Van Dyk v Donnovan Theodore Majiedt Inc and Another (4070/2021) [2021] ZAFSHC 246 (22 October 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Case no: 4070/2021

In the matter between:

MARNA VAN DYK Intervening Creditor

[as intervening creditor in the insolvent estate of

Willem Miekel van Dyk, Master reference B41/2021]

and

DONOVAN THEODORE MAJIEDT INC 1st Applicant

BEATRIX ELIZE GROENEWALD N.O. 2nd Applicant

(in their capacities as the provisional trustees of the

insolvent Estate of Willem Miekel van Dyk,

Master's reference B41/2021)

CORAM: DAFFUE, J

HEARD ON: 12 OCTOBER 2021

APPLICATION DISMISSED ON: 12 OCTOBER 2021

REASONS DELIVERED ON: 22 OCTOBER 2021

The reasons were handed down electronically by circulation to the parties’ representatives by email, and release to SAFLII. The date and time for hand-down is deemed to be 16h30 on 22 OCTOBER 2021.

REASONS

I INTRODUCTION

[1] Having considered the documents before the court and legal arguments presented to me by the legal representatives of the parties on 12 October 2021, I dismissed the application with costs, including the costs occasioned by the postponements on 29 September 2021 and 7 October 2021.

[2] The High Court’s capacity to grant an order in terms of s 18(3) of the Insolvency Act[1] in order to allow provisional trustees of an insolvent estate several powers, specifically the power to sell assets, and the possible interaction between this sub-section and s 80bis of the Act came under the spotlight in this application.

[3] However, before the legal issue raised in paragraph 2 could be addressed, the applicant who sought leave to intervene as an intervening creditor had to overcome four obstacles which I shall address infra.

II THE PARTIES

[4] Mrs Marna van Dyk sought an order in terms whereof she be joined as a party in case number 4070/2021, referring to herself as the intervening creditor. She was represented by Adv CM Oberholzer, he being instructed by Bekker Attorneys. Mrs Van Dyk is the wife of the insolvent, Mr Willem Miekel van Dyk, insolvent estate number B41/2021. I shall refer to Mr Van Dyk as the insolvent herein and to his wife as Mrs Van Dyk.

[5] The provisional trustees who have been cited as first and second applicants respectively are Mr Donovan Theodore Majiedt and Mrs Beatrix Elize Groenewald. Adv S Tsangarakis, instructed by Rossouws Attorneys, appeared for them before me.

III THE ORDER OF THE COURT DATED 6 SEPTEMBER 2021 UNDER THE ABOVE CASE NUMBER 4070/2021

[6] On 6 September 2021 the provisional trustees brought an ex parte urgent application in terms of s 18(3) of the Insolvency Act. They were granted the relief sought and furthermore, a whole host of powers were granted to them, in particular the following:

6.1 they were authorised to bring the application in terms of the aforesaid sub-section;

6.2 it was declared that all property, including rights of action, belonging to the insolvent estate vest in them as provisional trustees and they were authorised to bring or defend proceedings relating to the property of the insolvent estate;

6.3 they were authorised in terms of s 18(3) to exercise numerous powers in relation to the administration of the insolvent estate (may I add that these powers are normally granted to trustees by creditors at the second meeting of creditors), inter alia the power to sell any movable or immovable property, the farming operation or any component thereof by public auction, public tender or private treaty.

6.4 Any action prior to the 6th of September 2021 by the applicants falling within the powers granted by the court was authorised and ratified.

IV THE APPLICATION FOR RECONSIDERATION OF THE ORDER OF 6 SEPTEMBER 2021

[7] On 29 September 2021 and after giving one day’s notice to the provisional trustees, Mrs Van Dyk as a so-called intervening creditor approached the court on an urgent basis, seeking inter alia the following relief:

“(b) That the intervening creditor be joined as a party that has a legitimate interest and entitled to participate in the proceedings in this matter that is currently before the Honourable Court and to file affidavits as required by the Uniform Rules of Court;

(c) That the Court Order granted 6 September 2021, be and be (sic) set aside;

(d) That the applicants are ordered to pay the costs of this application.”

