Nedbank Ltd v Pilisanani Trading Enterprise 59 CC and Another (1301/2020P) [2021] ZAKZPHC 34 (18 June 2021)

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[2021] ZAKZPHC 34
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Nedbank Ltd v Pilisanani Trading Enterprise 59 CC and Another (1301/2020P) [2021] ZAKZPHC 34 (18 June 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
No. 1301/2020P
NEDBANK
LTD

Applicant
v
PILISANANI
TRADING ENTERPRISE 59 CC
First Respondent
IMPERATIVE
FINANCIAL SOLUTIONS (PTY) LTD     Second
Respondent
JUDGMENT
VAN
ZYL, J.
:-
[1]
By notice of motion issued on 18 February 2020 the applicant
commenced proceedings seeking the following
relief:
“
1. The
resolution taken by the first respondent on 20 June 2019 to
voluntarily begin business rescue proceedings in terms of
Section 129
of the
Companies Act, 71 of 2008
, be, and is hereby, set aside;
2.  The
appointment of the second respondent as a business rescue
practitioner be, and is hereby, set aside;
3.  Costs of
this application against the first and second respondents, jointly
and severally, the one paying the other to be
absolved;
4.  Further
and/or alternative relief.
”
[2]
The background to the dispute insofar as relevant is set out below.
The first respondent is an agricultural
concern conducting farming
operations on Portion 41 (of 12) of the farm Umlaas No. 902 at Eston,
KwaZulu-Natal. The Applicant was
its banker. As such the first
respondent conducted with the applicant a current account with an
overdraft facility, an instalment
sale agreement, as well as a loan
account secured by a mortgage bond.
[3]
The second respondent is alleged to be a company, despite the fact
that its letterhead which was freely
used in the course of these
proceedings does not reflect this. It appeared to be the alter ego of
Mr Adrian Vengadesan, a business
rescue practitioner. In the course
of the affidavits the parties have made no distinction between Mr
Vengadesan and the second respondent
company and dealt with both
interchangeably as the business rescue practitioner for the first
respondent. For purposes of this judgment
I do not propose to dwell
upon this distinction.
[4]
When the first respondent breached the repayment terms of its various
accounts with the applicant, the
applicant instituted legal action
against it under case number 1007/2019P for recovery of the amounts
due. This resulted in a meeting
convened on 5 March 2019 where the
first respondent’s representatives explained that it was
experiencing cash flow difficulties.
At that time the first
respondent was indebted to the applicant in respect of the various
accounts as follows;
a.
Its current account number 1106 794 621 for R316 442-35;
b.
An instalment sale agreement number 146 9075/002 for R258 643-80; and
c.
The Nedbond Facility loan account number 146 9075/0001 for R1 843
257-63.
[5]
Various options and possible solutions were considered and debated,
but in the end it was agreed that
the applicant would keep further
action in abeyance for a period of three months from 1 April to 30
June 2019 to enable the first
respondent’s representatives time to
rationalize its position and either turn the farming business around,
or to sell the farm
to best advantage. Consents to judgment were
signed, both on behalf of the first respondent, as well as by its two
sureties Mr Ibanathan
Govender and Ms Indranie Govender.
[6]
In terms of the understanding and during the moratorium the first
respondent would pay what it could in
respect of the various
accounts. At that stage its instalment obligations had been R6 602-72
per month in respect of the instalment
sale agreement and R26 987-04
per month in respect of the Nedbond loan account facility. There was
no pre-existing repayment schedule
for the overdraft account which
had been called up and technically was repayable forthwith in full.
[7]
According to the applicant and during the period from 1 April to 1
August 2019 the first defendant paid
a total of R91 000-00 towards
the Nedbond loan account facility, but nothing in respect of the
other two accounts, nor had it made
any arrangements to otherwise
settle its indebtedness to the applicant.
[8]
In the result the applicant applied for judgment by default against
the first respondent and its two sureties,
which was subsequently
granted on 2 August 2019 for;
d.
