South Africa Case Law

Auto and Truck Tyres (Pty) Ltd v Symes and Others (2019/34782)

Auto and Truck Tyres (Pty) Ltd v Symes and Others (2019/34782) [2024] ZAGPJHC 425 (2 May 2024)

Court

South Gauteng High Court, Johannesburg

Case number

2019/34782

Judge

RJ Moultrie

The court held that the defendant may not amend its plea to deny that the pleaded payments were made to it, as this would contradict its own factual averments and documentary evidence. However, the defendant may amend its plea to clarify that it did not receive or benefit from the payments, as no binding admission to the contrary was made in the pleadings. The withdrawal of the pre-trial admission regarding the plaintiffs' status as joint liquidators and the company's winding up is refused, as the defendant provided no explanation for the withdrawal and such admissions are binding unless spec…

Source excerpt

• Insolvency Act Section 26
• Pleading Amendment
• Withdrawal Of Admission
• Liquidation
• Dispositions Without Value

Pollock N.O and Others v Makhavhu (1812/2022)

Pollock N.O and Others v Makhavhu (1812/2022) [2024] ZALMPTHC 14 (16 February 2024)

Court

Limpopo High Court, Thohoyandou

Case number

1812/2022

Judge

IM Khosa

The High Court set aside 38 payments from insolvent Vele Investments to Paul Makhavhu as dispositions without value, refused postponement, and dismissed a non-joinder objection.

• Insolvency Act Section 26
• Dispositions Without Value
• Liquidation
• Unjustified Enrichment
• Postponement
• Non Joinder

Van Wyk Van Heerden Attorneys v Gore N.O and Another (828/2021)

Van Wyk Van Heerden Attorneys v Gore N.O and Another (828/2021) [2022] ZASCA 128; [2022] 4 All SA 649 (SCA); 2023 (1) SA 80 (SCA) (30 September 2022)

Court

Supreme Court of Appeal

Case number

828/2021

Judges

Van der Merwe, Makgoka, Gorven, Goosen, Masipa

The Supreme Court of Appeal held that a deposit into an attorney’s trust account is only impeachable under s 26(1)(b) if the attorney benefited.

• Insolvency Act Section 26
• Attorneys Trust Accounts
• Dispositions Without Value
• Onus Of Proof
• Companies Act Section 340
• Benefit Requirement

Gore N.O and Another v Ward and Another (2977/2021)

Gore N.O and Another v Ward and Another (2977/2021) [2022] ZAWCHC 3; 2022 (4) SA 213 (WCC) (31 January 2022)

Court

Western Cape High Court, Cape Town

Case number

2977/2021

Judge

Binns-Ward

The court found that Brandstock Exchange (Pty) Ltd, through its sole director Philp, entered into a contract with Louw, who paid funds into Brandstock's account. Despite Philp's fraudulent conduct, Brandstock acquired rights to the funds and exercised its power of disposal by making payments to the respondents. These payments were not made for value and adversely affected Brandstock's ability to reimburse its creditor, Louw. The court held that the payments constituted dispositions without value under section 26 of the Insolvency Act and section 340 of the Companies Act. The respondents were…

Source excerpt

• Insolvency Act Section 26
• Companies Act Section 340
• Dispositions Without Value
• Liquidation
• Unjust Enrichment

Gore N.O and Another v Van Wyk Van Heerden Attorneys Incorporated (17897/2019)

Gore N.O and Another v Van Wyk Van Heerden Attorneys Incorporated (17897/2019) [2021] ZAWCHC 95; [2022] 2 All SA 178 (WCC) (10 May 2021)

Court

Western Cape High Court, Cape Town

Case number

17897/2019

Judge

Magona

The application for leave to appeal was refused because the respondent failed to demonstrate reasonable prospects of success or any compelling reason for the appeal to be heard. The court found that the payments made by Brandstock Exchange (Pty) Ltd to the respondent's trust account were dispositions without value as contemplated by section 26(1) of the Insolvency Act and section 340 of the Companies Act. The respondent benefitted from the payments, as it had control and disposal over the funds, fulfilling the 'benefit' requirement. The court dismissed the respondent's arguments regarding the…