[8] It is not surprising to see that the matter was postponed on 29 September 2021 as insufficient notice was given to the provisional trustees. It was postponed by agreement to 7 October 2021 on which date it was again postponed to the urgent court and not to the opposed motion court roll. Consequently, I had to deal with this matter as an urgent application on 12 October 2021. In terms of the court order of 7 October 2021 leave was granted to the parties to file heads of arguments the day before the hearing, to wit 11 October 2021. I dealt with the matter on the 12th and subsequently granted the order mentioned in paragraph 1 supra, indicating that my reasons would follow in due course. The costs in respect of both the 29th September 2021 and 7th October 2021 stood over for later adjudication. No reasons have been advanced as to why the provisional trustees should not be entitled to the wasted costs occasioned by the two postponements and consequently such an order was made.

V THE FOUR HURDLES

[9] I mentioned from the onset to Mr Oberholzer appearing for Mrs Van Dyk that his client had to overcome four hurdles before the merits, to wit the provisional trustees’ entitlement to rely on s 18(3) and the court order of 6 September 2021 could be considered. These are the following:

1. her locus standi as creditor;

2. her right to intervene in application 4070/2021 and be joined as a party in so far as a final order had already been made on 6 September 2021;

3. the consequences of s 21 of the Insolvency Act in so far as her assets fall in the insolvent estate of her husband and will remain there until released to her by the trustees upon application;

4. the sheep belonging to the insolvent estate had already been sold by private treaty at market value with the cooperation and consent of the insolvent and if the order of 6 September 2021 was to be set aside, a necessary consequence would be that the transaction pertaining to the sheep had to be set aside as well whilst the purchaser of the sheep had not been joined in the proceedings or given notice thereof.

VI THE FIRST HURDLE

[10] Mrs Van Dyk’s locus standi as creditor:

10.1 Mrs Van Dyk initially claimed that she was the owner of 268 sheep which were in possession of the insolvent. No proof of her ownership was provided to the provisional trustees who eventually rejected her claim.

10.2 It appears from the papers that Mrs Van Dyk changed her version and later on relied on a loan account as is evident from the insolvent’s financial statements. The latest figure available is in respect of the financial year ending on 28 February 2017 which indicates a loan account in her favour of R166 339.00[2]. There is no indication as to the existence of the loan in 2021, i.e. four years after the latest financial statements and in particular on the date when the insolvent was provisionally sequestrated. Mrs Van Dyk did not prove that she is a creditor of the insolvent estate clothed with locus standi.

10.3 I do not agree with Mr Tsangarakis’ submission that Mrs Van Dyk’s claim would have prescribed in so far as prescription started to run when the money was lent and advanced. The reliance on the judgment of Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Limited[3] does not support his case. In any event, s 13(1)(c) of the Prescription Act[4] provides specifically that prescription does not run between spouses married to each other until a year after separation, i.e. either by divorce or death.

VII THE SECOND HURDLE

[11] Section 21 of the Insolvency Act:

11.1 Even if I could find in favour of Mrs Van Dyk that she was a creditor of the insolvent estate, her sheep or her right to claim money in respect of a loan has fallen in the insolvent estate in accordance with the provisions of s 21. She has failed to apply for the release of her asset(s). Therefore, she did not have locus standi to apply for reconsideration of the order of 6 September 2021.

VIII THE THIRD HURDLE

[12] The sheep have already been sold:

12.1 Nothing more needs to be said in this regard, save to mention that an entity known as Oswald Botes en Seun purchased the sheep of the insolvent estate in the total sum of R953 683.50 on 8 September 2021. The purchaser is apparently a friend of the insolvent and the sheep were purchased to enable the insolvent to continue with sheep farming.[5]

12.2 If the order of 6 September 2021 is to be set aside, the transaction pertaining to the sheep would have to be set aside as well. The purchaser has not been cited as a party to these proceedings and furthermore, the whereabouts of all the sheep are unknown. This is another reason why relief cannot be granted to Mrs Van Dyk.

