The
second issue that falls for determination is whether the court a quo should
have addressed the question whether the shares were part of the estate of Sagit
Stockbrokers (Pvt) Ltd and whether the confirmation did not affect the
appellant's claim for delivery of those shares.It
is not in dispute that the shares in question ...
The
second issue that falls for determination is whether the court a quo should
have addressed the question whether the shares were part of the estate of Sagit
Stockbrokers (Pvt) Ltd and whether the confirmation did not affect the
appellant's claim for delivery of those shares.
It
is not in dispute that the shares in question were included in the estate of Sagit
Stockbrokers (Pvt) Ltd. No objection to such inclusion was lodged with the
Master. What the appellant did was to file a claim as an ordinary creditor.
Once the account was confirmed, the question whether the shares actually
belonged to Sagit Stockbrokers (Pvt) Ltd became irrelevant as those shares, or
the value thereof, became the subject of distribution in terms of the confirmed
account. It cannot be correct therefore that the confirmation did not have any effect
on the appellant's claim for delivery of the shares. The reality is that once
the account was confirmed, the shares could no be delivered to the appellant
except in terms of the plan of distribution.
In
any event, it is clear that the first respondent was not holding share
certificates in the name of the appellant. The papers before this Court suggest
that the shares, or some of them, were held in the name of Trust Nominees, a
subsidiary of Sagit Stockbrokers (Pvt) Ltd. Had the shares been in the name of
the appellant then the appellant would have been on firmer ground to claim
delivery of the share certificates.
It
seems to me that the appellant has only itself to blame.
Believing
that some of the shares that formed part of the estate of a company in
liquidation were its own and aware that the account was lying open for
inspection, the appellant should have immediately protected its rights by
seeking a declaratur to the effect that these were its shares and that they
should not form part of the estate. The appellant did not do so but behaved
like an ordinary creditor. Even when the
account lay open for inspection, the appellant should have filed an objection
and ensured that the shares were not the subject of a plan of distribution in
the estate. After all, the appellant was, at all times, legally represented and
the implications of the various steps taken by the liquidator should have been
obvious. The need to object before confirmation of the account is a legal one.
The objection is made to the Master who is obliged to make a decision on the
objection. Such decision is even subject to review. It is clear that the
purpose of an objection is to enable the Master to arrive at a correct decision
before confirming the account.
In
all the circumstances, the court a quo was correct in holding, as it did, that
once the account was confirmed, the claim by the appellant was not competent,
unless the account was re-opened or set aside in terms of the law. The relief
sought by the appellant was therefore wrong. In the circumstances, there was no
need, on the part of the court a quo, to determine whether the shares were or
were not part of the estate of Sagit Stockbrokers (Pvt) Ltd.