Payment of R298 327-98 with interest thereon from 19 November 2018 at
20,5% per annum calculated daily and capitalized
monthly;
e.
Payment of R1 736 745-63 with interest thereon from 19 November 2018
at 11% per annum, calculated daily and capitalized
monthly;
f.
Cancellation of the instalment sale agreement, return of the asset
concerned, payment of R33 820-31 with
interest thereon from 19
November 2018 at 12.05% per annum, calculated daily and capitalized
monthly, with leave to apply in due
course for such damages as it may
have suffered;
g.
Costs of suit on the attorney and client scale.
[9]
However, at the time unbeknown to the applicant, the first respondent
had on 20 June 2019 resolved to
begin voluntary business rescue
proceedings in terms of s129(1) of the Companies Act 71 of 2008 (the
Act), which resolution was filed
with the Companies and Intellectual
Property Commission (the Commission) on 28 June 2019 and from which
date it became effective
in terms of s129(2)(b) of the Act.
[10]
The first intimation of these events reached the applicant on 30 July
2019 by way of an email and letter on
the letterhead of the second
respondent from a Mr Adrian Vengadesan who styled himself as the
first respondent’s business rescue
practitioner. Therein the
applicant was advised that the first respondent had entered into
business rescue and attaching copies of
the relevant resolution and
lodgment with the Commission. In addition, applicant was advised of
the first meeting of the creditors
of the first respondent due to be
held at the offices of the second respondent on 5 August 2019. In
terms of s147(1) of the Act such
notification should have been given
within ten business days after the appointment of the business
rescuer practitioner.
[11]
The applicant’s response was to consider the resolution by the
first respondent as a nullity. In this regard
it relied upon the
provisions of s129(3) and (4) of the Act which required that a
company entering voluntary business rescue was
required to inform all
affected persons of the fact of the resolution and its effective
date, here being 28 June 2019 when it was
lodged with the Commission,
as well as the identity of the business rescue practitioner
appointed, within five business days. The
applicant correctly
considered itself an affected person and because the notifications
only reached it on 30 July 2019, it regarded
such as being out of
time. By reason of the provisions of s129(5) it concluded that the
resolution was thereby rendered a nullity
which could not be
resuscitated.
[12]
In the light of the attitude it had adopted, the applicant
accordingly declined to attend the proposed first
meeting of the
first respondent’s creditors. Notice of the alleged second meeting
of creditors together with a draft business rescue
plan was given by
email dated 26 August 2019 to the applicant. In order to protect its
interests the applicant’s attorney Ms P
J Combrinck related in her
supporting affidavit how she conveyed to the second respondent’s Mr
Vengedesan that short notice of
the second meeting for 30 August 2019
had been given and it was then agreed that the meeting would instead
take place on 2 September
2019.
[13]
On the latter date Ms Combrinck related how she attended at the
offices of the second respondent, but was then
informed that the
other creditors had in fact attended on 31 August 2019. In the result
she claimed to have held an informal meeting
with Mr Vengadesan
during which she pointed out certain anomalies in the draft business
rescue plan circulated and was given some
amended pages, copies of
which were attached as annexure FA.20 to the applicant’s founding
affidavit.
[14]
Ms Combrinck also said that she pointed out to Mr Vengadesan that the
applicant was not aware that there had
been formal publication of the
resolution in terms of s129(3)(a) of the Act. In her affidavit she
recorded that proof of such publication
had in fact since then also
not been forthcoming. She concluded her affidavit with recording that
since 6 September 2019 there had
been no further communications from
or with Mr Vengadesan and by implication also not with the second
respondent.
[15]
In opposing the application the respondents primarily relied upon the
answering affidavit of Mr Vengadesan
who stated that he was a
director of the second respondent. In order to address the allegation
of the nullity of the first respondent’s
resolution by reason of
not timeously adhering to the statutory time limits, it was alleged
that on 6 August 2019 Mr Vengadesan had
made application to the
Commission in terms of s129(3) and (4) of the Act for the extension
of time, which application was granted
by way of a letter dated 14
August 2019 and a copy of which was attached marked AV2.
