Case  CCT 117/24
[2026] ZACC 20

Hearing Date:  11 November 2025

 Judgement Date: 18 May 2026

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Monday, 18 May 2026, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment and order of the Supreme Court of Appeal, which dismissed an appeal against the order of the High Court of South Africa, Gauteng Division, Johannesburg, which had in turn dismissed an application setting aside, or in the alternative, rescinding a judgment under section 354 of the Companies Act of 61 of 1973 or rule 42(1) of the Uniform Rules of Court or the common law.

This matter flows from a state capture investigation in which Trillian Management Consulting (Pty) Limited (TMC) was liquidated at the instance of Eskom Holdings SOC Limited on the basis that it was completely insolvent, and had defrauded Eskom of many millions of Rands. Ten months later, in terms of an order granted under section 20(9) of the Companies Act 71 of 2008, another six TMC-related companies were “collapsed” into TMC in order for a composite liquidation process to be undertaken. The date of liquidation of the “collapsed” companies was deemed to have commenced at the time of TMC’s own liquidation.

The applicant, Centaur Mining South Africa (Pty) Limited (CMSA), was said to have loaned money to, and received payments from, two of the TMC-related companies. The liquidators of TMC sued CMSA for the payment made by the two companies to CMSA as constituting voidable dispositions. CMSA was not a party to the High Court proceedings, and was not notified of the decision until after the order collapsing the subject companies into TMC and liquidating TMC had been made final. As such, CMSA sought to have the order collapsing the TMC-related companies into TMC and liquidating TMC rescinded. The matter was opposed by the first and second respondents, the duly appointed joint provisional liquidators of TMC (collectively, the respondents). The remaining respondents were the various Trillian group of companies.

Before this Court, the applicant’s central submission was that section 20(9) does not empower a court to liquidate a company. Instead, it submitted that the section is concerned with unconscionable abuse of juristic personality and the relocation of specific rights, obligations, or liabilities. It further submitted that the purpose of winding up is to bring the existence of a company to an end through a structured process in which its assets are realised, liabilities settled, and any residue distributed. This creates a concursus creditorum (coming together of creditors) and ensures that claims are dealt with in accordance with the statutory framework. It accordingly affects the status of a company and is not concerned with the disregard of the company’s separate personality or with the relocation of rights, obligations, or liabilities.

The respondents contended that a winding-up order is competent under section 20(9), not because the section expressly provides for it, or because such a power can be implied, but simply because it is not expressly prohibited. They further argued that CMSA’s attempt to have the order rescinded was, in substance, an appeal on the merits of the High Court’s judgment, and was thus not properly before this Court.

The application raised questions about the scope of remedies under section 20(9) which empowers a court, either on application by an interested party or in proceedings involving a company to disregard the company’s separate juristic personality if its incorporation, use or conduct amounts to an unconscionable abuse of that status. In such a case, a court may declare that the company is not to be regarded as a separate juristic person in relation to any right, obligation, or liability of the company, a shareholder, or, if applicable, a member or other specified person. A court may also make any further order it considers appropriate to give effect to that declaration. The central question in this matter is, therefore, whether section 20(9) empowers a court to liquidate a company.

In a unanimous judgment penned by Musi AJ, this Court found that its constitutional jurisdiction is engaged. This Court held that the proper exercise of a court’s powers impacts the efficacy of the courts, the administration of justice and the rights of litigants to have justiciable issues decided. As a court may not issue orders that it is not empowered to grant, as the applicant argued had happened here, the matter raised a constitutional issue.

On the issue of CMSA’s standing, this Court held that the collapse of the TMC-related companies into TMC and the liquidation of TMC under the section 20(9) order prejudicially affected CMSA, as its ability to recover the funds it advanced to the TMC-related companies are now limited by the proceedings governing TMC’s insolvency. It is further subject to a claim brought by TMC’s liquidators. As such, this Court found that TMC had a current, direct and substantial interest in the matter.

Regarding the proper interpretation of section 20(9), this Court held that, on its plain meaning, the section does not sanction or proscribe the liquidation of a company. This Court declined to rule on whether a court may order the liquidation of a company. Instead, this Court held that the liquidation of the subject companies was unnecessary to achieve the purpose of the section 20(9) order, which was to collapse the subject companies into TMC. The High Court order liquidating the subject companies went beyond what was necessary to achieve this, and in this regard, the High Court exceeded its authority under section 20(9).

As a result, this Court held that it was appropriate for CMSA to have sought the rescission of the High Court’s order, rather than requesting declaratory relief or appealing it on the merits. This Court held that, as the order had been improperly made, beyond the authority of the High Court and sought in CMSA’s absence, rescission or variation under rule 42(1) was an appropriate pathway open to CMSA.

However, as the collapse of the subject companies into TMC was appropriate, this Court held that any obligations owed to CMSA by the subject companies are now obligations owed by TMC, which is now under liquidation as a matter of fact and law. As such, CMSA’s success in this matter amounts to a hollow victory. The Court thus determined that each party should bear its own costs.

The Full judgment  here