South Africa Case Law

Laher v Fitzgerald and Others (2023/039641)

Laher v Fitzgerald and Others (2023/039641) [2024] ZAGPJHC 401 (18 April 2024)

Court

South Gauteng High Court, Johannesburg

Case number

2023/039641

Judge

H A van der Merwe

The application to set aside the summons fails because the commissioner’s decision to issue the summons is not open to attack on the facts presented. Mr Laher approved substantial payments to Silver Touch for which no explanation is provided, and his evidence is relevant to the affairs of the company in liquidation. The permissible bounds of the enquiry include investigating such transactions. The applicant is at liberty to object to any impermissible questions during the enquiry, and there is no reason to believe the commissioner will not properly address such objections. The court is not re…

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• Companies Act Section 417 418
• Liquidation Enquiry
• Summons Review
• Abuse Of Process

Du Preez and Another v Hantle Infra Planning (Pty) Ltd and Others (1214/2021;1303/2021)

Du Preez and Another v Hantle Infra Planning (Pty) Ltd and Others (1214/2021;1303/2021) [2023] ZAECQBHC 22 (4 April 2023)

Court

Eastern Cape High Court, Gqeberha

Case number

1214/2021;1303/2021

Judge

Bands AJ

The court found that the applicants, as prospective witnesses and not parties to the original ex parte application, lacked the necessary locus standi to seek an order declaring the enquiry order unlawful and void ab initio. Their interest in the proceedings was limited and did not entitle them to intervene after the order had been granted. The grounds for resisting such an order are narrowly confined to jurisdiction, hardship, or exceptional circumstances, none of which were present. The related costs application was dismissed as moot, since the enquiry had already been postponed and the appl…

Source excerpt

• Companies Act Section 417 418
• Locus Standi
• Ex Parte Orders
• Liquidation Enquiry
• Costs Order

Grapentin and Another v Sue McGuinness Communications CC and Others (2018/15776)

Grapentin and Another v Sue McGuinness Communications CC and Others (2018/15776) [2021] ZAGPJHC 569; [2022] 1 All SA 228 (GJ) (19 October 2021)

Court

South Gauteng High Court, Johannesburg

Case number

2018/15776

Judge

J.L. Khan

The High Court reviewed a Master’s section 70(4) certificate, finding PAJA procedural unfairness and setting aside the certificate and resulting judgment.

• Promotion Of Administrative Justice Act
• Procedural Fairness
• Close Corporations Act
• Liquidation Enquiry
• Internal Remedy Exhaustion
• Conversion Of Certificate To Judgment

Engelbrecht v Master of the High Court, Free State Division, Bloemfontein and Others (5148/2019)

Engelbrecht v Master of the High Court, Free State Division, Bloemfontein and Others (5148/2019) [2021] ZAFSHC 26 (5 February 2021)

Court

Free State High Court, Bloemfontein

Case number

5148/2019

Judges

C Van Zyl, NM Mbhele

The court found that section 417 of the Companies Act clearly restricts the conduct of an enquiry into the affairs of a company in liquidation to the Master or the court. The statutory language does not permit delegation of this function to counsel or other parties unless a commissioner is formally appointed under section 418, which was not the case here. The court agreed with the reasoning in Swart v Master of the High Court and distinguished the respondents' reliance on R v Herholdt, noting that the latter case dealt with different statutory provisions and circumstances. The court held that…

Source excerpt

• Companies Act Section 417
• Liquidation Enquiry
• Administrative Review
• Promotion Of Administrative Justice Act
• Procedural Irregularity

Roering NO and Another v Mahlangu and Others (581/2015)

Roering NO and Another v Mahlangu and Others (581/2015) [2016] ZASCA 79; [2016] 3 All SA 466 (SCA); 2016 (5) SA 455 (SCA) (30 May 2016)

Court

Supreme Court of Appeal

Case number

581/2015

Judges

Wallis, Willis, Saldulker, Zondi, Tsoka

The Supreme Court of Appeal held that the summons issued to Ms Mahlangu to attend the liquidation enquiry did not constitute an abuse of process. The liquidators had legitimate reasons to seek her testimony, as she possessed relevant information regarding the Department's dealings with 3P Consulting, which was the principal asset of the company in liquidation. The overlap between the issues canvassed at the enquiry and those in pending litigation was not, by itself, sufficient to infer abuse. The statutory purpose of the enquiry under ss 417 and 418 of the Companies Act 61 of 1973 includes en…

