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Swart and Others v Fourie and Others (2488/2017) [2017] ZAWCHC 58

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Swart and Others v Fourie and Others (2488/2017) [2017] ZAWCHC 58

26th May 2017

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The applicants in this matter were subpoenaed, in terms of s 414 of the Companies Act 61 of 1973 (‘the Act’), to appear for examination at a creditors’ meeting of Silver Falcon Trading 84 CC (in liquidation).  They were also required by the subpoenas to produce various categories of documentation.

The meeting in question had been scheduled to take place on 13 February 2017, but the applicants applied for and obtained an interdict prohibiting their examination pending the determination of the current application.  Costs in the interim interdict proceedings were stood over for determination in the current proceedings.

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The applicants seek two things in these proceedings.  Firstly, to have the subpoenas set aside.  In this regard they seek the setting aside, not only of the subpoenas served on themselves, but also those served on the fourth and fifth respondents. [1]  The fourth respondent was the corporation in liquidation’s banker and is also the bank at which the first to fourth applicants hold other banking accounts.  The fifth respondent is an individual who purchased a restaurant business from another close corporation of which the first and second applicants hold the controlling interest.  Secondly, and, in a sense, more fundamentally, the applicants seek to have any examination to which they might nevertheless be subject in terms of s 415 of the Act stayed for so long as the liquidators of the corporation are represented by the same legal representatives as those that currently also represent the petitioning creditor. [2]  The first head of relief bears on an alleged failure by the first respondent to have exercised his authority in the manner required by the Act.  The second head of relief is related to how the applicants apprehend the examination process might be used for improper purposes.  The first goes to what has already happened, and the second to what it is feared could happen.

The first head of relief is sought on two principal footings:  that the presiding officer (a magistrate), who has been joined as the first respondent in the proceedings, issued the subpoenas – which had been drafted by the liquidators’ attorneys – without proper cause and without having applied his mind; and that they were in any event overbroad.

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