Ultrapolymers (Pty) Ltd v Maredi NO and Another

• Jurisdiction: South Africa
• Citation: 2012 (4) SA 232 (GSJ)

Ultrapolymers (Pty) Ltd v Maredi NO and Another
2012 (4) SA 232 (GSJ)

2012 (4) SA p232

Citation	2012 (4) SA 232 (GSJ)
Case No	6171/2012
Court	South Gauteng High Court, Johannesburg
Judge	Van Oosten J
Heard	March 9, 2012
Judgment	March 16, 2012
Counsel	L Hollander for the applicant.; EL Theron for the respondent and intervening party.

Flynote : Sleutelwoorde B

Insolvency — Insolvent — Voidable dispositions — Interim proceedings — Creditor may, where swift action required, proceed in own name in order to protect right conferred by section — Insolvency Act 24 of 1936, s 32(1).

Headnote : Kopnota

C A creditor will be entitled to institute interim proceedings in its own name for the protection of a right in s 32(1) of the Insolvency Act 24 of 1936, where the circumstances require swift action. (Paragraph [8] at 234I – 235E.)

Cases Considered

Annotations:

Case law D

Ramjan v Khassimgadu 1940 NPD 275: referred to

Reynolds and Others NNO v Standard Bank of South Africa Ltd 2011 (3) SA 660 (W): distinguished

SA Taxi Securitisation (Pty) Ltd v Chesane 2010 (6) SA 557 (GSJ): dictum in para [11] applied

Simmons NO v Gilbert Hamer & Co Ltd 1962 (2) SA 487 (N): referred to E

Volkskas Bpk NO v Barclays Bank (DC & O) 1955 (3) SA 104 (T): distinguished.

Statutes Considered

Statutes

The Insolvency Act 24 of 1936, s 32(1): see Juta's Statutes of South Africa 2010/11 F vol 2 at 1-659.

Case Information

Application for interim relief pending an application under s 32(1) of the Insolvency Act 24 of 1936.

L Hollander for the applicant.

EL Theron for the respondent and intervening party. G

Cur adv vult.

Postea (March 16).

Judgment

Van Oosten J: H

[1] This is an application in which the applicant seeks certain interim relief, pending the outcome of an application or action to be brought by the applicant for declaratory relief in terms of s 32(1)(b) of the Insolvency Act 24 of 1936 (the Act). The respondents are the appointed joint I liquidators of Alfa Flexible Packaging (Pty) Ltd (in liquidation) (Flexible) and they oppose the relief sought by the applicant.

[2] The applicant is a proved creditor in the insolvent estate of Alfa Plastex (Pty) Ltd (in liquidation) (Plastex), of which Rueben Miller, Theodore Wilhelm van den Heever and Keith Elwyn Lutchmia are the J appointed joint liquidators. The assets purportedly belonging to Flexible

2012 (4) SA p233

Van Oosten J

form the subject-matter of this application (the assets). The applicant A contends that the assets in fact belong to Plastex, and not Flexible, and that Plastex disposed of its assets to Flexible in a purported transaction that was not genuine and that it therefore ought to be set aside in terms of ss 26 and/or 29 and/or 30 and/or 31 and/or 34 of the Act (the main proceedings). The contention is based on certain evidence having emerged from an enquiry held in terms of s 417 of the Companies Act B 61 of 1973, in respect of Plastex, to which I will revert.

[3] On 10 and 13 February 2012 the applicant became aware that the assets, in the liquidation of Flexible, were to be sold on an auction which was advertised to take place on 21 February 2012. This prompted the C applicant to launch the present application, by way of urgency, on 17 February 2012. The respondents opposed the application, but conceded the urgency of the matter. An application for intervention was made by the intervening party (Sasol), to which the applicant consented. Sasol, likewise, opposes the application. The matter came up for hearing D before Carelse J on 20 February 2012. The learned judge postponed the application to 6 March 2012, reserved costs and further ordered that '(a)ny or all sales at the auction to be held by Park Village Auctions on 21 February 2012 at the instance of the respondents shall be subject to confirmation by the respondents', and that such confirmation was not to be given on or before 19 March 2012. The auction went ahead and the E assets were sold. As at the date of the hearing of the matter before me, the confirmation of the sale was still pending. Counsel for the applicant informed me from the bar that the applicant is prepared to agree to the confirmation of the sales by the respondents, subject to the rider that the proceeds of the sales be held in trust pending the finalisation of the main proceedings. In view of this the applicant sought relief in an amended F form as set out in counsel for applicant's heads of argument.

[4] The respondents' and Sasol's (jointly hereinafter referred to as 'the respondents') opposition to the relief sought by the applicant, is based on the grounds, firstly, that applicant has no locus standi to bring the G application in its own name; secondly, that the applicant has failed to put up security as required in terms of s 32(1)(a) of the Act; thirdly, that the applicant has failed to make out a case that the assets belong to Plastex and not to Flexible; and, fourthly, and finally, that none of the other requirements of interim relief have been established and in...