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2024
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[2024] ZAKZPHC 9
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Volkar N.O and Others v Big Sky Trading 219 CC and Another (12601/23) [2024] ZAKZPHC 9; 2025 (3) SA 667 (KZP) (9 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 12601/23
In
the matter of:
PATRICK
JOHN VOLKAR N.O.
FIRST APPLICANT
(in
his capacity as co-trustee of the Volkar
Recoverable
Trust)
SANDRA
ANN VOLKAR N.O.
SECOND APPLICANT
(in
her capacity as co-trustee of the Volkar
Recoverable
Trust)
SWISS
SAFARI AND ECO TOURS (PTY) LTD
THIRD APPLICANT
(Registration
Number: 1995/001321/07)
and
BIG
SKY TRADING 219
CC
FIRST RESPONDENT
(IN
BUSINESS RESCUE)
(Registration
Number: 2002/079700/23)
KARUN
NAIDOO N.O.
SECOND RESPONDENT
(in
his capacity as Business Rescue Practitioner
of
Big Sky Trading 219 CC)
ORDER
The
following order is granted:
1.
The rule
nisi
issued on 24 August 2023 is discharged.
2.
The applicants are directed to pay the costs of this application,
jointly and severally, the one paying the other to be absolved, such
costs to include the costs of two counsel, where so employed.
JUDGMENT
PIETERSEN
AJ:
Introduction
[1]
The applicants approached this court on an urgent basis and obtained
an order against
the respondents in their absence. The matter is now
before court for reconsideration of the order, at the request of the
respondents,
in terms of rule 6(12)
(c)
of the Uniform Rules of
Court.
[2]
The following order granted by this court on 24 August 2023 is now
the subject of
reconsideration:
‘
1.
A rule nisi do issue calling on the respondents and any interested
parties to show
cause on or before 29 September 2023 why an order in
the following terms should not be made final:
1.1
to the extent required, the applicants are granted leave to institute
this application in terms of
Section 133(1)(b)
of the
Companies Act,
71 of 2008
;
1.2
pending a determination of the applicants’ claims as against
the
first respondent and their voting interest in respect of the
business rescue proceedings of the first respondent, the respondents
are interdicted from proceeding with the reconvened meeting of
creditors in terms of
Section 151
of the
Companies Act, scheduled
to
be held on Friday 25 August 2023 for the purposes of tabling and
voting on the business rescue plan published on 30 June 2023
(the “BR
Plan”) and the amendments to the BR Plan which were published
on 15 August 2023, or any further meeting in
terms of
Section 151
of
the
Companies Act intended
to be held thereafter; and
1.3
the respondents are directed to pay the costs of the application on
the
attorney and client scale.
2.
Paragraphs 1.1 and 1.2 above shall operate as interim relief with
immediate effect
pending the final determination of this
application.’
The
background
[3]
The applicants approached the court as affected persons in their
capacities as creditors
of the first respondent (‘Big Sky’).
The applicants, being the Volkar Revocable Trust (‘the Trust’),
represented
by the first and second applicants in their capacities as
the trustees of the Trust, and Swiss Safari and Eco Tours (Pty) Ltd
(‘Swiss
Safari’) allege that their respective claims are
recorded in Big Sky’s management accounts for the year ending
28 February
2022. The applicants are disgruntled with the decision of
Big Sky’s business rescue practitioner (the second respondent)
not to recognise their claims in the business rescue plan.
[4]
The Trust alleges that it has a claim against Big Sky in the sum of
R10 664 925
in respect of capital and R4 618 123 in
respect of interest. Swiss Safari alleges that it has a claim against
Big Sky in the
sum of R3 505 828, arising from a loan advanced
by Swiss Safari to Big Sky.
[5]
On 20 February 2023, Big Sky commenced business rescue proceedings by
way of a resolution
filed in terms of section 129 of the Companies
Act 71 of 2008 (‘the Act’). On 22 February 2023, the
second respondent
was appointed as the business rescue practitioner
of Big Sky and on 24 February 2023, the notice to commence business
rescue in
terms of section 129(3) of the Act, and a notice of
appointment of the business rescue practitioner in terms of section
129(4)
of the Act, were sent to all affected persons.
