South Africa Case Law

Smith NO and Another v Van Jaarsveld and Another (4990/2021)

Smith NO and Another v Van Jaarsveld and Another (4990/2021) [2025] ZAFSHC 189 (26 June 2025)

Court

Free State High Court, Bloemfontein

Case number

4990/2021

Judge

Ntanga AJ

The court found that the payments made by Trackstar Trading 140 (Pty) Ltd to the first respondent after the liquidation application was launched but before the liquidation order was granted constituted dispositions within the meaning of section 341(2) of the Companies Act. The first respondent was aware of the liquidation proceedings and the payments amounted to undue preference over other creditors. The default position under section 341(2) is that such payments are void unless the court exercises its discretion to validate them. After considering the facts, the chronology of events, and the…

Source excerpt

• Company Liquidation
• Void Disposition
• Business Rescue Practitioner Fees
• Undue Preference
• Court Validation Of Payments

Harvey N.O. v Theron and Another (8539/2021)

Harvey N.O. v Theron and Another (8539/2021) [2023] ZAWCHC 157 (29 June 2023)

Court

Western Cape High Court, Cape Town

Case number

8539/2021

Judge

Mantame

The High Court granted provisional sequestration after finding the respondent’s tender to pay was not actual performance and his liabilities exceeded his assets.

• Provisional Sequestration
• Acts Of Insolvency
• Undue Preference
• Agency Liability
• Administration Of Deceased Estates
• Provisional-sequestration

Eckhoff N.O. and Another v Hartshorne and Another (13640/2020)

Eckhoff N.O. and Another v Hartshorne and Another (13640/2020) [2022] ZAWCHC 68 (29 April 2022)

Court

Western Cape High Court, Cape Town

Case number

13640/2020

Judge

Kusevitsky

Joint liquidators sought to set aside a payment to creditors under sections 26, 29, 30 and 31 of the Insolvency Act, but the High Court dismissed the application.

• Insolvency Act Impeachable Transactions
• Voidable Preference
• Undue Preference
• Collusive Dealing
• Disposition Without Value
• Insolvency-act

Aon South Africa (Pty) Ltd v Van den Heever NO and Others (615/2016)

Aon South Africa (Pty) Ltd v Van den Heever NO and Others (615/2016) [2017] ZASCA 66; [2017] 3 All SA 365 (SCA); 2018 (6) SA 38 (SCA) (30 May 2017)

Court

Supreme Court of Appeal

Case number

615/2016

Judges

Navsa, Theron, Wallis, Petse, Zondi

The Supreme Court of Appeal upheld Aon’s res judicata defence, holding that issue estoppel barred claims A, B and C arising from the earlier liquidation litigation.

• Res Judicata
• Issue Estoppel
• Company Liquidation
• Undue Preference
• Collusive Transactions
• Insolvency Act Claims

Limbada and Another v Aurora Empowerment Systems (Pty) Ltd and Others; In re: Aurora Empowerment Systems (Pty) Ltd v Limbada and Others (50016/2012)

Limbada and Another v Aurora Empowerment Systems (Pty) Ltd and Others; In re: Aurora Empowerment Systems (Pty) Ltd v Limbada and Others (50016/2012) [2015] ZAGPPHC 652 (8 September 2015)

Court

North Gauteng High Court, Pretoria

Case number

50016/2012

Judge

E Bertelsmann

The court found that the applicants were represented at the hearing and that the judgment was not granted in their absence, thus Rule 31(2)(b) and Rule 42(1)(a) do not apply. The applicants failed to show good cause for rescission of the entire judgment, as their explanation for default was insufficient and they admitted receiving the payments. However, the court accepted that the applicants had repaid R1 million each, which was not disclosed in the liquidators' affidavits and was undisputed. Accordingly, the court exercised its discretion to grant partial rescission of the judgment to the ex…

Source excerpt

• Rescission Of Judgment
• Insolvency Act Section 26
• Undue Preference
• Collusive Dealing
• Common Law Fraud
• Partial Rescission

