IN THE SUPREME COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between:

JUDGMENT

THRING, J:

"The tariff as per the second Schedule, Tariff B of the Insolvency Act, 24/1936 read with CN104 of Companies Act, 61/1973 serves as a point of departure in the determination of appropriate liquidator's fees. In order for the Master to exercise his/her discretion whether to increase or decrease the amount of remuneration arrived at by application of the tariff, there should be "good cause".  Factors to be considered but not limited to include complexity of the matter, degree of difficulty encountered, amount of work done, time spent in discharge of duties. For purposes of your application I will confine myself to the basis of your application. Time spent on the performance of normal duties of a liquidator includes but is not limited to communication (telephonic, electronic or by post) with creditors or the Master, consultation with co-liquidators, respective purchasers, former directors of the company, drafting of liquidation and distribution account or other duties in relation to account, monitoring of bank accounts etc. These items are covered by the tariff and do not constitute extraordinary which merits an additional discretionary fee.

Therefore your application for special fee is hereby disapproved and you are hereby call upon to amend the account accordingly within 14 days from date hereof".

The applicant's case may be summarised as follows:
(a)	His duties as liquidator spanned more than four years, were complex, difficult and time-consuming. The 	Master is prepared to allow a total tariff account of R331 479,15. Remuneration based purely on time 	spent would amount to R599 963,33. The applicant asserts, however, that overall remuneration for his 	services of R458 222,02 would be reasonable.
(b)	Had the Master properly considered the matter and taken into account all the relevant factors, she would 	have been driven to the concrusion that the applicant's tariff remuneration of R331 479,15 was not 	reasonable and that there was thus good cause   to   increase   the    remuneration   in accordance with 	section 384(2) of the Companies Act.
(c) The Court has the power to review the decision of the Master where it is clearly wrong, and the Court is at large itself to determine what is reasonable remuneration for the applicant. Alternatively, the Master's decision is reviewable in terms of section 6(2) of the Promotion of Administrative Justice Act, No. 3 of 2000.

(a)	the complexity of the estate in question;
(b)	the degree of difficulty encountered by the liquidator in the administration thereof;
(c)	the amount of work done by the liquidator;
	(d)	the   time   spent   by   the   liquidator   in   the discharge of his duties.

2005. After further negotiations the action was later withdrawn.

A liquidator's administration is governed by the exigencies of each particular case. A diligent liquidator will discharge the duties imposed on him by law. The reason advanced by the Master that a liquidator's remuneration must be determined by "the result attained" is, in our view, a misdirection. To the extent that this assertion can be given any content at all it is, at best, irrelevant.

We find, first, that the Master was wrong in her approach to the matter and that lip-service only was paid to the relevant factors which she ought to have taken into account. Secondly, we find that there is a material disparity between the remuneration which ought to have been allowed and that which the Master has allowed, based on the application of the tariff. As I have said, the applicant claims substantially less than the amount calculated on a time basis alone. That does not, of course, necessarily mean that the amount of remuneration claimed by the applicant is reasonable. It may or may not be. However, we find that, in all the relevant circumstances to be reasonable the applicant's total remuneration must substantially exceed the sum of R331 479,15 before VAT to which the Master seeks to limit it in terms of the applicable tariff.

The precise determination of remuneration for the applicant which would be reasonable in alt the relevant circumstances is, in this case, best left to the Master, in our view. We therefore do   not   propose   to   embark   in   this   matter   on   a   minute examination of each item in respect of which the applicant claims to be entitled to be remunerated. It may be that in other cases situations may arise where it will be both possible and desirable for a Court on review to perform the function of the Master and to fix the precise amount which would represent reasonable remuneration for a liquidator. In such cases, the Court would have to be in as good a position, as the Master was to make such a determination. Here, however, the Court is not in such a position especially in the light of the criticism of certain items in respect of which remuneration is claimed by the applicant which have given rise to certain concerns to which I shall presently advert.

For these reasons the following order is made:

2.	The matter is referred back to the respondent for 	her reconsideration, bearing in mind what has 	been said in this judgment, it being found that in 	terms of section 384(2) of the Companies Act, 	good cause exists for remuneration to be awarded 	to the applicant in excess of the amount arrived 	at 	solely by applying the provisions of the said 	tariff.
3.	No order is made as to the costs of this 	application.

THRING, J

BOZALEK, J