South Africa Case Law

TG Braaikuikens (Pty) Ltd and Another v MEC: Department of Water and Sanitation, Northern Cape Provincial Operations and Another (430/2025)

TG Braaikuikens (Pty) Ltd and Another v MEC: Department of Water and Sanitation, Northern Cape Provincial Operations and Another (430/2025) [2025] ZANCHC 36 (25 April 2025)

Court

Northern Cape High Court, Kimberley

Case number

430/2025

Judge

Williams

The court found that the respondents' closure of water supply to the applicant's properties constituted unlawful spoliation. The applicants were in peaceful and undisturbed possession of the water rights, and the respondents failed to comply with statutory requirements under section 59(4) of the Water Act by not providing a reasonable opportunity for representations before restricting supply. The court held that, in cases of insolvency, outstanding water charges for the period prior to sequestration must be proved against the insolvent estate in terms of section 44 of the Insolvency Act, and…

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• Mandament Van Spolie
• Water Rights
• Insolvent Estate Liabilities
• Administrative Action Review
• Preferent Claims
• Statutory Interpretation

Emontic Investments (Pty) Ltd v Bothomley NO and Others (1123/2022)

Emontic Investments (Pty) Ltd v Bothomley NO and Others (1123/2022) [2024] ZASCA 1; 2025 (2) SA 66 (SCA) (9 January 2024)

Court

Supreme Court of Appeal

Case number

1123/2022

Judges

Nicholls, Mothle, Meyer, Kathree-Setiloane, Masipa

The SCA held that a secured creditor must pay over net proceeds under s 83(10) of the Insolvency Act and cannot set off post-liquidation rental.

• Winding Up Of Company
• Realisation Of Security
• Set Off
• Insolvency Act Section 83
• Preferent Claims
• Insolvency-law

Smith N.O and Another v Magnus N.O and Others (4220/2022; 4221/2022)

Smith N.O and Another v Magnus N.O and Others (4220/2022; 4221/2022) [2023] ZAFSHC 307 (4 August 2023)

Court

Free State High Court, Bloemfontein

Case number

4220/2022; 4221/2022

Judge

Reinders

The court found that the payments made by the business rescue practitioner to the respondents after the liquidation application but before the provisional liquidation order fell within the ambit of section 341(2) of the Companies Act 61 of 1973. However, exercising its discretion, the court held that these payments were made bona fide in respect of valid and secured claims under lease agreements, benefiting the creditors as a whole. The respondents had a preferent and secure claim, acknowledged by all parties, and the payments were necessary to obtain the proceeds of the crop. The court concl…

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• Company Liquidation
• Business Rescue
• Void Dispositions
• Preferent Claims
• Ratification Of Payments

Vincemus Investments (Pty) Ltd v Bekker N.O. and Others In re: Vincemus Investments (Pty) Ltd v Travea (Pty) Ltd (12477/2020)

Vincemus Investments (Pty) Ltd v Bekker N.O. and Others In re: Vincemus Investments (Pty) Ltd v Travea (Pty) Ltd (12477/2020) [2022] ZAWCHC 207 (28 October 2022)

Court

Western Cape High Court, Cape Town

Case number

12477/2020

Judge

Binns-Ward

The court postponed a costs application in a winding-up matter and issued a further rule nisi on whether the applicant’s costs should rank in Travea’s liquidation.

• Winding Up Proceedings
• Costs In Liquidation
• Concursus Creditorum
• Preferent Claims
• Creditors Objections
• Winding-up-proceedings

Pretorius v Krugel N.O and Others (3326/2022)

Pretorius v Krugel N.O and Others (3326/2022) [2022] ZAMPMBHC 57 (14 July 2022)

Court

Mbombela High Court, Mpumalanga

Case number

3326/2022

Judge

Langa

High Court granted interim maintenance from a deceased estate to a surviving spouse and minor child, holding that the executor could be compelled to act.

• Maintenance Of Surviving Spouse
• Interim Relief
• Administration Of Deceased Estates
• Preferent Claims
• Urgent Application
• Minor Child Maintenance

Morgan Abattoir (Pty) Ltd v Master of the High Court Pretoria NO and Others (72380/2012)

Morgan Abattoir (Pty) Ltd v Master of the High Court Pretoria NO and Others (72380/2012) [2013] ZAGPPHC 202 (3 July 2013)

Court

North Gauteng High Court, Pretoria

Case number

72380/2012

Judge

N.M MAVUNDLA

High Court review concerning whether recovered funds from an attorney trust account fell within a cession of debts and security in liquidation.

