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[2020] ZAGPPHC 14
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Klopper N.O and Another v Gupta (84095/2018) [2020] ZAGPPHC 14 (7 February 2020)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case
Number: 84095/2018
7/2/2020
In
the matter between:
JOHAN
LOUIS KLOPPER
N.O.
First Applicant
KURT
ROBERT
KNOOP
Second Applicant
And
CHETALI
GUPTA
Respondent
In
re:
CHETALI
GUPTA
Applicant
And
JOHAN
LOUIS KLOPPER N.O.
First Respondent
KURT
ROBERT KNOOP
Second Respondent
JOHAN
LOUIS KLOPPER
Third Respondent
THE
COMPANIES AND INTELLECTUAL
PROPERTY
COMMISSION
Fourth
Respondent
JUDGMENT
THE
COURT
[1]
This
is an application for leave to appeal the order and judgment handed
down by this court on 13 December 2019. The first and second
applicants bring the application in their capacity as the business
rescue practitioners of lslandsite Investments One Hundred and
Eighty
(Pty) Ltd ("lslandsite") and Confident Concept (Pty) Ltd
("Confident Concept").
[2]
For
ease of references the parties are referred to as cited in the
judgment and the first and second applicants will collectively
be
referred to as "the respondents".
GROUNDS OF APPEAL
[3]
The
instances in which the respondents allege that the court erred, can
succinctly be summarised as follows:
[3.1] in
finding that the applicant's affidavit should be accepted and
admitted into evidence;
[3.2] in
finding that the respondents had failed to discharge their duties in
good faith, objectively and
impartially; that it was untenable to
contend that they had overseen the sale of the assets of the
companies; that they had unabatedly
continued to sell off the assets
and earn fees without a plan as to how the businesses would operate
after creditors had been paid;
and that they had failed to deal with
how they would secure a bank account for the companies in order for
them to continue;
[3.3] in
finding that the respondents' lack of good faith was demonstrated by
their failure to substantiate
their allegations of gross and reckless
mismanagement and to report the criminal unlawfulness of the prior
board and shareholders
to the authorities; that such failure tainted
their investigations into the affairs of the companies and their
impartiality; and
that it was a grossly disingenuous litigation
tactic to raise such allegations in the application;
[3.4] in
finding that the respondents had vilified the board and shareholders,
on the one hand, yet on the
other, wanted to rescue the companies for
the benefit of the board and shareholders, and that this cast doubt
on their good faith
and credibility;
[3.5] in
failing to consider the judgment of Potterill J in
Oakbay
Investments (Pty) ltd v Tegeta Exploration and Resources (Ply} ltd
(HCGDP, case number 83344/18) delivered on 30 August 2019, in
which the court found that the mere fact that the respondents are
business rescue practitioners of different companies within the
Oakbay Group did not amount to a lack of independence or constitute
a
reason for their removal;
[3.6] in
finding that the business rescue proceedings shall be deemed to have
lapsed in the event that the
companies fail to appoint business
rescue practitioners within ten days, such order being competent as
the
Companies Act, 2008
does not make provision for such an order and
the order effects the rights of
inter alia
creditors who are
bound by the approved plan but were not before court.
[4]
The respondents further contended that:
[4.1] the
case is of considerable public interest and importance and raises
novel and complex issues;
[4.2] the
findings in respect of conflict was dealt differently by another
court in the same division.
LEGISLATIVE
FRAMEWORK
[5]
Section
17
of the
Superior Courts Act, 10 of 2013
deals with the requirements
that an application for leave to appeal have to comply with.
Section
17(1)(a)
is applicable to the application
in
casu
and reads
as follows:
"17(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;"
DISCUSSION
[6]
We are of the view that compelling
reasons exist for the appeal to be heard, to wit;
[6.1] the
case is of considerable public interest;
[6.2] the
lacuna
in
Companies Act, 71 of 2008
and more specifically
section 139(3)
in respect of the time period within which a new
business rescue practitioner should be appointed;
[6.3] the
status of the business rescue proceedings if a new business rescue
practitioner is not appointed;
[6.4] the
conflicting decision in this division in
Oakbay Investments (Pty)
ltd v Tegeta Exploration and Resources (Ply} Ltd
(HCGDP, case
number 83344/18) delivered on 30 August 2019, in respect of the
question of a conflict of interest in respect of the
same business
rescue practitioners in similar circumstances.
ORDER
[7]
In the premises, the following order is
granted:
1.
Leave
to appeal to the Supreme Court of Appeal against the judgment and
order of this court delivered on 13 December 2019 is granted;
2.
Costs
of the application to be costs in the appeal.
A.P.
LEDWABA
DEPUTY
JUDGE PRESIDENT OF THE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
N.
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
M.L.
SENYATSI
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DATE
HEARD
30 January 2020
JUDGMENT
DELIVERED
7 February 2020
APPEARANCES
Counsel
for the First and
Second
Applicants:
Advocate P.
Stais SC and G. Wickens
Instructed
by:
Smit Sewgoolam Incorporated
(011
646 0006)
Ref: BVN/MAT32938
Counsel
for the Respondent:
Advocate M. R.
Hellens SC and J.P. Snijders
Instructed by:
BDK
Attorneys
(011 838 1214)
Ref: Mr. R.C. Krause/Confident
Concepts