Meeg Bank Ltd v Waymark and Others

• Jurisdiction: South Africa
• Citation: 2004 (5) SA 529 (SCA)

Meeg Bank Ltd v Waymark and Others
2004 (5) SA 529 (SCA)

2004 (5) SA p529

Citation	2004 (5) SA 529 (SCA)
Case No	103/03
Court	Supreme Court of Appeal
Judge	Mpati DP, Farlam JA, Cameron JA, Mthiyane JA and Southwood AJA
Heard	March 12, 2004
Judgment	March 26, 2004
Counsel	D E van Loggerenberg SC for the appellant.; L B Broster SC (with him A M Annandale) for the respondents.

Flynote : Sleutelwoorde E

Company — Winding-up — Statutory corporation — Dissolution of corporation by proclamation of Premier — Interpretation of proclamation — Date of dissolution — Premier issuing proclamation in which corporation purportedly dissolved and later issuing general notice with almost identical content save for some paragraphs — Whether dissolution effective upon first F or second publication — Proclamation issued in terms of s 13(2)(a) of Transkei Corporations Act 10 of 1976 (Tk) — Clear that paragraphs erroneously omitted from original proclamation — Provisions of s 13 requiring proclamation and subsequent notice not a proclamation — Corporation dissolved with effect from date of first publication. G

Headnote : Kopnota

By Proc 9 of 1997 (EC), dated 10 July 1997, the Premier of the Eastern Cape Province dissolved the Magwa Tea Corporation and the three respondents were appointed joint liquidators of the corporation in its dissolution. On 1 December 1997, the Premier published a General Notice in terms of which the corporation was again dissolved. The later notice provided that: 'Due to an error, Proc 9 which was H published . . . is hereby replaced.' The Proclamation and the General Notice were worded identically, the only difference being that certain subparagraphs contained in the second proclamation were omitted from the first. The respondents sued the appellant for certain sums owing to the corporation and at the hearing before the High Court the issue was whether the corporation had been dissolved with effect from 10 July 1997 or from 1 December 1997. The Court held that the I corporation had been dissolved with effect from 10 July 1997. On appeal against this decision the appellant contended that Proc 9 was fatally defective and thus invalid and of no force and effect, because the Premier failed to regulate 'all matters resulting' from the purported dissolution of the corporation on 10 July 1997 as he was obliged to do in terms of J

2004 (5) SA p530

s 13(2)(a) of the Transkei Corporations Act 10 of 1976 (Tk). Counsel contended that it was the A omission of those paragraphs which rendered Proc 9 invalid and of no force and effect as those paragraphs contained powers without which the liquidators would not have been able properly to perform their functions. It was contended further that when the omission came to his attention, the Premier 'replaced' Proc 9 with the second Proclamation and dissolved the corporation with effect from the date of the second Proclamation. B

Held, that the Premier had not intended to issue a second Proclamation dissolving the corporation a second time: it was clear from the contemporaneous publication of two other identical notices that the paragraphs in question were erroneously omitted by the printers and the General Notice was obviously intended to correct this error. (Paragraph [9] at 534F - H.) C

Held, further, that the argument overlooked the provisions of s 13 of the Corporations Act, which empowered the Premier to dissolve a corporation 'by Proclamation' (s 13(1)) and to regulate all matters resulting from such dissolution 'in such proclamation' (s 13(2)): it was clear, therefore, that the regulation of all matters resulting from such dissolution had to be contained in the proclamation which dissolved such corporation and it was with this requirement in D mind that the Premier reproduced the whole of Proc 9 in the General Notice. (Paragraph [11] at 535B/C - D.)

Held, further, that the content of the General Notice confirmed that it was not a Proclamation: Proclamations are designated as such and are numbered and the General Notice did not purport to withdraw or annul Proc 9 (assuming that it could do so), which showed E that the Premier considered Proc 9 to have been valid and of full force and effect when he issued the 'Correction Notice' contained in the General Notice. To hold otherwise would create an untenable situation. The liquidators may have done things pursuant to their appointment which would be rendered invalid if the notice had the effect of postponing the date of dissolution to 1 December 1997. Such a situation could result in claims against them, something the Premier could never have intended. (Paragraph [11] at 535D - F.) Appeal F dismissed.

