Van Den Heever N.O and Another v Merchant Commercial Finance 1 (Pty) Ltd t/a Merchant Factors and Another (7595/2024) [2025] ZAWCHC 317 (29 July 2025)

Van Den Heever N.O and Another v Merchant Commercial Finance 1 (Pty) Ltd t/a Merchant Factors and Another (7595/2024) [2025] ZAWCHC 317 (29 July 2025)

The court held that sections 348 and 341(2) of the Companies Act 1973 apply to winding-up orders granted under section 130(5)(c) of the Companies Act 2008. The deeming provision in section 348 operates to fix the commencement of winding-up at the date of presentation of the application, regardless of whether the application is brought under the 1973 or 2008 Act. The payments made by JPK to Merchant after the presentation of the winding-up application are rendered void by the retrospective effect of section 341(2), as they undermine the concursus creditorum and the rights of other creditors. The court rejected Merchant's argument that the provisions only apply from the date the business...

Citation
[2025] ZAWCHC 317
Parties
Applicant: Theodor Wilhelm Van Den Heever N.O; Applicant: Mareda Rita Bennighoff N.O.; Respondent: Merchant Commercial Finance 1 (Pty) Ltd t/a Merchant Factors; Respondent: The Master of the High Court, Johannesburg
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 July 2025
Case Number
7595/2024
Procedural Posture
Winding Up Application / Final Judgment on Main Application and Counter Application
Outcome
Application granted; payments declared void; counter-application dismissed.
Judges
Mangcu-Lockwood
Legal Topics
Winding Up of Companies, Void Dispositions, Concursus Creditorum, Business Rescue Conversion, Companies Act 1973, Companies Act 2008
Commercial and Corporate Civil Procedure Winding Up of Companies Void Dispositions Concursus Creditorum Business Rescue Conversion Companies Act 1973 Companies Act 2008

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 17 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Theodor Wilhelm Van Den Heever N.O

Applicant

Mareda Rita Bennighoff N.O.

Applicant

Merchant Commercial Finance 1 (Pty) Ltd t/a Merchant Factors

Respondent

The Master of the High Court, Johannesburg

Respondent

Procedural Posture

Winding Up Application / Final Judgment on Main Application and Counter Application

Legal Issues

  1. 1 Does section 348, read with section 341(2) of the Companies Act 61 of 1973, apply to a liquidation order obtained under section 130(5)(c) of the Companies Act 71 of 2008?
  2. 2 Are payments made by the company to Merchant after the presentation of the winding-up application void under section 341(2)?
  3. 3 Should the court exercise its discretion to validate the payments made to Merchant?

Ratio Decidendi

The court held that sections 348 and 341(2) of the Companies Act 1973 apply to winding-up orders granted under section 130(5)(c) of the Companies Act 2008. The deeming provision in section 348 operates to fix the commencement of winding-up at the date of presentation of the application, regardless of whether the application is brought under the 1973 or 2008 Act. The payments made by JPK to Merchant after the presentation of the winding-up application are rendered void by the retrospective effect of section 341(2), as they undermine the concursus creditorum and the rights of other creditors. The court rejected Merchant's argument that the provisions only apply from the date the business...

Court Disposition

Application granted; payments declared void; counter-application dismissed.

Orders

  • The payments made by JP Kruger Rand Deals (Pty) Ltd (in liquidation) during the period 16 March 2017 to 17 June 2022 in the total amount of R22,452,067.10 are declared void in terms of Section 341(2) of the Companies Act 61 of 1973.
  • The first respondent is ordered to pay to the applicants, in their capacity as liquidators of JPK, the sum of R22,452,067.10.