The Commissioner of South African Revenue Services v Stand Two Nine Nought Wynberg (Pty) Ltd

Super Diamond Computers (Pty) Ltd was wound up at the instance of the first respondent (Stand Two Nine Nought Wynberg) to whom it owed R600,273.40 in arrear rent. Super Diamond also owed the appellant (SARS) R515,702.52 in unpaid tax. After liquidation, it was discovered that Super Diamond had no assets as an associated company, MMW Technologies (Pty) Ltd, had taken over its assets without payment. Before any creditor proved a claim, MMW agreed to settle by paying R678,000 to Super Diamond for the respondent's claim plus liquidation costs, and to pay any other creditors who proved claims. MMW paid R710,377.86 to the liquidator. Subsequently, SARS and another small creditor proved their claims. MMW failed to pay these debts and was itself wound up, with its creditors receiving nothing. The liquidator's distribution account provided for SARS's preferent claim to be paid first, followed by concurrent creditors including the respondent. The respondent objected, claiming the MMW payment was earmarked for its debt and should be paid to it despite SARS's preference. The Master dismissed the objection, and the respondent applied to court for an order that it was entitled to direct payment.

• Whether a liquidator can agree with a debtor of the company to pay a debt directly to a particular creditor outside the statutory scheme of distribution
• Whether such an agreement can bind the estate and override the preferent claims of other creditors
• Whether a liquidator acts as agent for individual creditors in collecting debts
• Whether the settlement agreement between MMW and Super Diamond could validly earmark funds for a specific creditor to the exclusion of preferent creditors

The appeal succeeded with costs. The order of the court a quo was set aside and replaced with an order dismissing the application with costs.

A liquidator of a company cannot agree with a debtor of the company to pay a debt directly to a particular creditor if doing so would subvert the scheme of distribution laid down in the Insolvency Act 24 of 1936. A liquidator's statutory duty under sections 391 and 342 of the Companies Act 61 of 1973, read with sections 95-104 of the Insolvency Act, to recover assets and distribute proceeds according to the statutory order of preference, overrides any private agreement or purported agency relationship with individual creditors. When a company remains insolvent, the liquidator is obliged to wind up its estate according to the dictates of the Insolvency Act, and any agreement that conflicts with this statutory duty is unlawful and unenforceable. The integrity of the concursus creditorum must be safeguarded and cannot be circumvented by private arrangements.

The court made observations about the nature of a liquidator's relationship with creditors, noting that the proposition that a liquidator acts as agent for individual creditors is 'by no means free from doubt.' The court cited with approval Jankelow v Binder, Gering and Co 1927 TPD 364, where it was stated that while a trustee's or assignee's position is in some respects analogous to that of an agent, there are numerous respects in which it is clear that they are not agents - for example, they are not subject to individual creditor instructions and can in certain cases act against the instructions and wishes of particular creditors. The court observed that even if the liquidator were considered the respondent's agent, no agent may assume conflicting duties on behalf of different principals.

This case establishes important principles regarding the inviolability of the statutory scheme of distribution in insolvency proceedings. It confirms that liquidators cannot make private arrangements that would enable parties to circumvent the order of preference for creditors set out in the Insolvency Act. The judgment reinforces the principle of concursus creditorum (the collective body of creditors) and the liquidator's paramount duty to administer the estate according to statutory requirements. It clarifies that a liquidator's duty to the estate and all creditors collectively takes precedence over any purported agency relationship with individual creditors. The case is significant for insolvency practitioners, creditors, and debtors in understanding the limits of contractual arrangements in the context of liquidation proceedings.