Mayo NO and Others v De Montlehu

The respondent, Mr De Montlehu, was the sole shareholder and director of Chevreau Construction (Pty) Ltd, which was wound up by special resolution in 2011. After liquidation, Starspan Investments (Pty) Ltd lodged claims exceeding R1.5 million at a special creditors’ meeting held on 5 October 2012, more than three months after the second meeting of creditors. The Master admitted the claims despite objections that they were disputed, subject to arbitration, and proved late without leave or payment of costs as required by s 44(1) of the Insolvency Act 24 of 1936. Mr De Montlehu, as an aggrieved person, applied to review the Master’s decision. The High Court set aside the admission of the claims, and the liquidators and Starspan appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel, and the High Court order setting aside the Master’s admission of Starspan’s claim was upheld.

The judgment authoritatively clarifies that the three-month period for proving claims under s 44(1) of the Insolvency Act applies equally to companies in liquidation. It resolves conflicting High Court authority and confirms that s 366(2) of the Companies Act does not create an unfettered discretion allowing late claims without compliance with insolvency time limits.