Ex parte Tangent Sheeting (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Schutz J
• Judgment Date: 12 March 1993
• Citation: 1993 (3) SA 488 (W)
• Hearing Date: 12 March 1993
• Court: Witwatersrand Local Division

Schutz, J.:

This is an application for a provisional winding-up order. A case has been made out on the merits, but a question has been raised by Mr Du Toit, who appears for the applicant, arising out of conflicting decisions in this Division as to whether such an application may be made F upon a resolution of the board of directors without there being any resolution of the members. The application is authorised by a resolution of the directors only. The ground of liquidation is actual insolvency.

There are conflicting decisions in this Division. The case of Ex parte Edenvale Wholesalers and General Suppliers (Pty) Ltd 1959 (2) SA 477 (W) held that a liquidation application may be brought on the authority of a G resolution of the directors.

On the other hand, the recent decision in Ex parte Screen Media Ltd 1991 (3) SA 462 (W) decides that it is not for the directors to bring such an application. That latter decision largely follows the judgment of Didcott J in Ex parte Russlyn Construction (Pty) Ltd 1987 (1) SA 33 (D).

H Before dealing with this conflict I would mention that what I might call the contra-view stems back to a decision in Ireland in Re Galway & Sathill Tramways Co [1918] 1 IR 62. In argument Mr Du Toit, who has access to the Irish Reports of the Johannesburg Bar, has contended that that case is no guide to us, particularly having regard to the statute upon which it was based, which made no provision at all for windings-up. I find it I unnecessary to express any view on that decision. There being two conflicting modern decisions in this Division, I have to decide which of them to follow.

In giving judgment in the Screen Media case, Leveson J referred both to the earlier Edenvale case and to a Full Bench decision in the Eastern J Districts - Ex parte Voorligter Drukkery Bpk 1922 EDL 315 - and said that

Schutz J

A no reasons were furnished by the Courts for their decisions in either case. The reasons, of course, are legion. Most of them at least are set out in an article 'Powers of Directors to Wind Up Insolvent Companies' by McLennan in (1987) 104 SALJ 232.

I am afraid that in this application, being brought as one of urgency in B the WLD on a Friday, I do not have the time to embark upon ornamental jurisprudence. I think it sufficient to say that I agree with the reasons set out by the learned author. That does not mean that I subscribe to his every word, or limit myself to what he has said. But...