[6]
Approximately two months later, on 26 April 2023, an exchange of
correspondence commenced
between the attorneys acting for the
applicants and the business rescue practitioner. The applicants’
attorneys requested
extensive information from the business rescue
practitioner, which included a request to confirm that the claim of
the Trust has
been recognised.
[7]
The business rescue practitioner provided a response on 12 May 2023,
and indicated
that a business rescue plan was being prepared and that
he was waiting for confirmation of valuations of certain assets
belonging
to Big Sky. The business rescue practitioner further
indicated that certain matters had come to his attention, which may
require
a restatement of Big Sky’s financial statements and
that this information appeared to have a direct impact on the
applicants’
claims against Big Sky. The business rescue
practitioner accordingly invited the applicants to a meeting for
purposes of discussing
these matters before finalising the business
rescue plan.
[8]
The meeting took place virtually on 22 May 2023. According to the
applicants, the
business rescue practitioner acknowledged the Trust’s
claim against Big Sky but indicated that there were certain
inconsistencies
recorded in Big Sky’s financial statements and
that it would appear that moveable assets belonging to Swiss Safari
had unlawfully
been removed by the sole director of Big Sky. The
meeting ended with the business rescue practitioner undertaking to
provide the
applicants’ attorneys with a copy of the draft
business rescue plan.
[9]
The business rescue practitioner provided the applicants’
attorneys with a copy
of the draft business rescue plan on 30 May
2023 and also advised that he was engaging with the sole director of
Big Sky to obtain
information and clarity on the improvements made by
Big Sky on Swiss Safari’s property.
[10]
On 30 June 2023, the business rescue practitioner published the
business rescue plan and on 5
July 2023, the business rescue
practitioner circulated a notice to the affected persons advising
that the business rescue plan
would be tabled at a meeting convened
in terms of section 151 of the Act on 11 July 2023.
[11]
In terms of the published business rescue plan, the claim of the
Trust was reduced from approximately
R15 million to R100. As a
result, the applicants’ attorneys addressed further
correspondence to the business rescue practitioner,
requesting
supporting documents as well as a response to certain queries
previously raised. On the day of the meeting, 11 July
2023, the
applicants made a settlement proposal. This resulted in the meeting
being adjourned by the business rescue practitioner
to consider the
applicants’ settlement proposal and to deal with various issues
raised by affected persons, as well as to
amend the business rescue
plan, should it be necessary.
[12]
A further virtual meeting took place on 18 July 2023 between the
applicants’ representatives
and the business rescue
practitioner. At this meeting, the applicants’ settlement offer
was discussed and the business rescue
practitioner,
inter alia
,
confirmed that he would reconvene the section 151 meeting on 25
August 2023.
[13]
On 15 August 2023, the business rescue practitioner addressed a
circular to the affected persons
and advised of the proposed
amendments to the business rescue plan. These amendments only dealt
with the secured creditors of Big
Sky and the securities which they
hold, which may be exercised if their claims are not settled in full
following on the implementation
of the business rescue plan. The
business rescue practitioner further proposed that if the creditors
do not accept the amended
business rescue plan, then he would
implement a structured winding-down of the first respondent. The
circular further advised that
the reconvened section 151 meeting
would be held on 25 August 2023.
[14]
The applicants, aggrieved that the amended business rescue plan still
did not record the alleged
full value of their claims, addressed
further correspondence to the business rescue practitioner on 19
August 2023. It recorded
that the applicants would bring urgent
proceedings to interdict the implementation of the business rescue
plan should the plan,
as tabled, still not record the alleged full
value of the applicants’ claims.
[15]
The business rescue practitioner responded on 22 August 2023 and
advised the applicants to present
their proposed amendments to the
published business rescue plan at the section 151 meeting, which was
to be held on 25 August 2023.
The business rescue practitioner
indicated that once these proposed amendments were seconded, same
would then be voted on by the
affected persons attending the section
151 meeting.
