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Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

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The deadlock principle as a ground for the just and equitable winding up of a solvent company: Thunder Cats Investments 92 (Pty) Ltd v Nkonjane Economic Prospecting Investment (Pty) Ltd 2014 5 SA 1 (SCA)

Tumo Charles Maloka, Shandukani Muthugulu-Ugoda

Abstract


The question addressed by the Supreme Court of Appeal in Thunder Cats Investment 92 (Pty) Ltd v Nkonjane Economic Prospecting & Investments (Pty) Ltd 2014 5 SA 1 (SCA) (hereafter the "Thunder Cats") provides much-needed guidance on the deadlock principle as well as the breadth and scope of the "just and equitable ground for winding up in terms of s 81(1)(d)(iii) of the Companies Act 71 of 2008. The facts, the issues and the contextual authority of Thunder Cats also bring to fore the lacuna in the just and equitable winding up provisions of the current Companies Act which lacuna has so far received no judicial or academic consideration. This Note contends the fact that the just and equitable winding up provisions do not countenance any deviation from the statutory prescriptions once the factual grounds for just and equitable winding up have been established is not in consonance with the spirit, purport and objects of Companies Act, and, in particular those of Chapter Six of the Act which have introduced the innovative business rescue scheme into South African corporate law landscape. The facts, the issues and the contextual authority of Thunder Cats will be reviewed at length in the ensuing discussion.

Keywords: corporate deadlock, just and equitable winding up, partnership analogy, clean hands, solvent company




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