South Africa Case Law

Modisakeng v Bapho Ba Mogale Investments NPC and Others (M579/2023)

Modisakeng v Bapho Ba Mogale Investments NPC and Others (M579/2023) [2023] ZANWHC 227 (14 December 2023)

Court

North West High Court, Mafikeng

Case number

M579/2023

Judge

Petersen

The applicant, as the appointed representative of the sole shareholder, has locus standi to bring the application. All proven claims against Bapho Ba Mogale Investments NPC have been settled, and a surplus remains for the benefit of the community. The company holds valuable financial interests in dividend-yielding subsidiaries, and the applicant undertakes to ensure proper governance. The subsequent events demonstrate that the continuance of the winding-up is unnecessary and undesirable. The court exercises its discretion under section 354(1) of the Companies Act to set aside the winding-up o…

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• Setting Aside Winding Up
• Companies Act Section 354
• Locus Standi
• Liquidation Distribution
• Shareholder Rights

Alert Steel (Pty) Ltd v Mercantile Bank Ltd (165/21)

Alert Steel (Pty) Ltd v Mercantile Bank Ltd (165/21) [2022] ZASCA 96 (21 June 2022)

Court

Supreme Court of Appeal

Case number

165/21

Judges

Van der Merwe, Molemela, Schippers, Musi, Matojane

The Supreme Court of Appeal dismissed a liquidator’s claim to recover sale proceeds paid to a secured creditor, holding that enrichment was not proved.

• Condictio Indebiti
• Condictio Sine Causa
• Secured Creditor Rights
• Liquidation Distribution
• Unjustified Enrichment
• Unjustified-enrichment

Absa Bank Limited v Van Eeden and Others (4078/2012)

Absa Bank Limited v Van Eeden and Others (4078/2012) [2018] ZAECPEHC 14 (27 March 2018)

Court

Eastern Cape High Court, Port Elizabeth

Case number

4078/2012

Judge

Goosen

The court dismissed ABSA’s suretyship claims after finding material non-disclosure about a prior bond and, alternatively, that the principal debt had been discharged.

• Suretyship
• Non Disclosure
• Rectification Of Contract
• Appropriation Of Payments
• Liquidation Distribution
• Accessory Liability

Van Der Merwe and Others v UTI South Africa Proprietary Limited and Others (11033/2014)

Van Der Merwe and Others v UTI South Africa Proprietary Limited and Others (11033/2014) [2014] ZAKZDHC 61 (17 December 2014)

Court

Kwazulu-Natal High Court, Durban

Case number

11033/2014

Judge

Annanbale

The court held that SARS had security for unpaid duty and VAT, but no embargo preventing liquidators from taking possession and realising the imported equipment.

• Customs And Excise Liens
• Statutory Preference
• Liquidation Distribution
• Release Of Assets
• Ranking Of Creditors
• Customs-and-excise-liens

Land & Agricultural Development Bank of SA v Master of the North Gauteng High Court and Others (60959/2011)

Land & Agricultural Development Bank of SA v Master of the North Gauteng High Court and Others (60959/2011) [2013] ZAGPPHC 545 (8 April 2013)

Court

North Gauteng High Court, Pretoria

Case number

60959/2011

Judge

Tuchten

The court held that the protection conferred by section 102 of the Insolvency Act, 1936, to holders of general notarial bonds is limited to the nett value of the goods encumbered by the bond. Once the bondholder has received the full value of the movables as a secured creditor, no further allocation from the free residue is permissible. The legislative history and case law consistently restrict the preference to the value of the mortgaged movables, and there is no basis for extending preference to proceeds of immovable property or beyond the value of the movables. The interpretation advanced…

Source excerpt

• Insolvency Act 1936
• Notarial Bonds
• Creditor Preference
• Liquidation Distribution

Ex Parte: Gore NO and Others (18127/2012)

Ex Parte: Gore NO and Others (18127/2012) [2013] ZAWCHC 21; [2013] 2 All SA 437 (WCC) (13 February 2013)

