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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

NOT REPORTABLE CASE NO: 4741/2006

DATE: 29/4/2008

In the matter between:

HILLCREST VILLAGE (PTY) LTD First Applicant

CRYSTAL COOPER DE LA PIERRE N.O.

ROBERT ANDRE DE LA PIERRE Second Applicant

And

WATERKLOOFSPRUITPROJECTS (PTY) LTD First Respondent

THE REGISTRAR OF COMPANIES & Second Respondent

CLOSE CORPORATION

THE REGISTRAR OF DEEDS Third Respondent

THE MASTER OF THE HIGH COURT Fourth Respondent

PIETR ARNOLDUS CRONJE N.O. Fifth Respondent

ENVER MOHAMED MOTALA N.O. Sixth Respondent

NEDBANK LIMITED Seventh Respondent

THE GOVERNMENT OF

THE REPUBLIC OF SOUTH AFRICA Eighth Respondent

JUDGMENT

MAVUNDLA J.,

[1] The applicants have approached this Court seeking a declaratory order in the following terms: in terms of which:

1. That in terms of section 420 of the Companies Act 61 of 1973, the first respondent, (Waterkloofspruit Projects (Pty) Ltd (in liquidation) be declared void.

1.2 That in terms of section 408 of the Companies Act No. 61 of 1973, the reopening of the First respondent’s liquidation and distribution account at the Master of the High Court be ordered.

3. That Master of the High Court be ordered to appoint new liquidators to wind up the First Respondent’s liquidation.

4. Cost of suit.

5. That the applicants be granted alternative relief.

This application is being opposed.

[2] The seventh respondent, supported by the fifth respondent had brought an application for striking out certain paragraphs in the applicants’ affidavit on the basis that same were veracious and scandalous. This issue was subsequently unsuccessfully argued before my sister, Ms Justice Malopa-Sethosa who refused the application on 27 May 2007.

[3] The applicants issued summons as plaintiffs against, inter alia, the respondents in casu and others under case 1012/07. A plea was filed, inter alia, by Nedbank. Mr. Cronje and Mr. Motala filed an exception on the basis, inter alia, that as Waterkloof Projects (Pty) Ltd ( “Waterkloof”) or “the company” was not in esse at any time and given the nature of the derivative action as shareholder, the cause of action relied upon by the applicants lacks the averments to sustain a cause of action. I have since dismissed that relevant application.

Background facts.

[4] Waterkloofspruit Projects (Pty) Ltd, ( “the company”) was on 14 February 2001 placed under winding-up order on the basis that it was unable to pay its debts, at the instance of BOE Bank Limited (BOE), the predecessor of Nedbank Limited (Nedbank), the present seventh respondent, which has since been substituted for BOE.

[5] It is common cause that Cronje and Motala were the appointed liquidators. It is common cause that the Liquidation and Distribution account was confirmed on 13 December 2003. It is also common cause that a the liquidators have made a distribution in terms of section 409 of the Companies Act. On 19 February 2001 the Master authorised the liquidators to dispose of all the property belonging to the first respondent by way of auction. The auction was held on 20 March 2001 and the seventh respondent bought 137 vacant stands and two developed stands owned by the first respondent. At the time of the auction, seventh respondent’s outstanding development bond over the properties of the first respondent including interest was in excess of R29 million. As the result of the shortfall resulting from the auction, the liquidators and the seventh respondent instituted an action against Gilboa Properties Ltd, Prime Address (Pty) Ltd, Hillcrest Village (Pty) Ltd, CMT Trust and other sureties. A settlement¹ agreement was entered into by all the aforesaid concerned parties on 23 August 2002. The settlement was in full and final settlement of all the claims of the seventh respondent against the first respondent and sureties. The first applicant and Gilboa Properties Ltd ( the cedent of the claim presently proffered by the second applicant) concluded the aforesaid agreement as sureties for the seventh respondent’s claims against the first respondent.

