; Respondent: Wouter Raymond Bouwer t/a Bouwer & Heyns Legal Cost Consultants
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 August 2012
Case Number
34450/2011
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application succeeded. The payment to the respondent was declared void and repayment ordered.
Judges
Prinsloo
Legal Topics
Void Disposition, Companies Act 1973, Liquidation, Preferential Payment, Judicial Discretion
Commercial and Corporate Civil Procedure Void Disposition Companies Act 1973 Liquidation Preferential Payment Judicial Discretion

Case Brief

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Parties

Coenraad Louwrens Stander N.O.

Applicant

Ignatius Clement Mikateko Shirilele N.O.

Applicant

Wouter Raymond Bouwer t/a Bouwer & Heyns Legal Cost Consultants

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Whether the payment of R750,000.00 to the respondent after commencement of winding-up constitutes a void disposition under section 341(2) of the Companies Act.
  2. 2 Whether the court should exercise its discretion to validate the payment to the respondent.
  3. 3 Whether the payment was made in the ordinary course of business or with the intention to prefer certain creditors.

Ratio Decidendi

The court found that the payment of R750,000.00 to the respondent was made after the commencement of winding-up and constituted a disposition of KLS's property as contemplated by section 341(2) of the Companies Act. The payment was not made in the ordinary course of business but was intended to prefer selected creditors, including the respondent, to the detriment of the general body of creditors. The respondent failed to discharge the onus of proving circumstances justifying validation of the payment. The court exercised its discretion against validation, declared the disposition void, and ordered repayment of the amount with interest. The court also awarded costs, including those for...

Court Disposition

Application succeeded. The payment to the respondent was declared void and repayment ordered.

Orders

  • It is declared that the payment of R750,000.00 to the respondent on 28 April 2009 constitutes a void disposition of the property of Kirsten Lottering Scheepers Inc (in liquidation) after commencement of winding-up as intended by section 341(2) of the Companies Act, Act 61 of 1973.
  • Judgment is granted against the respondent for payment of the amount of R750,000.00.