Ex parte Tangent Sheeting (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 1993 (3) SA 488 (W)

Ex parte Tangent Sheeting (Pty) Ltd
1993 (3) SA 488 (W)

1993 (3) SA p488

Citation	1993 (3) SA 488 (W)
Court	Witwatersrand Local Division
Judge	Schutz J
Heard	March 12, 1993
Judgment	March 12, 1993

Flynote : Sleutelwoorde

Company — Winding-up — Application for by company for its own winding-up in terms of s 346(1)(a) of Companies Act 61 of 1973 — Such application can be made upon resolution of directors without there being a resolution of members. C

Headnote : Kopnota

An application by a company for its own winding-up in terms of s 346(1)(a) of the Companies Act 61 of 1973 can be made upon a resolution of the board of directors without there being any resolution of the members of the company.

Ex parte Edenvale Wholesalers and General Suppliers (Pty) Ltd 1959 (2) SA 477 (W) approved and applied.

Ex parte Screen Media Ltd 1991 (3) SA 462 (W) overruled.

D Ex parte Russlyn Construction (Pty) Ltd 1987 (1) SA 33 (D) not approved and not followed.

Case Information

Application for the winding-up of a company. The nature of the issue for decision appears from the reasons for judgment.

S F du Toit SC (with him Z F Joubert) for the applicant. E

Judgment

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...