[6] The second respondent is CMT Trust (CMT) which has been cited in the name of one of its trustees, Crystal Cooper de la Pierre N.0. According to the applicants, CMT was a surety for certain liabilities of the Waterkloofspruit Project (Pty) Ltd, the company, in favour of BOE. It is also the cessionary of the rights of Gilboa Properties Ltd, now called Absolute Ltd, which was 100% shareholder of the company. The first applicant was also the surety for certain liabilities of the company. CMT and Hillcrest have each made payment to BOE and on the basis thereof it is submitted that each has a right of recourse against the company in liquidation. The applicants further state that at the time there was no prospect of recovery and the reason therefore, only established much later, was the conduct of BOE and Cronje and Motala, which conduct amounted to fraud. Relying on Muller v De Wet² the applicants submit that they have a legal interest which was harmed by the Conduct of BOE, Cronje and Motala. Cronje and Motala, which conduct amounted to fraud.

[7] The seventh respondent contends that for purposes of section 420 of the Companies Act, only a “person who appears to the Court to have an interest “ may apply for an order declaring the dissolution of a company to have been void, and that the applicants do not fall within this category of persons who may apply for such an order. It is submitted that the first applicant has not adduced grounds warranting an inference that it has locus standi. The mere fact that the first applicant was a surety does not mean that it has a sufficient interest for purposes of applying for the order, so it is contended.

Further it is contended that the first applicant was not a creditor in the estate. A claim was instituted against the first applicant in its capacity as surety for the debts of the first respondent owed to the seventh respondent. Although a larger recovery for and on behalf of the estate may follow (assuming that the applicants were to be successful in these proceedings) the pecuniary interest to be gained will not be derived from a recovery from the estate itself. The claim the seventh respondent had against the first applicant as surety would be reduced proportionately. It is further submitted that the settlement agreement which was a final settlement will remain extant notwithstanding the granting of the order sought, unless it is set aside and the payments made in terms thereof are recovered. It is contended that the first applicant will derive no pecuniary benefit from the order sought herein.

[8] In regard to the second applicant, the seventh respondent contends that the former has made the application in its capacity as a cessionary. The cedent is also a surety and therefore, the above stated contention is also advanced against the second applicant. It is further contended that the relief sought is neither ad pecuniam solvendam nor ad factum praestandum. It is contended that therefore the second applicant has nothing to cede, had no right of action³ and that s420 does not create a right of action which can be ceded. It merely facilitates a mechanism for purpose of identifying the category of persons vested with the locus standi to pursue the relief sought, but does not connote the right of action itself. It is further submitted that there is a distinction between the concept of locus standi and the right of action. For this submission reliance is made on Nedbank (Swaziland) Ltd v Firstrand Bank Ltd⁴, and that therefore the second applicant as cessionary acquired no right of action vesting it with locus standi.

[9] On behalf of the fifth and sixth respondents, the locus standi of the applicants is also attacked, essentially on the same grounds as those marshalled on behalf of the seventh respondents. I deem it not necessary to chronicle these submissions.

[10] It is further contended on behalf of the fifth and sixth respondents that:

at the very best the case of the applicants made in the founding affidavit was that at the time of the auction an offer of R20 million was made but the seventh respondent wanted R25 million. The indebtedness to the respondents at the time of liquidation was R29 million and its was also an interest bearing debt. There would have been a shortfall of R9 million which would have increased by, inter alia,

(a) the liquidators fees of 3% on R20 million thus amounting to

R600 000,00.

(b) the Master’s fees, security bond fees;

(c) commissions payable, to an auctioneer these commissions

would have amounted to approximately 6%; therefore

increasing with a further amount of R1 200 000,00

4. On all accounts there would have been a substantial shortfall in

excess of R10 million.

