Nel and Another NNO v the Master (Absa Bank Ltd and Others Intervening)

• Jurisdiction: South Africa
• Citation: 2005 (1) SA 276 (SCA)

Nel and Another NNO v the Master (Absa Bank Ltd and Others Intervening)
2005 (1) SA 276 (SCA)

2005 (1) SA p276

Citation	2005 (1) SA 276 (SCA)
Case No	A9/03
Court	Supreme Court of Appeal
Judge	Howie P, Harms JA, Zulman JA, Jones AJA and Van Heerden AJA
Heard	March 9, 2004
Judgment	April 1, 2004
Counsel	F H Terblanche SC (with P Daniels) for the appellants.; M J Lowe SC for the respondent.; J J Gauntlett SC (with L N Harris) for the intervening respondents.

Flynote : Sleutelwoorde G

Company — Winding-up — The liquidator — Remuneration of — Nature and extent of Master's powers to reduce or increase remuneration if 'good cause' exists for doing so, and ambit of Court's power to review ruling by Master — Companies Act 61 of 1973, s 384(1) and H (2), and Insolvency Act 24 of 1936, s 151 — Master having duty to satisfy himself as to reasonableness of remuneration arrived at by application of tariff — Master having power to depart from tariff if 'good cause' for doing so — Concept of 'good cause' very wide and relevant factors varying from case to case — Evidence revealing that Master ultimately basing his assessment on generous allowance for time spent by liquidators for I full period of their appointment, taking seniority and expertise as well as complexity of matter into account — Where Parliament conferring statutory power of review upon Court, Court having powers of both appeal and review with additional power of receiving new evidence and deciding J

2005 (1) SA p277

whole matter afresh — Court further not restricted in exercising its powers to cases where some irregularity or illegality A occurring — Precise extent of statutory review power always depending on particular statutory provision concerned and nature and extent of functions entrusted to person or body making decision under review.

Headnote : Kopnota

The instant appeal turned on the proper interpretation of s 384(1) and (2) of the Companies Act 61 of 1973 (the Act) relating to the B determination by the Master of the High Court of the 'reasonable remuneration' a liquidator was entitled to for his services. A determination was sought on the nature and extent of the Master's powers to reduce or increase such remuneration if, in his opinion, there was 'good cause' for doing so, as well as the ambit of the Court's powers under s 151 of the Insolvency Act 24 of 1936, read with s 339 of the Act, to review a ruling by the Master. C

Held, that the Master, as a statutory functionary, was not free to choose whether or not to tax the liquidator's remuneration. The Master had to tax in accordance with the tariff, but having done so, could reduce or increase the amount arrived at in his discretion if there was 'good cause' to do so. The remuneration to which a liquidator was entitled was remuneration for work or services rendered, D not a set commission, which had to be reasonable. (Paragraph [19] at 284G - H.)

Held, further, that it was clear that the discretion vested in the Master by s 384(2) of the Act was a wide one. In taxing the liquidator's remuneration for services rendered, the Master had a duty to satisfy himself as to the reasonableness of the remuneration arrived at by the application of the tariff. Where there was, in the Master's E view, 'good cause' for departing from the tariff, the Master had the power to do so. The concept of 'good cause' was very wide and the factors which were relevant varied from case to case, including aspects such as the complexity of the estate in question, the degree of difficulty encountered by the liquidator in the administration of the estate, the amount of work done by the liquidator and the time spent in F the discharge of the duties involved. (Paragraph [20] at 285A/B - D/E.)

Held, further, that where Parliament conferred a statutory power of review upon the Court, the Court had powers of both appeal and review with the additional power of receiving new evidence and deciding the whole matter afresh. The Court was further not restricted in exercising its powers to cases where some irregularity or illegality had occurred. The precise extent of the statutory review power always G depended on the particular statutory provision concerned and the nature and extent of the functions entrusted to the person or body making the decision under review. (Paragraph [23] at 286F - 287A.)

Held, further, that the appellants had been given ample opportunity to motivate their tariff remuneration and to comment on the various written representations received by the Master from the H intervening parties in substantiation of their objections to the tariff remuneration. The appellants were entitled only to reasonable remuneration for their services in terms of s 384(1). The time spent by them in rendering those services was one of the factors legitimately able to be taken into consideration by the Master in deciding whether there was good cause for a reduction in the tariff remuneration. I (Paragraphs [34] and [35] at 292I - J and 293C/D - D.)

