Taljaard NO and Another v Van den Heever and Others (54704/2013) [2016] ZAGPPHC 1029 (12 December 2016)

Taljaard NO and Another v Van den Heever and Others (54704/2013) [2016] ZAGPPHC 1029 (12 December 2016)

The court found that the transfer of the farm by Sunset Point Properties 212 CC after the effective date of winding-up was a void disposition under section 341(1) of the Companies Act. The Musolwa urgent application and resulting court order did not constitute a bona fide order for the transfer, but rather reflected a settlement that preferred one creditor above others, in circumstances amounting to improper conduct. The transfer was not made 'in compliance with a court order' as contemplated by the Insolvency Act, and the exclusion from voidness did not apply. The mortgage bond registered over the property was likewise void. The court declined to exercise its discretion under section...

Citation
[2016] ZAGPPHC 1029
Parties
Plaintiff: Louis Marius Taljaard N.O; Plaintiff: Chebo Chaza N.O; Respondent: Johannes Van den Heever; Respondent: Registrar of Deeds; Respondent: Nedbank Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 December 2016
Case Number
54704/2013
Procedural Posture
Civil Application / Judgment on Application to Declare Property Disposition Void and for Ancillary Relief
Outcome
Application granted. The disposition and mortgage bond are declared void. Ancillary relief for retransfer and rectification of title deed ordered. Costs awarded against first and third respondents.
Judges
AC Basson
Legal Topics
Winding Up, Void Disposition, Creditor Preference, Mortgage Bond Registration, Validation of Disposition, Liquidation Proceedings
Commercial and Corporate Land and Property Winding Up Void Disposition Creditor Preference Mortgage Bond Registration Validation of Disposition Liquidation Proceedings

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Parties

Louis Marius Taljaard N.O

Plaintiff

Chebo Chaza N.O

Plaintiff

Johannes Van den Heever

Respondent

Registrar of Deeds

Respondent

Nedbank Ltd

Respondent

Procedural Posture

Civil Application / Judgment on Application to Declare Property Disposition Void and for Ancillary Relief

Legal Issues

  1. 1 Whether the transfer of immovable property by Sunset Point Properties 212 CC after the effective date of winding-up is void under section 341(1) of the Companies Act.
  2. 2 Whether the registration of the mortgage bond over the property is likewise void.
  3. 3 Whether the court should exercise its discretion under section 341(2) of the Companies Act to validate the sale and transfer of the property.

Ratio Decidendi

The court found that the transfer of the farm by Sunset Point Properties 212 CC after the effective date of winding-up was a void disposition under section 341(1) of the Companies Act. The Musolwa urgent application and resulting court order did not constitute a bona fide order for the transfer, but rather reflected a settlement that preferred one creditor above others, in circumstances amounting to improper conduct. The transfer was not made 'in compliance with a court order' as contemplated by the Insolvency Act, and the exclusion from voidness did not apply. The mortgage bond registered over the property was likewise void. The court declined to exercise its discretion under section...

Court Disposition

Application granted. The disposition and mortgage bond are declared void. Ancillary relief for retransfer and rectification of title deed ordered. Costs awarded against first and third respondents.

Orders

  • The application to formally withdraw the admission in paragraph 12 of the second respondent's answering affidavit is granted with costs.
  • It is declared that the disposition by Sunset Point Properties 212 CC of its immovable property, Farm Kareebos 618, Portion 43, is void.