About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 40
|
|
Van Rensburg N.O. and Another v Cardio-Fitness Properties (Pty) Ltd and Others (46194/13) [2014] ZAGPJHC 40 (4 March 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE
NO: 46194/13
In
the matter between:
ESAIS
JOHANNES JANSEN VAN RENSBURG
NO
First
Applicant
MASHILO
TUMISAND MOLEFE
Second
Applicant
and
CARDIO-FITNESS
PROPERTIES (PTY) LTD
First
Respondent
(Registration
Number 1984/000472/07
ALEXANDER
FRANZ
RICHTER
Second
Respondent
ABSA
BANK
LIMITED
Third
Respondent
GABRIELE
FRANZISKA
BURGMER
Fourth
Respondent
MASTER
OF THE HIGH COURT, SOUTH GAUTENG
Fifth
Respondent
J U D G M E N T
N
F KGOMO, J
:
INTRODUCTION
[1]
This is an application brought on an urgent basis in which the
applicants, who are the jointly appointed provisional liquidators
of
the first respondent’s insolvent estate are asking this Court
for orders –
1.1
authorising
them in terms of
section 387
of the
Companies Act 71 of 2008
to
institute these proceedings;
1.2
that
leave be granted to the applicants to institute proceedings in terms
of
section 133(1)(b)
of the
Companies Act 71 of 2008
;
1.3
that
this Court issue a declarator that the joint provisionally appointed
liquidators of the first respondent’s insolvent
estate are to
continue the trading activities of the first respondent in terms of
section 386(4)(f)
of the Companies Act 61 of 1973 read together with
Schedule 9, item 5 of the
Companies Act 71 of 2008
pending the
outcome of the court’s decision whether or not to place the
first respondent under the supervision of a business
rescue
practitioner;
1.4
that
the applicants be placed in possession of the assets of the business
of the respondent in their capacity as the jointly appointed
provisional liquidators from which position they have been despoiled
by the second respondent;
1.5
that
the costs hereof be paid by those of the respondents who oppose same,
alternatively
that the costs of the
application be costs in the administration of the insolvent estate of
the first respondent.
[2]
After listening to argument in court I granted the following interim
order:
2.1
Judgment
is reserved;
2.2
The
status
quo ante
wherein the two applicants are and will still act as the provisional
liquidators of the first respondent to remain in force until
judgment
herein is handed down;
2.3
The
respondents and/or whosoever of them involved are ordered and
directed to co-operate with the applicants and respect of their
caretaker capacities until judgment herein is handed down.
[3]
The centre-piece of this application relates to the fact that a final
order of liquidation of the first respondent has already
been granted
and the applicants are the provisional liquidators appointed.
Before further processes could take place, the
fourth respondent
launched an application for business rescue in respect of the
liquidated first respondent in terms of the provisions
of section 131
of the Companies Act 71 of 2008 (“
the
Companies Act
&rdquo
;).
[4]
The effect of the business rescue application when one considers the
provisions of
section 131(6)
of the
Companies Act is
that the
liquidation proceedings as commenced, stand to be suspended until the
business rescue application is adjudicated upon,
alternatively
,
until the business rescue proceedings come to an end due to the court
granting the order sought by the fourth respondent.
[5]
The trigger for this application is stated as the second respondent’s
unilateral decision to spoliate the joint liquidators
(the two
applicants) of the hotel run or operated by or through the first
respondent even before a business rescue practitioner
is sanctioned
and appointed by the court.
[6]
Business rescue is a new kid of the company law block. Consequently
there are still a lot of grey area and/or
lacunae
which courts are still to help settle down or close by interpreting
the law.
[7]
As matters currently stand, there is uncertainty in the law and
procedures insofar as the liquidation proceedings are concerned:
The
first respondent has already been finally wound-up. The pending
business rescue application complicates issues and according
to the
applicants, the second respondent has taken advantage of the
uncertainty and fluidity and despoiled the applicants.
In terms
of the prevailing company laws, a business rescue process should
normally suspend liquidation proceedings.
[1]
On the other hand, in terms of
section 348
of the old Companies Act
61 of 1973, the erstwhile directors of the first respondent, in our
case, especially the second respondent,
are divested of control and
cease to be directors functionally, officially and nominally. A
liquidation order automatically
terminates a director’s
employment as such and/or operates to dismiss him. The effect
would be that the directors involved
would have no power to conduct
proceedings on behalf of the company or to make valid calls on
shareholders. Their acts have
no binding effect insofar as the
liquidated company is concerned.