[16]
The applicants were not satisfied with this response. Their attorneys
again addressed correspondence
to the practitioner and demanded that
the meeting scheduled for 25 August 2023 be postponed to deal with
the applicants’
requested amendments, which involved the
recordal of the alleged full value of the applicants’ claims,
failing which the
applicants intend to approach the court on an
urgent basis to interdict the section 151 meeting.
[17]
The business rescue practitioner did not adhere to the applicants’
attorneys demands and
the application was subsequently issued and
enrolled for hearing on 24 August 2023.
[18]
In their founding affidavit, the applicants submit that they satisfy
the requirements for interim
relief as the business rescue
practitioner has not fulfilled his obligations by failing and/or
refusing to recognise the applicants’
legitimate claims and
rights in terms of the Act. The applicants argue that unless they
obtain an interim order interdicting the
section 151 meeting pending
the amendment of the business rescue plan, the applicants’
rights to participate at the section
151 meeting, to the full extent
of their legitimate voting interests, would be lost. The applicants
submit that, as creditors of
Big Sky, they have a right to
participate in the business rescue proceedings and to exercise their
voting interests equal to the
full value of their claims, at the
section 151 meeting. The applicants further submit that their voting
interests have been diluted
because the business rescue practitioner
has, for no apparent reason, refused to recognise the applicants’
full claims and
corresponding voting interests.
[19]
The applicants further claim that they have a well-grounded
apprehension of irreparable harm if the
interim relief sought is not
granted, as they would be prevented from exercising their voting
interests equal to their full claim
amounts at the section 151
meeting. The applicants submit that their right to participate in the
section 151 meeting would be ignored
and undermined and they stand to
lose their entire claims against Big Sky.
[20]
The applicants conclude that they have no suitable alternative remedy
available to them.
[21]
In their notice of reconsideration, the respondents submit that the
court order be reconsidered
and set aside on the grounds that the
order is unenforceable as the business rescue practitioner had made
his determination in
terms of the Act when the business rescue plan
was published, with the result that the business rescue practitioner
is
functus officio
. An amendment can only be authorised by
creditors at the section 151 meeting. The respondents further submit
that the voting rights
stand to be determined in terms of the
provisions of section 145(4) of the Act and, accordingly, by the
value of the claim of the
Trust, being R100. Such voting rights
automatically follow the recognition of the claim and, in particular,
its quantum by the
business rescue practitioner. There is no further
statutory provision, save for section 151, providing for any person
or body to
determine the quantum of the claim and the value of the
vote prior to the publication of the business rescue plan, except for
the
business rescue practitioner, who has already done so.
[22]
In addition, the respondents argue that the order granted is void for
vagueness in that,
inter alia,
it does not provide for any
person or body to make the determination and it does not provide a
period in which such determination
is to be made.
[23]
The respondents further took issue with the non-joinder of known
creditors. The respondents submit
that all creditors are directly and
substantially affected by the grant of the interim order and that the
failure to join these
creditors is fatal to the application.
[24]
The respondents further submit that the applicants had alternative
remedies available to them.
The respondents rely on the content of
the business rescue plan, which provides that any party affected by
the decision of the
business rescue practitioner to reject a claim,
can apply to the high court to review such decision. In addition, the
respondents
submit that the Trust ought to have taken the matter to
the section 151 meeting and exercised their rights in terms of the
Act.
[25]
The respondents also raised further procedural points pertaining to
the commissioning of affidavits,
the authentication of foreign
documents, urgency and an abuse of process, but these matters were
not persisted with in argument
and do not require further
consideration due to my findings hereinbelow.
Principles
applicable to a reconsideration application
[26]
Rule 6(12)
(c)
does not prescribe how an application for reconsideration is to be
made. In
Afgri
Grain Marketing (Pty) Ltd v Trustees for the time being of Copenship
Bulkers A/S (in liquidation)
[1]
the Supreme Court of Appeal held that:
‘
The
absence of prescription was intentional and the procedure will vary
depending upon the basis on which the party applying for
reconsideration seeks relief against the order granted ex
parte and in its absence. A party wishing to have the order
set
aside, on the ground that the papers did not make a case for that
relief, may deliver a notice to this effect and set the matter
down,
for argument and reconsideration, on those papers.’
