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[2022] ZAFSHC 134
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Oosthuizen v Heever Boerdery and Another (2083/2021) [2022] ZAFSHC 134 (6 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2083/2021
Reportable:YES/NO
Of
Interest to other Judges:YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
LOUIS
JOSEPHUS JACOBUS OOSTHUIZEN
Applicant
And
HEEVER
BOERDERY CC [IN LIQUIDATION]
First
Respondent
NOLWAZI
PRECIOUS ZULU N.O
Second
Respondent
(in
her capacity as duly appointed liquidator of
Heever
Boerdery [in liquidation])
In
the counter application between:
REENEN
RANCH CC
Applicant
And
HEEVER
BOERDERY CC [IN LIQUIDATION]
First
Respondent
NOLWAZI
PRECIOUS ZULU N.O.
Second
Respondent
LOUIS
JOSEPHUS JACOBUS OOSTHUIZEN
Third Respondent
COMPANIES
AND INTELLECTUAL PROPERTY
Fourth Respondent
COMMISSION
HEARD
ON:
This
application was
determined on the
basis of written arguments instead of an oral hearing.
JUDGMENT
BY:
DANISO,
J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by way of email and by release to SAFLII.
The date and time for hand-down is deemed to be 09h00 on 06 June
2022.
[1]
This is an opposed application for leave to appeal against my
judgment and the consequent
order delivered on 24 February 2022. The
order followed upon:
1.1.
the dismissal of the applicant’s
application to place the first respondent, Heever Boerdery CC under
supervision and commencing
business rescue proceedings and;
1.2.
the intervening creditor, Reenen Ranch’s
counter application was upheld with the effect that the special
resolution which
initiated Heever Boerdery CC’s voluntary
liquidation was declared null and void and the consequent liquidation
proceedings
was set aside.
[2]
Two grounds of appeal are raised in the notice of application for
leave to appeal
namely that, this court erred in disregarding the
Plascon-Evans
rule in finding that the special resolution
adopted by the members of Heever Boerdery CC was not adopted properly
thereby setting
it aside including the liquidation proceedings and by
concluding that there are no reasonable prospects for Heever Boerdery
CC
to be rescued. The applicant accordingly, contends that there is a
reasonable possibility that the Supreme Court of Appeal or the
Full
Bench of this court would come to another decision.
[3]
This application is, by consent between the parties determined on the
basis of written
heads of argument.
[4]
The
grounds of the application for
leave to appeal as set out in paragraph 1
are largely
incoherent. In paragraph
2 at 2.1.
to 2.4. the applicant has essentially repeated the arguments
proffered in support of his case in the main application which
were addressed in the reasons for my judgment.
[5]
The contention that there is a reasonable possibility that another
court would come
to a different decision essentially means that there
are reasonable prospects of the appeal succeeding as contemplated in
section 17(1)(a)
of the
Superior
Courts Act 10 of 2013
in terms of which leave can only be granted
where I’m certain that the appeal would have a reasonable
prospect of success.
See
Acting
National Director of Public Prosecutions & others v Democratic
Alliance
in Re:
Democratic
Alliance v Acting National Director of Public Prosecutions &
others
(19577/09) [2016] ZAGPPHC 489
(24 June 2016);
[2016] JOL 36123
(GP).
[6]
I’m not persuaded that
there are reasonable prospects of succeeding with these grounds
on
appeal or that
another court will
come to a different conclusion. F
or the following reasons:
6.1.
The judgment is attacked on the grounds that in paragraph 17 it is
held that: “…
ex facie the documents, an impression is
created that the deceased was present at the special meeting and
voted in favour of a special
resolution to be passed to place the CC
in voluntary liquidation
…” whereas a full
explanation as to the particular circumstances that led to the
members signing on different dates
is provided by way of affidavits
and, despite the deceased’s absence the meeting was properly
quorate. Furthermore, the applicant’s
version as to how it came
about that the deceased’s signature appeared to be different in
the special resolution raised a
real, genuine and bona fide dispute
of fact as Rheenen Ranch’s forensic analyst did not consult the
deceased’s family
members or caretakers to consider the
circumstances under which the signature was appended therefore, the
court should have applied
the Plascon-Rule in that regard.
