For the reasons set out below, my answer to the question posed at the end of De registered company question (“the article”) is that the Conveyancer may not proceed with the transfer of the property sold to the Purchaser by the Curator.
It is essential that a distinction be drawn between matters which fall within the Conveyancers’ ordinary duties and responsibilities, on the one hand, and those that do not, on the other hand. Therefore, the question, whether steps, if any, should be taken or not and, if so, by whom, “to have the company reinstated”, fall outside of the ordinary duties and responsibilities of the Conveyancer.
The appointment of the Curator, in terms of section 28 (1) (a) or 30 (2) (a) of the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998), as amended, (“the POCA”), as such, does not constitute an authorisation for the Curator to enter “into an Agreement of Sale iro the property” – a realisation of the property.
Notwithstanding the afore-going, but for the sake of completeness, I make the observation that steps to re-instate the company might not necessarily be the appropriate, or only, option. This would be so because, having regard to the provisions of section 36 of the POCA, specifically about property which forms, or does not form, part of the assets of the company, the article does not disclose, amongst other matters, whether (i) a competent court has made an order for the winding-up of the company or not and, if so, when the order was made and (ii) a restraint order was made in respect of the property or not and, if so, when this was done. Further, is critical to distinguish between de-registration, on the one hand, and an order for the winding-up, on the other hand.
Thabo Nqhome
13 November 2013
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