South Africa Case Law

Oosthuizen v Heever Boerdery and Another (2083/2021)

Oosthuizen v Heever Boerdery and Another (2083/2021) [2022] ZAFSHC 134 (6 June 2022)

Court

Free State High Court, Bloemfontein

Case number

2083/2021

Judge

NS Daniso

The court found that the grounds for leave to appeal were incoherent and merely repeated arguments already addressed in the main judgment. No genuine dispute of fact was raised in the affidavits to warrant the application of the Plascon-Evans rule. The applicant failed to establish that the special resolution was properly adopted or that Heever Boerdery CC could be rescued through business rescue proceedings. Financial distress alone does not entitle a company to business rescue; the applicant did not satisfy the requirements of reasonable prospects of rehabilitation or just and equitable gro…

Source excerpt

• Business Rescue
• Voluntary Liquidation
• Leave To Appeal
• Superior Courts Act
• Special Resolution Nullity

Anglogold Ashanti Limited v Kleynhans (40491/14)

Anglogold Ashanti Limited v Kleynhans (40491/14) [2022] ZAGPPHC 347 (30 May 2022)

Court

North Gauteng High Court, Pretoria

Case number

40491/14

Judge

Makhoba

The High Court set aside a prior liquidation-related order, granted rescission under Rule 42(1)(a), and held that the applicant had standing to intervene.

• Rescission Of Judgment
• Locus Standi
• Uniform Rule 42
• Voluntary Liquidation
• Company Law Proceedings
• Rescission-of-judgment

Liebman and Others v Moloto N.O and Others (86185/19)

Liebman and Others v Moloto N.O and Others (86185/19) [2021] ZAGPPHC 225 (28 April 2021)

Court

North Gauteng High Court, Pretoria

Case number

86185/19

Judge

Y Coertzen

The court dismissed an application to interdict liquidators of Villa Rivage (Pty) Ltd, finding no locus standi, no prima facie right, and no basis for interim relief.

• Voluntary Liquidation
• Locus Standi
• Interim Interdict
• Fraudulent Liquidation
• Companies Act Section 388
• Voluntary-liquidation

Surface Preparations , Equipment & Coatings (Pty) Ltd v SwanSA (Pty) Ltd t/a Swan's Water Treatment and Others (51113/20)

Surface Preparations , Equipment & Coatings (Pty) Ltd v SwanSA (Pty) Ltd t/a Swan's Water Treatment and Others (51113/20) [2021] ZAGPPHC 132 (10 March 2021)

Court

North Gauteng High Court, Pretoria

Case number

51113/20

Judge

Mabuse

The High Court dismissed an urgent application challenging a company’s voluntary liquidation and seeking to halt arbitration pending liquidation procedures.

• Voluntary Liquidation
• Arbitration Stay
• Companies Act 1973
• Arbitration Act 1965
• Creditor Rights
• Special Resolution

Van der Merwe v Empedocles NO and Others (33977/2020)

Van der Merwe v Empedocles NO and Others (33977/2020) [2020] ZAGPJHC 282 (9 November 2020)

Court

South Gauteng High Court, Johannesburg

Case number

33977/2020

Judge

Maier-Frawley

The court found that the company was factually and commercially insolvent, with liabilities far exceeding assets and the applicant's creditor claim omitted from the voluntary liquidation process. The court held that, in law, it is not necessary to set aside the voluntary winding-up before granting a compulsory winding-up order. The voluntary liquidation process, including the appointment of the current liquidators, was confirmed, and the compulsory winding-up order was granted. The date of commencement for the winding-up is the date of registration of the special resolution. The applicant and…

Source excerpt

• Compulsory Winding Up
• Voluntary Liquidation
• Appointment Of Liquidators
• Creditors Rights
• Impeachable Dispositions

C Pro Construction PTY v Caliber Devco CC and Others (63054/15)

C Pro Construction PTY v Caliber Devco CC and Others (63054/15) [2018] ZAGPPHC 663 (3 September 2018)

