Milne, NO v Cassim and Another

• Jurisdiction: South Africa
• Judge: Burne AJ
• Judgment Date: 18 December 1961
• Citation: 1962 (1) SA 775 (N)
• Hearing Date: 01 December 1961
• Court: Durban and Coast Local Division

Burne, A.J.:

The main relief asked for by the applicant is that the writ E of execution be set aside. The applicant's contention as formulated in para. 21 of his affidavit is as follows:

'21. I further respectfully submit that the first respondent was and is not in law entitled to execute against the assets of the said Company in liquidation. As my accounts in the said Company in liquidation have not been finalised nor approved by the Master of the Supreme Court, Natal Provincial Division, execution levied at this stage may well have the effect of altering the order of preference, especially as there are not sufficient assets in the estate to pay creditors 100 cents in the Rand. F I respectfully submit that the proper course for the first respondent would have been to prove a claim against the said Company in terms of sec. 179 (1) of the Companies Act, 1926 (as amended), and that, in the premises, the said writ is incompetent and any attachment made in pursuance thereof will be a nullity.'

In argument Mr. Pretorius based his contention solely upon sec. 183 of the Companies Act. The section reads as follows:

G 'Where any company is being wound up by the Court any attachment or execution put in force against the estate or assets of the company after the commencement of the winding-up shall be void to all intents.'

In my judgment the applicant's contention fails for three reasons. The first is that he has not discharged the onus, which I think clearly lies on him, of showing that the Company is being wound up by the Court. The H papers contain no express allegation or admission that this is the case, nor, in my judgment is there any material before me from which I can legitimately infer that the Company is being wound up by the Court. It was argued that the fact that the liquidator was appointed by the Master demonstrated that the winding up was by the Court, but this argument is countered by sec. 164 (i) of the Act, which makes it clear that the Master can, in certain circumstances, appoint a liquidator in a voluntary winding up. Counsel were agreed that I

Burne AJ

should look at the record of the proceedings in which the judgment, upon which the writ is based, was granted. I have referred to the record but have been unable to find anything in it which takes the matter any further.

A The second reason why the applicant's contention fails is that the facts do not, in my judgment, show that any attachment or execution was...