Source excerpt

• Liquidation Enquiry
• Abuse Of Process
• Summons To Attend
• Companies Act 1973
• Review Of Commissioner Decision

Patel v Master of the High Court, Western Cape Division, Cape Town and Others (7163/14, 21236/2014)

Patel v Master of the High Court, Western Cape Division, Cape Town and Others (7163/14, 21236/2014) [2015] ZAWCHC 63 (15 May 2015)

Court

Western Cape High Court, Cape Town

Case number

7163/14, 21236/2014

Judge

Cloete

The court reviewed and set aside the Master’s decision to convene a section 417 and 418 enquiry to interrogate a liquidator about liquidation administration.

• Review Of Administrative Action
• Liquidation Enquiry
• Powers Of Master
• Interpretation Of Statutes
• Legality Principle
• Costs Award

Garcao v Master of the Northern Cape High Court, Kimberley and Others (185/13)

Garcao v Master of the Northern Cape High Court, Kimberley and Others (185/13) [2015] ZANCHC 10 (8 May 2015)

Court

Northern Cape High Court, Kimberley

Case number

185/13

Judges

BM Pakati, L Lever

The court found that the enquiry was properly convened under sections 417 and 418 of the Companies Act, as expressly stated in both the court order and the heading of the subpoena. The Assistant Master acted as a commissioner appointed in terms of section 418, and the proceedings complied with the statutory requirements. The applicant's argument that only the Master could conduct the enquiry was not supported by the wording of the Act or the facts. The applicant failed to provide particularity regarding alleged procedural unfairness and did not demonstrate prejudice. He also failed to address…

Source excerpt

• Liquidation Enquiry
• Companies Act Section 417
• Companies Act Section 418
• Review Of Proceedings
• Condonation
• Powers Of Liquidators

Mahlangu v Master of the South Gauteng High Court and Others (2013/37534)

Mahlangu v Master of the South Gauteng High Court and Others (2013/37534) [2015] ZAGPJHC 3 (26 January 2015)

Court

South Gauteng High Court, Johannesburg

Case number

2013/37534

Judge

T L Mosikatsana

The court found that the summons issued to the applicant under sections 417 and 418 of the Companies Act constituted an abuse of process. The applicant was not an officer or controlling mind of 3P Consulting and owed no fiduciary duty to its shareholders or creditors. Her relationship with 3P Consulting was adversarial and at arm's length, as she was an executive officer of the department involved in litigation with the company. The court held that the enquiry was being used to gain pre-trial forensic advantages not permitted by the rules of court, such as discovery and inspection, and that t…

Source excerpt

• Companies Act 1973 Section 417
• Liquidation Enquiry
• Abuse Of Process
• Summons Setting Aside
• Fiduciary Duty
• Pre Trial Discovery

Nyathi and Others v Cloete NO and Others (2012/7667)

Nyathi and Others v Cloete NO and Others (2012/7667) [2012] ZAGPJHC 154; 2012 (6) SA 631 (GSJ) (7 September 2012)

Court

South Gauteng High Court, Johannesburg

Case number

2012/7667

Judge

FHD Van Oosten

High Court review of a liquidation enquiry ruling: oral examination was preferred over written interrogatories, subpoenas were upheld, and punitive costs were ordered.

• Companies Act 1973
• Liquidation Enquiry
• Commissioner Discretion
• Subpoena Validity
• Oral Vs Written Interrogatories
• Liquidation-enquiry

Huang v Bester NO (A5041/11)

Huang v Bester NO (A5041/11) [2012] ZAGPJHC 111; 2012 (5) SA 551 (GSJ) (30 May 2012)

Court

South Gauteng High Court, Johannesburg

Case number

A5041/11

Judges

Satchwell, Mayat, Tshabalala

The court held that a section 423 Companies Act enquiry in a winding-up may be delegated to a commissioner under section 418. The appeal was dismissed.

• Companies Act Section 418
• Companies Act Section 423
• Delegation Of Judicial Powers
• Liquidation Enquiry
• Just And Equitable Winding Up
• Companies-act-section-418