Murphy, NO and Benjamin, NO v Semphill and Others

• Jurisdiction: South Africa
• Judge: Malan J
• Judgment Date: 08 March 1954
• Citation: 1954 (3) SA 450 (W)
• Hearing Date: 03 March 1954
• Court: Witwatersrand Local Division

Malan, J.:

On the 11th December, 1951, a final order was granted placing A Salamander Whaling and Industries Ltd. in liquidation and J N. Benjamin and A. B. Murphy were appointed joint liquidators. On the 7th December, 1953, proceedings by way of application were brought against the respondents under sec. 184 of the Companies Act. A rule was obtained and confirmation thereof is now sought.

B Mr. Hanson who appears on behalf of the respondent, Berger, has in limine asked for the discharge of the rule on the ground that the liquidator Murphy is not before the Court as co-applicant. He contends that although the application is ostensibly in the name of both liquidators there is no proof on record that Murphy has consented to the institution of these proceedings or that he has authorised Benjamin to represent him therein.

C The petition sets out that Benjamin and Murphy were duly appointed joint-liquidators of the company and that at a general meeting of the creditors of the company they were authorised in their discretion to initiate proceedings against the respondents under secs. 184 and 185 of the Companies Act. There is no further indication that Murphy is a party D to these proceedings but the following statement occurs in Benjamin's verifying affidavit:

'That I and my co-liquidator (who is at present in Cape Town) have read the petition and the facts and allegations made therein and I declare that all such facts and allegations contained therein are to the best of our knowledge and belief true and correct'.

E There is no allegation that Murphy has consented to the institution of these proceedings or that he has authorised Benjamin to represent him or to sign the petition on his behalf. On the contrary, that the petition appears to have been regarded as defective by reason of the absence of the signature of Murphy or of proof that he has consented thereto is a justifiable inference from the fact that the petition is signed by Hopkins q.q.

F Hopkins presumably purported to sign on behalf of Murphy and in the papers filed of record appears a copy of a general power of attorney purporting to have been granted by one A. B. Murphy in favour of R. L. Hopkins. This document is not covered by affidavit and consequently has no evidential value. Without a statement upon oath that this power of G attorney was given to Hopkins by Murphy, the co-liquidator, and that the Hopkins mentioned in the power is the Hopkins who...