On 3 July 2009, Diamond Core Resources (Pty) Ltd was placed in final liquidation with liquidators appointed. Diamond Core was a wholly owned subsidiary of a Canadian company listed on the JSE. On 4 December 2009, Ansafon (Pty) Ltd purchased the entire shareholding of Diamond Core from the Canadian company. After settling all legitimate debts owed by Diamond Core to its creditors, Ansafon applied in March 2010 to set aside the liquidation. On 18 June 2010, the high court issued a rule nisi directing Ansafon to provide security for the fair and reasonable administration fees and expenses of the joint liquidators as determined by the Master. On 1 September 2010, the Master determined the security amount at R11,309,750. On 27 September 2010, a consent order was made setting aside the liquidation, with paragraph 5 stating that 'Ansafon pay the fair and reasonable administration fees and expenses of the second Respondent as determined by the Master of this court, but subject to review and subsequent appeal, if any.' Subsequently, the liquidators submitted fee accounts to the Master totaling over R32 million. Ansafon launched an application seeking to interdict the Master from confirming the accounts and for declaratory relief that the Master's determination of 1 September 2010 constituted the final determination.
The appeal was dismissed with costs. Paragraph 2 of the order of the court below was altered to delete reference to 'inclusive of the costs of the urgent interlocutory application and the wasted costs of the postponement of the taxation'. A new paragraph 3 was added directing the respondents to pay the costs of the urgent interlocutory application and the costs of the application for postponement jointly and severally, the one paying the others to be absolved.
When interpreting a court order, the process is objective and must focus on the language of the provision itself read in context and having regard to the purpose of the provision and the background to the preparation and production of the document (following Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)). Where identical words are used in successive court orders dealing with the same subject matter, they should generally be interpreted consistently unless there is clear indication to the contrary. A determination of the amount of 'security' for administration fees and expenses is distinct from a determination of the actual fees and expenses themselves. The requirements for a final interdict remain: (1) a clear right; (2) injury actually committed or reasonably apprehended; and (3) the absence of similar protection by any other ordinary remedy (following Setlogelo v Setlogelo 1914 AD 221). An applicant must establish all three requirements for interdictory relief.
The Court noted that it was not necessary to deal with whether the Master can determine fees under the Companies Act 61 of 1973 after a company has been taken out of liquidation, since this was not the basis on which the consent order was framed. The Master had been appointed by consent order to make a determination and the Court declined to give guidance on how this should be done. The Court also noted that no proper basis had been laid for requiring the liquidators to account to Diamond Core, as no demand had been made or refused prior to the application.
This case provides important guidance on the interpretation of court orders, particularly consent orders in the context of liquidation proceedings. It emphasizes the objective approach to interpretation, focusing on the language used, context, purpose and background. The case demonstrates the importance of precise drafting in court orders and the principle that identical words used in successive orders should generally bear the same meaning. It also reinforces the well-established requirements for final interdictory relief (clear right, injury actually committed or reasonably apprehended, and absence of similar protection by ordinary remedy) and the need for applicants to properly plead and establish all elements. The judgment clarifies that a determination of 'security' for fees is distinct from a determination of the actual fees themselves.