It does not appear from either the second or third opinions that this fact was brought to the attention of counsel. Nor does it appear that they were informed about the historical financial records up until the end of November A further question arises: Why was a second opinion sought by the Macmed liquidators, with Nel and De Villiers being the driving force?
In addition, it could rightly be asked, why, whilst in the process of seeking the opinion or after obtaining it, they nonetheless persisted with the claim. Despite the existence of the opinion, Nel and De Villiers as joint liquidators of Intramed failed to dispute the claim. This clearly demonstrates the conflict that Nel found himself in and should have been more attuned to.
So too, must liquidators. The latter must at the very least have knowledge of the relevant legal principles relating to their duties and functions. But, even if they did not in this particular instance, their conduct was lacking in simple common sense and devoid of logic to the extent that it is difficult to resist the conclusion that they were improperly motivated.
The third opinion, which is four and a half pages long, built on the second. The reliance on legal advice must be viewed against what is set out in the preceding paragraphs. In my view, in respect of the claim of Rm, Nel and De Villiers did not comply with their duties as liquidators in accordance with the standards referred to by the authorities set out earlier in this judgment. If the latter claim is valid there might be justification for set-off. But set-off only arises if the Macmed claim of Rm is valid.
Standard Bank, having been ousted for a long time as a participating creditor in the Intramed estate because of the expungment of its claim, was intent on having the Macmed claim discussed and its validity debated. The court below was correct in its conclusion concerning the decision by Nel and De Villiers not to accede to the request for a meeting. It did not regard that fact on its own as a basis for their removal as liquidators. In my view, the failure to call the meeting has to be seen against the totality of the circumstances set out above.
It must be stated at the outset that counsel on behalf of Nel and De Villiers was rightly constrained to concede that, insofar as the use of monies for the review application is concerned, their conduct was not beyond reproach. He submitted that it should however be seen in context and that we should be cautious and alive to the fact that we are now judging their conduct with the benefit of hindsight.
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As such, he occupies a position in some ways analogous to that of a trustee. As a fiduciary, the liquidator must at all times act openly and in good faith, and must exercise his powers for the benefit of the company and the creditors as a whole, and not for his own benefit or the benefit of a third party or for any other collateral purpose. He must act in the interests of the company and all the creditors, both as individuals and as a group. He must not make a decision which would prejudice one creditor and be of no advantage to any of the other creditors or to the company.
He may not act in any matter in which he has a personal interest or a duty which conflicts, or which might possible conflict, with his duties as liquidator of the company. For a liquidator to act in that fashion is the very antithesis of what should rightly be expected of a liquidator.
It is equally clear that litigation undertaken has to be in the best interest and for the benefit of the company being wound-up. Neither could such monies be used to fund a test case for the liquidation industry generally. Throughout, they demonstrated an obstinate resistance to being held to account. It took approximately 16 months after the decision of this court before all the monies utilised were paid back. At the outset the warning lights ought to have flashed. Their expertise and experience in matters financial ought to have made them particularly aware that personal costs and motivations should be kept strictly distinct from professional obligations and responsibilities and should not intrude to contaminate the winding-up process.
When two courts in succession pronounced on their liability and responsibility they ought to have responded with due promptitude and demonstrated appropriate contrition. The opposite occurred.
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Having undertaken to the Master, when faced with his protests, to repay the legal costs if held personally liable, one would have thought that they would have kept a separate record of those payments, yet it appears that they did not. The question might rightly be asked why they did not have recourse to books of account in which legal costs would necessarily have been recorded.
Years later, without the excuse of absent vouchers, the matter remained unresolved. Had they been ordinary litigants this would have been unacceptable. Given the high standards required of liquidators in the winding-up of companies it is unconscionable and wholly deplorable. In his affidavit Nel states that arrangements between liquidators, such as the one in relation to the Macmed winding-up process, are common place. The Macmed liquidators appear to have paid that contribution personally. The inflated fees of approximately R21m which Nel and De Villiers consider themselves entitled to in relation to their winding-up of Intramed would have had a serious impact on the estate.
This was a matter on which the views of the creditors ought to have been specifically sought and in respect of which they ought to have had a say.
