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[2022] ZAGPPHC 321
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Commissioner for the South African Revenue Services v Louis Pasteur Investments (Pty) Ltd and Others (Mia Intervening) (12194/2017) [2022] ZAGPPHC 321 (23 May 2022)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)\
Case No. 12194/2017
REPORTABLE:
YES
/
NO
OF INTEREST TO OTHER
JUDGES:
YES
/
NO
REVISED:
YES
DATE:
23 MAY 2022
In the matter between:
COMMISSIONER FOR THE
SOUTH AFRICAN
REVENUE
SERVICES
Applicant
And
LOUIS PASTEUR
INVESTMENTS (PTY) LTD
(IN
PROVISIONAL
LIQUIDATION)
1
ST
Respondent
PRAKKE,
ADRIAAN EVERT N.O
2
ND
Respondent
THE AFFECTED PERSONS
RELATING TO
LOUIS
PASTEUR INVESTMENTS (PTY) LTD
3
RD
Respondent
NAUDE,
ETIENNE
JACQUES
4
TH
Respondent
LOUIS
PASTEUR GROUP (PTY) LTD
Affected Person
MIA,
ZUBEIDA
ALLI
Intervening Party
JUDGMENT – LEAVE
TO APPEAL
MILLAR J
1.
On 11 April 2022 I granted an order placing
the first respondent under final winding up in the hands of the
Master of the High Court
together with punitive costs orders against
the second respondent and the intervening party.
2.
The second respondent and the intervening
party now apply for leave to appeal against the whole of the judgment
and order. The application
for leave to appeal set out some 49
different grounds upon which the court was said to have erred and
upon which the application
was premised.
3.
It was argued that the court had
erred in almost every factual and legal finding made – an
effective re-argument of the main
case.
4.
The
test for the granting of leave to appeal is set out in S 17(1) of the
Superior Courts Act
[1]
:
“
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that –
(a)
(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting
judgments on the matter under consideration.”
4.
However, it was also argued that even if I
were to find that there was no reasonable prospect that another court
would come to a
different conclusion, the legal issues raised were of
such importance that these merited the granting of leave to appeal to
the
Supreme Court of Appeal.
5.
It
was held by the Supreme Court of Appeal in Panamo Properties (Pty)
Ltd and Another v Nel and Others NNO
[2]
that:
“
[1]
Business rescue proceedings under the Companies Act 71 of 2008 (the
Act) are intended to ‘provide for the efficient rescue
and
recovery of financially distressed companies, in a manner that
balances the rights and interests of all stakeholders.’
They
contemplate the temporary supervision of the company and its business
by a business rescue practitioner. During business rescue
there is a
temporary moratorium on the rights of claimants against the company
and its affairs are restructured through the development
of a
business rescue plan aimed at it continuing in operation on a solvent
basis or, if that is unattainable, leading to a better
result for the
company’s creditors and shareholders than would otherwise be
the case. These commendable goals are unfortunately
being hampered
because the statutory provisions governing business rescue are not
always clearly drafted. Consequently they have
given rise to
confusion as to their meaning and provided ample scope for litigious
parties to exploit inconsistencies and advance
technical arguments
aimed at stultifying the business rescue process or securing
advantages not contemplated by its broad purpose.
This is such a
case.”
6.
After consideration of this argument,
it seems to me that simply because a legal argument which is
advanced, whatever its merit,
has not been litigated and pronounced
upon through every level of the judiciary, does not militate in
favour of the granting of
leave to appeal on its own.
7.
I have considered the grounds upon which
this application for leave to appeal has been brought and the
arguments advanced by the
parties at the hearing and set out in the
heads of argument they filed. I have also considered the reasons for
granting the orders
of 11 April 2022 and am of the view that there is
neither a reasonable prospect that another court would come to a
different conclusion
nor an arguable point of law which merits the
granting of leave to appeal.
8.
I am of the view that the costs should
follow the result and it is for this reason that I make the costs
order that I do.
9.
In the circumstances, I make the following
order:
8.1
The application for leave to appeal is dismissed with costs.
A
MILLAR
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
20 MAY 2022
JUDGMENT
DELIVERED ON:
23 MAY 2022
RESPONDENT
IN THE LEAVE TO APPEAL
COUNSEL
FOR THE APPLICANT:
ADV. B BERGENTHUIN SC
INSTRUCTED
BY:
VZLR INC.
REFERENCE:
MR. T FARI
APPLICANTS
IN THE LEAVE TO APPEAL
COUNSEL
FOR THE 1
ST
& 2
ND
RESPONDENTS:
ADV. MA BADENHORST SC
INSTRUCTED
BY:
EUGENE GEYSER ATTORNEYS
REFERENCE:
MR. L BOTHA
COUNSEL
FOR THE INTERVENING
PARTY:
ADV. MA BADENHORST SC
INSTRUCTED
BY:
GRUNDLINGH & ASSOCIATES
REFERENCE:
MR. GRUNDLINGH
NO
APPEARANCES FOR ANY OF THE OTHER CITED PARTIES
[1]
Act
10 of 2013
[2]
2015
(5) SA 63
(SCA) para 1