Wishart and Others v BHP Billiton Coal South Africa (Pty) Limited and Others (162/2016) [2016] ZASCA 164; [2017] 1 All SA 90 (SCA); 2017 (4) SA 152 (SCA) (16 November 2016)

Wishart and Others v BHP Billiton Coal South Africa (Pty) Limited and Others (162/2016) [2016] ZASCA 164; [2017] 1 All SA 90 (SCA); 2017 (4) SA 152 (SCA) (16 November 2016)

The Supreme Court of Appeal held that section 44(1) of the Insolvency Act 24 of 1936 applies to the proof of claims in the winding-up of companies under the Companies Act 61 of 1973, including the time period for proof and the possibility of late proof with leave of the Master or the court. The provisions of section 366 of the Companies Act are complementary and do not exclude section 44(1). The first exception to the appellants' particulars of claim was therefore wrongly upheld and must be dismissed. Regarding expungement of claims, the court found that the power to expunge a claim is conferred solely on the Master under section 407 of the Companies Act, and a court may only review the...

Citation
[2016] ZASCA 164
Parties
Appellant: Wishart, Grant Logan NO; Appellant: Goebel, Arno NO; Appellant: Wishart, Malcolm Grant NO; Appellant: Penguin Mining & Plant (Pty) Limited; Appellant: Colt Mining (Pty) Limited; Respondent: BHP Billiton Energy Coal South Africa (Pty) Limited; Respondent: Euro Coal (Pty) Limited (in liquidation); Respondent: Klein, Norman NO; Respondent: Van Den Heever, Theodore Wilhelm NO; Respondent: Master of the High Court, Gauteng South, Johannesburg; Respondent: Companies and Intellectual Property Commission (CIPC)
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
16 November 2016
Case Number
162/2016
Procedural Posture
Civil Appeal / Appeal From Gauteng Local Division, High Court, Johannesburg
Outcome
The appeal against the order upholding the first exception is upheld with costs; the order is replaced with dismissal of the first exception. The appeal against the order upholding the second exception is dismissed with costs, including the costs of two counsel.
Judges
Lewis, Cachalia, Mathopo, Mocumie, Makgoka
Legal Topics
Winding Up of Companies, Proof of Claims, Expungement of Claims, Late Proof of Claims, Master's Powers, Exceptions to Pleadings
Civil Procedure Commercial and Corporate Winding Up of Companies Proof of Claims Expungement of Claims Late Proof of Claims Master's Powers Exceptions to Pleadings

Case Brief

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Parties

Wishart, Grant Logan NO

Appellant

Goebel, Arno NO

Appellant

Wishart, Malcolm Grant NO

Appellant

Penguin Mining & Plant (Pty) Limited

Appellant

Colt Mining (Pty) Limited

Appellant

BHP Billiton Energy Coal South Africa (Pty) Limited

Respondent

Euro Coal (Pty) Limited (in liquidation)

Respondent

Klein, Norman NO

Respondent

Van Den Heever, Theodore Wilhelm NO

Respondent

Master of the High Court, Gauteng South, Johannesburg

Respondent

Companies and Intellectual Property Commission (CIPC)

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Local Division, High Court, Johannesburg

Legal Issues

  1. 1 Does section 44(1) of the Insolvency Act 24 of 1936 apply to the proof of claims in the winding-up of companies under the Companies Act 61 of 1973?
  2. 2 Is the power to expunge a claim in a company winding-up vested solely in the Master, or does the court have jurisdiction to expunge claims directly?
  3. 3 Did the appellants perempt their right to appeal by requesting an extension to amend pleadings after the order on exceptions?

Ratio Decidendi

The Supreme Court of Appeal held that section 44(1) of the Insolvency Act 24 of 1936 applies to the proof of claims in the winding-up of companies under the Companies Act 61 of 1973, including the time period for proof and the possibility of late proof with leave of the Master or the court. The provisions of section 366 of the Companies Act are complementary and do not exclude section 44(1). The first exception to the appellants' particulars of claim was therefore wrongly upheld and must be dismissed. Regarding expungement of claims, the court found that the power to expunge a claim is conferred solely on the Master under section 407 of the Companies Act, and a court may only review the...

Court Disposition

The appeal against the order upholding the first exception is upheld with costs; the order is replaced with dismissal of the first exception. The appeal against the order upholding the second exception is dismissed with costs, including the costs of two counsel.

Orders

  • The appeal against the order upholding the first exception is upheld with costs. The order is replaced with: 'The first exception to the particulars of claim is dismissed with costs.'
  • The appeal against the order upholding the second exception is dismissed with costs including the costs of two counsel.