6.1.1.
In my view,
in p
aragraph 17
of the main judgment I have
fully
addressed the reasons for my finding pertaining to the nullity of the
special resolution and the liquidation proceedings.
I deem it
unnecessary to repeat my reasons thereof for the purpose of this
judgment.
6.1.2.
As regards the authenticity of the deceased’s signature on the
applicant’s
own submission, the findings in this regard were
not based on Rheenen Ranch’s allegations that the deceased
signature was
a forgery.
[1]
6.1.3.
The allegations that the special resolution was valid as the meeting
was quorate despite
the deceased’s absence were never raised in
the main application. Similarly,
the
applicant’s affidavit did not raise any dispute
of
facts which would have required the application of the
Plascon-Evans
rule.
It is trite that “a real, genuine and
bona
fide
dispute
of fact can exist only where the court is satisfied that the party
who purports to raise the dispute has in his affidavit
seriously and
unambiguously addressed the fact said to be disputed.” See
Wightman
t/a JW Construction v Headfour (Pty) Ltd and
Another
[2008]
ZASCA 6
;
2008
(3) SA 371
(SCA)
at para 13.
6.2.
With regard to the
dismissal of
the application, according to the applicant the requirements of just
and equitable and financially distressed are alternative
provisions
therefore, this court’s finding that it would not be just and
equitable for Heever Boerdery CC to be placed under
business rescue
where the court correctly found that Heever Boerdery CC was in
financial distress is erroneous.
6.2.2
I disagree. It was not in dispute that Heever Boerdery was
financially distressed
as contemplated in
s128(1)(f)
(i)
of
the Act
due
to its inability to pay its debts as they became due within the
immediately ensuing six months. The determination that a company
is
financially distressed on its own, does not entitle a company to be
summarily placed under business rescue. The onus was
on the
applicant to establish the facts as envisaged in
s128
(1)(b) read
with
s131(4)(a)(ii)
and satisfy the court that Heever Boerdery could
be rescued in the sense that there is a
reasonable
prospect
that
business rescue will result in its rehabilitation to
either
facilitate its continued existence in the state of its insolvency, or
provide a better deal for the stakeholders than what
they would
receive through liquidation
[2]
alternatively, that
it
would be just and equitable to do so
for
financial reasons.
For
the reasons that I alluded to in paragraphs 19 to 23, I was not
persuaded that
the
requirements pertinent to the order sought by the applicant have been
met.
6.2.3.
Except to put right that in the judgment, paragraph 22 it is stated
that “
if the funds do materialize as alleged…”
not “
if the funds do not materialize as alleged…”
It is also clearly recorded in the judgment that these views were
alluded to by counsel for Rheenen Ranch and I found them to be
correct.
6.2.4.
As regards the rest of the grounds of appeal, I’m of the view
that I have addressed
the reasons for my conclusions in that regard
in my main judgment.
[7]
It is for the reasons above, that I’m not persuaded that the
issues raised by
the applicant in his grounds of appeal would have
reasonable prospects of success. The
application
for leave to appeal stands to be dismissed.
[8]
In the result the following order is made:
1.
The application for leave to appeal to
the Supreme Court of Appeal or the full bench of this division
against my judgment granted
on 24 February 2022 is dismissed with
costs.
NS
DANISO, J
APPEARANCES:
Counsel
on behalf of Applicant:
Adv. JB Cilliers
Instructed
by: Viljoen
Attorneys
BLOEMFONTEIN
Counsel
on behalf of Respondents:
Adv. S. Grobler
Instructed
by: FJ
Senekal Inc.
BLOEMFONTEIN
[1]
Paragraph 2.6. of the applicant’s heads of argument.
[2]
Oakdene
Square Properties (Pty) Ltd v Farm Bothasfontein (Kyalami) (Pty)
Ltd
(609/2012)
[2013]
ZASCA 68
(27
May 2013) para 22 to 26