Venter N.O and Another v Alba Skrynwerkersgeboue (Pty) Ltd (1871/2021) [2022] ZANCHC 38 (22 July 2022)

Venter N.O and Another v Alba Skrynwerkersgeboue (Pty) Ltd (1871/2021) [2022] ZANCHC 38 (22 July 2022)

The High Court's jurisdiction is not ousted by section 69(3) of the Insolvency Act, as neither the Act nor its interpretation excludes such jurisdiction expressly or by necessary implication. The applicants, as liquidators, are entitled to seek relief under section 69, and the requirement for a deputy sheriff's inventory does not apply in voluntary liquidation where assets are subject to a tacit hypothec and have been inventoried by an authorised agent. The applicants have made out a proper case for declaratory relief regarding the respondent's contraventions of sections 142 and 145 of the Insolvency Act, and referral to the National Prosecuting Authority is appropriate. The respondent's...

Citation
[2022] ZANCHC 38
Parties
Applicant: Liezel Venter N.O.; Applicant: Neermala (Susan) Ramchandra N.O.; Respondent: Alba Skrynwerkersgeboue (Pty) Ltd
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
22 July 2022
Case Number
1871/2021
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application granted. All points in limine dismissed. Relief in Parts A and B granted as sought.
Judges
Mamosebo
Legal Topics
Insolvency Act Search and Seizure, Liquidation Procedure, Exclusive Jurisdiction, Declaratory Relief, Tacit Hypothec, Punitive Costs
Civil Procedure Commercial and Corporate Land and Property Insolvency Act Search and Seizure Liquidation Procedure Exclusive Jurisdiction Declaratory Relief Tacit Hypothec +1 more

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Parties

Liezel Venter N.O.

Applicant

Neermala (Susan) Ramchandra N.O.

Applicant

Alba Skrynwerkersgeboue (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the High Court has jurisdiction to grant relief under section 69(3) of the Insolvency Act.
  2. 2 Whether the applicants complied with section 19(1) of the Insolvency Act regarding inventory by the deputy sheriff.
  3. 3 Whether liquidators may rely on section 69 of the Insolvency Act or must proceed under section 386 of the Companies Act.

Ratio Decidendi

The High Court's jurisdiction is not ousted by section 69(3) of the Insolvency Act, as neither the Act nor its interpretation excludes such jurisdiction expressly or by necessary implication. The applicants, as liquidators, are entitled to seek relief under section 69, and the requirement for a deputy sheriff's inventory does not apply in voluntary liquidation where assets are subject to a tacit hypothec and have been inventoried by an authorised agent. The applicants have made out a proper case for declaratory relief regarding the respondent's contraventions of sections 142 and 145 of the Insolvency Act, and referral to the National Prosecuting Authority is appropriate. The respondent's...

Court Disposition

Application granted. All points in limine dismissed. Relief in Parts A and B granted as sought.

Orders

  • Applicants are authorised under section 18(3) of the Insolvency Act, read with section 386(4) of the Companies Act, to launch this application.
  • Applicants are authorised under section 69 of the Insolvency Act to enter properties 39 – 41 Toekoms Street, Upington.