[11] It is further contended that the application was initially launched on the basis that there were still assets registered in the name of the insolvent company, ⁵ whereas it has been demonstrated in the affidavit of Fourie that this is not the case⁶. The applicants never objected to the account in terms of section 407 of the Companies Act. It is submitted that the applicants made no case in their founding affidavits for the re-opening of the account, and now seeks to rely on fraud or frauds in replying affidavits.

[12] It is further contended that it is not necessary to re-open account or a second account where the creditor intends instituting action against the trustee/liquidator in his personal capacity and that therefore this is no ground for the reopening of an account. The avoidance of the auction sale in terms of section 82 (1) of the Insolvency Act would necessitate the amendment of the first account. If the sale is to be voided or set aside that account cannot be left as it is. It would entail having to reopen the account and amending it. It is contended that there is no basis set out for a damages claim against either liquidators. It is submitted that there is nothing before this court to indicate that as a result of failure to advertise in the Government Gazette any damages suffered by the insolvent estate in that a higher price for the property would have been obtained. It is therefore submitted that there is no case made out for the re-opening of the account.

[13] It needs mention that the seventh Respondents as well as the fifth and sixth respondents also contend that it is trite that an applicant must make his case in the founding affidavit and not in the replying affidavit. They contend that the applicant in his founding affidavit did not allege any fraud against either the seventh and nor fifth and sixth respondent.

[14] With regard to this last mentioned point, in the matter of Baeck &

Co v Van Zummeren and Another⁷ Goldstone J said the following:

“ The first question is whether it is permissible to have regard to the evidence contained in replying affidavit. The general rule was stated by Krause J in the passage cited by Herbstein AJ⁸ from Pountas Trustee v Lahanas 1924 WLD 67 AT 68. The rule was recently restated in this Court by Nestadt J in Shephard v Tuckers Land and Development Corporation (Pty) Ltd (1) 1978 (1) SA 173 (W) at 177G-178A. The learned Judge said the following:

‘The second part of the striking out, that relating to Auret’s

affidavit, is based on the contention that the allegations therein contained should have formed part of the applicant’s founding affidavit and annexures, or, alternatively constitute new matter. It is founded on the trite principle of our law of civil procedure that all the essential averments must appear in the founding affidavits for this Court will not allow an applicant to make or supplement his case in his replying affidavits and will order any matter appearing therein which should have been in the founding affidavits to be struck out. (See Herbstein and Van Winsen at 75.) In Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others 1974 (4) SA 362 (T) Viljoen J at 368 stated:

‘It has always been the practice of the Courts in South Africa to strike out matter in replying affidavits which should have appeared in petitions or founding affidavits, including facts to establish locus standi or jurisdiction of the Court. See Herbstein and Van Winsen Civil Practice of the Superior Courts of South Africa 2^nd ed at 75, 94. In my view the practice still prevails.’

“ This is not, however, an absolute rule. It is not a law of the Medes and Persians. The Court has discretion to allow a new matter to remain in a replying affidavit giving the respondent the opportunity to deal with it in a second set of answering affidavits. This indulgence, however, will only be allowed in special or exceptional circumstances.”

[15] I have already pointed out herein above that the striking out application was refused. It therefore means that I do not have to reconsider this issue since it has already been decided upon. In the premises, the averments which it is contended that they have not been brought on board in the founding affidavit, I cannot ignore them. Vide also Kleinhans v Van Der Westhuizen⁹; Shepherd v Mitchell Cotts Seafreight (SA) (Pty) Ltd¹⁰. Besides, the respondents, it would seem, never sought to file further affidavits to deal with what they contend is now a new ground, i.e. the fraud.