[27]
In
ISDN
Solutions (Pty) Ltd v CSDN Solutions CC
[2]
it was held that:
‘
The
Rule has been widely formulated. It permits an aggrieved person
against whom an order was granted in an urgent application
to
have that order reconsidered, provided only that it was granted in
his absence. The underlying pivot to which the exercise of
the power
is coupled is the absence of the aggrieved party at the time of the
grant of the order. Given this, the dominant purpose
of the Rule
seems relatively plain. It affords to an aggrieved party a
mechanism designed to redress imbalances in, and injustices
and
oppression flowing from, an order granted as a matter of urgency in
his absence. In circumstances of urgency where an affected
party is
not present, factors which might conceivably impact on the content
and form of an order may not be known to either the
applicant for
urgent relief or the Judge required to determine it.’
[28]
It has further been held in
Industrial
Development Corporation of South Africa v Sooliman
that:
[3]
‘
The
rationale is to address the potential or actual prejudice because of
an absence of
audi alterem partem
when the ex parte
order was granted.’
[29]
Ultimately, ‘[i]n an application for reconsideration under rule
6(12)
(c)
the court considers the matter de novo’ and the applicant in
the original application retains ‘the onus to justify
the
granting of the ex parte order’.
[4]
[30]
In
casu
, the respondents elected to deliver a notice setting
out the grounds for a reconsideration of the order. The applicants’
case is set out in their founding affidavit and, in a nutshell, it is
the applicants’ case that the section 151 meeting can
only
proceed when the applicants’ claims are acknowledged by the
business rescue practitioner and correctly recorded in the
business
rescue plan.
Non-joinder
of creditors
[31]
Mr Potgieter SC, who appeared for the respondents with Mr Van Der
Walt, submitted that the relief
sought by the applicants would
prejudice all other creditors of the first respondent. The rights of
these creditors, inclusive
of their voting rights, are directly and
substantially affected through the relief sought and granted, as the
implementation of
the business rescue plan will be delayed and the
finalisation of the business rescue process will similarly be
delayed.
[32]
It was further submitted that the other creditors’ claims will
also be directly affected
should the claims of the Trust be
recognised, as these creditors would then receive substantially less
than provided for in the
existing business rescue plan. In addition,
due to the vagueness of the order and the fact that it prevents the
section 151 meeting
from being held, it could have the result that
the meeting will never occur, or at least not occur within the
foreseeable future.
On this basis, all existing creditors of Big Sky
were entitled to and had to be joined to the application.
[33]
Mr Aldworth, who appeared for the applicants, accepted that the order
granted was vague but submitted
that it is still enforceable in its
current form. Mr Aldworth proposed an amendment to the order to cure
its vagueness and argued
that such amendment can limit any potential
prejudice if the order is allowed to stand. On this basis, the
applicants argued that
there was no need to join other creditors to
the proceedings.
[34]
In
Absa
Bank Ltd v Naude NO and others
[5]
the Supreme Court of Appeal considered the issue of whether the
non-joinder of creditors in an application to set aside a business
rescue plan was fatal to the relief claimed in that application. The
court held as follows:
‘
The
test whether there has been non-joinder is whether a party has a
direct and substantial interest in the subject-matter
of the
litigation which may prejudice the party that has not been joined
.’
[35]
The court in
Absa
relied on
Gordon
v Department of Health, KwaZulu-Natal
[6]
where it was held that ‘if an order or judgment cannot be
sustained without necessarily prejudicing the interests of third
parties that had not been joined, then those third parties have a
legal interest in the matter and must be joined’.
[7]
[36]
The court in
Absa
concluded:
[8]
‘
That
is the position here. 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 10 years
to
extinguish debts owing to them, would not be paid; the money that
they had received, for a period of 30 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 % of the debts owing to them, might be slashed to a
5,5 % dividend if the company is liquidated.