Theba and Others, Bhana and Others; Essay and Others; Bhana and Others v Aurora Empowerment Systems (Pty) Ltd and Others (73173/2014; 73174/2014; 73175/2014, 73763/2014)

Theba and Others, Bhana and Others; Essay and Others; Bhana and Others v Aurora Empowerment Systems (Pty) Ltd and Others (73173/2014; 73174/2014; 73175/2014, 73763/2014) [2015] ZAGPPHC 1000 (8 September 2015)

Court

North Gauteng High Court, Pretoria

Case number

73173/2014; 73174/2014; 73175/2014; 73763/2014

Judge

E Bertelsmann

The High Court dismissed rescission applications arising from repayments made by Aurora while insolvent, finding no valid default explanation and no basis to disturb judgment.

• Insolvency Act Section 26
• Companies Act Section 340
• Undue Preference
• Collusive Dealing
• Common Law Fraud
• Rescission Of Judgment

Theba and Others; Bhana and Others; Essay and Others; Bhana and Others v Aurora Empowerment Systems (Pty) Ltd and Others (73173/2014; 73174/2014; 73175/2014; 73763/2014)

Theba and Others; Bhana and Others; Essay and Others; Bhana and Others v Aurora Empowerment Systems (Pty) Ltd and Others (73173/2014; 73174/2014; 73175/2014; 73763/2014) [2015] ZAGPPHC 695 (7 September 2015)

Court

North Gauteng High Court, Pretoria

Case number

73173/2014;73174/2014;73175/2014;73763/2014

Judge

E Bertelsmann

Rescission applications were dismissed after the court found no adequate default explanation and no real basis to dispute Aurora’s insolvency.

• Insolvency
• Rescission Of Judgment
• Dispositions Without Value
• Undue Preference
• Collusive Dealing
• Common Law Fraud

Salister Diesel (Pty) Ltd and Others v Industrial Development Corporation of South Africa and Another (28479/2013)

Salister Diesel (Pty) Ltd and Others v Industrial Development Corporation of South Africa and Another (28479/2013) [2015] ZAGPJHC 125 (22 June 2015)

Court

South Gauteng High Court, Johannesburg

Case number

28479/2013

Judges

C G Lamont, MA Hawyes, K Matojane

The majority held that the payment made by Africa Resources Limited to IDC was not accepted by IDC as settlement of Salister Diesels (Pty) Ltd's debt. IDC retained the funds in a separate account and refused to release the securities, indicating that no agreement to discharge the debt was reached. Payment, being a bilateral act, requires acceptance by the payee, and in this case, IDC's refusal meant that no payment was made to the insolvent. Consequently, the funds remained the property of Africa Resources Limited and should be repaid to it. The appeal was dismissed, and the appellants were o…

Source excerpt

• Loan Agreement
• Release Of Security
• Payment And Discharge Of Debt
• Insolvency
• Undue Preference

Louw NO and Another v Sobabini CC and Others (3532/13)

Louw NO and Another v Sobabini CC and Others (3532/13) [2015] ZAECGHC 153 (28 January 2015)

Court

Eastern Cape High Court, Grahamstown

Case number

3532/13

Judge

Plasket

The High Court set aside livestock and equipment transfers from an insolvent trust to a creditor as voidable dispositions, undue preferences and collusive dealings.

• Insolvency Act Voidable Dispositions
• Collusive Dealing
• Undue Preference
• Special Notarial Bond
• Creditor Preference
• Trustee Powers

Foil Laminators CC and Others v Master of the High Court and Anther (5057/2011)

Foil Laminators CC and Others v Master of the High Court and Anther (5057/2011) [2012] ZAFSHC 29 (9 March 2012)

Court

Free State High Court, Bloemfontein

Case number

5057/2011

Judge

Kruger

The court dismissed a late review of the Master’s confirmation of a liquidation and distribution account, finding no satisfactory delay explanation or basis to reopen it.

• Liquidation And Distribution Account
• Condonation Of Late Application
• Undue Preference
• Creditor Dividend
• Review Of Master Decision
• Liquidation-and-distribution-account