[16] In the founding affidavit the applicants were relying, inter alia, on the fact that the auction during which 137 stands belonging to the company in liquidation was not advertised as required by section 82(1) of the Insolvency Act, and that this was mala fides on the part of the seventh, fifth and sixth respondents.¹¹ The relevant stands were not sold in accordance with the directive of the Master who authorised the sale of the aforesaid stands in public auction. About 105 of these stands were sold at approximately R750, 00 per stand, notwithstanding the fact that these stands had been developed to a certain extent. In the replying affidavit the applicants have alleged fraud on the part of the seventh, fifth and sixth respondents. I am of the view that nothing much turns on the difference of mala fide and fraud since both these have a negative element, in particular lack of honesty in so far as the disposition of the 137 stands is concerned. The fifth and sixth respondents who are the liquidators¹², have a fiduciary duty to act in “utmost good faith”, and in the best interest of the creditors, it matters not whether the breach of this “utmost good faith” is as the result of mala fides or fraud.

[17] Section 420 provides that: “When a company has been dissolved, the Court may at any time on application by the liquidator of the company, or by any other person who appears to the Court to have an interest, make an order, upon such terms as the Court thinks fit, declaring the dissolution to have been void, and thereupon any proceedings may be taken against the company as might have been taken if the company had not been dissolved.”

[18] Whereas, in English law the “interest” referred to in similar provisions dealing with voidance of a company that has been winded up refers to pecuniary interest, Henochsberg¹³ submits that: “…in our law the interest may be the one which is neither pecuniary nor proprietary, there being no qualification of the word “interest” in s 420. He further states that the interest must be ‘a legal interest”. In the matter of Nieuwoudt v The Master and Others NNO¹⁴ the Appeal Court per Van Heerden JA stated that the phrase ‘interest” or “a person having an interest’ has a wide meaning¹⁵. Van Heerden JA further pointed out that an insolvent has a residual interest in his insolvent estate and that he can also sue the curator for maladministration of the insolvent estate, and cited Innes J A in Mears v Rissik, McKenzie NO and Mears’s Trustee 1905 TS 303 at 305 who said:

“Now, no doubt the general rule is that an unrehabilitated insolvent cannot, over the head of his trustee, bring actions connected with his estate… The reason of the rule is that his estate has been taken out of him and vested in his trustee; and that therefore the person to deal with that estate, administer it, to sue in respect of it, and to defendant actions concerning it, is the trustee, and not the insolvent. But from the fact that the insolvent is under this disability, it does not follow that he has no rights whatever regarding the estate. In my opinion he has a very real right reversionary interest in it. The law provides that if there is any residue after paying the debts it is to be handed to the insolvent. Not only so, but it is to his interest that as many assets as possible shall be brought into the estate, and the debts reduced to their proper limits. He has an interest in seeing that that is done. An asset may suddenly become available which has been considered worthless, or he may have a legacy left to him which may enable him to clear off all his liabilities. Apart from that it is to the interest of the insolvent that his assets should be increased and his liabilities be reduced, because in that way the stigma of insolvency rest heavily upon him; and when he applies for his rehabilitation he is in a better position than if he had a very large margin of unpaid debts. Therefore from whatever standpoint we regard it the insolvent has a very real right in administration of his estate. ” Van Heerden JA , further pointed out that an insolvent

would have locus standi in the event the effect of his objection in terms

of 407(1 ) of the Companies Act would result in there being surplus to

the benefit of creditors¹⁶.

[19] The applicants in their replying affidavit¹⁷ state that they have material interest in the matter since they have suffered substantial losses at least in their capacities as sureties and are entitled to recover compensation therefore. They further state that CMT Trust is the cessionary of claims of Gilboa, the 100% shareholder of WKP. In this regard Nicholus AJA, as he then was in the matter of Nieuwoudt v Master and Others NNO¹⁸ said:

“In General Accident, Fire & Life Association Ltd v Insolvent Estate Wiese 1924 CPD 410 it was held that a surety for the proper performance by a trustee of his duties was a person interested in the estate in terms of s94 of the Act 32 of 1916, and was therefore entitled to institute proceedings under that section to compel the trustee to file a full and true account. “

[20] In Kilroe-Daley v Barclays National Bank Ltd [1984] ZASCA 90; 1984 (4) SA 609 (AD) at 623 Galgut AJA,as he then was, cites Wessels JP in Union Government v Van der Merwe 1921 TPD 318 at 321 as saying the following:

