In the case of Botha versus Van Zyl, the judge found a sound reason to order the liquidation of a CC that had been doing well financially.
IT’S always sad when family relationships break down. In the case of Botha versus Van Zyl, a recent decision of the High Court in Kimberley, the breakdown had also led to an unusual court case.Philippus Johannes Botha brought an application against his stepbrother Pieter Johannes Van Zyl and the CC jointly owned by the brothers, Ventersdam Boerdery.The CC was doing very well financially, and its assets far outweighed its liabilities. But Botha asked for the CC to be liquidated, an action almost always associated with insolvency. As the court explained, Botha made this application because he wanted to end his ties with the CC, his stepbrother and the farm.
Botha had told the court about an extreme state of tension that existed between himself and his parents, making it impossible for him to continue as before. Botha had lived in a house 50m from that of his parents, and helped work his stepfather’s lands.However, things had become so bad between them that, in a separate case brought at about the same time, Botha had successfully asked for an order against his stepfather forbidding the latter from assaulting him. He also asked that his parents and stepbrother be prevented from contacting him, his wife or her family except through their attorneys. His family was also barred from spreading malicious stories about him or otherwise infringing on his privacy.
Botha said that his stepfather frequently flared into rages and threw members of his family off the farm; later, when he calmed down, he would relent and ask them to return. Botha said his wife, who was used to a more loving home environment, found this intolerable and had tried to commit suicide. While she was being treated in Bloemfontein, Botha’s stepfather shot and killed her dog. Botha went to the farm to remonstrate with him and his stepfather assaulted him. As Botha drove away, the older man damaged his vehicle by throwing a rock at him.
This was the last straw for Botha, who left the farm and moved with his wife to the farm of his parents-in-law in Bonnievale.Viewed against this background, what would the judge decide on the question of liquidating the CC? He held that the law gave him a wide discretion concerning when he was allowed to liquidate a CC, but that it must be “fair and equitable” to do so.The judge said Botha had made various proposals to his stepbrother about how to resolve his share in the CC, but Van Zyl had turned down every suggestion. Liquidation was the only option left to Botha.
If he refused to order the liquidation of the CC, said the judge, he would be forcing Botha to continue as part of the CC against his will. And that, in turn, would infringe Botha’s constitutional right to freely choose his profession. He therefore ordered that the liquidation process should begin and that the legal costs of both sides should be deducted from the liquidated assets of the CC. Botha versus Van Zyl [2007] ZANCHC 20. |fw
