South Africa Case Law

Wait v Strydom N.O and Others (389/2022)

Wait v Strydom N.O and Others (389/2022) [2024] ZAECMKHC 62 (26 March 2024)

Court

Eastern Cape High Court, Makhanda

Case number

389/2022

Judge

Cengani-Mbakaza

The court found that the applicant failed to provide a reasonable and satisfactory explanation for his default. He was aware of the proceedings and the withdrawal of his attorneys but did not take reasonable steps to defend the action or mitigate his position. The applicant's defence was general and lacked material facts necessary to establish a bona fide defence with prospects of success. The default judgment was correctly granted under section 29 of the Insolvency Act, as the evidence showed the applicant received preferential treatment through dispositions from Free Agape, and the quantifi…

Source excerpt

• Rescission Of Judgment
• Default Judgment
• Voidable Preferences
• Insolvency Act
• Burden Of Proof

Bester NO and Others v Target Brand Orchards (Pty) Ltd and Others (22593/2019)

Bester NO and Others v Target Brand Orchards (Pty) Ltd and Others (22593/2019) [2020] ZAWCHC 183 (21 December 2020)

Court

Western Cape High Court, Cape Town

Case number

22593/2019

Judge

S Hockey

The High Court dismissed Funky Fruit’s Rule 30 challenge, refused upliftment of the bar and default judgment, and also refused to compel further particulars from Target Brand.

• Joinder Of Defendants
• Voidable Preferences
• Insolvency Act Section 29
• Default Judgment
• Condonation
• Trial Particulars

Afrisam (South Africa) (Proprietary) Limited v Maleth Investment Fund (Proprietary) Limited (651/2018)

Afrisam (South Africa) (Proprietary) Limited v Maleth Investment Fund (Proprietary) Limited (651/2018) [2019] ZASCA 139 (1 October 2019)

Court

Supreme Court of Appeal

Case number

651/2018

Judges

Navsa, Wallis, Dambuza, Molemela, Mbatha

The Supreme Court of Appeal held that an intervening voluntary winding-up did not extinguish a pending compulsory winding-up application, and fixed the effective date under section 340(2)(a).

• Company Winding Up
• Creditors Voluntary Liquidation
• Compulsory Liquidation
• Impeachable Dispositions
• Voidable Preferences
• Undue Preferences

De Wet and Another v R G and Associates (9406/2017)

De Wet and Another v R G and Associates (9406/2017) [2018] ZAWCHC 39 (26 February 2018)

Court

Western Cape High Court, Cape Town

Case number

9406/2017

Judge

N P Boqwana

The court found that the payments made to the respondent's trust account were dispositions of property by Solodor, effected just before its liquidation. The respondent was not a creditor of Solodor, and the payments were not for value to Solodor but were used for Van Staden Snr's personal benefit. The respondent failed to provide evidence that Solodor's assets exceeded its liabilities after the payments, nor that the payments were made in the ordinary course of business. The Power of Attorney did not authorize the use of Solodor's funds for personal legal expenses unrelated to its business. T…

Source excerpt

• Insolvency Act
• Voidable Preferences
• Disposition Without Value
• Liquidation
• Power Of Attorney
• Trust Account Misuse

Janse Van Rensburg and Another v Griffiths (2101/2002)

Janse Van Rensburg and Another v Griffiths (2101/2002) [2014] ZAECPEHC 20; [2014] 2 All SA 670 (ECP) (25 March 2014)

Court

Eastern Cape High Court, Port Elizabeth

Case number

2101/2002

Judge

R W N Brooks

The court found that the payments made by Usapho Trust to the defendant within six months prior to sequestration were voidable preferences under section 29 of the Insolvency Act. All elements required by section 29 were established, including that the payments constituted dispositions, were made within the relevant period, and preferred the defendant above other creditors. The only remaining issue was whether the payments were made in the ordinary course of business. Applying a broad, objective test and considering the illegal nature of Usapho Trust's business as a pyramid scheme, the court h…

Source excerpt

• Insolvency Act Section 29
• Voidable Preferences
• Pyramid Scheme Illegality
• Ordinary Course Of Business
• Harmful Business Practices
• Interest On Impeachable Dispositions

Marcus and Another v Marcus and Another (26149/2011)

Marcus and Another v Marcus and Another (26149/2011) [2012] ZAWCHC 87 (15 March 2012)

Court

Western Cape High Court, Cape Town

Case number

26149/2011

Judge

Allie

High Court granted provisional sequestration of an insolvent debtor’s estate, finding a liquidated claim, factual insolvency, and likely benefit to creditors.

• Provisional Sequestration
• Insolvency Act
• Voidable Preferences
• Friendly Sequestration
• Maintenance Obligations
• Provisional-sequestration

Excellent Petroleum (Pty) Ltd v Synchrony Logistics (Pty) Ltd t/a Imperial Bulk Services (2008/32155)

Excellent Petroleum (Pty) Ltd v Synchrony Logistics (Pty) Ltd t/a Imperial Bulk Services (2008/32155) [2011] ZAGPJHC 210 (8 September 2011)

Court

South Gauteng High Court, Johannesburg

Case number

2008/32155

Judge

Meyer

High Court costs ruling after partial success in voidable preference claims, with expert-related preparation and trial costs for Gerber disallowed on taxation.

• Costs Award
• Voidable Preferences
• Insolvency Act
• Expert Witness Fees
• Companies Act
• Costs-award

Janse van Rensburg NO and Others v Botha (758/10)

Janse van Rensburg NO and Others v Botha (758/10) [2011] ZASCA 72 (25 May 2011)

Court

Supreme Court of Appeal

Case number

758/10

Judges

NAVSA, HEHER, SNYDERS, SHONGWE, MEER

The Supreme Court of Appeal upheld a liquidators’ claim to set aside payments under s 29 of the Insolvency Act in the Krion pyramid scheme.

• Liquidation Of Pyramid Scheme
• Voidable Preferences
• Debtor Creditor Relationship
• Illegality Of Contract
• Consolidation Of Estates
• Voidable-preferences

Ramalho N.O. and Others v Venter (42105/08)

Ramalho N.O. and Others v Venter (42105/08) [2010] ZAGPPHC 632 (25 March 2010)

Court

North Gauteng High Court, Pretoria

Case number

42105/08

Judge

T J Raulinga

The court found that the payments made by Money Skills Limited to the defendant constituted dispositions of company property within the meaning of Section 2 of the Insolvency Act as read with Section 340(1) of the Companies Act. The defendant failed to prove that the dispositions were made in the ordinary course of business or that they were not intended to prefer one creditor above another. The evidence established that Money Skills was insolvent at the time of the payments and that the defendant, as financial director, was aware of the unlawful nature of the scheme and the company's inabili…

Source excerpt

• Insolvency Act Section 26
• Insolvency Act Section 29
• Companies Act Section 340
• Voidable Preferences
• Dispositions Without Value
• Prescription

Van Rensburg and Others v Steyn (18137/2005)

Van Rensburg and Others v Steyn (18137/2005) [2009] ZAGPPHC 395 (30 October 2009)

Court

North Gauteng High Court, Pretoria

Case number

18137/2005

Judge

NB Tuchten

Default judgment was refused because the plaintiffs could not identify a specific insolvent or debtor as required under the Insolvency Act.

• Insolvency Act
• Liquidation
• Default Judgment
• Corporate Veil
• Voidable Preferences
• Insolvency-act