Held, further, that the appellants were not under any legal or other duty to keep time records regarding their fulfilment of their duties in administering the estate. They had been requested by the Master to provide an estimate of the time spent on the various administrative duties performed, which they had not done. As a result of this failure, the Master had then been obliged to J

2005 (1) SA p278

make his own informed estimate of the time factors involved. The evidence revealed A that the Master had ultimately based his assessment on a generous allowance for the time spent by the appellants for the full period of their appointment, taking the appellants' seniority and expertise as well as the complexity of the matter into account. (Paragraphs [38], [39] and [40] at 295D - F, 296A and 296F - G.) Appeal dismissed. B

The decision in the Eastern Cape Division in Nel and Another v The Master and Others confirmed.

Cases Considered

Annotations

Reported cases

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687): referred to C

Cohen Brothers v Samuels 1906 TS 221: referred to

Collie NO v The Master 1972 (3) SA 623 (A): referred to

De Hart NO v The Master 1971 (3) SA 366 (O): referred to

Du Bois v Stompdrift-Kamanassie Besproeiingsraad 2002 (5) SA 186 (C): referred to

Elliot Brothers (East London) (Pty) Ltd v The Master and Another NO 1988 (4) SA 183 (E): referred to D

Ex parte Wells NO: In re Auto Protection Insurance Co Ltd 1968 (2) SA 631 (W): considered

Gilbey Distillers & Vintners (Pty) Ltd and Others v Morris NO and Another 1991 (1) SA 648 (A): referred to E

Gore and Another NNO v The Master 2002 (2) SA 283 (E): referred to

In re Insolvent Estate A McWilliam 29 NLR 42: referred to

Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111: dictum at 117 applied

Millman and Another NNO v Pieterse and Others 1997 (1) SA 784 (C): referred to F

President of the Republic of South Africa and Others v Gauteng Lions Rugby Union and Another 2002 (2) SA 64 (CC): discussed

Price Waterhouse Meyernel v Thoroughbred Breeders' Association of South Africa 2003 (3) SA 54 (SCA): referred to

Rennie NO v The Master; Glaum NO v The Master 1980 (2) SA 600 (C): referred to G

Stubbs v Johnson Brothers Properties CC and Others 2004 (1) SA 22 (N): referred to

Thorne v The Master 1964 (3) SA 38 (N): considered

Van Zyl NO v The Master 2000 (3) SA 602 (C): considered.

Statutes Considered

Statutes

The Companies Act 61 of 1973, ss 339, 384(1) and (2): see Juta's Statutes of South Africa 2003 H vol 2 at 1 - 233 and 1 - 241

The Insolvency Act 24 of 1936, s 151: see Juta's Statutes of South Africa 2003 vol 2 at 1 - 516.

Case Information

Appeal from a decision in the Eastern Cape Division (Froneman J and Pillay AJ). The facts appear from the judgment of Van Heerden AJA. I

F H Terblanche SC (with P Daniels) for the appellants.

M J Lowe SC for the respondent.

J J Gauntlett SC (with L N Harris) for the intervening respondents.

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

2005 (1) SA p279

A - Z Bazaars (Pty) Ltd v Minister of Agriculture 1975 (3) SA 468 (A) at 477F - G A

Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA)

Coetzeestroom Estate & Gold Mining Co v Registrar of Deeds 1902 TS 216 at 222

Commissioner of Inland Revenue v Witwatersrand Association of Racing Clubs 1960 (3) SA 291 (A) at 302A - B B

Computer Investors Group Inc v Minister of Finance 1979 (1) SA 879 (T) at 898

Cooper v The Master and Others 1996 (1) SA 962 (N)

Die Meester v Joubert en Andere 1981 (4) SA 211 (A) at 224C - F C

Ex parte Neethling and Others v Standard Bank of SA Ltd and Others 1951 (4) SA 331 (A) at 335A - B

Fourie en Andere v Cilliers NO 1978 (4) SA 163 (O) at 166

Fourie's Poultry Farm (Pty) Ltd v KwaNatal Food Distributors (Pty) Ltd (in Liquidation) and Others 1991 (4) SA 514 (N) at 523H - 525G D

Graaff - Reinet Board of Executors Ltd v Fourie NO and Another 1959 (4) SA 517 (O)

Hillhouse v Stott 1990 (4) SA 580 (W) at 583

J D van Niekerk en Vennote Ing v Administrateur Transvaal 1994 (1) SA 595 (A) E

Janse van Rensburg v Minister of Defence 2000 (3) SA 54 (SCA)

Maltby v D J Freeman and Co [1978] 2 All ER 913 (Ch)

Marais v Fagan 1914 CPD 654

New Union Goldfields Ltd v Commissioner for Inland Revenue 1950 (3) SA 392 (A) at 406G - H F

Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others 1984 (3) SA 15 (A)

Odendaal v Registrar of Deeds, Natal 1939 NPD 327

Peter v Peter and Others 1959 (2) SA 347 (A) at 350D

Pretoria Stadsraad v Geregsbode, Landdrosdistrik van Pretoria 1959 (1) SA 609 (T) at 614 G

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