[16]
The operative portion of the letter issued by the Commission under
the hand of Adv Rory Voller in his capacity
as Commissioner and
although dated 14 August 2019, was signed by him on 15 August 2019,
reads as follows:
“
It was decided
that an extension of time limits will be considered and granted in
deserving circumstances as prescribed under Regulation
166(1) and (2)
of the Companies Regulations published on 26 April 2011, in which a
senior officer may generally extend a time limit
set by the Act to
accommodate administrative capacity and in the interest of efficiency
and equality of access.
Extension of the
requirements of section 129(3) and (4) is herewith granted to
PILISANI TRADING ENTERPRISE 59 CC from 28 June 2019
until the 5
August 2019 to allow sufficient time for the Business Rescue
Practitioner to comply with the required sections of the
Act.
”
[17]
In the light thereof Mr Vengadesan claimed that any alleged
non-compliance with the provisions of s129 of the
Act and Regulations
166(1) and (2) had been cured. Insofar as Mr Vengadesan sought to
rely upon annexure AV6 to contend that an earlier
notification was in
fact sent to the applicant on 8 July 2019, such reliance is
misplaced. Annexure AV6 is a copy of an email addressed
in the name
of Mr Vengadesan to one Janisha Govender requesting her to send out
“
the attached letter
” under her letterhead to all
creditors of the first respondent. Since there is no letter attached
to the file copy of the email
and there is no affidavit from the
person Janisha Govender as part of the court papers, the claim
remains unverified and unsupported.
[18]
In para 26 of the answering affidavit the general allegation was made
that an affected person was barred in
terms of s130 from making
application to set aside a business rescue resolution in terms of
s129 unless the application is made prior
to the adoption of the
business rescue plan. However, no specific allegation was made of
how, when, where and on what terms the creditors
of the first
respondent had approved and adopted the proposed business rescue
plan.
[19]
Section 130 provides as follows:
“
130
Objections to company resolution
(1) Subject to
subsection (2), at any time after the adoption of a resolution in
terms of section 129, until the adoption of a business
rescue plan in
terms of section 152, an affected person may apply to a court for an
order-
(a)   setting
aside the resolution, on the grounds that-
(i)   there
is no reasonable basis for believing that the company is financially
distressed;
(ii)   there
is no reasonable prospect for rescuing the company; or
(iii)   the
company has failed to satisfy the procedural requirements set out in
section 129;
(b)
setting
aside the appointment of the practitioner, on the grounds that the
practitioner-
(i)   does
not satisfy the requirements of section 138;
(ii)   is
not independent of the company or its management; or
(iii)   lacks
the necessary skills, having regard to the company's circumstances;
or
(c)
requiring
the practitioner to provide security in an amount and on terms and
conditions that the court considers necessary to secure
the interests
of the company and any affected persons.
”
[20]
If the second meeting of the first respondent’s creditors had duly
adopted the business rescue plan as proposed
by the business rescue
practitioner on 30 August 2019 and since the notice of motion in the
present application was only issued on
18 February 2020, the
application was
prima facie
brought out of time. The issue of
debate was whether it had been established that the proposed business
rescue plan was ever adopted
by the creditors of the first
respondent.
[21]
Ms Ploos van Amstel, who appeared for the second respondent submitted
that this was established on the papers
and drew attention to the
statement by Mr Vengadesan in para 25 of the answering affidavit that
there was no need to terminate the
business rescue proceedings
because the general body of the first respondent’s creditors had
adopted the business rescue plan and
in support referred to the
“
proof of the vote of creditors
” annexed to his affidavit
and marked “AV7”.
