Milne, NO v Cassim and Another

• Jurisdiction: South Africa
• Citation: 1962 (1) SA 775 (N)

Milne, NO v Cassim and Another
1962 (1) SA 775 (N)

1962 (1) SA p775

Citation	1962 (1) SA 775 (N)
Court	Durban and Coast Local Division
Judge	Burne AJ
Heard	December 1, 1961
Judgment	December 18, 1961

Flynote : Sleutelwoorde A

Company — Act 46 of 1926 sec. 183 — Scope and applicability of section.

Headnote : Kopnota

Section 183 of the Companies Act, 46 of 1926, applies only to attachment and execution in respect of pre-liquidation debts. This section was B never intended to apply to cases where a writ of execution is issued for the recovery of costs awarded against the liquidator in respect of litigation on which he embarked, as liquidator, after the commencement of liquidation.

Case Information

Application to set aside a writ of execution. The facts appear from the reasons for judgment.

S. T. Pretorius, for the applicant.

R. N. Leon, Q.C. (with him D. F. L. Thompson), for the first respondent. C

The second respondent in person.

Cur adv vult.

Postea (December 18th). D

Judgment

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...