Nel NO and Another v The Master of the High Court and 2 Others

• Jurisdiction: South Africa
• Judge: Zulman JA, Streicher JA, Nugent JA
• Judgment Date: 08 March 2002
• Docket Number: 290/2000
• Court: Supreme Court of Appeal
• Hearing Date: 21 February 2002
• Citation: 2002 JDR 0194 (SCA)

Zulman JA:

[1] The crisp issue in this appeal is what the effect is, if any, on the concursus creditorum, when a provisional order for the winding up of a company that was obtained at the instance of a creditor is discharged and immediately replaced by a final order for the winding up of the company granted at the instance of another creditor. In other words, whether the concursus creditorum (for the sake of brevity- concursus) that came into existence when the provisional order was granted remains extant.

[2] The court a quo (Blieden J) held that the concursus established by the grant of the provisional order terminated upon the discharge of that order. This appeal is brought with the leave of the court a quo.

[3] The relevant common cause facts are:

3.1

On 7 April 1998 one van Niekerk filed an urgent application at the office of the Registrar of the High Court, Johannesburg, for the winding-up of Prop Plant Hire (Pty) Limited (the company), (the van Niekerk application). It is common cause that this is the date on which the application was presented to the court as

2002 JDR 0194 p3

Zulman JA

contemplated by s 348(2) of the Companies Act, 1973.

3.2

Pursuant thereto and on 8 April 1998 a provisional order for the winding-up of the company was granted returnable on 19 May 1998.

3.3

On 9 April 1998 the Master of the High Court (the first respondent on appeal) appointed the appellants as joint provisional liquidators of the company.

3.4

On 19 May 1998 the van Niekerk application stood down until 22 May 1998 and the return day of the provisional order was extended to 2 June 1998. The object of the extension was to afford NBS Boland Limited (Boland) the opportunity of bringing a substantive intervention application together with a substantive application to wind up the company.

3.5

On 27 May 1998 Boland filed such an application. The notice of motion sought an order in the following terms:

2002 JDR 0194 p4

Zulman JA

"1.

dat aan die tussenbei-tredende skuldeiser verlof verleen word om tussenbeide te tree in die hoofaansoek;

2.

dat die respondent gelikwideer word ten behoewe van die skuldeisers;

3.

dat die koste van die tussenbeitredende, koste in die likwidasieverrigtinge sal wees......"

The application bore the same case number which had been allocated to the van Niekerk application.

3.6

On 28 May 1998 Boland's application was served on the company and was placed in the file containing the van Niekerk application.

3.7

On 2 June 1998 Boland moved for an order in terms of its notice of motion. The Court (Flemming DJP) refused to entertain Boland's application until it had been duly stamped and properly issued by the Registrar under a separate case number. These requirements were attended to on the same day. Thereafter but still on 2 June 1998 the following orders were made:

In the van Niekerk application:

2002 JDR 0194 p5

Zulman JA

"3.7.1

The order of provisional liquidation is set aside;

3.7.2

The rule nisi is discharged"

In the Boland application:

'3.7.3

Dat die bogenoemde respondent maatskappy hiermee in finale likwidasie geplaas word.'

The orders were granted in immediate succession although it is uncertain in precisely what order.

3.8

On 22 June 1998 and pursuant to Boland's application, the Master appointed the appellants as joint...