South Africa Case Law

Janse van Rensburg and Others v WAD Holdings (Pty) Ltd and Others (29458/2022)

Janse van Rensburg and Others v WAD Holdings (Pty) Ltd and Others (29458/2022) [2022] ZAGPPHC 974 (5 December 2022)

Court

North Gauteng High Court, Pretoria

Case number

29458/2022

Judge

N Davis

The court found that the urgency relied upon by the applicants was entirely self-created, arising from their own dilatory conduct in prosecuting multiple actions, arbitrations, and applications over several years. The applicants failed to advance their litigation with diligence, and the imminent sale of shares was a foreseeable event that could have been addressed earlier. The court held that there were no compelling interests of justice, such as fraud or collusion, to justify indulgence of the urgent application. The applicants' repeated changes of position and procedural manoeuvres amounted…

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• Self Created Urgency
• Interdict Pendente Lite
• Costs Award
• Share Sale Dispute
• Actio Pauliana
• Delay In Litigation

Muller and Others v Gomes and Another (8699/2020)

Muller and Others v Gomes and Another (8699/2020) [2021] ZAGPPHC 361 (18 May 2021)

Court

North Gauteng High Court, Pretoria

Case number

8699/2020

Judge

van der Westhuizen

The court granted leave to amend particulars of claim, finding the respondents’ objections under Rule 28(3) were not clear and concise.

• Amendment Of Pleadings
• Insolvency Act Section 26
• Insolvency Act Section 31
• Actio Pauliana
• Fraudulent Disposition
• Liquidation Proceedings

CJ Pharmaceuticals Enterprises (Pty) Ltd and Others v Main Road Centurion 30201 CC t/a Albermarle Pharmacy and Another (7909/2020)

CJ Pharmaceuticals Enterprises (Pty) Ltd and Others v Main Road Centurion 30201 CC t/a Albermarle Pharmacy and Another (7909/2020) [2020] ZAGPJHC 353; 2021 (5) SA 246 (GJ) (21 December 2020)

Court

South Gauteng High Court, Johannesburg

Case number

7909/2020

Judge

JT BoltAR

The High Court held that a pharmacy business transfer was only relatively void under section 34(1) of the Insolvency Act, and dismissed claims to set it aside.

• Insolvency Act Section 34
• Actio Pauliana
• Business Rescue
• Declaratory Relief
• Fraudulent Collusion
• Insolvency-act-section-34

Ameropa Commodities (Pty) Limited v Benchimol N.O and Others (D2873/2019)

Ameropa Commodities (Pty) Limited v Benchimol N.O and Others (D2873/2019) [2020] ZAKZDHC 14 (5 June 2020)

Court

Kwazulu-Natal High Court, Durban

Case number

D2873/2019

Judge

Steyn

The court held that the Registrar of Deeds does not have a direct and substantial interest in the matter and need not be joined, as the order sought does not itself set aside the transfer but declares the alienation fraudulent. The plaintiff was not required to attach the sale agreement, as the cause of action is the alienation of the property in fraud of creditors, and the requirements of the actio Pauliana were properly pleaded. The plaintiff, as a concurrent creditor, has locus standi to invoke the actio Pauliana, seeking restoration of the property to the insolvent estate. The exception w…

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• Actio Pauliana
• Fraudulent Alienation
• Non Joinder
• Locus Standi
• Deeds Registries Act
• Creditor Remedies

Steloy Castings (Pty)Ltd and Others v B&K Castings (Pty)Ltd. (49326/2015)

Steloy Castings (Pty)Ltd and Others v B&K Castings (Pty)Ltd. (49326/2015) [2016] ZAGPPHC 673 (20 July 2016)

Court

North Gauteng High Court, Pretoria

Case number

49326/2015

Judge

Madima

The court found that the respondent was established for the sole purpose of evading the creditors of Bernades & Kin Foundry CC and fraudulently acquired its assets without payment. The transaction was structured to defeat the rights of creditors and constituted an alienation in fraudem creditorum, satisfying the requirements for the actio Pauliana and the relevant sections of the Insolvency Act. The applicants had locus standi, having properly indemnified the liquidators. The respondent was deemed the alter ego of the insolvent entity, and the corporate veil was pierced to treat the responden…

