Imperial Bank Limited v Hendrick Jacobus Rust Barnard NO and Others

The respondents, acting as duly appointed joint liquidators of Pro Med Construction CC (in liquidation), instituted action against Imperial Bank Limited in August 2007 for relief arising from an alleged agreement of sale concluded in February 2003. Pro Med allegedly purchased immovable property from Imperial Bank, tendered performance, but before transfer Imperial Bank sold the property to a third party. The liquidators claimed either transfer of the property to Pro Med or, in lieu thereof, payment of R25 million. Imperial Bank pleaded that the liquidators lacked locus standi because they were cited in their own names, contrary to s 386(4)(a) of the Companies Act 61 of 1973. More than three years later, the liquidators sought to amend the particulars of claim to clarify that Pro Med Construction CC (in liquidation), represented by the liquidators, was the plaintiff. Imperial Bank opposed the amendment, arguing that it substituted a new plaintiff and that Pro Med’s claim had prescribed.

The appeal was dismissed with costs.

The case clarifies that where liquidators institute proceedings nomine officii and the summons makes it clear that the company in liquidation is the true creditor, defects in citation may constitute a mere misdescription. Such proceedings can validly interrupt prescription. The judgment provides important guidance on amendments, locus standi of liquidators, and the interaction between company liquidation proceedings and prescription.