Janse Van Rensburg NO v Ladislav

• Jurisdiction: South Africa
• Judge: Southwood J
• Judgment Date: 01 November 2006
• Docket Number: 8037/2006
• Hearing Date: 24 October 2006
• Court: Transvaal Provincial Division
• Citation: 2006 JDR 0815 (T)

Southwood J:

[1]

The defendant excepts to the plaintiff's amended particulars of claim. The defendant contends that because of the provisions of section 386(4)(a) of the Companies Act, 61 of 1973, the plaintiffs do not have locus standi to bring the claim. The plaintiffs are all liquidators of M P

2006 JDR 0815 p2

Southwood J

Finance Group CC (in liquidation). In that capacity the plaintiffs instituted action against the defendant claiming an order setting aside payments to the defendant totalling R829 612,10 and an order that the defendant effect payment of that amount to the plaintiffs. The plaintiffs claim that relief in terms of section 26(1) read with section 32(3) of the Insolvency Act, 33 of 1936. They allege that the payments to the defendant were dispositions without value in terms of section 26(1) of the Insolvency Act and fall to be set aside.

[2]

The issue raised by the exception is simply whether the plaintiffs are entitled to sue for this relief in their capacities as liquidators of M P Finance Group CC (in liquidation) or whether the plaintiffs are obliged by the provisions of section 386(4)(a) of the Companies Act to institute the claim in the name and on behalf of the close corporation in liquidation. The excipient's counsel concedes that there is no difference between the plaintiffs suing in their capacity as the liquidators of the close corporation and suing in the name of and on behalf of the close corporation in liquidation. He contends that the provisions of section 386(4)(a) are peremptory and must therefore be complied with. The excipient relies on the unreported judgment of Epstein AJ in the Witwatersrand Local Division in the matter between Eileen Margaret Fey NO and Mawaal Cloete NO v Mahandrabai Naran Gowan WLD Case Number 19644/05 in which the court upheld the point raised in the present exception.

2006 JDR 0815 p3

Southwood J

[3]

The plaintiffs' counsel does not contend that the reasoning of the learned judge is wrong in so far as it deals with section 386(4)(a). However he contends that section 386(4)(a) does not apply to the present claim because section 26(1) is a statutory claim based on the provisions of that section read with section 32 which expressly empowers the liquidators of the close corporation to bring the action. He points out that the provisions of section 32 of the Insolvency Act were not referred to by Epstein AJ and were clearly not raised before him.

[4]

Section...