Source excerpt

• Insolvency Act Section 26
• Companies Act Section 340
• Dispositions Without Value
• Attorneys Trust Accounts
• Leave To Appeal
• Mora Interest

Strydom N.O and Others v Brandt (4579/2019)

Strydom N.O and Others v Brandt (4579/2019) [2021] ZALMPPHC 24 (6 May 2021)

Court

Limpopo High Court, Polokwane

Case number

4579/2019

Judge

Makgoba JP

The High Court set aside payments made by insolvent Free Agape Enterprises to the defendant as dispositions without value under section 26 of the Insolvency Act.

• Insolvency Act Section 26
• Dispositions Without Value
• Liquidation
• Pyramid Scheme
• Onus Of Proof
• Insolvency-act-section-26

Van Zyl and Another v Kolsch (23207/2014)

Van Zyl and Another v Kolsch (23207/2014) [2018] ZAGPJHC 115 (18 April 2018)

Court

South Gauteng High Court, Johannesburg

Case number

23207/2014

Judge

C.H. Nicholls

Liquidators set aside payments to a consul-general as dispositions without value and defeated a consular immunity defence.

• Insolvency Act Section 26
• Dispositions Without Value
• Liquidation
• Diplomatic Immunity
• Onus Of Proof
• Insolvency-act-section-26

Theba and Others; Bhana and Others; Essay and Others; Bhana and Others v Aurora Empowerment Systems (Pty) Ltd and Others (73173/2014; 73174/2014; 73175/2014; 73763/2014)

Theba and Others; Bhana and Others; Essay and Others; Bhana and Others v Aurora Empowerment Systems (Pty) Ltd and Others (73173/2014; 73174/2014; 73175/2014; 73763/2014) [2015] ZAGPPHC 695 (7 September 2015)

Court

North Gauteng High Court, Pretoria

Case number

73173/2014;73174/2014;73175/2014;73763/2014

Judge

E Bertelsmann

Rescission applications were dismissed after the court found no adequate default explanation and no real basis to dispute Aurora’s insolvency.

• Insolvency
• Rescission Of Judgment
• Dispositions Without Value
• Undue Preference
• Collusive Dealing
• Common Law Fraud

African National Congress v Steenkamp N.O and Others (12036/2013)

African National Congress v Steenkamp N.O and Others (12036/2013) [2014] ZAWCHC 80 (30 May 2014)

Court

Western Cape High Court, Cape Town

Case number

12036/2013

Judge

J Cloete

The High Court dismissed an application to expunge a proven insolvency claim, holding the applicant lacked locus standi and the claim complied with section 44(4).

• Proof Of Claim
• Locus Standi
• Expungement Of Claim
• Insolvency Act Section 44
• Dispositions Without Value
• Insolvency-law

ABSA Bank Ltd v Intensive Air (Pty) Ltd (In Liquidation) and Others (2011 (2) SA 275 (SCA);

ABSA Bank Ltd v Intensive Air (Pty) Ltd (In Liquidation) and Others (2011 (2) SA 275 (SCA); [2011] 3 All SA 2 (SCA)) [2010] ZASCA 171; 31/2010 (1 December 2010)

Court

Supreme Court of Appeal

Case number

31/2010

Judges

Harms, Cachalia, Snyders, Shongwe, Bertelsmann

The court held that the respondents failed to prove that the funds in the ticket account belonged to the company rather than to Louw personally. The account was opened and conducted in Louw's name, and there was no evidence of any agreement with the bank to treat the funds as those of the company. The existence of a loan account in the company did not establish a contractual relationship between the bank and the company. The bank was entitled to set-off the credit balance in Louw's personal account against his personal indebtedness. The appeal was upheld, and the order of the full court was s…

Source excerpt

• Banker Customer Relationship
• Set Off
• Company Liquidation
• Dispositions Without Value