Gavin Cecil Gainsford NO & others v Tanzer Transport (Pty) Ltd & others

Costa Logistics SA (Pty) Ltd, after experiencing severe financial difficulties, was placed into creditors’ voluntary winding-up, which commenced upon registration of the resolution on 3 March 2009. After the commencement of winding-up, the company made several payments during March and April 2009 totalling approximately R14.2 million to Tanzer Transport (Pty) Ltd, a subcontractor providing transport services. The joint liquidators of Costa Logistics sought to have these payments declared void under s 341(2) of the Companies Act 61 of 1973 and to recover the amounts for the benefit of the concursus creditorum. Tanzer opposed the application on procedural grounds, including lack of locus standi and authority of the liquidators, and contended that the payments were made bona fide in the ordinary course of business. Tanzer also brought a separate application to set aside the winding-up.

The appeal was upheld with costs. The order of the high court was set aside. The payments made by Costa Logistics SA (Pty) Ltd to Tanzer Transport (Pty) Ltd after the commencement of winding-up were declared void under s 341(2) of the Companies Act 61 of 1973, and Tanzer was ordered to repay the amounts to the liquidators with costs. Tanzer’s application to set aside the winding-up was dismissed with costs.

The case clarifies South African company and insolvency law by confirming that liquidators may institute proceedings either in the name of the company in liquidation or in their representative capacity without losing locus standi. It reinforces the strict operation of s 341(2) of the Companies Act 61 of 1973 and the principle of the concursus creditorum, underscoring that post-commencement dispositions are prima facie void and only validated in exceptional circumstances.