Pols v R Pols - Bouers en Ingenieurs (Edms), Bpk

• Judge: Clayden J
• Judgment Date: 09 April 1953
• Citation: 1953 (3) SA 107 (T)
• Hearing Date: 02 April 1953
• Court: Transvaal Provincial Division

D Clayden, J.:

Mr. van den Berg, the creditor, was owed money by the company concerned in this case. On 8th January, 1953, he obtained a default judgment against the company for £566 0s. 8d. and costs. A writ E of execution was issued to which a return of nulla bona was made. On 5th February, 1953, an order was granted that the bank Volkskas Beperk should pay to the deputy-sheriff the sum of £566 0s. 8d., plus costs to be taxed, out of monies owed by that bank to the company. That order provided further:

'That the deputy-sheriff pay such amount so collected into Court, F there to be retained as security de restituendo for a period of six weeks from the date of service of the writ of execution on the company'.

That period came to an end on 23rd February. Apparently the order was made requiring payment into Court because the creditor asked for that order in view of the decision in Gunningham v James, 1903 T.H. 491 at G p. 495. I am not concerned with whether or not there was need for that part of the order.

On 26th February the bill of costs was taxed at £75 0s. 10d. On 3rd March, Volkskas Beperk sent a cheque for £641 1s. 6d. to the deputy-sheriff. The deputy-sheriff did not at once deposit the cheque in his bank, but he sent his own cheque for the same amount to the H Registrar at 2.30 p.m. on 3rd March. That cheque, too, was not deposited on that day.

At 8.40 a.m. on 4th March the creditor's attorney asked the Registrar for the deputy-sheriff's cheque, but it was not given. The attorney was told that an urgent application for the liquidation of the company was to come before the Court at 9 a.m. At 9 a.m. a provisional order of liquidation was granted against the

Clayden J

company on the application of Mr. M. B. L. Pols, a creditor, shareholder and director of the company, and that provisional order provided that the Registrar was not to pay over the money paid to him by the deputy-sheriff pending further order or the decision of the order for A liquidation. No notice of intention to apply for such an order had been given to the creditor. On the return day of the provisional order of liquidation the company was placed in liquidation, but the order restraining the Registrar from paying over the money to the creditor was left in operation until the liquidator could be before the Court. The B company is unable to pay its debts.

The matter has now been argued; the parties before the Court being Mr. Pols, who obtained the order restraining the Registrar from parting with the money, the creditor, and the liquidator of the company. Certain C provisions of the Companies Act and the Insolvency Act have first to be considered. Sec. 115 of the Companies Act provides that

'a winding up of a company shall be deemed to commence at the time of the presentation of the petition for winding up'.

In terms of Rule 3 of the Winding-up Rules the time of presentation is D the time of filing of the petition with the Registrar. It was not contended by the liquidator that this was done before the Registrar had received the cheque of the deputy-sheriff.

The other two sections of the Companies Act which are material are:

E 'Sec. 182. In the case of every winding up of a company unable to pay its debts the provisions of the law relating to insolvent estates shall, in so far as they are applicable, be applied mutatis mutandis in respect of any matter not especially provided for in the Act or the rules framed under sec. 220.

Sec. 183. Where any company is being wound up by the Court any attachment or execution put in force against the estate or F assets of the company after the commencement of the winding up shall be void to all intents.'

The section...