Court

Western Cape High Court, Cape Town

Case number

18127/2012

Judge

Binns-Ward

The court found that the King Group was operated as a single entity by its controllers, with no meaningful distinction between the holding company and its subsidiaries. The disregard for separate corporate personalities and the misallocation of investors' funds constituted an unconscionable abuse of juristic personality. Section 20(9) of the Companies Act provides a statutory basis for the court to disregard the separate legal existence of the companies and treat their assets as those of the holding company for the purpose of settling investors' claims. The statutory remedy is available whene…

Source excerpt

• Piercing Corporate Veil
• Companies Act Section 20 9
• Group Enterprise Liability
• Liquidation Distribution
• Unconscionable Abuse Of Juristic Personality

KNA Insurance and Investment Brokers (Pty) Ltd (In Liquidation) v South African Revenue Service and Another (15330/05)

KNA Insurance and Investment Brokers (Pty) Ltd (In Liquidation) v South African Revenue Service and Another (15330/05) [2009] ZAGPPHC 28; 71 SATC 155 (17 April 2009)

Court

North Gauteng High Court, Pretoria

Case number

15330/05

Judge

M N S Sithole

High Court tax dispute over section 89quat interest, STC-related mora interest, and a retained amount paid to SARS in liquidation.

• Provisional Tax
• Section 89quat Interest
• Mora Interest
• Condictio Indebiti
• Liquidation Distribution
• Prescribed Rate Of Interest

City of Johannesburg v Kaplan NO and Another (111/05)

City of Johannesburg v Kaplan NO and Another (111/05) [2006] ZASCA 39; 2006 (5) SA 10 (SCA); 68 SATC 286 (29 March 2006)

Court

Supreme Court of Appeal

Case number

111/05

Judges

Harms, Zulman, Streicher, Heher, Cachalia

The Supreme Court of Appeal held that section 118(3) of the Municipal Systems Act creates a statutory charge on property for municipal debts, granting the municipality preference over mortgage bonds. However, when the debtor is subject to liquidation or insolvency, section 118(2) makes the operation of section 118 subject to section 89 of the Insolvency Act. Section 89(4) limits the preference for municipal debts that qualify as 'taxes' under section 89(5) to a two-year period prior to liquidation and from that date until transfer. Debts not qualifying as 'taxes' are not subject to this limit…

Source excerpt

• Municipal Debt Preference
• Insolvency Act Section 89
• Municipal Systems Act Section 118
• Mortgage Bond Priority
• Liquidation Distribution
• Secured Claims

Liberty Investors Ltd v Commissioner for the South African Revenue Service (353/2004)

Liberty Investors Ltd v Commissioner for the South African Revenue Service (353/2004) [2005] ZASCA 69; 2006 (2) SA 1 (SCA); 67 SATC 313 (30 August 2005)

Court

Supreme Court of Appeal

Case number

353/2004

Judges

Howie, Streicher, Brand, Lewis, Ponnan

The court held that the amount received as dividends from the subsidiary was of a revenue nature and that its subsequent transfer to share capital and share premium account did not alter its character. The relevant statutory provisions, specifically the proviso (i) to the definition of 'dividend' in s 1 of the Income Tax Act, require that unless the amount can be shown to consist of profits of a capital nature, it must be deemed to be profits of a revenue nature available for distribution. The appellant failed to demonstrate that the amount in question comprised profits of a capital nature, a…

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• Secondary Tax On Companies
• Dividend Definition
• Capitalisation Shares
• Liquidation Distribution

Uitenhage Transitional Local Council v South African Revenue Service (011/2003)

Uitenhage Transitional Local Council v South African Revenue Service (011/2003) [2003] ZASCA 76; [2003] 4 All SA 37 (SCA); 2004 (1) SA 292 (SCA); 66 SATC 265 (5 September 2003)

Court

Supreme Court of Appeal

Case number

011/2003

Judges

Zulman, Nugent, Heher

The SCA held that a co-operation clause did not require active pursuit of a party’s own claim, and the appeal was reinstated and upheld.

• Contract Interpretation
• Condonation
• Liquidation Distribution
• Exceptio Non Adimpleti Contractus
• Contract-interpretation
• Liquidation-distribution