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South Africa Case Law

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Commercial And Corporate [2012] ZAWCHC 264

Gihwala NO and Another v Bam (4268/2008)

Gihwala NO and Another v Bam (4268/2008) [2012] ZAWCHC 264 (23 May 2012)

Court
Western Cape High Court, Cape Town
Case number
4268/2008
Judge
Allie

The court found that the payments made to the defendant for the sale of shares were in contravention of section 38 of the old Companies Act and constituted illegal financial assistance. The agreement and payments were void for illegality, and the defendant was unjustly enriched. The defence of res judicata failed because the parties and causes of action differed from the prior litigation, and the curators' claim was not prescribed as prescription only began running upon their appointment. The fraudulent conduct and knowledge of the directors could be imputed to the companies, but not to the c…

Source excerpt

  • Unjust Enrichment
  • Condictio Ob Turpem Vel Iniustam Causam
  • Section 38 Companies Act
  • Prescription
  • In Pari Delicto
  • Curatorship Liability
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Civil Procedure [2007] ZAGPHC 12

Phillips and Others v van den Heever NO and Others (A5055/05)

Phillips and Others v van den Heever NO and Others (A5055/05) [2007] ZAGPHC 12; [2007] 3 All SA 159 (W); 2007 (4) SA 511 (W) (8 March 2007)

Court
High Courts - Gauteng
Case number
A5055/05
Judges
Satchwell, Mayat, Salduker

The court held that the costs orders made against van den Heever were issued against him in his representative capacity as curator bonis, not personally. The absence of explicit wording such as 'de bonis propriis' and the context of the orders, which consistently cited van den Heever in his representative capacity, indicated no intention to impose personal liability. Section 78 of POCA further shields curators from personal liability for actions taken in good faith. The court found no evidence that van den Heever was warned or found to have acted in bad faith or outside his fiduciary duties i…

Source excerpt

  • Curatorship Liability
  • Costs Orders
  • Arbitration Award Enforcement
  • Taxation Of Costs
  • Restraint Order Under Poca
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About this LexChat collection

South Africa decisions are organised by court, judge, legal area and indexed issue so a practitioner can move from a proposition to a citable authority with the surrounding context intact.

Source links and collection timestamps are retained alongside the indexed records.