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[2021] ZAGPPHC 352
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Naude and Another v Servigraph 42 Close Corporation and Others (21236/2021) [2021] ZAGPPHC 352 (14 May 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no: 21236/2021
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED:NO
DATE
:14/05/2021
In
the matter between: -
DEKKER
NAUDE
First Applicant
JOHANNES
JACOBUS
NEL
Second Applicant
and
SERVIGRAPH
42 CLOSE CORPORATION
First Respondent
WAYNE
ROBERT CLARK
N.O
Second Respondent
RAYNOLD
SELLO MKHONDO N.O
Third Respondent
(Cited
in their capacities as business rescue
practitioners)
THE
MASTER OF THE HIGH COURT
,
Fourth Respondent
PRETORIA
THE
COMPANIES AND INTELLECTUAL
Fifth Respondent
PROPERTY
COMMISSION
FIRSTRAND
BANK
LIMITED
Affected Party
(Registration
Number: […])
JUDGEMENT
NE
NKOSI AJ
1.
This is an urgent application heard on 12 May 2021. The
applicants seek an order in the following terms:
1.1
That the matter be treated, enrolled and heard
as one of urgency and that for the purposes thereof
condonation is granted for the non-compliances with the normal Rules
of Court
with regard to service, forms, processes and time-periods as
contemplated in Rule 6(12)(a);
1.2
Declaring that the notice of termination of business rescue
proceedings in respect of Servigraph 42 CC (the First Respondent) in
terms of
Section 141
of the
Companies Act, 71 of 2008
filed by
Raynold Sello Mkhondo N.O. (the Second Respondent) on the 16th of
April 2021 be invalid, null and void
ab initio
and set aside;
1.3
That
the status
quo
omnio
be
and hereby is restored consequent upon the order in prayer 2 hereof
and that Servigraph 42 CC(t h e First Respondent) is returned
to
supervision and declared to be in business rescue; and
1.4
Costs
of this application be costs in the business rescue except in
the event of opposition, in which event costs will be
sought against
such opposing party on a scale as between
attorney
and client
.
[1]
2.
The application is opposed by FirstRand Bank limited (“The
Affected Party”). The Third Respondent filed an explanatory
affidavit in which he indicated that he neither supports nor opposes
the application. There is no
3.
Mr. Smith, Counsel for the affected Party, informed the Court
that he does not take an issue with the first order sought by the
applicants. The remainder of the orders prayed for remain in dispute.
The Court is also satisfied that the applicant has met
the
requirements of the provisions of
Rule 6(12)
.
4.
It is common cause that the First
Applicant (“Mr . Naude”) and
the Second Applicant (“Mr. Nel”)
are members (“the members”) of the First Respondent
and
placed
it in
voluntary
business rescue in terms of section 129
of the Companies Act No. 71 of 2008 (“the act”) on 8 May
2020.
5.
The Second Respondent (“Mr. Clark”) and the third
respondent (“Mr. Mkhondo”) were appointed as joint
business
rescue practitioners (“the practitioners”) at
the instances of the members
.
6.
On the 16th of April 2021, a notice of termination of the
business rescue proceedings was filed with the Fifth Respondent.
Effectively
the first respondent was released from business rescue
.
7.
The members are aggrieved by this notice of termination of
business rescue and have approached this Court on an urgent basis to
have it declared invalid,
void ab initio
and set aside. They
contended that the practitioners did not act jointly and that, in
fact, Mr. Mkhondo acted alone
.
8.
In terms of section 132 (2) of the Act, business rescue
proceedings end when
:
(a)
......
(i)
….
(ii)
….
(b) The practitioner has
filed with the commission a notice of the termination of business
rescue proceedings, or
(c)
....
(i)...
(ii)...
9.
Subsequent to the rejection of the business rescue
plan, the practitioners invited the applicants to consider,
their
options in terms of section 153(1) of the Act. The applicants
advised the practitioners that they intended to bring an application
to set aside the results of the vote but no application was launched
.
10.
The practitioners resolved to place the applicants in terms to
launch an application to set aside the FNB dissenting vote which in
effect lead to the rejection of the business plan. The applicants
were afforded an opportunity to do so before 15 April 2021, failing
which the business rescue would
be
terminated. The application to challenge the dissenting vote of the
Affected Party was drafted but never issued in Court. The
applicants
herein were meant to be applicants in that aborted application
.
11.
On 9 April 2021, Mr. Mkhondo sent a letter to the second
applicant and a copy to Mr. Clark. The letter reads
:
“
Please
kindly note the following
:
1.
The right to apply to court to set aside the vote of
FNB as being inappropriate was reserved at the meeting on 11 December
2020.
It has now been almost
4
months, without any feedback to that effect
;
2.
Section 153(5)
of the
Companies Act provides
that if no
person takes any action as contemplated
in subsection (1) the BRP should promptly file a notice
of termination
;
3.
