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Smith N O and others vs. Master of the High Court, Free State Division, Bloemfontein and Another - (08 Mar 2023)

Party in possession of the relevant information is best placed to interrogate a particular witness


The issue in present case is whether only the Master of the high Court, and no one else, may examine witnesses subpoenaed at an enquiry convened by the Master in terms of Section 417 of the Companies Act, 1973.

Sections 417 and 418 are not distinct but rather complementary provisions which must be read together. They provide for a dual method for holding the enquiry. As the source of the delegation, the Master cannot delegate a function or power she does not already possess. There can be no doubt that whenever a Section 417 enquiry is called for, the liquidators, the court or the Master will be strangers to some of the intricate operations and affairs of the company in liquidation. Depending on the circumstances of each case, the information may lie in the exclusive domain of a creditor or some other party with an interest in the matter. The party in possession of the relevant information is best placed to interrogate a particular witness.

All statutory provisions must be interpreted to avoid absurdity. This is subject to three interrelated riders, namely that: (a) statutory provisions should always be interpreted purposively; (b) the relevant statutory provision must be properly contextualised; and (c) all statutes must be construed consistently with the Constitution.

The case where the court or Master conducts an enquiry without a commissioner, as was the position in the present case, is indeed a rare one. In practice, the Master invariably appoints a commissioner in terms of Section 418 to conduct the enquiry, usually senior counsel or a retired Judge. But that does not detract from the fact that, on the proper construction of Section 417, the Master is entitled to preside over the enquiry in terms of Section 417 and allow those summoned to the enquiry to be interrogated by, or on behalf of, liquidators or creditors.


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