Nedcor Bank Ltd v the Master and Others

• Jurisdiction: South Africa

Nedcor Bank Ltd v the Master and Others
2002 (1) SA 390 (SCA)

2002 (1) SA p390

Citation	2002 (1) SA 390 (SCA)
Case No	440/2000
Court	Supreme Court of Appeal
Judge	Nienaber JA, Scott JA, Cameron JA, Mthiyane JA and Froneman AJA
Heard	September 14, 2001
Judgment	September 27, 2001
Counsel	J G Smit for the appellant.; P Nel for the eighth respondent.; No appearance for the remaining respondents.

Flynote : Sleutelwoorde

Insolvency — Creditors — Meeting of creditors — Notice of — Insolvency E Act 24 of 1935, s 40(2) — Notice to be published 'not less than ten days before' date of meeting — Computation of days — To be computed by method prescribed by s 4 of Interpretation Act 33 of 1957 and reckoned F backwards from date of meeting.

Statute — Interpretation of — Computation of days in statutory provision — Interpretation Act 33 of 1957, s 4 — Section 4 not prescribing whether reckoning should be forwards or backwards — First and last days to be established solely by reference to language of statutory provision under consideration and with due regard to G circumstances of each particular case — In any given case reckoning backwards might be most appropriate method of giving effect to Legislature's intention — Ten-day period prescribed by s 40(2) of Insolvency Act 24 of 1936 to be reckoned backwards from date of meeting. H

Statute — Interpretation of — Computation of days in statutory provision — Interpretation Act 33 of 1957, s 4 — Provisions of s 4 to be applied unless language or context of particular statutory provision repugnant to such application or unless contrary intention apparent — Nothing in language or context of s 40(2) of Insolvency Act 24 of 1936 justifying departure from method of computation prescribed I by s 4 of Interpretation Act — 'Clear days' method not applicable.

Headnote : Kopnota

Section 40(2) of the Insolvency Act 24 of 1936 provides that the Master 'shall publish [the notice convening the first meeting of creditors] not less than ten days before the date upon which such meeting is to be held'.

While s 4 of the Interpretation Act 33 of 1957 provides for a method of reckoning days where the number of days has been prescribed for any purpose, it does not prescribe whether the reckoning should be forwards or backwards. It follows that the first and last days are to be established solely by reference to the language of the statutory provision under consideration and with due regard to the circumstances of each particular case. Although reckoning would normally be forwards, in any given case it might well be that J

2002 (1) SA p391

reckoning backwards is the most appropriate method in order to give effect to the intention of the A Legislature. (Paragraph [10] at 394D/E - F.)

On 7 July 2000 the Master published in the Government Gazette a notice convening the first meeting of creditors of a company in liquidation on 17 July. The appellant, one of the major creditors, objected on the grounds that the notice period fell short by a day, whether reckoned by the statutory method of computation B prescribed by s 4 of the Interpretation Act (16 July 2000 being a Sunday) or by the 'clear days' method.

Held, that a court was enjoined, when reckoning days in a statutory provision, to apply the provisions of s 4 of the Interpretation Act unless there was something in the language or context of the particular provision repugnant to such application or unless the contrary intention appeared therein. There was nothing in C either the language or context of s 40(2) of the Insolvency Act to suggest that the application of s 4 of the Interpretation Act would justify a departure from the method of computation prescribed in the Interpretation Act. (Paragraph [12] at 394I - 395A.)

Held, further, that the crucial date was the date of the meeting, being the date 'before' which the notice had to be published D and the date 'before' which a number of things prescribed by the Insolvency Act had to be done. This was therefore an appropriate case for reckoning backwards. Reckoned thus, the reckoning would commence on 16 July and end on 7 July. Ten days would therefore have elapsed before the meeting as required by s 40(2) of the Insolvency Act. (Paragraph [11] at 394F/G - H/I.)

Held, further, as to the appellant's submission that, by its use of the word 'before' in s 40(2) of the Insolvency Act, the E Legislature had indicated that the 'clear days' method of computation was applicable, that, had the Legislature so intended, it would have expressed its intention explicitly. (Paragraph [14] at 396B/C.)

Held, accordingly, that s 4 of the Interpretation Act was the appropriate method of computation to be adopted in the interpretation of s 40(2) of the Insolvency Act and that the Master F had given proper notice of the first meeting of creditors. (Paragraph [15] at 396C - C/D.)

The decision in the Transvaal Provincial Division in Nedcor Bank Ltd v The Master and Others confirmed. G

Cases Considered

Annotations

Reported cases

Cohn v Cohn 1965 (3) SA 203 (O): not followed

Ex parte Catsavis 1941 WLD 81: not followed

Ex parte Curry 1965 (1) SA 392 (C): not followed

Ex parte Douglas 1964 (4) SA 385 (O): not followed

Ex parte Schoeman 1943 OPD 197: not followed H

Joubert v Enslin 1910 AD 6: dictum at 36 - 7 considered

Loxton v Loxton; Loxton v Holder 1942 TPD 201: not followed

Miller v Malmesbury Licencing Court and Another 1929 CPD 209: not followed

Minister of Police v Subbulutchmi 1980 (4) SA 768 (A): dictum at 773H considered I

Schoeman v Moller 1950 (3) SA 41 (O): not followed

South African Mutual Fire and General Insurance Co Ltd v Fouché en 'n Ander; AA Mutual Insurance Association Ltd v Tlabakoe 1970 (1) SA 302 (A): dictum at 316B - C applied

Sowden v ABSA Bank Ltd and Others 1996 (3) SA 814 (W): not followed. J

2002 (1) SA p392

Statutes Considered

Statutes A

The Insolvency Act 24 of 1936, s 40(2): see Juta's Statutes of South Africa 2000 vol...