[8]
The problem that arises is that before a business rescue practitioner
is appointed formally, he has no power or any role to
play in the
running of the company.
[9]
The second respondent by law remains barred from running the affairs
of the first respondent. On the other hand, the first respondent
as a
going concern should continue to trade until the impasse of who
should run daily routines for or on behalf of the first respondent
is
resolved. If the business rescue application fails, the
applicants would continue with their liquidation process. Should
it
succeed, then the appointed rescue practitioner would take over as
that decision would have confirmed,
ex
lege
,
the suspension of the joint liquidators from continuing with their
liquidation process. The applicants herein, being provisional
liquidators are expected to remain in office until a final
liquidator(s) is appointed by the Master of the High Court in
question
at a meeting called in terms of the Companies Act.
[2]
[10]
The applicants herein on the one hand and the second and fourth
respondents on the other hand have conflicting contentions
as to who
presently should have actual control and possession of the business
of the first respondent pending the finalisation
of the business
rescue application. The second and fourth respondents contend
that the effect of section 131(6) of the Companies
Act under these
circumstances is to divest the applicants of their office as
liquidator’s
vis-à-vis
the first respondent until a decision is made in the business rescue
application. It was also contended on behalf of the
second and
fourth respondents that the second respondent remains the
de
facto
controller of first respondent’s
business, allowing him to conduct it “
as
he pleases
” until such time as
the business rescue application is finalised, and that as at this
juncture the applicants have no further
say whatsoever in the affairs
of the first respondent.
[11]
On the other hand the applicants contend that being the appointed
provisional liquidators of the first respondent they have
certain
obligations and duties towards the creditors of the insolvent estate
to take into their possession the assets and business
of the first
respondent, and to secure this business for the
concursus
creditorum
, and pending either the
final appointment of a liquidator(s) or the appointment of a business
rescue practitioner, whereupon they
would no longer be responsible
for the business of the first respondent.
[12]
The urgency of the matter was made up by the fact that the second
and/or fourth respondents by their conduct have made it difficult
for
the applicants to pay employees of the first respondent from moneys
held on behalf of the company without having to obtain
prior approval
from the bank(s) if the
status quo
persists. They also contend that while the second respondent
has retaken physical control of the first respondent, he was
collecting all income but not paying the salaries of the employees,
referring them to the applicants whenever remuneration or salaries
are to be paid or received. Several crucial staff members were
allegedly threatening to resign
en
masse
. Furthermore a person
legally divested of possession and control of an insolvent estate is
in charge thereof whereas those
legally obliged to do so have been
evicted or despoiled.
THE
PARTIES
[13] The first applicant
is an adult insolvency practitioner practising as such under the name
and style of KIP Insolvency Practitioners
at [………].
[14] The second applicant
is an adult male insolvency practitioner practising as such under the
name and style of L & M Insolvency
Practitioners at [………].
[15]
The first respondent, Cardio-Fitness Properties (Pty) Ltd (In
Liquidation) is a limited liability company duly registered and
incorporated in terms of the company laws of the Republic of South
Africa (“
RSA
”)
with its registered address situated [………]. The
first respondent is in liquidation and the two applicants
have been
appointed joint provisional liquidators by the Master of the High
Court, South Gauteng.
[16] The second
respondent, Alexander Franz Adrian Richter is an adult male business
person and director of the first respondent
resident at Remainder of
[………]. He is cited herein in his capacity
as director of the first respondent
insofar as he may have an
interest in the matter. He is represented by A J Oberlechner
Attorneys of [………].
[17]
The third respondent, Absa Bank Limited (“
Absa
Bank
”) is a company duly
registered and incorporated in terms of or under the company laws of
the RSA as well as being a registered
financial services provider in
terms of the National Credit Act (“
NCA
”)
34 of 2005 with its registered situate at [………].
Absa Bank is cited insofar as it may have any interest
in the matter.
Absa Bank, initially represented by Tim du Toit Attorneys of [………],
who has filed a notice
to abide the decision of the court.
[18] The fourth
respondent, Gabriele Franziska Burgmer is an adult female
businesswoman resident at [………].
She is
represented by Le Roux Vivier Attorneys of [………].
[19]
The fifth respondent, The Master of the South Gauteng High Court is a
state institution saddled with duties and responsibilities
relative
to deceased and insolvent estates among others. Its principal place
of business is situate at [………].
BACKGROUND
AND BRIEF FACTUAL MATRIX
[20]
The first respondent’s principal business is the trading of
hotel activities in the rural parts of Krugersdorp.