“The legal scope of the surety’s contract is identical with that of the principal debtor -- accessorium sui principalis naturam sequitur. The surety undertakes the same obligation as the debtor, and undertakes to perform this same obligation so soon as the debtor, when called upon, fails to perform it. Troplong Caut 46. It is true there are two contracts, the one between the creditor and the debtor and the other between the creditor and the surety. But the contract between the creditor and surety is not independent contract with an obligation of its own but accessory contract with the very same obligation that exists between the principal debtor and the creditor. Although it is true that the surety contract may be entered into by an agreement different to that of the principal contract, yet immediately the surety agrees to become such, whether by written or verbal agreement, then his contract with the creditor is of the same nature as that of the principal debtor, because it becomes accessory to it, or is, as it were, absorbed by it.”

[21] The distinction sought to be drawn between the first applicant and the second applicant, in the light of the last two above cited cases, cannot, in my view hold. Both applicants have similar interest in regard to the bringing of these proceedings for the re-instatement of the company in liquidation. Both the applicants allege, inter alia, that the assets of the company in liquidation were a few weeks earlier valued in excess of R25 million. They allege that there were improvements on some of the stands forming some of the aforesaid assets, a fact that has not been gainsaid by the respondents. These assets were subsequently sold for R100 000, 00 (ONE HUNDRED THOUSAND RAND), to the prejudice of the sureties. It is not in dispute that such assets were sold for R100,000,00. Neither is it disputed that there was no advertisement in the Government Gazette for such sale as required in terms of section 82(1) of the Insolvency Act¹⁹. The second applicant, as surety has, in as much as the first applicant also has an interest, in my view, has a right to call for proper accounting by the liquidators or for the investigation of the circumstances relating to the disposition of the assets at nominal value. The consequences thereof would invariably impact to the account that was confirmed by the Master.

[22] In the matter of Mears v Rissik, McKenzie NO and Mears’s Trustee (supra) Innes J A further stated that: “…, generally the trustee is the person to take action in matters connected with the estate; but if the trustee will not do so, or whether bona fide or mala fide does not see his way to take action, is the insolvent on that ground to be without remedey? I should say upon general principles he ought not to be; the law should provide some remedy.”²⁰

[23] In the event the effect of the Nieuwoudt v The Master and Others NNO (supra)²¹ decision is that the applicants in casu do not have locus standi to approach this Court for the relevant relief, I am of the view that, having regard to the averments of fraud that has been alleged by the applicants against the fifth, sixth and seven respondents, it would be inconsistent with the provisions of section 34 of the Constitution to deny the applicants the right to bring these actions on the grounds that it is the liquidators who have the right to bring this action and not the applicants. Further, the liquidators, in my view, are at all times expected to act in the best interest of the creditors, they hold a position of trust and they must act with utmost good faith. This must also be seen in the light of the fact that the liquidators in casu are the very people the salvo of miscreant is directed to, it is inconceivable that they, in such a situation, can bring to court such action and plead “Mea culpa! Mea culpa! Mea culpa!” I therefore hold that the applicants do have locus standi to bring these proceedings.

[24] Henochsberg at 822 refers to Fagro Ltd v Godfroy [1986] 3 All ER 279 (Ch) where it was held that a minority shareholder’s derivative action will not lie if the company is in liquidation although the minority shareholder could have brought an action on the ground that the wrongdoers were in control of the company, with liquidation the situation is completely changed because there is no longer a board of directors or a shareholders’ meeting. During liquidation the aggrieved shareholder can either ask the liquidator to bring the action in the name of the company. The liquidator can then require indemnity from them against all costs, including the costs of the defendants, which he may have to incur, or if the liquidator asks unreasonable terms, or is unwilling to bring the action, the shareholder can apply to court asking for an order, either that the liquidator bring the action in the name of the company or more usually that they are given the right to bring the action in the name of the company against usual type of indemnity.