Given that there was a subsequent offer entertained
between Highveld and FNB, the BRP’s put the termination in
abeyance to
accommodate this negotiation. This however, did not
stand in the way of Servigraph
or
any other affected person filing to court to set aside FNB’s
vote
;
4.
The Creditors, an in particular FNB, have indicated that they
cannot entertain any further delay
;
and
5.
Therefore, the request to extend the deadline beyond
the 15 April cannot be
entertained
Best regards
Sella Mkhondo”
[2]
12.
The aforementioned letter supports the fact that
:
12.1
Mr.Mkhondo did not act alone on the issue of the termination
of the business rescue and the said letter was sent to Mr.Clark
;
12.2
paragraph 3 of the letter confirms that both practitioners
were contemplating terminating the business rescue; and
12.3
the business rescue was terminated on 16 April 2021, after the
deadline of the 15 April 2021 had expired
and
Mr. Clark must have been aware of the termination.
13.
The
notice terminating the business rescue is consistent with common
cause facts and the sequence of events leading to the decision
to
file a notice of termination. The Fifth Respondent received the
notice of termination of business rescue on the 16th April 2021,
which was filed in terms of
section 153
(5) and not
regulation 125
as
argued by the applicants, and acknowledged receipt on 19 April
2021
.
[3]
14.
Any
doubt whether Mr. Mkhondo acted alone is put to rest by the letter
dated 15 April 2021 from Mr. Elliot who represented both
practitioners. The letter is directed to Mr. Lombard who represents
FNB. The letter clearly states that the practitioners intend
to file
the statutory notice of termination during the course of tomorrow,
meaning on 16 April 2021
.
[4]
15.
In
the circumstances, prayer 2 of the notice of motion ought to be
dismissed. Prayer 3 depends on the success of prayer 2 and therefore
should also be dismissed
.
16.
The
applicants filed a replying affidavit consisting of 55
pages and largely raising new issues which were not
dealt with
in the founding affidavit. In
Mostert
vs Firstrand Bank t/a RMB Private Bank
[5]
the Court stated the
following at paragraph 13
:
“
It
is trite that in motion proceedings the affidavits constitute both
the pleadings and the evidence. As a respondent has the right
to know
what case he or she has to meet and to respond thereto, the general
rule is that an applicant will not be permitted to
make or supplement
his or her case in the replying affidavit. This, however, is
not an absolute rule. A court may in the
exercise of its discretion
in exceptional cases allow new matter in a replying affidavit... In
the exercise of this discretion
a court should in particular have
regard to: (i) whether all the facts necessary to determine the new
matter raised in the replying
affidavit were placed before the
court;
(ii) whether the determination of the new matter will prejudice
the
respondent in a manner that could not be put right by orders in
respect of postponement and costs; (iii) whether the new matter
was
known to the applicant when the application was launched; and (iv)
whether the disallowance of the new matter will result in
unnecessary
waste of costs.”
17.
If I were to allow the replying affidavit to stand, it would
mean the respondent would be prejudiced unless afforded an
opportunity
to answer to the new allegations raised in the replying
affidavit. That kind of approach defeats the object of an urgent
court
and should be discouraged. In the circumstances of this case, I
do not find any exceptional circumstances warranting that I should
allow the new allegations in the replying affidavit to stand
.
18.
In
Michelin
Tyre CO South Africa (PTY) Ltd vs Adriaan Coetzee & Another
[6]
, the Court noted the following at paragraph 7
:
“
It
is trite in motion proceedings, an applicant must stand or fall by
the founding affidavit and the facts alleged in it. In particular,
an
applicant is not permitted, save in exceptional circumstances, to
make or supplement by way of reply. In Bayat v Hansa
1955 (3(SA
547 (N), the rule was expressed in the following terms:
An
applicant for relief must (save in exceptional circumstances) make
his case and produce all the evidence he desires to use in
support of
it, in his affidavit filed with the notice of motion, whether he is
moving ex parte or on notice to the respondent,
and is not permitted
to supplement it in his replying affidavits (the purpose of which is
to reply to averments made by the respondent
in his answering
affidavits), still less make a new case in his replying
affidavits.”
19.
In the circumstances I therefore make the following order
:
1.
The application is dis missed with cost including costs
of two Counsels
.
NE
NKOSI, AJ
Acting
judge of the
High
Court
Date
of hearing:
12 May2021
Date
of Judgement:
14 May2021
For
the applicant:
SJ Van Rensburg SC
C
E Thompson
Instructed
by:
Martin Van Vuuren Attorneys , Northcliff
For
the Affected Party: J E Smit
Instructed
by:
Edward Nathan Jonnenberg Inc, Sandton
[1]
Caseline
003 -
3
[2]
008
-
20
on Caselines
[3]
008
-
15
Caselines
[4]
006
-
86
Caselines
[5]
(198/2017)
[2018]
ZASCA 54
(11 April
2018
[6]
Case
No:
J129
2/
16
Labour Court, 7 July 2016 unreported.