The third
respondent applied for the first respondent’s liquidation or
winding-up due to the latter’s inability to
pay its debts as
and when they became due. A provisional winding-up order was
granted in this Court on 5 August 2013. The
two applicants were
appointed its provisional liquidators and after receiving their
Certificates of Appointment on 6 September
2013 they started with
their work, which culminated with them submitting a report to court
stating that the first respondent was
trading at a loss.
[21]
After several postponements during which the rule
nisi
was extended, final arguments were made in court in these liquidation
proceedings on 28 November 2013.
[22]
In the meantime, on 31 October 2013 the fourth respondent launched an
application in this Court for the first respondent to
be placed under
business rescue. This application is opposed by the third respondent.
It was still pending as on the date this
application was argued
before me on 13 December 2013.
[23]
When Beltramo AJ heard argument for the granting of the final
winding-up order on 28 November 2013, facts relative to this
application for business rescue were placed before him. After due
consideration of issues in issue thereat Beltramo AJ granted
the
following order (only material aspects quoted):
“
20.1
The respondent is finally wound up.
20.2
The
costs of the winding up application are to be costs in the
liquidation.
20.3
The
liquidation proceedings remain suspended until the court has
adjudicated upon the business rescue application or the business
rescue proceedings end, if the court makes the order applied for;
20.4
The
costs of the argument on the issue of whether I am precluded from
granting a final winding up order are to be paid by the applicant
in
the business rescue application.
”
QUESTIONS
TO BE DECIDED
[24]
What this Court was called upon to decide was whether the second
and/or fourth respondents, especially the second respondent
was by
law allowed to re-take possession of the insolvent estate divested
from him on the basis that a business rescue plan application
has
been launched even though a decision thereon have not been made.
Furthermore, the question whether in the absence of an appointed
business rescue practitioner the applicants should remain in control
of the insolvent estate, more so that no permanent or final
liquidator had not yet been appointed.
ANALYSIS
[25]
It is not in dispute that the first respondent is a company under
financial distress. Liquidation proceedings were already
under
way when the business rescue application was made or launched.
[26]
It is also so that the commencement of business rescue has the effect
of triggering the setting in of a moratorium against
the institution
of legal proceedings against the insolvent company or company in
financial distress as well as the continuation
of any legal
proceedings that may already have started,
[3]
subject of cause to specified exceptions set out under section
133(1)(c) to (f) of the Companies Act.
[27]
The applicants argued and submitted that strictly speaking, the
liquidation process under way have not yet assumed proportions
of
being termed “
legal proceedings
”
as defined in the applicable sections of the Companies Act. The
respondents argued to the contrary.
[28]
It should also be stressed that at this stage, the court had not yet
appointed a business rescue practitioner, as the application
is
opposed.
[29]
The parties’ cases revolved around the interpretation of
liquidation proceedings.
[30]
Makgoba J dealt with the interpretation of the expression, “
legal
proceedings
”
in
Absa
Bank v Summer Lodge (Pty) Ltd
.
[4]
After dealing with the dictionary meanings of the expressions
“
liquidate
”
and “
proceedings
”,
the honourable judge stated the following:
“
10.
Thus, in my view, the grammatical meaning of the
word, ‘liquidator’ is a process of liquidating
or being
liquidated which is again to determine the liabilities and apportion
the assets towards discharging the indebtedness of
the debtor.
This clearly suggests that the words ‘liquidation proceedings’
in section 131(6) of the Act is concerned
with the actual process of
winding-up followed by the liquidator and the Master after the
winding-up order has been granted.
It therefore excludes the
legal action and/or process taken in order to obtain such a state of
affairs …
12.
…
Consequently,
I agree with the submission made by Mr Meintjies, counsel for the
applicant, that the words ‘liquidation proceedings’
refer
to a process that consists of the collection of the assets, realising
and reducing them to money, dealing with proof of creditors
by
admitting or rejecting them, and distributing the net proceeds after
providing for costs and expenses by the liquidator to the
persons
entitled thereto. Thus the words ‘liquidation proceedings’
have to do with the process that is overseen by
the liquidator and
the Master in the winding-up and not in the legal proceedings before
a court of law in order to obtain such
an order.
”
[31]
At the end of the day Makgoba J issued a declarator to the following
effect:
“
18.1
…
The
meaning of words ‘liquidation proceedings’ in
section
131(6)
of the
Companies Act No 71 of 2008
, is confined to the actual
process of winding-up a company consequent upon an order of
winding-up having been issued by a court
and is the actual process
followed in winding-up and overseen by the liquidators and the
Masters. The words ‘liquidation
proceedings’ do not
include the legal proceedings taken by a creditor for purposes of
obtaining an order that a company can
be wound-up.
