Wishart v BHP Billiton Energy Coal South Africa (Pty) Limited

The appellants sought to prove a late claim in the winding-up of Euro Coal (Pty) Ltd (in liquidation). They had objected to the first Liquidation and Distribution Account (L&D account) lodged by the liquidators with the Master and requested special leave under section 44(1) of the Insolvency Act 24 of 1936 to prove their respective claims. The appellants also sought expungement of BHP Billiton Energy Coal South Africa (Pty) Limited's claim from the L&D account. Two exceptions were raised to the particulars of claim. The first exception was that section 44(1) of the Insolvency Act did not apply to company winding-ups, which were governed by section 366 of the Companies Act 61 of 1973. The second exception was that the appellants failed to allege a decision by the Master that aggrieved them, as required by section 407 of the Companies Act. The High Court (Rossouw AJ) upheld both exceptions, and the appellants were granted leave to appeal to the Supreme Court of Appeal.

• Whether section 44(1) of the Insolvency Act 24 of 1936 applies to the proof of claims in the winding-up of companies, or whether it is excluded by section 366 of the Companies Act 61 of 1973
• Whether the proviso to section 44(1) (allowing late proof of claims with leave of the Master or court) applies in company winding-ups
• Whether a court has jurisdiction to expunge a claim in a winding-up, or whether only the Master has this power under section 407 of the Companies Act
• Whether procedures set out in section 407 of the Companies Act must be followed before approaching a court
• Whether the appeal was perempted by the appellants' request for an extension of time to file amended particulars

1. The appeal against the order upholding the first exception was upheld with costs. The order was replaced with: 'The first exception to the particulars of claim is dismissed with costs.' 2. The appeal against the order upholding the second exception was dismissed with costs including the costs of two counsel.

The binding legal principles established are: (1) Section 44(1) of the Insolvency Act 24 of 1936, including its proviso regarding late proof of claims with leave of the Master or court, applies to the proof of claims in the winding-up of companies. (2) Section 44(1) of the Insolvency Act and section 366 of the Companies Act 61 of 1973 are complementary provisions: section 44(1) governs the time period for proving claims and the late proof of claims, while section 366 governs the procedure for participation in distributions under particular accounts. (3) The power to expunge a claim in a company winding-up is vested exclusively in the Master under section 407 of the Companies Act 61 of 1973. A court has no direct jurisdiction to expunge claims. (4) A court may only review the Master's decision made under section 407 once such decision has been made. An interested person must first exhaust the statutory procedures under section 407 before approaching a court for review. (5) Insolvency administration is wholly a creature of statute, and statutory procedures in insolvency matters are peremptory and must be complied with.

The Court made several non-binding observations: (1) The Court criticized the decision in Millman & another NNO v Pieterse & others 1997 (1) SA 784 (C), indicating it was wrongly decided insofar as it suggested that liquidators could proceed by action to expunge claims without first following the procedures set out in section 45 of the Insolvency Act. The Court noted that Millman did not fully take into account the principle that a review under section 151 gives the court powers of appeal and review, including hearing further evidence and deciding the matter de novo. (2) The Court observed that the finding in Millman that the statutory procedures are not peremptory is inconsistent with the principle enunciated in Standard Bank of South Africa v The Master of the High Court & others 2010 (4) SA 405 (SCA). (3) The Court noted that the admission of a claim by the Master at a meeting of creditors does not amount to ratification of the claim or render it res judicata, citing Bank of Lisbon and South Africa Ltd v The Master & others 1987 (1) SA 276 (A). (4) The Court clarified that the provision in section 407 of the Companies Act for court review does not amount to an "ouster" of the court's jurisdiction, but rather defines the proper procedure for judicial oversight of the Master's decisions. The court has always had the power to review such decisions, but this power is exercised according to statutory procedures.

This judgment is significant in South African insolvency and company law for several reasons: (1) It confirms and applies Mayo NO v De Montlehu regarding the application of section 44(1) of the Insolvency Act to company winding-ups. The judgment clarifies that the entire proviso to section 44(1), including the provision for leave to prove late claims, applies in company liquidations. (2) It establishes the complementary operation of section 44(1) of the Insolvency Act and section 366 of the Companies Act 61 of 1973, with the former governing time periods for late claims and the latter governing participation in specific distributions. (3) It clarifies that section 407 of the Companies Act provides the exclusive procedure for objecting to liquidation and distribution accounts, and that only the Master has the power to expunge claims. Courts may only review the Master's decision. (4) It implicitly disapproves of aspects of Millman v Pieterse and reaffirms the principle from Standard Bank v Master that statutory procedures in insolvency are peremptory and must be followed before approaching a court. (5) The judgment reinforces that insolvency administration is wholly a creature of statute and emphasizes the strict construction of provisions in derogation of common law. The case provides important guidance on the interplay between the Companies Act and Insolvency Act in winding-up proceedings.