[22]
In this regard it is interesting to note that the remark by Mr
Vengadesan was made in passing in response to
a repeated assertion on
behalf of the applicant (at para 10.5 of the founding affidavit) that
the failure to have timeously complied
with the requirements of the
Act, read with s129(5), rendered the first respondent’s resolution
a nullity. By way of contrast in
para 13.4 of the founding affidavit
of Ms Moodley, the unequivocal allegation was made that the business
rescue plan had never been
adopted, in response to which Mr
Vengadesan in para 34 of the answering affidavit merely responded
with a general denial and a claim
that “
all necessary steps were
taken pursuant to compliance with business rescue proceedings and in
compliance with the Act
”.
[23]
Mr Hoar, who appeared for the applicant, pointed out that annexure
AV7 comprised a series of printed forms
where in manuscript the names
of purported creditors and the amounts claimed to be owing to them
had been entered. There forms were
undated, unsigned and the amounts
claimed to be owing were all rounded off to the closest R50 000-00.
This suggested that the claims
were mere approximations and had not
been verified and there was no indication whether the claimants were
secured or concurrent creditors.
In any event, there was no
indication from annexure AV7 itself when the business rescue plan had
been adopted.
[24]
In his answering affidavit Mr Vengadesan dealt primarily with the
allegations contained in the founding affidavit
of Ms Salochini
Moodley and not separately with the supporting founding affidavit of
the applicant’s attorney Ms P C Combrinck.
In response to the
averment in para 11.10 of Ms Moodley’s affidavit incorporating by
reference the affidavit of Ms Combrinck, Mr
Vengadesan’s reply in
para 32 of his answering affidavit was to deny the alleged nullity of
the business rescue proceedings and
to admit the remainder, including
the affidavit of Ms Combrinck.
[25]
Ms Combrinck, in her affidavit dealt
inter alia
with the
meeting scheduled for 30 August 2019 and pointed out that the notice
of the meeting given on 26 August 2019 was short notice.
In this
regard she was correct because s151(2) requires at least five
business days’ notice. As a result, she said that she had
been in
contact with Mr Vengadesan, had pointed out to him the short notice
and that they had agreed that the meeting would instead
take place on
2 September 2019. However, when she arrived on 2 September 2019 she
was informed that the “
other parties notified of the meeting
”
had in fact attended on 31 August 2019, so that the meeting between
Ms Combrink and Mr Vengadesan then proceeded on an informal
basis.
[26]
Ms Combrink also recorded that she reminded Mr Vengadesan that proof
of publication of the first respondent’s
resolution was still
outstanding and that it has never been forthcoming. More importantly
she said that she pointed out certain anomalies
in the draft business
rescue plan, as a result of which he furnished her with certain
amended pages which were attached as annexure
FA.20 to the founding
affidavit of Ms Moodley. Since then there had been no further
communication from Mr Vengadesan. This was echoed
in Ms Moodley’s
founding affidavit at para 12, which was also not disputed.
[27]
At the outset the question arising is when the business rescue plan
was adopted by the first respondent’s
creditors. Since short notice
had been given for 30 August 2019, no valid decision could have been
taken on that date. In terms of
the agreement asserted by Ms
Combrinck the meeting should then have taken place on 2 September
2019, but on that date she was advised
that certain unnamed creditors
had attended on 31 August 2019. However, she was not informed that
any formal creditors’ meeting
had taken place on that date, nor
what decisions if any had been taken. This begs the question as to
when, if at all, the proposed
business rescue plan was considered and
adopted.
[28]
To add to the uncertainty was the production by Mr Vengadesan, upon
being queried about inconsistencies and
errors in the draft plan, of
replacement documentation which, if they were to be substituted for
the then existing plan, would have
required creditors’ approval, of
which there was no suggestion.
[29]
Mr Hoar also pointed out that there were no minutes or other
indication of a formal meeting having taken place.
