Reynolds and Others NNO v Standard Bank of South Africa Ltd

• Jurisdiction: South Africa
• Judge: Blieden J
• Judgment Date: 10 September 2008
• Citation: 2011 (3) SA 660 (W)
• Docket Number: 06/10369
• Hearing Date: 01 September 2008
• Counsel: SS Cohen for the plaintiffs. JM Suttner SC for the defendant.
• Court: Witwatersrand Local Division

Blieden J:

[1] On 1 September 2008, after having heard counsel for both the applicant (defendant) and respondents (plaintiffs), I granted an order that the plaintiffs make discovery in terms of rule 35, within 10 days from E the date of the order, and further ordered the plaintiffs to pay the defendant's costs in the application to compel discovery.

[2] At the time I granted this order I informed counsel acting for both sides that, if either of their clients wished to have my reasons for making the above order, they were entitled to apply for them. Counsel for the defendant has applied for reasons, and such reasons now follow. F

[3] The parties in the litigation which is the subject-matter of this application are the joint liquidators of the insolvent company, Accord Technology Investments (Pty) Ltd (ATI) and the defendant bank. The plaintiffs have sued the bank in terms of s 29 of the Insolvency Act 24 of 1936, G read with s 339 of the Companies Act 61 of 1973, for the setting- aside of certain dispositions. The amount involved is some R26 million. The defendant is defending the action, and the pleadings between the parties have now been closed.

[4] Certain of the provisions of s 32 of the Insolvency Act are applicable in the present application. These are s 32(1) and 32(3). They read: H

'(1)(a) Proceedings to recover the value of property or a right in terms of section 25(4), to set aside any disposition of property under section 26, 29, 30 or 31, or for the recovery of compensation or a penalty under section 31, may be taken by the trustee.

(b)

If the trustee fails to take any such proceedings they may be taken I by any creditor in the name of the trustee upon his indemnifying the trustee against all costs thereof.

. . .

(3) When the Court sets aside any disposition of property under any of the said sections, it shall declare the trustee entitled to recover any property alienated under the said disposition or in default of such J

Blieden J

A property the value thereof at the date of the disposition or at the date on which the disposition is set aside, whichever is the higher.'

[5] As the insolvent entity in the present case is a company that has been wound up as being unable to pay its debts, in terms of s 339 of the Companies Act the word 'liquidator' is applicable where reference is B made to a 'trustee' in the quoted subsections.

[6] It is not in dispute that in the present case the...