Fintech (Pty) Ltd v Awake Solutions (Pty) Ltd and Others

Awake Solutions (Pty) Ltd was provisionally liquidated in April 2008. Fintech (Pty) Ltd, which had acquired rights under a cooperation agreement originally concluded between Awake Solutions and Altron, later made substantial payments to Awake Solutions pursuant to that agreement. In July 2010 Awake Solutions was administratively deregistered by the Companies and Intellectual Property Registration Office for failure to lodge annual returns, despite the company having been under liquidation. Thereafter, Awake Solutions successfully obtained court orders setting aside the provisional liquidation and compelling Fintech to produce documents, and received further payments. Fintech later discovered the deregistration and contended that Awake Solutions lacked legal personality when it obtained those orders and received payments. Fintech sought to have the court orders declared nullities and to recover payments made. The High Court dismissed the application, and Fintech appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel where employed.

The case authoritatively confirms that administrative deregistration of a company is incompetent once a company has been placed under final winding-up. It clarifies the relationship between deregistration and liquidation, reinforcing that liquidation preserves corporate existence until dissolution and that administrative officials cannot undermine court-ordered insolvency processes. The judgment is an important authority on the limits of the Companies and Intellectual Property Commission’s powers and the protection of the concursus creditorum.