IX THE FOURTH HURDLE

[13] The application for reconsideration:

13.1 Rule 6(12)(c) stipulates as follows:

“A person against whom an order was granted in such person’s absence in an urgent application may by notice set down the matter for reconsideration of the order.”

13.2 No order was granted against Mrs Van Dyk on 6 September 2021. On the face of it and bearing in mind the clear and unambiguous wording of the rule, she has no right to apply for reconsideration of the order. The mere fact that she sought an order in terms whereof she be joined as a party to the proceedings is indicative of the fact that no order was granted against her.[6]

13.4 It also appears from her notice of motion that she was of the view that the matter – the application in terms of s 18(3) – “is currently” still before the court and thus pending. This is not so. That matter has been finalised and a final order was granted on 6 September 2021. I got the clear impression from Mrs Van Dyk’s documentation as well as her counsel’s submissions that there was a misunderstanding as to whether she could join the proceedings in terms of Rule 12 of the Uniform Rules of Court or in accordance with the normal principles applicable to insolvency or liquidation proceedings where creditors may apply to be joined, either to support an application (by applying for a fresh sequestration order) or to seek a discharge of the rule nisi issued in that regard.[7] I emphasise that there was no pending proceeding before the court in respect of the s 18(3) application when the application for reconsideration was issued.

13.5 Mr Oberholzer relied on African Global holding (Pty) Ltd and Others v Luchman NO and Other[8]. His reliance on paragraph 5 of the judgment must be considered in context: The paragraph reads as follows:

“[5] The second costs order pertains to the applications to intervene. It is linked to the non-joinder point taken by the provisional liquidators (and SARS). The standard formulation for the test to be applied, set out in Erasmus, is:

“The rule is that any person is a necessary party and should be joined if such person has a direct and substantial interest in any order the court might make, or if such an order cannot be sustained or carried into effect without prejudicing that party, unless the court is satisfied that he has waived his right to be joined.”

13.6 Mrs Van Dyk was not an intervening creditor in pending insolvency proceedings and she also did not have a direct and substantial interest in the order that the court made on 6 September 2021. Therefore, Mrs Van Dyk failed to overcome this fourth hurdle and consequently it is not even necessary to deal with the order of 6 August 2021 and submissions pertaining to the merits thereof. However, bearing in mind that both parties made submissions in that regard, I shall briefly consider the issue, bearing in mind that I was approached on an urgent basis.

X SECTION 18(3) OF THE INSOLVENCY ACT

[14] Section 18(3) of the Insolvency Act reads as follows:

“(3) A provisional trustee shall have the powers and the duties of a trustee, as provided in this Act, except that without the authority of the court or for the purpose of obtaining such authority he shall not bring or defence any legal proceedings and that without the authority of the court or Master he shall not sell any property belonging to the estate in question. Such sale shall furthermore be after such notices and subject to such conditions as the Master may direct.” (Emphasis added)

[15] In order to put the issue in context I need to quote s 80bis as well. It reads as follows:

“(1) At any time before the second meeting of creditors the trustee shall, if satisfied that any movable or immovable property of the estate ought forthwith to be sold, recommend to the Master in writing accordingly, stating his reasons for such recommendation.

(2) The Master may thereupon authorize the sale of such property, or of any portion thereof, on such conditions and in such manner as he may direct: Provided that, if the Master has notice that such property or a portion thereof is subject to a right of preference, he shall not authorize the sale of such property or such portion, unless the person entitled to such right of preference has given his consent thereto in writing or the trustee has guaranteed that person against loss by such sale.” (Emphasis added)