’
[37]
In
Golden
Dividend 339 (Pty) Ltd and Another v Absa Bank Limited
[9]
the court similarly concluded that in litigation attempting to set
aside a business rescue plan, the joinder of creditors is required.
[38]
In
Kransfontein
Beleggings (Pty) Ltd v Corlink Twenty Five (Pty) Ltd
[10]
the issue was whether the non-joinder of creditors in an application
to partly set aside and to amend a business rescue plan was
fatal to
the relief claimed in that application. The Supreme Court of Appeal
endorsed its earlier decision in
Absa
and
held:
[11]
‘
As
stated in
Absa v Naude
, if the creditors who voted for
the business rescue plan are not joined, their position would be
prejudicially affected in that
a business rescue plan would be set
aside, money that they had anticipated they would receive would not
be paid and the money that
they had received would have to be repaid.
It thus follow that the non-joinder of Corlink’s other
creditors was fatal to
the amended relief sought by the applicant for
non-joinder. Since the question of joinder had been raised at
the previous
hearing and since the applicant had taken a deliberate
decision not to join other creditors, I do not think that the court a
quo
was required to afford the applicant a further opportunity to
join the other creditors.’
[39]
In
Industrial
Development Corporation of South Africa Ltd v Van den Steen NO and
others
[12]
the applicant also sought an order that a meeting in terms of
sections 151 and 152 of the Act, convened by the business rescue
practitioners, be stayed. In that matter, the stay was sought pending
the final determination of the application and/or an application
for
the removal of the business rescue practitioners, which application
was to be launched within a certain period of time. The
learned judge
considered the judgments of the Supreme Court of Appeal in
Absa,
Kransfontein Beleggings
and
Golden
Dividend
and concluded as follows:
‘
[10]
If the creditors who are entitled to consider, debate and vote on the
approval of the business rescue plan at the s 151 meeting
are not joined, their position would be prejudicially affected if the
meeting is postponed and the holding of the meeting is stayed
pending
the final determination of the application and/or an application for
the removal of the practitioners. A business
rescue
practitioner, in terms of
s 150(5)
of the
Companies
Act, has
only 25 business days from the date of his or her
appointment to publish the proposed business plan. This is a
very
short turnaround period…
[11] A postponement and
stay of the
s 151
meeting directly impact on the rights and
interests of creditors and shareholders. The
Companies Act
reco
gnises that all affected parties have a legal interest in a
business rescue plan. Creditors, in particular, have statutory
rights: to have the
s 151
meeting convened and held;
to have it held within the prescribed period of time after
publication of the business rescue
plan; to participate in
debating the business rescue plan at the
s 151
meeting and
to vote on it; to have the outcome as soon as possible; and to
participate in the consequences of its approval
or rejection. These
are legal rights. The relief sought by IDC had a direct impact
on these rights.
[12] It follows,
therefore, that the non-joinder of Hernic’s creditors was fatal
to the relief sought by IDC.’
[40]
The facts and circumstances in this matter are substantially similar
to the facts and circumstances
in
IDC
. The creditors of Big
Sky are in the same position as the creditors of Hernic in
IDC
.
Similarly, Big Sky’s creditors are entitled to consider, debate
and vote on the approval of the business rescue plan as
provided for
in the Act. Any postponement or stay of the section 151 meeting will
directly affect the rights and interests of Big
Sky’s
creditors. The creditors’ statutory rights, as set out in
IDC
,
to have the section 151 meeting convened and held; to have it held
within the prescribed time period after publication of the
business
rescue plan; to participate in debating the business rescue plan at
the section 151 meeting and to vote on it; to have
the outcome as
soon as possible; and to participate in the consequences of its
approval or rejection, also extend to the creditors
of Big Sky.
[41]
As a result, it follows that the non-joinder of Big Sky’s
creditors is fatal to the application
and the rule
nisi
must
be discharged.
Absence
of another remedy
[42]
It was not disputed in argument before me that the granting of an
interlocutory interdict requires
the absence of another adequate
ordinary remedy.
[13]
It is
therefore necessary to consider whether any other satisfactory
remedies were at the disposal of the applicants.