[25] Dissolution of a company will be voided where there were properties of the company which have been left out of the liquidation and distribution account; vide Henochsberg [issue 20] 902 Vol 1; where dissolution was voided ”to enable the former liquidators to be re-instated for purposes of dealing with moneys recovered by them after dissolution under mortgage bond, the rights under which during the winding-up they had not been enforced because they had regarded them as worthless (Ex parte Liquidators Lime Products (Pty) Ltd 1942 CPD 402); and where the dissolution occurred pursuant to a certificate erroneously issued by the Master under s419 (Pieterse case supra)²² .”

[26] The Court can grant an order such as the one sought in casu, where the interest of justice warrants that such order be granted. In the matter of Goodman v Suburban Estates Ltd & Others²³ the Court referred to the matter of in re Spottiswoode, Dixon & Hunting, Ltd (1912, 1 Ch p 410 where Chancery “ in declaring a dissolution void

laid stress upon the fact that the petitioner had acquiesced, and

had not been guilty of laches. He was an undisputed creditor of

the company and advantage was being taken of the dissolution

to defeat his just claim.“ It was further pointed out in the aforesaid matter of Goodman v Suburban Estates Ltd & Others²⁴ that:

“…the Court ought not to avoid a dissolution unless some unforeseen event such as the discovery of new assets has occurred or unless there has been some fraud or concealment practised or unless the dissolution has become either by reason of surrounding circumstances or through some contrivance of the parties the instrument of injustice.”

Vide Henochsberg on Companies Act²⁵ where the learned author

says, inter alia, that: “A situation which ordinarily would justify voidance of the dissolution is the existence of property of the company not brought to account in the winding-up.” In my view,

where there is also an allegation of self-aggrandizement the court can

grant avoidance. Vide Bowman NO v Sacks²⁶ where Flemming as he

then was, said: “ That the wiles of directors succeeded in causing dissolution before recklessness became known or equity otherwise justifies such a step, are considerations which may advance a case for restoration of a company to the register”.

[27] Section 424(1) provides as follows:

'When it appears, . . . that any business of the company was or is being carried on recklessly or with intent to defraud creditors of the company . . . or for any fraudulent purpose, the Court may, on the application of . . . any creditor . . . declare that any person who was knowingly a party to the carrying on of the business in the manner aforesaid, shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the Court may direct.” The effect of this section, in the event the allegations of

fraud are proven against the fifth, sixth and seventh respondents in

the main trial, would entitle the applicants to a damages action

against the fifth, sixth and seventh respondents.

[28] The applicants have alleged, inter alia, that stand no 154 was sold by the fifth and sixth respondents for R450 000,00. Shortly thereafter another stand with half built house was sold for R270 000,00, another stand 27 was sold for R330 000,00, yet 137 other stands, each with an average in excess of R180 000,00 were sold for an average of R730, per stand²⁷. They have made serious allegations of collusion against the fifth and sixth respondents. These allegations, in my view, require that they be investigated. For purposes of the present application, these allegations are sufficient grounds for the grant of the first prayer.

[29] The applicants did not object to the account that was finally approved by the Master. Where new facts, which had not been placed before the Master when the latter considered the liquidation account, subsequently come to light after the Master has confirmed the account, the Court has the power to order the re-opening of the account. The court would exercise its discretion to order such

re-opening of the account where there are allegations of irregularity; vide Van Zyl v The Master 2000 (3) SA 602 (C) at 607G-H. Henochsberg dealing with section 408 of the Companies Act, states that once an account has been confirmed by the Master, such an account is final and cannot be re-opened save where the Court so authorises, and proceeded to refer to Kilroe-Daley v Barclays National Bank Ltd. ²⁸

[30] The first applicant has alleged in para 21 of the founding affidavit that as the result of the mala fide actions of the seventh, fifth and sixth respondents, it has suffered a loss in access of R10 million. It further avers that the second respondent also has a vested interest in the reopening of the account.