In addition,
counsel drew attention to the provisions of s152(2) which required
the support at a formal meeting of more than 75%
of the creditors
voting interests and the support of at least 50% of independent
creditors’ voting interests. Counsel submitted
that a voting
interest is defined in s128(1)(j) read with s145(4) to (6) which
determine the voting interests of creditors and that
annexure AV7
does not reflect the status or voting interests of those creditors
there reflected, nor the attendance and voting results
of those
present at any valid meeting.
[30]
In addition counsel drew attention to the allegation made in the
founding affidavit of Ms Moodley that all
payments made to the
applicant since the date of the resolution were made, not by either
of the respondents, but by an individual
“
J. Govender
” or
“
Janisha Govender
”. A series of payment vouchers were
annexed marked “FA19” in support of this contention. Applicant
drew attention to the fact
that she was the daughter of the active
member of the first respondent.
[31]
In response thereto Mr Vengadesan in para 34 of the answering
affidavit merely contented himself with a general
denial. However,
since it was undisputed that the applicant had no further contact
with the second respondent or Mr Vengadesan after
6 September 2019,
had any payments been made by either of the respondents in terms of
an approved business rescue plan, one would
have expected him to have
said so.
[32]
The issue of whether the applicant was disqualified in terms of
s130(1) was raised by the respondents and
in
accordance with the general principle that he who asserts must prove
(
Pillay
v Krishna
1946
AD 946
at 951;
Tooth
and Another v Maingard and Mayer (Pty) Ltd
1960
(3) SA 127
(N)
at
134 – 135) the
onus
rests in my view upon the respondents. It was for them to establish
on a preponderance of probabilities that the proposed business
rescue
plan for the first respondent had been adopted prior to the applicant
issuing its notice of motion herein, thereby disqualifying
the
applicant from instituting the present proceedings thereafter.
In my judgment they have failed to do so.
[33]
However, even if the duty to establish that the creditors of the
first respondent had duly adopted the proposed
business rescue plan
had rested upon the applicant then, in my view and in the light of
the circumstances dealt with above, the applicant
would have
established upon a balance of probabilities that it had not been
adopted in terms of s152 of the Act. The applicant was
therefore not
disqualified in terms of s130(1) from moving for an order setting
aside the resolution.
[34]
It remains to consider whether the applicant has established the
grounds upon which it seeks to set aside the
resolution. The
applicant contended that it was entitled to have the resolution set
aside because there had been a failure to satisfy
the procedural
requirements set out in s129, as well as there being no reasonable
prospect of rescuing the company, both within the
contemplation of
s130(1)(a)(ii) and (iii).
[35]
The respondents had effectively conceded that there had been a
failure to comply with the procedural requirements
of s129, but
contended that the Commissioner, by virtue of his letter of 15 August
2019 and referred to in para 16 above and had
condoned the late
compliance with the requirements of s129(3) and (4), so that the
irregularity had been cured and could not thereafter
be relied upon
by the applicant.
[36]
In this regard Ms Ploos van Amstel, who appeared for the respondents
submitted that the Commissioner was both
empowered to and did extend
the time limits to accommodate the respondents as provided for in
s129 of the Act and Regulation 166
of the
Companies
Regulations, 2011.
[37]
Regulation 166 reads as follows:-
“
166.   Extension
and condonation of time limits.
—
(1)  The
senior officer of a regulatory agency may generally extend any
particular time limit set out in the Act or these
regulations for
filing any document with that agency, to the extent necessary or
desirable having regard to the public demand for
access to the
agency’s services, the administrative capacity of the agency to
meet that demand, and the interests of efficiency
and equality of
access.
(2)  On
good cause shown, the recording officer of a regulatory agency may
condone late performance of an act in respect
of which the Act or
these regulations prescribe a time limit, other than a time limit
that is binding on the regulatory agency itself.
