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[2019] ZAGPJHC 552
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Cooper NO and Another v Knoop NO and Others (38630/2019) [2019] ZAGPJHC 552 (28 January 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 38630/2019
In
the matter between:
CHAVONNES
BADENHORST ST CLAIR COOPER N.O
First Applicant
THEA
CHRISTINA LOURENS
N.O.
Second Applicant
In
their capacities as the joint liquidators of Westdawn
Investments
(Pty) Limited (In liquidation)
And
KURT
ROBERT KNOOP
N.O
First Respondent
JOHAN
LOUIS KLOPPER
N.O
Second Respondent
JUANITO
MARTIN DAMONS
N.O
Third Respondent
KGASHANE
CHRISTOPHER MONYELA N
O
Fourth Respondent
KOORNFONTEIN
MINES (PTY) LIMITED
Fifth Respondent
(IN
BUSINESS RESCUE)
BLACK
ROYALTY MINERALS (PTY) LIMITED
Sixth Respondent
THE
ORCHARD
CON'SORTIUM
Seventh Respondent
ESKOM
HOLDINGS SOC
LIMITED
Eighth Respondent
LURCO
GROUP SOUTH AFRICA (PTY) LIMITED
Ninth Respondent
ALL
AFFECTED PARTIES TO KOORNFONTEIN MINES
Tenth Respondent
(PTY)
LIMITED (IN BUSINESS RESCUE) AS PER
ANNEXURE
A TO THE NOTICE OF MOTION
JUDGMENT
MATOJANEJ
[1]
The liquidators of Westdown Investment (Pty) ltd (in liquidation)
(Westdown) have brought an application in which it sought,
amongst
others, a final winding up order of Koornfontein Mines (Pty) Ltd (In
business rescue) ("Koornfontein".) Alternatively,
a
declaration that the eighth respondent ("Eskom") had no
voting interest in relation to its business rescue plan; that
the
adoption of the business rescue plan on 18 October 2019 was invalid
and is set aside; and that the expungement of Westdawn's
claim from
the plan was unlawful.
[2]
Oakbay Investments (Pty) Ltd ("Oakbay") sought and was
granted leave to intervene in Westdawn's application. In the
event
that the winding up order is not granted against Koornfontein as
sought by Westdawn, Oakbay sought in order declaring that
Eskom had
no voting interest in relation to its business rescue plan and that
the adoption of the plan on 18 October 2019 was invalid
and is set
aside, it also sought an order removing and replacing the 1
st
to 4
th
respondents as the business rescue practitioner's
("the BRP"s) of Koornfontein.
[3]
Charles King SA ("Charles King") applied for leave to
intervene in Westdawn's application and sought an order postponing
Westdawn's application pending the outcome of its appeal against an
arbitration award dated 27 November 2018.
[4]
Lurgo Group South Africa (Pty) Ltd seek an interim relief to
interdict the implementation of the business rescue plan for
Koornfontein
Mines pending further proceedings for final relief:
declaring that the amendment to the plan by way of the additional
provisions
is unlawful and should be set aside.
[5]
K2015211368 (South Africa) (pty) Ltd t/a Exca Mining applied for
leave to intervene in Westdawn's application and sought an
order for
the provisional winding up of Koornfontein alternatively declaring
that Eskom had no voting interest in relation to its
business rescue
plan and that the adoption of the plan on 18 October 2019 was invalid
and is set aside.
[6]
In each of the applications of Westdawn and Lurco and the
intervention applications of Oakbay, Exca, and Charles King, the
Sixth respondent BRM has raised a point in limine based on
non-joinder of the affected persons in respect of Koornfontein. BRM
alleges that all the affected persons of Koornfontein have a direct
and substantial interest in this application and that their
non-joinder will be prejudicial to the current and future affairs of
the affected persons of Koornfontein.
[7]
In terms of section 128 of the Companies Act, an affected person is
defined to mean:
(i) a shareholder or
creditor of the company;
(ii) any registered trade
union representing employees of the company; and
(iii) if any of the
employees of the company are not represented by a 10 registered trade
union, each of those employees or their
respective representatives;
[8]
The case made out by BRM is that Westdawn in its Notice of
Motion has cited 10 respondents. The first 9 respondents were
properly
served with the application, while the 10th respondents is
cited
as "ALL OTHER AFFECTED PERSONS IN RESPECT OF
KOORNFONTEIN MINES (PTY) LIMITED (IN BUSINESS RESCUE").
The
affected persons comprising the 10th respondents are not identifiable
from the notice of motion or the founding affidavits.
Notification
was sent to the unidentified affected persons by emails.
[9]
The business rescue plan was adopted by the creditors at the
meeting in terms of section 151 in 152 of the Companies Act, 71 of
2008 ("the Act") on 18 October 2019. The plan identifies
the rights afforded to all affected persons under the plan who
are
bound to its obligations
[10]
Section 152
(4) and (5) of the
Companies Act provides
;
A
business rescue plan that has been adopted is binding on the company,
and on each of the creditors of the company and
every
holder
of the company's securities, whether or not such a person-
(a) was present at the
meeting;
(b) voted in favour of
adoption of the plan;
or
(c) in the case of
creditors, had proven their claims against the company.
(5)
The company, under the direction of the practitioner, must take all
necessary steps to-
(a) attempt to satisfy
any conditions on which the business rescue plan is contingent; and
(b) implement the plan as
adopted.
[11]
It is clear that If a business rescue plan has been adopted,
notice of an application in terms of section 130(3) of the Act to all
creditors will not be sufficient. These credito:5 will need to be
joined as parties in order to allow them to make an informed
decision
as to whether to oppose the application or not.
[12]
As
explained by the Supreme Court of Appeal in
ASSA
Bank Ltd v Naude NO & Others
[1]
"If the creditors
are not joined their position would be prejudicially affected: A
business rescue plan that they had voted
for would be set aside;
money that they had anticipated they would receive for the following
ten years to extinguish debts owing
to them, would not be paid; the
money that they had received, for a period of thirty months, would
have to be repaid; and according
to the adopted business rescue plan
the benefit that concurrent creditors would have received namely a
proposed dividend of 100
per cent of the debts owing to them, might
be slashed to a 5,5 per cent dividend if the company is liquidated".
[13]
The effect of the relief sought by Westdawn, Oakbay, Exca Louca and
Charles King would undo a plan to which all the creditors
and
affected persons are bound and creditors who have been paid in terms
of the plan would be required to repay such amount to
Koornfontein.
Every affected person has a direct and substantial interest in the
relief sought and ought to have been joined. The
non-joinder is
fatal.
ORDER
[14]
Consequently all applications are dismissed with costs including the
costs consequent upon the employ of two counsel.
_________________
JUSTICE
E MATOJANE
JUDGE
OF THE HIGH COURT,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
[1]
2016 (6) SA 540
SCA at para 10.
See
also
Golden Dividend 339 (Pty) Ltd & Another v Absa Bank limited
[2016] Z
ASCA
78.
Kayamandi Town Committee
v
Mkhwaso
& Others 1991(2) SA 630 (C)