[31] The applicants have, inter alia, averred that CMT and Hillcrest each effected payments to BOE. The fifth, sixth and seventh respondents deny that there was any impropriety on their part in dealing with the assets of the company in liquidation.

[32] The applicants need to make a prima facie case to persuade me to grant them the relief they seek. It is not in dispute that there had been some development on some of the stands. The fact of the matter is that such developed stands, no matter to what extent they have been developed, these stands were sold at R750, 00 per stand, which amount is on face value a very nominal²⁹. Such sale of the stands at such nominal value has a potential of being prejudicial to all and sundry concerned and interested in the matter.³⁰ This purchase by the seventh respondent of the relevant properties, in the face of an allegation that there had been an offer of R20 million made by one Joubert³¹ is a factor which bolsters the applicants’ averments that there was mala fides or fraud or collusion on the part of the liquidators and the seventh respondents in having sold the relevant stands for a nominal amount to the prejudice of the creditors. In respect of the non-compliance with the provisions of section 82, the fifth respondent, by implication admits that there was no advertisement of the auction in the government gazette.³² I am of the view that, had these facts been brought to the attention of the master, the probability are that the Master would not have confirmed the account.

[33] I have taken note of the fact that the fifth, six and seven respondents did not seek leave of the Court to deal with what is alleged to be new matters being raised in the replying affidavit. I find it not necessary to traverse all the averments raised in the papers. I am of the view that the applicant has marshalled sufficiently enough evidence to persuade one to conclude that there is a prima facie case entitling this Court to grant the relief sought.

[34] I am of the view that the circumstances of this case warrant that the matter should be referred to the Master of the High Court who should appoint new liquidators to the first respondent in liquidation.

[35.] Henochsberg at 822 says that a liquidator ought not to be ordered to pay costs de bonis propriis where he commits the company to unsuccessful litigation unless he acted mala fide or negligently and he refers inter alia to Ex Parte Klopper NO: In re Sogervim SA (Pty) Ltd³³. In casu there is overwhelming evidence to conclude that there was mala fides and or collution between the seventh, fifth and sixth respondents in, inter alia, defraying some of the stands at a nominal value, I see no reason why the costs of this application should not lie at their doorsteps.

[36] In the premises I make the following order:

1. That in terms of section 420 of the Companies Act 61 of 1973, the dissolution of the first respondent, (Waterkloofspruit Projects (Pty) Ltd (in liquidation) is declared void and Waterkloofspruit Projects (Pty) Ltd (in liquidation) is revived.

2. Waterkloofspruit Projects (Pty) Ltd (in liquidation) is to be restored to the register’.

3. That in terms of section 408 of the Companies Act No. 61 of 1973, the reopening of the First respondent’s liquidation and distribution account at the Master of the High Court is ordered.

4. That Master of the High Court is ordered to appoint new

liquidators to wind up the First Respondent’s liquidation.

5. The seventh respondent, fifth respondent and sixth respondent

are ordered to pay the applicants’ costs occasioned by their opposition of this application, jointly and severally, the one paying the others be absolved.

N.M. MAVUNDLA

JUDGE OF THE HIGH COURT

HEARD ON THE : 18 SEPTEMBER 2007.

DATE OF JUDGMENT : 29 APRIL 2008.

APPLICANTS’ ATT : MR. K BOSHOFF.

APPLICANTS’ ADV : MR. DA BREGMAN SC.

5^TH & 6^TH RESPONDENT`S ATT : MR. S.A. TINTINGER

5^TH & 6^TH RESPONDENT’S ADV : MR. D LEATHERN

6^TH RESPONDENT’S ATT : MR. W FORREST

7^TH RESPONDENT`S ATT : MR. SJ OOSTHUIZEN

7^TH RESPONDENT’S ADV : MR. JG WASSERMAN SC

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