[43]
It has been held in
Hotz
v UCT
[14]
that
’…
the
alternative remedy must be a legal remedy, that is, a remedy that a
court may grant and, if need be, enforce, either by the
process of
execution or by way of proceedings for contempt of court.’
[44]
The respondents submitted that the business rescue plan provides for
an adequate remedy in the
event of the business rescue practitioner’s
decision to reject a claim. The respondents relied on the following
paragraph
under clause 4.1.6.9 of the plan:
‘
The
business rescue practitioner’s decision to reject a claim shall
be subject to review by the High Court of South Africa
upon the
application of any party affected thereby, provided that any such
review proceedings shall be brought within 90 (ninety)
days of
receipt of advice of that decision in writing from the business
rescue practitioner, acting in that capacity. Should the
affected
party fail to make such an application, they shall be deemed to have
waived their right to dispute such decision and shall
thereafter be
debarred from bringing such review proceedings.’
[45]
In the circumstances, the applicants would have been entitled to
review the business practitioner’s
decision not to recognise
their claims. On the papers before me, no reason was advanced why
this does not constitute an adequate
alternative remedy.
[46]
In addition, the aforesaid alternative remedy clearly provides for an
instance where claims are
rejected by the business rescue
practitioner and allows an aggrieved creditor to exercise its rights
in court. The alternative
remedy therefore satisfies the requirements
in
Hotz
.
[47]
Furthermore, even if the business rescue plan did not contain
adequate remedies in the event
of a rejection of a creditor’s
claim by the business rescue practitioner, the Act itself provides
for remedies to be exercised
by aggrieved affected persons. The
applicants approached the matter from the premise that the vote in
respect of their claims will
go against them as other creditors are
expected to act in their own interests. That may be so,
[15]
but the anticipated outcome of the meeting cannot serve as a
justification for its indefinite postponement pending finalisation
of
litigation pertaining to the Trust’s claims. The applicants
ought to have exercised their rights in terms of section 152(1)
(d)
of the Act by attending the meeting and bringing a motion to amend
the proposed plan in order to provide for the full extent of
their
claims. Alternatively, the applicants could have brought a motion to
direct the business rescue practitioner to adjourn the
meeting in
order to revise the plan for further consideration in terms of
section 152(1)
(d)
(ii).
The applicants failed to exercise these remedies.
[48]
If the meeting proceeded and the business rescue plan was adopted,
the applicants could further
have applied under section 130(1)(a)(ii)
to apply to set aside the resolution to commence business rescue on
the basis that there
is no reasonable prospect of rescuing the
company, as the plan was not validly adopted in circumstances where
the plan was approved
on the strength of affected persons exercising
a voting interest which they did not have.
[16]
[49]
In
Airports
Co v Spain NO,
[17]
Chetty J also made reference to this remedy:
‘
Whatever
the applicant's concerns are in relation to the validity of the plan
adopted on 23 July 2018 or the procedure which preceded
its adoption,
the plan was never challenged or set aside by a court. On that basis,
I must assume that the plan adopted was in
accordance with the Act
and is therefore binding on all parties until set aside.’
[50]
I am therefore satisfied that a number of alternative remedies were
at the disposal of the applicants.
The applicants have, therefore,
failed to satisfy the requirements for interim relief, and the rule
nisi
thus stands to be discharged.
Costs
[51]
The respondents submitted that a punitive costs order should be
granted against the applicants
in the event of the rule
nisi
being
discharged. The respondents submitted that the application was
brought with virtually no notice and, as set out above, other
affected persons were not joined in the proceedings and received no
notice at all.
[52]
The applicants can certainly be criticised for bringing the
application on such short notice
and for their failure to join all
interested parties. The application further also fails on the merits.
[53]
However, there is no evidence of any misconduct on the part of the
applicants and, whilst the
proceedings brought by the applicants were
ultimately unsuccessful, it cannot be said that the proceedings were
frivolous or vexatious.
I accept the submission by Mr Aldworth that a
punitive costs order is not justified as the applicants were simply
seeking to ensure
that they are able to exercise their voting rights
at the meeting.