[16] In general the sale of property belonging to an insolvent estate takes place after the second meeting of creditors and once the trustee(s) received authorisation thereto from the creditors who had proved their claims.[9] However, there can be no doubt that it is often expected of trustees, and also provisional trustees, to arrange for the sale of property belonging to an insolvent estate before the second meeting when urgency dictates that. There are abundant examples why this is required from time to time and it is not necessary to deal with this aspect any further. The sheep were sold at market value and in circumstances where the provisional trustees were not in a position to continue farming and also bearing in mind the lambing season. Several of the ewes have already lambed or would lamb in the near future. Security and control over the sheep were also issues to be considered. Pertaining to the other assets belonging to the insolvent estate and especially the immovable property, it is apparent that First National Bank as the major and preferential creditor insisted that the farm and other movables be sold as soon as possible. The claim of First National Bank is about R5 million. The bank was also the sequestrating creditor and it requested the first applicant, the nominated provisional trustee in a letter as follows:

“The sale of the immovable property as well as the movable assets of the insolvent via auction is imperative to enable the Trustees to unlock the highest possible value and to avoid loss of these assets.”[10]

The only other known creditor is Nedbank, trading as MFC, in an amount of approximately R90 000.00. The insolvent did not play open cards in the opposed sequestration application and failed to set out his assets and liabilities.

[17] The insolvent was eventually provisionally sequestrated on 17 June 2021 after he vehemently opposed the application in raising several points in limine. The provisional sequestration order was made final on 22 July 2021.

[18] Mr Majiedt, one of the provisional trustees, received two requisitions for the appointment as provisional trustee: one from MFC and the other from First Rand Bank. The documents were duly handed in with the Master on 21 and 22 June 2021 respectively. Notwithstanding several enquiries, the first on 12 July 2021 and an undertaking by Mr Strauss of the Master’s office on even date that he “will see to it that an appointment is made”,[11] no appointment of provisional trustees was made by 19 July 2021, but only as late as 26 August 2021.[12]

[19] The provisional trustees placed on record in the founding affidavit that they did not approach the Master for authorisation in terms of s 18(3) “simply because of the urgency of the matter.” It was also alleged that the Master’s office is “over-burdened” and would not be able to urgently attend to the matter.[13] In fact, during argument Mr Tsangarakis referred to a circular issued by the Master dealing with so-called “turn around times for Master’s services.” I granted leave that a copy of this public document be forwarded to my secretary after the hearing. It is Notice 7 of 2020 dated 24 November 2020. The Master afforded his staff the luxury of 21 days to reply to correspondence in complex matters. No wonder the provisional trustees ran off to the High Court who has a judge on duty every single day and night of the year to deal with urgent matters. I shall return to this issue infra.

[20] The authorities dealing with s 18(3) are few and far between. However, it is apposite to deal with the following judgments. In Van Zyl and Another NNO v Kaye NO and Others[14] Binns-Ward J set out the requirements for an application by a provisional trustee in accordance with the sub-section as follows:

“[46] It remains to determine the application by the applicants in terms of s 18(3) of the Insolvency Act for authorisation to have instituted these proceedings. The editors of Meskin et al Insolvency Law (LexisNexis) have ventured that '(i)n the case of motion proceedings . . . it is competent for the provisional trustee to seek simultaneously both authority to bring such proceedings and the substantive relief'. I have no quarrel with that postulate. The approach does, however, carry the risk that, should the application fail, the provisional trustees may be personally exposed to adverse costs consequences. No doubt in most cases a prudent provisional trustee would only take such a course after having obtained a suitable indemnity from one or more of the insolvent's creditors.

[47] It was held by Van Oosten J in Warricker and Another NNO v Liberty Life Association of Africa Ltd that '(a)n applicant seeking the authority of the Court in terms of the subsection must satisfy the Court, on good cause shown, that a departure from the normal course of events provided for in the Act is warranted. Where the institution of proceedings to enforce a claim is contemplated, to be entitled to an order the applicant must satisfy the Court, first, that some degree of urgency exists; secondly, that the cause of action which is to become the subject-matter of the proceedings is prima facie enforceable; and, thirdly, that the interests of creditors in the insolvent estate will not be prejudiced by the earlier institution of proceedings.' The applicants have failed to satisfy me in respect of the second of the aforementioned requirements. The application in terms of s 18(3) of the Insolvency Act therefore also falls to be dismissed.”