”
[32]
That remains the legal position to date until overruled by a
competent court.
[33]
It is a fact that provisional liquidators of a company have the task
of taking physical control of the company and its assets.
Theirs is just to superintend or act as good shepherds over the
affairs and assets of the insolvent company until a final or
permanent
liquidator is appointed. Only a permanent liquidator
(not a provisional one) performs the actual processes and chores of
liquidation.
[5]
Normally,
the powers of a provisional liquidator are restricted by the
Master.
[6]
However, it
remains the prerogative of the Master or the court for that matter,
to relax any restrictions that may be there
or extend powers
granted.
[7]
[34]
The practice of applying for business rescue in the face of an
existing liquidation process or proceedings may be susceptible
to
abuse as was pointed out by Sutherland J in
Absa
Bank Ltd v New City Group (Proprietary) Limited
[8]
where the learned justice warned against ostensible time-buying or
time-wasting litigation.
[35]
This aspect is also criticised or referred to in inglorious terms in
an article by Keith Braatveldt
[9]
dated 7 March 2013 where the following was stated:
“…
In
my view, both these judgments are correct. However, they certainly
have both positive and negative effects. A huge position
is
that a good business can be revived through a business rescue
application and the subsequent involvement of a practitioner,
even
after that business has been effectively closed down and rendered
incapable of development through the liquidation process.
A
negative is obviously that the applications for business rescue can
theoretically be brought years after the liquidation resulting
in
tremendous difficulties for the liquidators and what they have done
in the course of the winding-up. Furthermore, the fact that
merely
launching the application, without any provisions being made for
interim management of the company, lends itself to abuse.
”
[37]
Another problem in situations such as this is that despite the
promulgation of the new
Companies Act of 2008
which came up with the
new
kid-on-the-block
“
business
rescue
”,
proceedings for winding-up are still regulated by the provisions of
the old Companies Act of 1973.
[10]
[38]
Mutually destructive situations often arise when a business rescue
application is made while liquidation proceedings are under
way.
I am however of the view that it will depend at the stage the
liquidation process is at. The stage towards the appointment
of a
business rescue practitioner or whether permanent liquidator has
already started with actual winding-up processes would also
or ought
to be a help towards deciding who should be in charge of the
insolvent estate.
[39]
As the law stands, the mere launching of a business rescue
application brings into effect the stay of liquidation
proceedings.
[11]
On the
other hand, the second respondent’s control and/or management
of the affairs of the insolvent estate has been
divested through the
granting of the liquidation orders, be they provisional or
permanent. As already stated, the fourth
respondent is opposing
the business rescue application. Consequently it is uncertain as to
when this process would start progressing
to a stage where a business
rescue practitioner would be appointed.
[40]
The second respondent has jumped into the
lacuna
created by the whole saga. Despite the fact that he has been
divested of control by the liquidation process, he wrested control
of
the insolvent estate from the provisional liquidators.
[41] I
agree with the applicants’ contention that the intention of the
legislature here is clearly to stop the actual liquidation
process,
i.e. the liquidation of assets with a view to sorting out debtors and
creditors and settling the liabilities of the insolvent
company, not
the interim processes supervised by provisional liquidation.
[42]
The question then is: was the stay on liquidation proceedings
intended to affect the functions, powers and responsibilities
of the
appointed provisional liquidators under the circumstances prevailing
in this case?
[43]
The responsibilities of the provisional liquidators is essentially to
take physical control of and to superintend the administration
of the
insolvent company’s property and affairs pending the
appointment of a permanent liquidator.
[44]
We have a situation here, where –
44.1
the
directors of the first respondent are still divested of their
responsibilities, duties and functions relating to the insolvent
company;
44.2
A
final liquidator has not yet been appointed;
44.3
A
business rescue practitioner has not yet been appointed.
[45]
There is in my view, an unhealthy
lacuna
here. The applicants are asking for specific orders, including
ex
post facto
authorisation by this Court
of their instituting these proceedings and/or defending or
re-institution others, should the need so
arise.
[46
There is evidence that after “
hi-jacking
”
the insolvent company from the applicants, instead of doing all that
the applicants were by law ordered and empowered to
do, some of the
respondents, especially the second and to some extend the fourth
respondent, clearly shirked those responsibilities.
