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South Africa decisions
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Nobre and Another v A Barndard No Trustee and Others (2023/083050) [2024] ZAGPJHC 784 (20 August 2024)
The High Court refused to dismiss an old section 38 Companies Act action, finding the delay not inexcusable and the prejudice insufficient to bar trial.
Grindrod Bank Limited v Torode N.O and Others (55503/11) [2014] ZAGPPHC 281 (13 May 2014)
The court held the loan was an unlawful financial assistance transaction under section 38(1) and dismissed both the bank’s claim and the counterclaim.
Nedbank Limited v Spannenberg and Another (5434/2011) [2014] ZAWCHC 50 (3 April 2014)
The court found that Airoad Express, by inflating the First Defendant's salary and facilitating the medium term loan, provided financial assistance for the purchase of its shares, contravening section 38 of the Companies Act. The Plaintiff, Nedbank, was aware of the purpose and the company's involvement. The medium term loan and the related home loan and mortgage agreements were inextricably linked and could not be severed from the prohibited transaction. As such, these agreements are void and unenforceable. Only the amounts admitted by the Defendants as benefits received for purposes other t…
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Gihwala NO and Another v Bam (4268/2008) [2012] ZAWCHC 264 (23 May 2012)
The court found that the payments made to the defendant for the sale of shares were in contravention of section 38 of the old Companies Act and constituted illegal financial assistance. The agreement and payments were void for illegality, and the defendant was unjustly enriched. The defence of res judicata failed because the parties and causes of action differed from the prior litigation, and the curators' claim was not prescribed as prescription only began running upon their appointment. The fraudulent conduct and knowledge of the directors could be imputed to the companies, but not to the c…
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Absa Bank Ltd v Kernsig 17 (Pty) Ltd (386/2010) [2011] ZASCA 97; 2011 (4) SA 492 (SCA); [2011] 4 All SA 113 (SCA) (31 May 2011)
The SCA held that a section 38 Companies Act challenge to a loan was not properly pleaded or factually supported, so the appeal succeeded.
Knoop NO and Others v Birkenstock Properties (Pty) Ltd and Others (7095/2008) [2009] ZAFSHC 67 (4 June 2009)
The Free State High Court dismissed trustees’ bid for an anti-dissipation order, holding that suspicious conduct did not make trust or company assets part of the insolvent estate.
Blue Moonlight Properties 50 Pty Ltd and Another v Bartman (3533/2006) [2007] ZAGPHC 249 (23 October 2007)
The High Court dismissed an application for leave to appeal in a share-sale dispute, finding no reasonable prospect of a different outcome on the papers.
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