Court

North Gauteng High Court, Pretoria

Case number

63054/15

Judge

Strijdom

The court found that the voluntary liquidation of Caliber Devco CC was invalid as the company was insolvent at the time and the process did not comply with the requirements of the Companies Act 2008 and the transitional arrangements. The resolution to wind up as a solvent company was irregular, and the subsequent appointment of liquidators and meetings of creditors were void ab initio. The applicant's claim as a creditor was recognized in the statement of affairs, and prescription was delayed due to the lack of final appointment of liquidators, as required by section 359 of the Companies Act…

Source excerpt

• Voluntary Liquidation
• Companies Act 2008
• Close Corporations Act
• Prescription
• Creditors Meeting
• Appointment Of Liquidators

Pillay N.O and Another v Reddy and Others (10717/15)

Pillay N.O and Another v Reddy and Others (10717/15) [2016] ZAKZDHC 57 (14 December 2016)

Court

Kwazulu-Natal High Court, Durban

Case number

10717/15

Judge

Mngadi

The applicants, as joint liquidators, sought to set aside a court order made on 5 February 2015 which had set aside the voluntary liquidation of the company. The court found that the applicants had locus standi due to their appointment as liquidators and their interest in the relief sought. However, the court held that it had no jurisdiction to review or set aside the decision of another court of equal status. The applicants had already pursued appeals and petitions to higher courts, which were unsuccessful. The principle of judicial hierarchy and certainty in law prevents a court from review…

Source excerpt

• Locus Standi
• Setting Aside Court Order
• Voluntary Liquidation
• Representation Of Company
• Condonation Of Late Filing

Proud Afrique Trading 256 (Pty) Ltd v Tikon Projects SA (Pty) Ltd (60328/2016)

Proud Afrique Trading 256 (Pty) Ltd v Tikon Projects SA (Pty) Ltd (60328/2016) [2016] ZAGPPHC 1021 (9 December 2016)

Court

North Gauteng High Court, Pretoria

Case number

60328/2016

Judge

K La M Manamela

The court held that section 346(1)(e) of the Companies Act 61 of 1973 expressly permits the court to order the winding up of a company already under voluntary liquidation. There is no statutory requirement that the voluntary liquidation process be set aside before a compulsory winding-up application can be entertained. The respondent's conduct in pursuing voluntary liquidation while engaging in opposition to the application was found to be potentially abusive and not bona fide. The court exercised its discretion to grant a provisional winding-up order, issuing a rule nisi to allow the respond…

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• Compulsory Liquidation
• Voluntary Liquidation
• Companies Act 1973
• Creditor Rights

Corporate Money Managers (Pty) Ltd and Others v Panomo Properties 49 (Pty) Ltd (65348/2012)

Corporate Money Managers (Pty) Ltd and Others v Panomo Properties 49 (Pty) Ltd (65348/2012) [2013] ZAGPPHC 132 (24 May 2013)

Court

North Gauteng High Court, Pretoria

Case number

65348/2012

Judge

Pretorius

The High Court granted a provisional compulsory winding-up order, set aside any voluntary liquidation, and held that the respondent was commercially insolvent.

• Compulsory Winding Up
• Voluntary Liquidation
• Commercial Insolvency
• Director Disqualification
• Compulsory-winding-up
• Voluntary-liquidation

Michelin Tyre Company (South Africa)(Pty) Ltd v Janse Van Rensburg and Others (198/2001)

Michelin Tyre Company (South Africa)(Pty) Ltd v Janse Van Rensburg and Others (198/2001) [2002] ZASCA 55; 2002 (5) SA 239 (SCA) (29 May 2002)

Court

Supreme Court of Appeal

Case number

198/2001

Judges

Hefer, Zulman, Brand, Nugent, Lewis

The Supreme Court of Appeal held that section 417 of the Companies Act 61 of 1973 is confined to windings-up by the court and does not apply to voluntary windings-up. The court found that the wording of section 417, particularly the reference to a 'winding-up order', clearly indicates that the section is intended only for compulsory windings-up. The court rejected the appellant's argument that the opening words of the section are broad enough to include voluntary windings-up, noting that the remainder of the section restricts its application. The court also dismissed the argument for purposiv…

Source excerpt

• Companies Act Section 417
• Winding Up
• Compulsory Liquidation
• Voluntary Liquidation