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South Africa decisions
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NSP Unsgaard (Pty) Ltd v Master of the High Court, Cape Town and Another (11371/2022) [2023] ZAWCHC 223 (28 August 2023)
The High Court reviewed and set aside the Master’s decision on a pre-liquidation set off, then held the set off should be disregarded under section 46 of the Insolvency Act.
Bester N.O and Others v CTS Trailers (Pty) Limited and Another (4372/2020) [2020] ZAWCHC 191; 2021 (4) SA 180 (WCC) (15 December 2020)
High Court granted leave to appeal over the interpretation of section 46 of the Insolvency Act and the role of the Master’s certificate in disregarding set-off.
Bester N.O and Others v CTS Trailers (Pty) Ltd and Another (4372/2020) [2020] ZAWCHC 186; 2021 (4) SA 167 (WCC) (16 November 2020)
The High Court held that the Master’s approval under section 46 let liquidators disregard a disputed set-off, but referred key payment issues to oral evidence.
Bester NO and Others v CTS Trailers (Pty) Ltd and Another (4372/2020) [2020] ZAWCHC 169 (16 October 2020)
The court held that the Master’s section 46 approval let the liquidators disregard set-off, but factual disputes over a related payment required oral evidence.
T-Systems (Pty) Ltd v BDM Technology Services (Pty) Ltd and Others; In re BDM Technology Services (Pty) Ltd and Others v T-Systems (Pty) Ltd (2019/39986) [2020] ZAGPJHC 243 (7 October 2020)
High Court held that objections to a summary judgment application were substantive, not procedural, and could not be pursued under Rule 30.
Ramodike NO and Another v MGG Productions (Pty) Ltd (38218/2018) [2020] ZAGPJHC 199 (17 August 2020)
Leave to appeal was refused in a dispute about section 46 of the Insolvency Act and whether a set-off occurred in the ordinary course of business.
MGG Productions (Pty) Ltd v Ramodike NO and Others (38218/2018) [2020] ZAGPJHC 4; 2021 (4) SA 543 (GJ) (16 January 2020)
The court found that the Master’s decision to disregard the set-off was arbitrary and unsupported by adequate reasons. Upon reconsideration of the facts, the court held that the set-off was effected in the ordinary course of business. The reciprocal debts arose from legitimate transactions, were market-related, and the set-off was a common business practice. There was no evidence of collusion, fraud, or substantial disturbance to the distribution of the insolvent estate’s assets. The change from 90-day credit to cash on delivery and the wiping of the slate were normal commercial responses to…
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Al-Kharafi & Sons and Another v Pema and Others NNO (2008/12359) [2008] ZAGPHC 273 (27 August 2008)
The court found that the set-off and cession between Kharafi and Protech were not effected in the ordinary course of business. The transaction was unique, of extraordinary size, and executed in a roundabout manner, with no evidence of similar transactions between the parties or in the industry. The cession was intended to avoid payment of arbitration indebtedness and to prejudice other creditors, amounting to a fraud on third parties. The applicants failed to establish that MAK and Kharafi operated as a single economic entity justifying the piercing of the corporate veil, as their ownership a…
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