The conflict inherent in the situation described above was regrettably lost on Nel and De Villiers and on the other joint liquidators of Macmed. It would be surprising if this kind of conduct was sanctioned by their professional association. Section 2 of the Companies Act 61 of provides:. The relevant circumstances mentioned in subsec 1 are as follows:. He or she must be seen to be independent since his duties as liquidator may require him or her to investigate.
A Court will exercise its discretion to remove a liquidator if it appears that he or she, through some relationship, direct or indirect, with the company or its management or any particular person concerned in its affairs, is in a position of actual or apparent conflict of interest. Further on, the following appears:. Also, the court might take into account some unfitness on the part of the liquidator together with what might be in the interests of those persons interested in the liquidation. A relevant factor is also the costs that would be incurred if another liquidator has to come in and complete the work that the present liquidator has already done.
Thus, in the circumstances, the court will be less likely to discharge a liquidator towards the end of the winding-up, after he has become acquainted with the affairs of the company, than it would early in the winding-up. Although each one of these considerations taken singly might not be sufficient to justify the removal of the liquidator, taken together they might be.
It does not appear that in that case this court was made aware of the fee-sharing arrangement which would have significantly ameliorated the impact of the cost order on Nel and De Villiers personally. In addition they were obstructive, evasive and unrepentant to the end. The challenge on that issue culminated in an appeal to this court in which Standard Bank was successful.
We have been informed that much work in relation to the Intramed estate has been done and is nearing completion. Against that consideration is the fact that Nel and De Villiers have played a major part in the delay by way of costly, protracted and unnecessary litigation. If the Macmed claim is disregarded Standard Bank overwhelmingly represents the majority of value of creditors in the Intramed estate. That it is willing to put up with a further delay in the winding-up of the estate is not insignificant.
The Rm claim is clearly the remaining major issue and one in respect of which Nel and De Villiers cannot bring objectivity to bear. The totality of circumstances set out above compellingly leads to the conclusion that it is not in the best interests of the liquidation that they continue to serve as joint liquidators of Intramed.
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The Master, creditors and importantly courts rely on them. In the liquidation process they are expected to act impeccably. The profession must be under no illusion that courts, in appropriate circumstances, when called upon to do so will act to ensure the integrity of the winding-up process.
Furthermore, Standard Bank submitted that Nel and De Villiers should be liable to pay a penalty in terms of s 7 25 of the CA in an amount of R1 , being double the amount they used from Intramed funds to pay the costs of the review application. It certainly impacts on his or her reputation. It was submitted on behalf of Nel and De Villiers that we give consideration to the fact that they are nearing the end of their careers.
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Moreover, so it was submitted, they have expended effort and much hard work to the benefit of Intramed and creditors by, for example, continuing to trade in Intramed despite objections by BoE bank, which resulted in a significant increase in its value, which ultimately redounded to the benefit of creditors. However, having regard to the nature and gravity of the misconduct, considering the protracted, costly and unnecessary litigation engaged in by Nel and De Villiers, and taking into account what can rightly be demanded of liquidators, it is my view that they should be deprived of 5 per cent of their fee.
The Master was requested to disallow or reduce their remuneration and refused to do so. Counsel representing the bank correctly accepted that the founding affidavit was prolix. It made trawling through the record extremely difficult. It had the unhappy consequence of a lengthy response. Oftentimes less is more. Recently both in respect of the record and heads of argument legal representatives have acted to the contrary. Mindful of the unnecessary time and resources expended in the present case I am of the view that the bank should be deprived of a third of its costs.
It is accordingly not necessary to repeat the factual background herein, save to the extent necessary to explain my reasoning in respect of particular aspects. Before dealing seriatim with the individual grounds of complaint, I wish to make some general remarks which, in my view, militate against the removal of the liquidators at this stage of the winding-up process.
Thus Nel stated:. No purpose would be served in replacing De Villiers and me now as liquidators, as the administration of the Intramed estate is, for all practical purposes, almost complete. The appointment of other liquidators would only result in incurring additional costs for the Intramed estate to the prejudice of the other creditors.
Since the aforesaid date the court below, during the first round of the current proceedings, refused to expunge the Macmed claim, 30 with the result that the issue relating to that claim can no longer be said to be outstanding. It can be accepted, therefore, that the process of winding up is by now — more than four years later — virtually complete. To remove the liquidators at this very late stage will, in my view, amount to a brutum fulmen.
Indeed, this was described by Standard Bank as one of the main issues to be decided in the litigation and one of the prayers para 1.