They
collected money generated by or at the business of the first
respondent but did not want to pay the salaries of the employees,
instead referring the employees to the applicants for salary payment.
[47]
The above in my view is the height of hypocrisy and arrogance.
[48]
It is so that once the court makes a ruling and approves the business
rescue process, with the accompanying appointment of
the business
rescue practitioner, everything would become academic: The
liquidation process would remain suspended, and
ex
lege
for that matter. By the above I am
not disregarding or contradicting the provisions of
section 131(6)
of
the
Companies Act, 2008
. For clarity’s sake, this
subsection 6 of
section 131
reads as follows:
“
If
liquidation proceedings have already been commenced by or against the
company at the time an application is made in terms of
sub-section
(1), the application will suspend those liquidation proceedings
until:
(a)
The
court has adjudicated upon the application –
(b)
The business rescue proceedings end,
if the court makes the court applied for.
”
[49]
As seen from the judgment of Makgoba J and Van der Bijl AJ who dealt
with the same matter at the moment of the granting of
the provisional
winding-up order thereat, the applicants are not strictly speaking
dealing with the liquidation of the insolvent
company. They are
night watchmen looking after the assets and affairs of the insolvent
company. The directors of this
company have ceased to be
directors functionally, officially and nominally when the provisional
winding-up order was granted, and
they have been deprived of the
company’s property. The winding-up order automatically
terminated their employment as
directors and have operated to dismiss
them. They are the people who brought the company where it is
today. They have
no power to conduct proceedings on behalf of
the company or to make valid calls on shareholders. Their acts
have no binding
effect insofar as the company is concerned.
[50] I
repeat: The intention of the legislature with regards a
provisional liquidator seem to be that it is the function of
a
provisional liquidator to take physical control and to superintend
the administration of the property and the affairs of the
estate
pending the appointment of a final liquidator. It is not the
provisional liquidator’s function to wind-up the
estate.
Furthermore, it is not part of the ordinary process of the
administration of a winding-up to continue the trading
activities of
a company placed under provisional winding-up, as the first
respondent is here.
[51]
As clearly set out in the
Summer Lodge
case or judgment, liquidation
proceedings pre-suppose the conversion of assets into money and the
distribution of those funds to
creditors in the proportions that they
are entitled to. These functions are not those of a provisional
liquidator. Only a
final liquidator can do those. The Master
has a discretion to add or reduce powers of course.
[52]
When the above is anything to go by, I tend to agree with the
applicants that the suspension of the liquidation proceedings
do not
suspend the appointment of the joint liquidators herein.
Section
131(6)
of the
Companies Act, 2008
is silent as to whether their
powers are affected. It is my view that had the legislature intended
that provisional liquidators
are relieved of control before a
business rescue practitioner is appointed, it would have said so
clearly and unambiguously.
[53]
The actions or conduct of the second respondent also creates
practical problems. On 28 November 2013 the applicants as joint
liquidators received an e-mail, which records the second respondent
as having issued the following instructions:
“
Nobody
of the liquidators’ offices is allowed there.
The
managers should not allow the representative of the liquidators to
take any cash from the safe. Maureen should go ahead
with the
Daddy voucher deals which would be go
[
sic
]
alive
tomorrow.
The
managers are not to sign off on the payment requisition that was send
[
sic
]
for
the VAT payment that is due.
[12]
[54]
These so-said instructions have not been gain-said by the respondents
to any effect. Consequently, I find them to represent
what the second
respondent’s
modus operandi
would be hence, which I find difficult to justify.
[55]
The authorisation of the liquidators to continue the trading
activities of the first respondent was obtained in terms of
section
386(4)(f)
of the
Companies Act. In
the course of the trading, the
liquidators incurred liabilities, including salaries, trade
creditors, VAT and other expenses.
It is my finding that until
the business rescue application is finalised or a final liquidator is
appointed, the two applicants
are liable for everything. As
such, it should only be prudent that they remain in charge until the
court pronounces on the
business rescue application. If it
succeeds, a practitioner would be appointed and he would take over
the affairs of this
company in financial distress. If it fails, a
final liquidator(s) would be appointed and the suspension of
winding-up lifted.
[56]
It is my finding also that it was not the intention of the
legislature that the first respondent at any stage be a rudderless
ship or ship without captain. If the respondent’s
contentions are anything to go by, the suspension of the liquidation
proceedings means the forthwith departure of the applicants. As
no business rescue practitioner has not yet been appointed
(as at
date of argument hereof) then the first respondent would remain
without anybody to control and protect its assets and safeguard
its
takings. As he has already done, the second respondent has stepped
in, not to help run the business of the first respondent
correctly,
but to take its daily takings while abdicating the duty of paying
staff salaries of the applicants, whom he in the same
breath says
should not come within a proverbial mile of the business.