[21] In Warricker and Another NNO v Liberty Life Association of Africa Ltd[15] the court held as follows:

“[5] I shall first deal with the requirements to be met by an applicant seeking the leave of the Court in terms of s 18(3) of the Act. Section 18 empowers the Master, upon the provisional or final sequestration of an estate, to appoint a provisional trustee. In terms of s 18(3):

'A provisional trustee shall have the powers and the duties of a trustee, as provided in this Act, except that without the authority of the Court or for the purpose of obtaining such authority he shall not bring or defend any legal proceedings. . . .'

The main aim of this provision has been described by Van Zyl J in Lane and Another NNO v Dabelstein and Others (Lane and Another NNO Intervening) 1999 (3) SA 150 (C) at 1638 (sic) as 'probably to protect creditors against liability for costs incurred and dissipation of assets caused by a trustee's ill-conceived litigation'. The subsection, clearly, was enacted to protect the interests of creditors of the insolvent estate. It does not afford an applicant an open sesame to the relief provided for. An applicant seeking the authority of the Court in terms of the subsection must satisfy the Court, on good cause shown, that a departure from the normal course of events provided for in the Act is warranted. Where the institution of proceedings to enforce a claim is contemplated, to be entitled to an order the applicant must satisfy the Court, first, that some degree of urgency exists; secondly, that the cause of action which is to become the subject-matter of the proceedings is prima facie enforceable; and, thirdly, that the interests of creditors in the insolvent estate will not be prejudiced by the earlier institution of proceedings.”

[22] The order providing that any action prior to 6 September 2021 by the provisional trustees falling within the powers set out in the order was authorised and ratified must be seen in context. If the provisional trustees acted contrary to their powers, such actions, without the prior consent of the Master or the court would be a nullity as the law prescribes that a nullity cannot afterwards be ratified by the court.[16]

[23] It is necessary to establish whether the provisional trustees met the requirements set out by inter alia Binns-Ward in Van Zyl as well as by Van Oosten J in Warricker supra. I am satisfied that a departure from the normal cause of events provided for in the Act was warranted and that a clear degree of urgency existed. Although the only issue at present is the sale of assets belonging to the insolvent estate and not the institution of action, I am satisfied that the provisional trustees have shown a prima facie right to proceed with a sale of the assets. The major creditor of the insolvent estate, FNB with a claim of about R5 million supported the provisional trustees’ application. There is not an iota of evidence that the liquidation of the assets would be to the detriment of the creditors of the insolvent estate. The following background facts are needed to contextualise my view point.

23.1 The Master has extremely extensive powers and the duties are far-reaching, not only in respect of insolvencies, but also liquidations and deceased estates. The Insolvency Act deals with these powers and duties in numerous sections, starting with s 4 in respect of the surrendering of an estate by a debtor to s 155(2) dealing with the destruction of documents five years after an insolvent person has been rehabilitated. Upon sequestration of an insolvent person his/her estate vests in the Master and upon his/her/their appointment in the trustees. It is the Master who appoints the trustees. I have quoted s 18(3) and s 80bis and shall say more infra. The Master may apply to the court to direct a trustee to submit an account and/or vouchers in support thereof.[17] The Master confirms the trustee’s account[18] and he/she may direct a trustee to deliver any books, documents or property belonging to the insolvent estate of which he/she is a trustee.[19]

23.2 As mentioned, on 17 June 2021 the insolvent was provisionally sequestrated after an opposed sequestration application. He was finally sequestrated on 22 July 2021.

23.3 The provisional trustees were appointed as late as 19 August 2021. This is with respect unheard of. If provisional trustees were required, they should have been appointed during the week after the provisional order was granted. The delay in appointing the provisional trustees is regrettable. Notwithstanding the filing of the requisitions in favour of the first applicant on 21 and 22 June 2021 respectively and the correspondence between the assistant Master and Mr Majiedt’s office, it took the Master two months to consider and appoint provisional trustees.