”
[38]
With regard to the failure to comply with the requirements of s129
counsel for the applicant submitted that
in his letter of 15 August
2019 the Commissioner only intended to extend the period contemplated
in s129(4)(a) relevant to the filing
of the notice of the appointment
of the business rescue practitioner with the Commission. That, so the
submission ran, was because
the Commissioner’s powers were limited
in terms of Regulation 166 to extending time limits for
the filing of any
documents with
the Commission only. Accordingly, so it
was submitted, the remaining failures were not condoned and amounted
to failures to observe
the provisions of s129(3) and 129(4)(b).
[39]
I do not agree with this submission. That approach may be in keeping
with Regulation 166(1) but Regulation
166(2) clearly provides a much
wider discretion because the Commissioner
may
condone late performance of any act in respect of which the Act, or
the Regulations, prescribe any time limit, other than a time
limit
that is binding on the Commission itself. That, in my view, is what
the Commissioner had in mind in his letter of 15 August
2019 and in
so doing he was authorised to exercise his discretion. In addition,
s129(3) of the Act also endows the Commissioner with
a discretion to
allow a company a longer period to comply with its provisions.
[40]
The initial approach of the applicant’s attorney, given the failure
to observe the statutory time limits,
that such failure rendered the
resolution a nullity in terms of s129(5), thus
ipso
facto
bringing the business rescue proceedings to an end, is undermined by
the condonation granted by the Commissioner. In
Panamo
Properties (Pty) Ltd v Nel NNO
2015
(5) SA 63
(SCA)
,
Wallis, JA explained in para’s 28 and 29 that
s132(2)
(a)
(i)
of the Act provides for business rescue proceedings only to end when
the court sets aside the resolution that commenced those
proceedings.
Accordingly, and even if the resolution had lapsed and become a
nullity in terms of s129(5)
(a)
,
the business rescue proceedings set in motion by that resolution had
not terminated until the court set the resolution aside. Where
a
resolution lapsed and became a nullity it may be set aside under
s130(1)
(a)
(iii),
but the court still needs to be approached for the resolution to be
formally set aside, thereby only then terminating the business
rescue
proceedings.
[41]
The court further held that in considering the setting aside of a
resolution on any of the grounds contained
in s130(1)(a), the court
in addition needs to be satisfied that, in the light of all the
facts, it was just and equitable to set
aside the resolution and
thereby terminate the business rescue proceedings (at par 32).
[42]
It follows that, by reason of this approach, the lapsing contemplated
in s129(5)(a) is provisional in nature
and only becomes effective
once the court, being so satisfied, makes an order in terms of
s132(2)(a)(i) setting aside the resolution.
That also makes it clear
why, where non-compliance with s129(3) or (4) resulted in a lapsing
of the resolution in terms of s129(5)(a),
the Commissioner is
nevertheless empowered to condone late performance, thus effectively
reviving the business rescue process.
[43]
It follows that I agree with counsel for the respondents that their
failure to comply with the provisions of
s129(3) and (4) had been
condoned in the Commissioner’s letter of 15 August 2019 and that in
the light thereof it would not be
just
and equitable, by reason thereof alone, to set aside the resolution
and terminate the business rescue proceedings.
[44]
There remains, however, the applicant’s reliance upon the
provisions of s130(1)(a)(ii), namely that there
is no reasonable
prospect of rescuing the first respondent. I have earlier set out a
number of factors relevant to the consideration
of this aspect. Not
only does it appear that the business rescue plan was not formally
adopted by the creditors of the first respondent,
but there was no
indication that the second respondent had given effect to the
proposed business rescue plan at all. Such payments
as the applicant
received all came from an individual, not associated with the second
respondent, but instead with the active member
of the first
respondent.
[45]
It
was also undisputed that the applicant had no further
contact with the second respondent or Mr Vengadesan after 6 September
2019,
nor have the latter given any indication of how, since that
time and until the matter was heard on 29 May 2021, a period in
excess
of twenty months, the business rescue had progressed, or what
the prospects were of actually rescuing the first respondent.