Surely that cannot be correct.
[57] I
agree with the applicants that the beneficial interpretation of
section 131(6)
of the
Companies Act, 2008
should be the creation of a
situation where in effect the provisional liquidators are temporarily
restrained from disposing of
any assets of the insolvent company or
doing anything or performing any act of continuing with the
winding-up of the insolvent
estate until the business rescue
application is finalised. The above is in step with what is
provided for in section 386(1)
of the Companies Act, 1973, which
deals among others with interim powers granted to provisional
liquidators.
[58] I
find that in the peculiar circumstances of this matter, section
131(6) of the Act does not affect the appointment of provisional
liquidators here. If they do not conduct those duties imposed
on them by section 386(1) of the Companies Act, 1973, they
may be
penalised. If the second applicant, who in any event had failed
to run the first respondent’s business profitably
or properly,
is allowed to unilaterally step in and re-run or control it again, it
would be a travesty of justice.
[59]
After listening to argument and considering this matter it is my
finding that this matter was correctly heard as a matter of
urgency.
The applicants have also persuaded this Court that it is just and
equitable that the applicants succeed with their application.
ORDER
[60]
The following order is made:
60.1
The
applicants are granted leave,
ex
post facto
,
in their capacities as joint provisional liquidators of the insolvent
estate of the first respondent, to institute proceedings
on an urgent
basis;
60.2
The
applicants are granted leave to institute these proceedings in
accordance with
section 133(1)(b)
of the
Companies Act, 71 of 2008
;
60.3
A
declarator is hereby issued that the two applicants, as the joint
provisional liquidators of the first respondent, are to continue
the
trading activities of the first respondent in terms of
section
386(4)(f)
of the
Companies Act, Act
61 of 1973 read together with
Schedule 9, Item 5 of the
Companies Act, Act
71 of 2008, pending the
outcome of the court’s decision whether or not to place the
first respondent under the supervision
of a business rescue
practitioner;
60.4
The
applicants to be placed, forthwith, in possession of the assets and
business of the first respondent in their capacities as
the jointly
appointed provisional liquidators, from which they have been
spoliated by the second respondent;
60.5
The
second and fourth respondents are ordered to pay the costs of this
application jointly and severally, the one paying, the other
being
absolved.
_____________________________
N F
KGOMO
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
FOR THE
APPLICANTS
ADV J HERSHENSOHN
INSTRUCTED
BY
CROUSE INCORPORATED
MAROELANA,
PRETORIA
TEL
NO: 012 346 5942
FOR THE FIRST AND SECOND
RESPONDENTS
MR M HENNIG
INSTRUCTED
BY
MARTIN HENNIG ATTORNEYS
c/o A
J OBERLECHNER ATTORNEYS
ROODEPOORT
TEL
NO: 011 706 8035 (HENNIG)
TEL
NO: 011 764 4890 (OBERLECHNER)
DATE OF
HEARING
DATE OF JUDGMENT
[1]
Section
131(6)
of the
Companies Act 71 of 2008
.
[2]
See
also
section 364
read with
section 386(1)
of Companies Act 61 of
1973.
[3]
Section
133(1) of Companies Act.
[4]
2013
(5) SA 444 (NGHC).
[5]
Ex
Parte Klopper NO : In Re: Sogervim SA (Pty) Ltd (In Liq)
(Sogervim SA Intervening)
1971
(3) SA 791
(T) at 796-7.
[6]
Section
386(6) of Companies Act 61 of 1973.
[7]
Ex
Parte Provisional Liquidators, Pharmacy Holdings Ltd
1862
(2) SA 12
(W) at 14-15.
[8]
Unreported
case No 45670/11 delivered on 12 August 2013.
[9]
The
Positive and Negative Effects of a Business Rescue Order After
Liquidation.
[10]
Section
344 of Companies Act 61 of 1973. See also
Ex
Parte Muller NO : In Re: P L Myburgh (Edms) Bpk
1979 (2) SA 339
(N) at 340D;
SAA
Distributors (Pty) Ltd v Sport en Spel (Edms) Bpk
1973 (3) SA 371
(C) at 373C.
[11]
Section
131(6) of
Companies Act, 2008
.
[12]
Founding
Affidavit, folio 20, para 9.1.