23.4 Section 40 of the Insolvency Act stipulates that on receipt of the final order of sequestration the Master “shall immediately convene by notice in the Gazette a first meeting of the creditors of the estate for the proof of their claims against the estate and for the election of a trustee.” This did not occur as the advertisement in the Government Gazette was not published as anticipated.

23.5 The provisional trustees served their s 18(3) application on a Mr E Mpolokeng on Friday, 3 September 2021 at 12h45. The application was set down for hearing the next Monday, 6 September 2021 at 14h30. I accept that this was short notice but notwithstanding that, neither Mr Mpolokeng, nor the Master or any of his other assistants presented the court with any explanation at any stage as to why it was not possible to inform the attorneys acting for the provisional trustees or the registrar of the court that it was impossible to file a report.

23.6 If I had to adjudicate the s 18(3) application, I would probably have the matter stand down to established what exactly the approach of the Master was pertaining to the relief sought, but that does not mean that the orders eventually granted should be set aside. I may add that the court went further and granted wider powers to the provisional trustees than allowed in s 18(3).

23.7 Based on my experience as a practitioner the powers granted to the provisional trustees on 6 September 2021 are in line with the powers generally granted by creditors to trustees at the second meeting of creditors. None of the powers granted herein are out of the ordinary although s 18(3) does not provide therefore. However, Mrs Van Dyk’s only quibble is with the provisional trustees’ right to sell the assets of the insolvent estate. It is apparent that the court granting the s 18(3) application did not issue the orders subject to such conditions as the Master may direct as s 18(3) provides. Fact of the matter is that the court order was served on the Master on 7 September 2021 and by the time Mrs van Dyk’s application was heard by me, no directions have been received from the Master ex facie the submissions made by Tsangarakis.

23.8 Clearly the provisional trustees did not believe that they had carte blanche to deal with the assets of the insolvent estate as they liked and therefore they approached the court for relief.

23.9 The sheep, the subjects of theft and several other risks, needed to be disposed of as soon as possible, obviously to the advantage of creditors. This is exactly what transpired after the order in terms of s 18(3) was granted.

23.10 The other movable property as well as the fixed properties were advertised to be sold at a public auction to be held on 14 October 2021. The provisional trustees indicated the efforts made by the auctioneer, a very senior and experienced person, to ensure that the auction would come to the attention of all prospective buyers. I cannot think of any other condition that the Master could have placed on the sale of the properties.

23.11 I noted that the assistant Master, Mr Strauss indicated that the provisional trustees could be outvoted at the first meeting of creditors still to be held. It may be so, but that would be quite a surprise to me, bearing in mind that the only known creditors clearly supported the application in terms of s 18(3). In any event, if government officials fail to comply with their statutory functions, they should not complain if litigants proceed to the court to obtain relief in the form of a mandamus against them, or alternative relief provided for in legislation as occurred in this case.

[24] Having stated the above, I am cautious of the possibility that the floodgates might be opened for provisional trustees to approach the court on a regular basis to obtain similar relief. It must be emphasised that the Master is, generally speaking, the first person to be approached in matters pertaining to the administration of estates, deceased or insolvent, bearing in mind the legislation and his/her expertise and that of his/her personnel.

[25] I am satisfied that on an appropriate interpretation of the provisions of ss 18(3) and 80bis of Insolvency Act, and depending on the facts and circumstances present in the administration of a particular insolvent estate, the provisional trustees may utilise both methodologies, i.e. to either apply to the particular Master or the High Court for consent to sell assets of an insolvent estate. If the Master is approached, s 18(3) must be read with s 80bis and if the Court is approached in terms of s18(3) for the sale of property of the insolvent estate, “such sale shall furthermore be after such notices and subject to such conditions as the Master may direct.” The two sections are not in conflict with each other. The s 18(3) application was served on the Master as was the case with the court order of 6 September 2021. The Master would be within his rights to agree to the sale of property subject to such conditions he deemed fit to impose. He did not do so. No injustice or prejudice to any creditor was shown and/or can be imagined as a result of the methodology followed by the provisional trustees and their appointed auctioneer.