• Liquidation And Distribution Account
• Cession Of Debts
• Preferent Claims
• Trust Account Funds
• Concursus Creditorum
• Insolvency

Koka NO and Others v Willow Waters Home Owners Association (Pty) Ltd and Others (20361/12)

Koka NO and Others v Willow Waters Home Owners Association (Pty) Ltd and Others (20361/12) [2013] ZAGPPHC 167 (13 June 2013)

Court

North Gauteng High Court, Pretoria

Case number

20361/12

Judge

BAM

The court held that the right of the Home Owners Association to refuse consent for transfer of property due to unpaid levies and penalties is a personal right, not a real right. This right does not result in a subtraction from the dominium of the property and binds only the present owner, not successors in title. The protection afforded to bodies corporate under the Sectional Titles Act does not extend to home owners associations, and the claim for outstanding levies does not constitute a preferent claim under section 89 of the Insolvency Act. The Registrar of Deeds may effect transfer of the…

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• Real Vs Personal Rights
• Homeowners Association Liens
• Insolvent Estate Transfer
• Preferent Claims
• Section 89 Insolvency Act

Commissioner of the South African Revenue Service v Stand Two Nine Nought Wynberg (Pty) Ltd and Others (324/2004)

Commissioner of the South African Revenue Service v Stand Two Nine Nought Wynberg (Pty) Ltd and Others (324/2004) [2005] ZASCA 55; [2006] 4 All SA 11 (SCA); 2005 (5) SA 583 (SCA); 67 SATC 275 (31 May 2005)

Court

Supreme Court of Appeal

Case number

324/2004

Judges

Howie, Brand, Nugent, Conradie, Van Heerden

The Supreme Court of Appeal held that a liquidator may not bypass the Insolvency Act’s distribution scheme by agreeing to direct payment to one creditor.

• Insolvency Act Distribution
• Liquidator Duties
• Preferent Claims
• Agency Liquidator
• Scheme Of Distribution
• Insolvency-law

Eastern Metropolitan Substructure of the Greater Johannesburg Transitional Metropolitan Council v Venter NO (334/98)

Eastern Metropolitan Substructure of the Greater Johannesburg Transitional Metropolitan Council v Venter NO (334/98) [2000] ZASCA 50; 2001 (1) SA 360 (SCA) ; [2001] 1 All SA 51 (A) (29 September 2000)

Court

Supreme Court of Appeal

Case number

334/98

Judges

Farlam, Nienaber, Zulman, Streicher, Melunsky

The Supreme Court of Appeal held that the appellant was entitled, under section 50 of the Local Government Ordinance, to demand payment of all outstanding charges, including rezoning fees, water and sewerage charges, as a precondition for issuing clearance certificates for the transfer of property in liquidation. The court rejected the respondent's argument that only 'taxes' as defined in section 89(5) of the Insolvency Act could be demanded, clarifying that embargo provisions apply to all specified charges, not just taxes. The amounts paid by the respondent, except for sundries, were due and…

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• Municipal Clearance Certificates
• Insolvency Distribution
• Embargo Provisions
• Preferent Claims
• Condictio Indebiti

Roux en Andere v Van Rensburg NO (649/94)

Roux en Andere v Van Rensburg NO (649/94) [1996] ZASCA 54; 1996 (4) SA 271 (SCA); [1996] 3 All SA 499 (A); (28 May 1996)

Court

Supreme Court of Appeal

Case number

649/94

Judges

E M Grosskopf, Smalberger, Vivier, Howie, Zulman

The Supreme Court of Appeal held that under common law, the curator of an insolvent estate is entitled to demand possession of immovable property subject to a retention right, even before the creditor's claim is proven. The retention right does not entitle the holder to indefinitely delay the administration and realization of the estate. Section 47 of the Insolvency Act protects the retentor's rights if possession is surrendered and proper notice is given. The court found no reason to distinguish between movable and immovable assets in this context. The appellants' refusal to surrender posses…

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• Retention Rights
• Insolvency Procedure
• Preferent Claims
• Curator Powers