The decision in the Transkei High Court in Waymark and Others v Meeg Bank Ltd 2003 (4) SA 114 (TkH) confirmed on appeal.

Cases Considered

Annotations

Reported cases G

Nkisimane and Others v Santam Insurance Co Ltd 1978 (2) SA 430 (A): referred to

Touriel v Minister of Internal Affairs, Southern Rhodesia 1946 AD 535: referred to

Weenen Transitional Local Council v Van Dyk 2002 (4) SA 653 (SCA): referred to H

Case Information

Appeal from a decision in the Transkei High Court reported at 2003 (4) SA 114. The facts appear from the reasons for judgment.

D E van Loggerenberg SC for the appellant.

L B Broster SC (with him A M Annandale) for the respondents. I

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following:

Big Ben Soap Industries v Commissioner for Inland Revenue 1949 (1) SA 740 (A)

Clan Transport Co (Pvt) Ltd v Road Services Board and Others 1956 (4) SA 26 (SR) J

2004 (5) SA p531

Commercial Union Assurance Co of South Africa Ltd v Clarke 1972 (3) SA 508 (A) A

Comrie and Others v Liquor Licensing Board for Area 31 and Others 1975 (2) SA 494 (N)

De Lange v Smuts NO and Others 1998 (3) SA 785 (CC)

Essack v Pietermaritzburg City Council and Another 1971 (3) SA 946 (A)

Ex parte Van Zyl 1991 (2) SA 313 (C) B

Group 5 Building (Eastern Cape) (Pty) Ltd and Another v Minister of Public Works and Land Affairs 1993 (3) SA 728 (T)

Kliptown Clothing Industries (Pty) Ltd v Marine & Trade Insurance Co of SA Ltd 1961 (1) SA 103 (A)

Leibrandt v South African Railways 1941 AD 12 C

Maharaj and Others v Rampersad 1964 (4) SA 638 (A)

Municipality of Butterworth v Bezuidenhout and Others 1986 (3) SA 543 (TkS)

Port Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co Ltd 1947 (2) SA 1269 (A) D

R v Correia 1958 (1) SA 533 (A)

S v Koopman 1991 (1) SA 474 (NC)

Shalala v Klerksdorp Town Council and Another 1969 (1) SA 582 (T)

Sutter v Scheepers 1932 AD 165

Venter v R 1907 TS 910

Volschenck v Volschenk 1946 TPD 486 E

Weenen Transitional Local Council v Van Dyk 2002 (4) SA 653 (A)

Cur adv vult.

Postea (March 26). F

Judgment

Mpati DP:

[1] This appeal concerns the date on which the Premier of the Eastern Cape dissolved the Magwa Tea Corporation ('the Corporation'). On 10 July 1997 the Premier of the Eastern Cape issued Proc 9, published in Extraordinary Provincial Gazette 248 of that G date, in terms of which he dissolved the Corporation and appointed the three respondents as joint liquidators. On 1 December 1997 the Premier issued General Notice No 157 ('the General Notice'), published in Provincial Gazette 282 of that date, which provided that: 'Due to an error, Proc 9 which was published in Provincial Gazette 248 dated 10 July 1997, is hereby replaced.' In terms of the General Notice the Corporation was H dissolved 'with effect from date hereof'. The issue in this appeal is whether the Corporation was dissolved on 10 July 1997 or 1 December 1997.

[2] It is common cause that appellant ('Meeg Bank') (formerly the Bank of Transkei), had an agreement with the Corporation in terms I of which the Corporation operated a current banking account with it. During March 2000 the respondents (as plaintiffs) issued summons against the appellant for payment of the sum of R2 246...