[26] Both counsel referred me to the judgment of the Constitutional Court in the matter of Swart v Starbuck and Others[20]. Mrs Van Dyk’s counsel made submissions with reference to the minority judgment of Jafta J which did not take the matter any further. In that case Mr Swart raised the constitutionality of ss 18(3) and 80bis for the first time in the Constitutional Court. The majority in that court decided not to deal with the issue. In that case one of the future trustees of an insolvent estate accepted an offer for immovable property of the estate on condition that the Master consent to the sale which he ultimately did. The Supreme Court of Appeal found that the sale, subject to the suspensive condition, was valid. The majority in the Constitutional Court refused to grant leave to the disgruntled Mr Swart, the effect being that the SCA judgment stands.[21]

XI CONCLUSION

[27] In conclusion I wish to emphasise that Mrs Van Dyk failed to overcome the four obstacles referred to above in order to successfully deal with the merits of her complaint, to wit that the orders of 6 August 2021 should be set aside. I advanced full reasons for my conclusions in this regard, but went further to explain that, bearing in mind the factual position present pertaining to this specific insolvent estate over the period from June to September 2021, the provisional trustees could not be faulted for applying to the court in terms of s 18(3) of the Insolvency Act. Save for the comments made herein, the order of 6 September 2021 cannot be validly attacked and should stand.

J P DAFFUE, J

On behalf of the Intervening creditor: Adv CM Oberholzer

Instructed by

: Bekker Attorneys

Bloemfontein

On behalf of the applicants : Adv S Tsangarakis

Instructed by : Hendre Conradie

c/o Rossouws Attorneys

[1] Act 24 of 1936

[2] Answering affidavits paras 70 – 82, read with annexures “FA15” & “FA17” to the s 18(3) application

[3] 2018 (1) SA 94 (CC)

[4] Act 68 of 1969

[5] See answering affidavit paras 34 – 44 and paras 38 and 41 in particular

[6] Competition Commission v Wilmar Continental Edible Oils and Fats (Pty) Ltd 2020 (4) SA 527 (KZP) at para 17; Farmer’s Trust v Competition Commission 2020 (4) SA 541 (GP) paras 22 - 24

[6] Competition Commission v Wilmar Continental Edible Oils and Fats (Pty) Ltd 2020 (4) SA 527 (KZP) at para 17;

Farmer’s Trust v Competition Commission 2020 (4) SA 541 (GP) paras 22 - 24

[7] Bertelsmann et al, Mars: The Law of Insolvency in South Africa 9th ed p 129

[8] African Global Holding (Pty) Ltd and Others v Lutchman NO and Others (Commissioner for the South African Revenue Services and Another Intervening) Fidelity Security Services (Pty) Ltd v African Global Holdings (Pty) Ltd and Others (42741/19; 44827/19; 32083/19) [2020] ZAGPJHC 196 (24 August 2020); see in general: Erasmus: Superior Court Practice D1-137 and further

[9] Section 82 of the Insolvency Act

[10] Annexure FA12, p 104

[11] Annexure FA9, p 97

[12] Record p 31

[13] Founding affidavit paras 65 & 66

[14] 2014 (4) SA 452 (WCC) paras 46 & 47

[15] 2003 (6) SA 272 (W) para 5; see also Lane and Another v Dabelstein and Others 1999 (3) SA 150 (C) at 160/1 and S A I Investments v Van der Schyff NO and Others 1999 (3) SA 340 (N) at 349 & 352 F – 353 C

[16] S A I Investments v Van der Schyff NO and Others loc cit at 353 D - E

[17] Section 116bis

[18] Section 112

[19] Section 152

[20] 2017 (5) SA 370 (CC)

[21] Ibid paras 21, 31 - 36