News24.com | OPINION | Bouwer van Niekerk: Shocking killing of Cloete and Thomas Murray sends terrifying message

A pervasive feature of the South African mafia state is the ubiquitous presence of charlatans and thugs. The latest evidence of this is the brazen attack on the well-known liquidator Cloete Murray and his son, Thomas, who were brutally murdered this past Saturday, writes Bouwer van Niekerk.

Turning and turning in the widening gyre  

The falcon cannot hear the falconer;

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world, The blood-dimmed tide is loosed, and everywhere   

The ceremony of innocence is drowned;

The best lack all conviction, while the worst   

Are full of passionate intensity.

In this sombre stanza, the Irish Poet W.B. Yeats poignantly describes the atmosphere of a post First World War Europe. The imagery that he paints with these words is not only striking but significantly also lacks any sanguine interpretation. Regrettably, the same imagery can appositely be applied to the mafia state that South Africa has become in 2023. 

A pervasive feature of the South African mafia state is the ubiquitous presence of charlatans and thugs. The latest evidence of this is the brazen attack on the well-known liquidator Cloete Murray and his son, Thomas, who were brutally murdered this past Saturday.

READ | Pieter du Toit: The mafia state upon us - Brutal killing of Cloete Murray and his son shows we’re losing the battle

The blatant lawlessness of this horrific incident yet again shows an omnipresent threat by malevolent criminals who display a shocking ambivalence toward human life. It is also a stark reminder that those who are willing to investigate the trees with possibly very big, rotten roots may end up facing the deadliest of winds.

Cloete Murray was a giant in the South African insolvency profession. His work ethic and tenacity were legendary, as was his fearlessness in controlling some of the shadiest of liquidated companies. A favourite of the South African Revenue Services, he was often tasked with confronting some of the most notorious companies and those who control them head on. To appreciate what this entails, it is necessary to give some rudimentary overview of what the job of a liquidator entails so as to appreciate what it is that Murray did and what may very likely led to his tragic death.

Liquidated companies and the role of the liquidator

Companies can be liquidated for a variety of reasons. Some of the more vanilla examples include the winding-up of solvent companies that have lost their substratum due to, for example, them having sold their only asset or by the sole director and shareholder having retired, thereby leaving them with no assets and liabilities, and having no business to conduct. This is often done by passing a simple resolution. No harm, no foul, no further ado.

Other reasons are, however, also prevalent, and harm and foul are aplenty. Many companies are liquidated not by free will, but by order of the court. Creditors regularly apply to liquidate companies because they fear that the company in question is being run on an insolvent basis, thereby causing a risk that they (the creditors) will not be paid, or that some creditors may be preferred above others. In more sinister cases, creditors fear that the company is run with the purpose to defraud them. In these instances, liquidation applications are launched against the company in question to create what is called a concursus creditorum – a legal state of affairs where creditors as a group enjoy preference over the interests of individual creditors. Once liquidated, the company's status changes from one that is in business to one that is in liquidation. The change in status is fundamental, as it takes control of the company out of the hands of its directors and places it in the hands of the liquidators appointed by the relevant Master of the High Court.

READ | Adriaan Basson: Edging closer to a mafia state

Once liquidators are appointed, they are tasked to take control of the assets of the company in order to liquidate them so as to pay the creditors of the company in the order of preference prescribed by the insolvency laws. But their tasks do not end there.

One of the tasks of the liquidators of what is in the insolvency profession colloquially referred to as the winding-up of an insolvent, liquidated company, is to establish what caused said company's downfall. This is usually done by holding an enquiry into its trade, dealings, affairs and property. These enquiries are often acrimonious, as it exposes the ugly underbelly of untoward and sometimes unlawful conduct. It frequently requires much resolve and dogged determination by those driving the enquiry, as those in the wrong will try their utmost to steer clear of testifying to their wrongdoings. It regularly requires some fortitude to succeed in unscrambling what can be a very scrambled state affair that immediately preceded the liquidated company's demise. This often requires a certain type of person to take the reins. Cloete Murray was one such person.

The person

It is no coincidence that Cloete Murray was time and again nominated to act as liquidator in companies with substantial assets and inglorious histories. I did not know him well – I briefly acted for him in a matter where he was appointed as the liquidator. We were not close. I hold no brief on his (most regrettably, late) behalf, nor on behalf of any company that he was appointed to or any organisation that he was a member of. But I do know that he was a consummate professional who was focused on fulfilling his statutory obligations to the best of his abilities. Tough? Yes. Hard at times? Sure. Curt, when required? You bet you. But the insolvency profession is not for the fainthearted. Stakes are often very high, and popularity is rarely a prerequisite in obtaining success. Cloete knew this better than most and was never nonplussed by threats. Love him or hate him; you had to respect him. He earned it. Sadly, it appears as if his convictions led to his and his son's ultimate, heartrending demise.  

Quo Vadis? 

Cloete Murray's gruesome and untimely death places his position as a liquidator in a very disturbing spotlight. As a liquidator, he represented companies in liquidation in a Nomine Officio capacity – that is to say he (like all liquidators) acted merely in his capacity as such, and had no personal interest in the companies. The unfortunate but very true fact is that he will in all likelihood be replaced as liquidator in most of these companies, as the office of the liquidator remains, regardless of the person's death.

But what is the profession to make of these brutal killings? Are liquidators to live in fear of some dreadful fate that may befall them if they act as such in a highly contentious matter? Should the attorneys and advocates who assist them in the enquiries and litigation that often follow insist on personal protection? Is this what we as professionals, should now sign up for?

The saying "do your job / represent your client without fear or favour" is a common one. It is often used without giving it much thought. However, an awful incident like this necessitates that those tasked to do their jobs in high-profile matters weigh up their professional responsibilities with their personal safety and those of their loved ones. This is not only demonstrably unfair but also extremely worrisome, as it causes an assault on (among others) the rule of law, something that is essential for the centre to hold and to ensure that things do not fall apart.

- Bouwer van Niekerk is a Johannesburg-based attorney.  

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