Murray and Others NNO v African Global Holdings (Pty) Ltd and Others

African Global Holdings (Pty) Ltd (formerly part of the Bosasa Group) was the holding company of a group of companies whose bankers withdrew banking facilities following evidence before the Zondo Commission, citing reputational risk. Without banking facilities, the group could not pay employees or receive income. On legal advice, resolutions were passed placing African Global Operations (Pty) Ltd and its subsidiaries into creditors’ voluntary winding-up in terms of s 351 of the Companies Act 61 of 1973, and provisional liquidators were appointed by the Deputy Master in Pretoria. African Global Holdings later challenged the validity of the winding-up resolutions and the appointment of the liquidators, alleging that the companies were solvent and thus fell to be wound up under the Companies Act 71 of 2008, that meetings were improperly convened, and that the Pretoria Master lacked jurisdiction. The Gauteng Division upheld the challenge and made a personal costs order against the liquidators. The liquidators appealed to the Supreme Court of Appeal.

The appeal was upheld with costs, including the costs of two counsel. The order of the high court was set aside and replaced with an order dismissing the application with costs.

The case clarifies that for winding-up purposes under the Companies Act 2008, solvency means commercial solvency, reaffirming Boschpoort. It confirms the continued application of the Companies Act 61 of 1973 to the winding-up of insolvent companies and clarifies the concurrent jurisdiction of Masters of the High Court within a provincial division. It also provides guidance on when personal costs orders against liquidators are inappropriate.