[54]
I therefore find it unnecessary to show any disapproval
[18]
towards the applicants’ conduct. In addition, the employment of
two counsel was warranted considering the complexity of the
issues.
Order
[55]
The following order is made:
1.
The rule
nisi
issued on 24 August 2023 is discharged.
2.
The applicants are directed to pay the costs of this application,
jointly and severally, the one paying the other to be absolved, such
costs to include the costs of two counsel, where so employed.
PIETERSEN
AJ
Date
of Hearing:
20 October 2023
Date
of Judgment:
09 February 2024
APPEARANCES
For the applicants:
Mr DWD Aldworth
Instructed by:
WERKSMANS ATTORNEYS
The Central, 96
Rivonia Road
Sandton
Ref:Dr E
Levenstein/MS N
Harduth/KR/Volk43091.3
C/O GARLICKE &
BOUSFIELD INC.
La Lucia Ridge
Office Estate, Durban
C/O BOTHA &
OLIVIER
239 Peter Kerchhoff
Street
Pietermaritzburg
Ref:S
Haripersad/Jessie
For the
respondents:
Mr AE Potgieter SC
Mr CG Van Der Walt
Instructed by:
PHILIP COETZER INC.
Falcon Crest Office
Park, Unit 14
142 South Street
Lyttelton
Ref:Mr P
Coetzer/Bigsky.RS.T1000091
C/O LISTER &
LISTER
Suite 101, First
Floor
161 Pietermaritz
Street
Pietermaritzburg
Ref:
PH122/0001/AS/SK
[1]
Afgri
Grain Marketing (Pty) Ltd v Trustees for the time being of Copenship
Bulkers A/S (in liquidation) and others
[2019]
ZASCA 67
;
[2019] 3 All SA 321
(SCA) para 12.
[2]
ISDN
Solutions (Pty) Ltd v CSDN Solutions CC and others
1996
(4) SA 484
(W) at 486H-J.
[3]
Industrial
Development Corporation of South Africa v Sooliman and others
2013
(5) SA 603
(GSJ) para 10.
[4]
Competition
Commission v Wilmar Continental Edible Oils & Fats (Pty) Ltd and
others
2020
(4) SA 527
(KZP) para 20.
[5]
Absa
Bank Ltd v Naude NO and others
[2015]
ZASCA 97
;
2016 (6) SA 540
(SCA) (‘
Absa’)
para
10.
[6]
Gordon
v Department of Health, KwaZulu-Natal
[2008]
ZASCA 99
;
2008 (6) SA 522
(SCA) para 9.
[7]
Absa
para
10.
[8]
Ibid.
[9]
Golden
Dividend 339 (Pty) Ltd and another v Absa Bank Limited
[2016]
ZASCA 78
para 10 (‘
Golden
Dividend
’).
[10]
Kransfontein
Beleggings (Pty) Ltd v Corlink Twenty Five (Pty) Ltd and others
[2017]
ZASCA 131
(‘
Kransfontein
Beleggings
’).
[11]
Ibid
para
16.
[12]
Industrial
Development Corporation of South Africa Ltd v Van den Steen NO and
others
[2018]
ZAGPJHC 70 (‘
IDC
’).
[13]
Setlogelo
v Setlogelo
1914
AD 221
at 227
.
[14]
Hotz
and others v University of Cape Town
[2016]
ZASCA 159
;
2017 (2) SA 485
(SCA) para 36 (‘
Hotz’)
.
[15]
FirstRand
Bank Ltd v KJ Foods CC
[2017]
ZASCA 50
;
2017 (5) SA 40
(SCA) para 79.
[16]
African
Banking Corporation of Botswana Ltd v Kariba Furniture Manufacturers
(Pty) Ltd and others
[2015]
ZASCA 69
;
2015 (5) SA 192
(SCA) para 54.
[17]
Airports
Co SA Ltd v Spain NO and others
2021
(1) SA 97
(KZD) para 12.
[18]
Orr
v Solomon
1907
TS 281
;
Public
Protector v South African Reserve Bank
[2019] ZACC 29
;
2019 (6) SA 253
(CC).