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• Piercing Corporate Veil
• Actio Pauliana
• Fraudulent Conveyance
• Insolvency Act Section 34
• Locus Standi
• Unlawful Competition

Stuart N.O and Others v Moolla N.O and Others (2816/2016, 2817/2016, 2818/2016, 2819/2016, 2820/2016, 2821/2016, 2822/2016)

Stuart N.O and Others v Moolla N.O and Others (2816/2016, 2817/2016, 2818/2016, 2819/2016, 2820/2016, 2821/2016, 2822/2016) [2016] ZAKZDHC 18 (29 April 2016)

Court

Kwazulu-Natal High Court, Durban

Case number

2816/2016, 2817/2016, 2818/2016, 2819/2016, 2820/2016, 2821/2016, 2822/2016

Judge

Topping AJ

The High Court granted provisional sequestration orders against seven trusts linked to Carmol Distributors, finding business rescue had not properly commenced.

• Insolvency Act
• Provisional Sequestration
• Banking Regulation
• Actio Pauliana
• Business Rescue
• Service Of Process

Commissioner for the South African Revenue Service v Metlika Trading Limited and Others (20827/2002)

Commissioner for the South African Revenue Service v Metlika Trading Limited and Others (20827/2002) [2010] ZAGPPHC 170; 72 SATC 241 (5 August 2010)

Court

North Gauteng High Court, Pretoria

Case number

20827/2002

Judge

A P Ledwaba

The court found, on the balance of probabilities, that the transfer of assets from Ben Nevis to Metlika was effected with the intention to frustrate SARS's ability to recover tax debts. Documentary evidence and internal communications demonstrated that Bermuda Trust and King were aware of South African tax liabilities and orchestrated the transfer to evade SARS's claims. The urgency and structuring of the transfer, as well as explicit references to presenting a 'blind alley' to revenue investigations, indicated dishonesty and improper motive. The court held that the circumstances justified pi…

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• Piercing Corporate Veil
• Actio Pauliana
• Income Tax Liability
• Fraudulent Transfer
• Company Structures
• Asset Dissipation

Coetzee and Others v Venter NO and Another (A385/2007)

Coetzee and Others v Venter NO and Another (A385/2007) [2009] ZAFSHC 4 (26 January 2009)

Court

Free State High Court, Bloemfontein

Case number

A385/2007

Judges

Cillié R, Ebrahim R, Mocumie R

High Court appeal over whether a notarial lease was a fraudulent transaction aimed at defeating creditors. The appeal was dismissed with costs.

• Actio Pauliana
• Fraudulent Conveyance
• Creditor Protection
• Notarial Lease
• Burden Of Proof
• Actio-pauliana

Liquidators of Tradefirm 195 (Pty) Ltd v Kroons Gourmet Chickens (Pty) Ltd (4945/2007)

Liquidators of Tradefirm 195 (Pty) Ltd v Kroons Gourmet Chickens (Pty) Ltd (4945/2007) [2007] ZAGPHC 334 (30 November 2007)

Court

High Courts - Gauteng

Case number

4945/2007

Judge

M J Ramagaga

The court set aside a sham sale of a poultry business, finding it was structured to defeat SARS and that no real price or payment was proved.

• Actio Pauliana
• Insolvency Dispositions
• Preferential Creditor Treatment
• Companies Act Section 228
• Sale Of Business
• Tax Avoidance

Venter NO and Another v Coetzee and Others (5704/2005)

Venter NO and Another v Coetzee and Others (5704/2005) [2006] ZAFSHC 12 (1 June 2006)

Court

Free State High Court, Bloemfontein

Case number

5704/2005

Judge

Kruger R

The court found that the applicants, as liquidators and creditors of the first respondent, had established all the requirements for the Actio Pauliana. The notarial lease agreement was entered into at a time when the first respondent was aware of investigations into his business and the likelihood of insolvency. The lease placed virtually all his assets beyond the reach of creditors for an extended period, with no genuine consideration provided by the second and third respondents. The timing and circumstances of the transaction, including the involvement of family members and the registration…

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• Actio Pauliana
• Fraudulent Conveyance
• Insolvency Proceedings
• Declaratory Relief
• Burden Of Proof