[46]
In this regard it is relevant that the proposed business rescue plan
envisaged that creditors and more particularly
the applicant, would
have been paid in full by 30 July 2020, which as regards the
applicant was not the position. In the schedule
of claimed payments
put up as annexure AV3 in the answering affidavit of Mr Vengadesan it
was alleged that payments made to the applicant
during the eighteen
month period from March 2019 to 6 August 2020 totaled only R460
577-37, a far cry from settling the full indebtedness.
[47]
By way of comparison, the first respondent’s instalment obligations
had been R6 602-72 per month in respect
of the instalment sale
agreement and R26 987-04 per month in respect of the Nedbond loan
account facility. Without making allowance
for the repayment the debt
in respect of the overdraft account, these came R33 589-76 per month
which, over the same eighteen month
period totaled R604 615-68.
Effectively the first respondent’s debt to the applicant therefore
increased during this period.
[48]
It follows that even if the business rescue plan had been adopted and
implemented, the financial position of
the first respondent has
markedly deteriorated during the period of its alleged currency and
it does not appear that there is any
reasonable prospect of the first
respondent being rescued and avoiding ultimate liquidation.
[49]
In the circumstances any further delay brought about by the
resolution would undoubtedly be prejudicial to
the applicant and
indeed also to such other creditors as the first respondent may have.
The submission by counsel for the applicant
that the business rescue
exercise in this instance was a calculated delaying tactic is not
without merit.
[50]
In all the circumstances I have come to the conclusion that the
applicant has established, with the requisite
degree of certainty
grounds for the setting aside of the resolution in terms of
s130(1)(a)(ii) on the basis that there is no reasonable
prospect of
the first respondent being rescued. I have in addition concluded in
the light of all the evidential material placed before
the court and
in compliance with the requirements of s130(5)(a)(ii) that it would
be just and equitable to set aside the resolution,
thus finally
bringing to an end the protracted attempt at voluntary business
rescue.
[51]
Neither counsel made any particular submissions with regard to the
costs of the application. Counsel for the
respondents submitted that
the application should be dismissed, with costs and counsel for the
applicant asked for costs as per para
3 of the notice of motion
against the respondents jointly and severally. In the circumstances I
see no reason to depart from the
usual approach that costs should
follow the result. Insofar as the second respondent has associated
itself with the justification
for the alleged exercise in business
rescue, I am also of the view that an order for liability for costs
payable jointly and severally
is justified in all the circumstances
of the matter.
[52]
In the result I make an order substantially in the form sought by the
applicant in its notice of motion, namely:
a.  The
resolution taken by the first respondent in terms of
s129
of the
Companies Act 71 of 2008
on 20 June 2019 to voluntarily begin
business rescue proceedings is hereby set aside in terms of
s130(5)(a) of the Act.
b.  For the
sake of clarity it is declared that in terms of s132(2)(a)(i) of the
Act the order contained in para 1 hereof also
brings to an end such
business rescue proceedings.
c.  In the
result the appointment of the second respondent as the business
rescue practitioner for the first respondent is set
aside.
d.  The costs
of the application, including any reserved costs, shall be paid by
the first and second respondents jointly and
severally, the one
paying the other to be absolved.
_______________
VAN
ZYL, J.
APPEARANCES:
For
the Applicant:       Adv S Hoar
Instructed by De
Villiers Evants & Petit
Applicant’s
Attorneys
(Ref: PJ
Combrinck/oj/02N012094)
c/o Austen Smith Inc
PIETERMARITZBURG
(Ref: Mr C Smythe)
Tel: 033 392 0500
For
the Respondents:     Adv (Ms) Z Ploos van Amstel
Instructed by Messrs
Zayeed Paruk Inc
DURBAN
(Ref: Mr
Paruk/01.1002.001)
Email:
zayeed@zpaa.co.za
Tel:
031 301 3398/9
c/o
Document Exchange
PIETERMARITZBURG
DOCEX
5, DURBAN
Judgment
reserved:
26 May 2021.
Judgment
delivered:
18 June 2021