ZASCA 72 (25 May 2011) - Company Law Hub

12
consolidated estate, albeit that because such trans actions were void and unlawful each
investor obtained an immediate right to reclaim his investment. (In fact no-one appears to
have exercised that right, being more interested in the returns.)
[26] The payment made to Mr Botha was made by one o f the entities in the consolidated
estate of the scheme and were dispositions from tha t estate. That the liquidators were
unable to prove which entity paid the money is of n o relevance in the light of the orders,
since the scheme was a debtor contemplated in s 29. Mr Botha and the scheme occupied
a relationship of creditor and debtor for the purpo ses of that section.
[27] When the payments were made the liabilities of the consolidated estate exceeded
the value of its assets. That was established by th e order and repeated in evidence by Mr
Harcourt-Cooke.
[28] Mr Botha was an investor in the scheme, which was the subject of the rule nisi
published according to the instructions of the High court. However he adduced no
evidence which might have had the effect of releasi ng him from the binding effect of the
orders made when the rules were confirmed.
[29] It follows that the appeal must succeed. The f ollowing order is made:
1. The appeal is upheld with costs.
2. The order of the court a quo is set aside and re placed by the following:
‘1. The payments amounting to R192 710.00 made to t he defendant are set aside in
terms of s 29 of the Insolvency Act 24 of 1936.
2. The defendant is ordered in terms of s 32(3) of the Act to pay the amount of
R192 710.00 to the plaintiffs together with interes t thereon at the prescribed rate from date
of judgment to date of payment.
3. The defendant is ordered to pay the costs of sui t.’
APPEARANCES
____________________
J A Heher
Judge of Appeal