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IN THE HIGH COURT OF SOUTH AFRICA

[WESTERN CAPE HIGH COURT, CAPE TOWN]

Case No.: 13327/09

In the matter between:

THE NATIONAL DIRECTOR OF

PUBLIC PROSECUTIONS …...................................................................................Applicant

and

FRANCOIS EMIL JACQUES KLEINHANS …....................................................Defendant

HILDA GRACE KLEINHANS …................................................................First Respondent

AQUILA HOLDINGS (PTY) LTD ….....................................................Second Respondent

FINISHING TOUCH TRADING 75 (PTY) LTD t/a

AQUILA PROPERTY SOLUTIONS …....................................................Third Respondent

RICH REWARDS TRADING 52 (PTY) LTD t/a

AQUILA FINANCIAL SERVICES ….....................................................Fourth Respondent

GLOBAL PACT TRADING 73 (PTY) LTD …..........................................Fifth Respondent

and in the related application of

CHRISTIAN FINDLAY BESTER N.O. ….................................First Intervening Applicant

GERARD LEONARD PARIS N.O. (in their

capacity as joint provisional liquidators of

Aquila Holdings (Proprietary) Limited

(in provisional liquidation) …............................................Second Intervening Applicant

[3] Subsequent to the granting of the restraint order on 3 July 2009, second respondent was liquidated, the final winding-up order being granted on 10 May 2010. On 24 May 2010, the provisional liquidators of second respondent brought an intervention application, seeking a variation of the provisional restraint order. The intervention application relates solely to the question whether or not 490 shares in Optipharm Health Care (Pty) Limited ("Optipharm"), held by second respondent, ought to be excluded from the ambit of the restraint order.

[4] For the sake of convenience, I firstly deal with the intervention application. In so doing, I will refer to the intervening applicants as "the liquidators". I should add, that it appears to me that the liquidators do not formally require leave to intervene in these proceedings. Second respondent is a party thereto and the liquidators, having stepped into second respondent's shoes, are entitled, in terms of section 28 (2) (a) of POCA, to apply for the variation of the restraint order. Be that as it may, the liquidators contend that the 490 shares in Optipharm ("the shares"), held by second respondent, fall to be excluded from the restraint order by the operation of section 36 (2) of POCA.

[5] Section 36 of POCA deals with the effect of the winding up of a company, on realisable property of the company that may be restrained in terms of POCA. The relevant parts of section 36 of POCA read as follows:

"(1) When any competent court has made an order for the winding-up of any company ...which holds realisable property

(a) no property for the time being subject to a restraint order made

before the relevant time;... shall form part of the assets of any such company or juristic person.

(2) Where an order mentioned in subsection (1) has been made in respect of a company or other juristic person ...the powers conferred upon a High Court by sections 26 to SI and 33 (2) or upon a curator bonis appointed under this Chapter, shall not be exercised in respect of any property which forms part of the assets of such company or juristic-person.

(3)Nothing in the Companies Act, 1973 (Act 61 of 1973), or any other law relating to juristic persons in general or any particular juristic person, shall be construed as prohibiting any High Court or curator bonis appointed under this Chapter from exercising any power contemplated in subsection (2) in respect of any property or proceeds mentioned in subsection (1).

(4) For the purposes of subsection (1), 'the relevant time' means-fa) where an order for the winding-up of the company or juristic person, as the case may be, has been made, the time of the presentation to the court concerned of the application for the winding-up; or... "

[6] It is clear from the aforegoing, that section 36 of POCA deals with different scenarios, based on the dates when particular events relating to the winding up of a company and the granting of restraint orders in terms of POCA, took place. In the instant matter the relevant events and their dates, are the following:

(i) On 19 November 2008, the application for the winding-up of second respondent was presented to the court. This is the "relevant time" in terms of section 36(1) and (4) of POCA.

(ii) On 3 July 2009, the provisional restraint order was granted.

(iii) On 10 March 2010, second respondent was provisionally wound up.

(iv) On 10 May 2010, second respondent was finally wound up.

[7] In considering the different scenarios catered for in section 36 and interpreting the provisions thereof, one has to apply the "golden rule" of interpretation, viz. the language used by the legislature is to be given its grammatical and ordinary meaning, unless this would result in some absurdity or some repugnancy or inconsistency with the rest of the statute. See Coopers & Lybrand v Bryant, [1995] ZASCA 64; 1995 (3) SA 761 (A) at 767E.

[8] The first scenario is found in section 36 (1), read with section 36 (4), of POCA. It applies in the case where a restraint order has been made before the "relevant time" stipulated in section 36 (4), i.e. before the application for liquidation was presented to the court. Section 36 (1) provides that in that case, no property being subject to the restraint order shall form part of the assets of the company in liquidation. It is common cause that in the instant matter this first scenario does not apply, as the provisional restraint order was made after the relevant time, i.e. after the date of the presentation of the liquidation application to the court on 19 November 2008.

[9] The second scenario is addressed by section 36 (2) of POCA. It provides that, where a winding-up order has been made, the powers conferred on the court and the curator bonis in terms of POCA, shall not be exercised in respect of any property which forms part of the assets of the company concerned.

[10] In construing section 36 (2), applicant argues that, where a winding-up order has been made prior to a restraint order, the assets form part of the assets of the company in liquidation and are, accordingly, not subject to the restraint order. Therefore, in the instant matter, applicant contends that, as no winding-up order had been made at the time when the provisional restraint order was granted, section 36 (2) of POCA does not apply.

[11] The liquidators, on the other hand, contend that section 36 (2) does not refer to the time when the winding-up order was actually made, but rather to the date when the application for the winding-up of the company was presented to court. They accordingly argue that, as in this instance, where the application for the winding-up of second respondent had been presented to the court before the date upon which the restraint order was made, the assets of second respondent are not subject to the restraint order.

[12] I do not agree with the liquidators* interpretation. Firstly, section 36 (2) refers in terms to a winding-up order which "has been made". As submitted on behalf of applicant, that is plainly a reference to an event which had actually taken place at the time when the restraint order is made. It is not a reference to the deemed date of commencement of the winding-up, as contended for by the liquidators. Had the latter been the intention of the legislature, I would have expected it to have been expressly stated in section 36 (2), or have been incorporated by reference to section 36 (4) (a), which deals with the concept of the "relevant time", i.e. the time of the presentation to the court of the application for the winding-up of the company. This was not done and, in my opinion, there is, upon a proper interpretation of section 36 (2), no room for the incorporation of a provision of this nature.

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