Background

Blue Label Distribution (Pty) Ltd (Blue Label) is a distributor of pre paid virtual products (such as airtime, data, electricity, etc.) (Products) supplied by third parties (Suppliers).  Blue Label contracted with Cape Basic Products (Pty) Ltd (CBP) to enable CBP to sell those products to end customers through their terminal devices.

Under the contractual arrangement, CBP was required to deposit funds into Blue Label’s bank account in advance, which created a credit balance, and then Blue Label loaded corresponding credit for the Suppliers’ Products onto CBP’s terminal devices. As customers purchased products from CBP, they paid CBP directly for those Products (Customer Payments). At the end of each day, Blue Label’s system generated invoices for products sold. The value of those sales was debited from CBP’s credit balance and transferred to Blue Label’s trading account. Blue Label then paid the equivalent amounts to the Suppliers from that trading account. Blue Label earned a commission from suppliers and paid a portion of that commission to CBP.

In this case CBP was placed under provisional liquidation on 2 March 2020 and finally liquidated on 30 June 2020. Between these dates – specifically after the provisional order but before the appointment of liquidators – CBP made eight payments to Blue Label, totalling R347,531.81.

The liquidators of CBP sought to recover these payments as void dispositions under section 341(2) of the Act, and the High Court upheld their claim. Blue Label then appealed to the SCA.

The SCA had to deal with two central questions:

1. whether the liquidators of CBP were entitled to rely on section 341(2) of the Act when the amounts were effectively repaid to CBP, through the transaction outlined above, before the application to declare the payments void had been instituted, and, If so
2. whether Blue Label was the true recipient of the disposition or whether it was merely acting as a collecting agent for its suppliers.

Section 341(2) of the Act

Section 341(2) provides as follows:

 “ 341 Dispositions and share transfers after winding up void…

 
(2) Every disposition of its property (including rights of action) by any company being wound up and unable to pay its debts made after the commencement of the winding up, shall be void unless the Court otherwise orders.”

It is important to note, in this regard, that in terms of section 348 of the Act winding-up commences on the date that the liquidation application is presented to court. 

The repayment issue

Blue Label argued that CBP’s estate was not diminished by the deposit CBP had paid to Blue Label, because the Customer Payments effectively replenished CBP’s estate. In substance, Blue Label contended that, given the transaction described above, there had been no real loss to CBP’s estate.

The SCA rejected this argument, because it endorsed a wide interpretation of “disposition”, drawing from the definition in the Insolvency Act 24 of 1936, and which is not limited to transactions that diminish the debtor’s estate in a net sense.

It held that as soon as a provisional liquidation order is made, CBP’s estate was in the hands of the Master, and CBP was incapable of carrying out its contracts. In these circumstances, once a disposition falls within section 341(2), voidness arises automatically and is not contingent on whether the estate was diminished or subsequently restored.

The SCA held that once winding-up proceedings begin, the default position is one of strict invalidity: any such dispositions are void ab initio and treated as though they never occurred. A recipient of a void disposition is immediately obliged to perform restitution of such amount to the company in liquidation, because such recipient has no right to retain the disposed funds.

Accordingly, the SCA held that the liquidators were entitled to rely on section 341(2) of the Act to recover the payments from CBP to Blue Label.

The true recipient issue

Blue Label further argued that it acted merely as an intermediary or collection agent for the Suppliers and was therefore not the true recipient of the funds. It argued that it merely facilitated the transmission of funds ultimately from a retail outlet, such as CBP, to the Supplier and that it never acquired ownership of the products or the proceeds of the sale.

The court rejected this characterisation, finding that the contractual framework created a debtor-creditor relationship between CBP and Blue Label, rather than one of agency.

There was no direct contractual relationship between CBP and the Suppliers, and Blue Label was the counterparty to CBP. As such, when CBP made payments to Blue Label, the true recipient of the funds could only be Blue Label.

Practical implications

The judgment has significant implications for commercial counterparties dealing with entities that are subject to liquidation proceedings. Once an order is made, the liquidation (winding-up) is deemed to commence on the date that the liquidation application was presented to court, and section 341(2) of the Act kicks in. As a result:

• any payment received after the commencement of winding-up is at risk of being clawed back, irrespective of commercial fairness or subsequent balancing of accounts;
• even if the commercial counterparty has rendered substantial performance and the estate appears unaffected, the statutory voidness operates automatically;
• recipients of payments are obligated to repay any dispositions received to the insolvent estate, as liability arises immediately upon receipt; and
• attempts to characterise arrangements as agency or conduit relationships will be closely scrutinised against the underlying contractual reality.

This case exemplifies Dickens’ phrase “The law is an ass” from Oliver Twist, highlighting how the application of the law can require clawbacks of funds even when the insolvent estate suffers no net loss, potentially resulting in additional payments to the insolvent estate in respect of a single transaction.