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[2016] ZAGPPHC 373
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Senwes Limited v Zellenhen Boerdery CC and Others; Zellehen Boerdery CC v Senwes Ltd (50799/2015, 50486/2015) [2016] ZAGPPHC 373 (31 March 2016)
IN
THE GAUTENG DIVISION HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Revised
Date:
313/2016
Case
number: 50799/2015
In
the matter between:
SENWES
LIMITED
APPLICANT
AND
ZELLEHEN
BOERDERY CC
…....................................................................
1
st
RESPONDENT
W
CAWOOD
N.O.
2
nd
RESPONDENT
J
C BEER
3
rd
RESPONDENT
CIPC
4
th
RESPONDENT
THE
TRUSTEES FROM TIME TO TIME OF
THE
BESTER FAMILY
TRUST
5
th
RESPONDENT
L
BESTER
6
th
RESPONDENT
FNB
LTD
7
th
RESPONDENT
NEDBANK
LTD
8
th
RESPONDENT
NOVON
PROTECTA (PTY)
LTD
9
th
RESPONDENT
P
B D BOEREDIENSTE (PTY)
LTD 10
th
RESPONDENT
STANDARD
BANK
11
th
RESPONDENT
SUIDWES
LANDBOU
12
th
RESPONDENT
WESBANK
(A DIVISION OF FNB)
13
th
RESPONDENT
SARS
14
th
RESPONDENT
AND
Case
Number: 50486/2015
In
the matter between:
ZELLEHEN
BOERDERY CC
APPLICANT
AND
SENWES
LTD
RESPONDENT
JUDGMENT
MOLEFE
J
[1]
There are two applications before Court which are inextricably
intertwined. In case number 50799/15 Senwes Ltd ("Senwes")
is the applicant and Zellenhen Boerdery CC (in business rescue) ("the
CC") is the first respondent. The business rescue
practioners
("the BRP's") of the CC are the second and third
respondents. The fourth to fourteenth respondents are creditors
of
the CC and were joined as interested and affected parties to the
application. This application ("the urgent application")
started off as an urgent application and was enrolled in the urgent
court for 21 July 2015. It is only opposed by the CC,
as
represented by the BRP's.
[2]
The main relief requested by Senwes in the urgent application is that
the resolution whereby the CC adopted business rescue
proceedings be
set aside and that the CC be liquidated. In the first alternative
Senwes requested a declaratory order that when
it voted against the
adoption of a business rescue plan it exercised its vote
appropriately. In a further alternative Senwes sought
an order
interdicting and restraining the BRP's from applying any of the
proceeds of the CC's crops, over which Senwes enjoys security,
to pay
for operating costs of the CC pending the finalization of an
application by the BRP's to set aside Senwes' vote at the meeting
against the tabled business rescue plan as a vote exercised
inappropriately.
[3]
In case number 50486/15, the CC, represented by the BRP's, requested
an order setting aside as inappropriate the vote exercised
by Senwes
when it voted against the adoption of a business rescue plan at a
meeting of interested and affected parties held
on 19 June
2015. The ancilliary relief requested in this application ("ordinary
application") is for an order that the
business rescue plan be
adopted, alternatively be referred to the affected parties for
adoption.] As a result of the voluminous
papers exchanged in the
urgent application, by agreement between the parties, after
directions were sought from the Honourable
Deputy Judge President
Ledwaba, both applications were to be adjudicated upon as special
motions. Due to the facts and underlying
issues significantly
overlapping, the parties were agreed that both applications be dealt
and disposed as one and that reference
could be had to both sets of
papers for the adjudication of the ordinary application.
[5]
The crux of the issue to be decided in the two applications is
whether Senwes, when it voted against the adoption of the business
rescue plan, exercised its vote inappropriately as contemplated in
section 153 (1) (a) of the new Companies Act 71 of 2008 ("the
Act").
Relevant
Background Facts
[6]
Senwes is a major role player in the agricultural industry and
inter
alia
provides finance to farmers to establish crops
and otherwise fund farming enterprises.
[7]
The CC is in the farming business and conducts a farming enterprise
wherein it established a variety of crops and also has a
gaming farm.
[8]
Senwes funded the CC to establish its crops and is a substantial
creditor of the CC. At the time the CC went into business rescue
it
was indebted to Senwes for an undisputed amount of R7 777 783,42.
Senwes is a secured creditor and procured security from the
CC which
included a cession by the CC to Senwes of the proceeds of its
existing and future crops, mortgage bonds over the CC's
farms and in
addition, the management members of the CC have bound themselves as
sureties in favour of Senwes for payment of the
CC's debts.
[9]
On
28
November
2014,
the
CC
passed
a
resolution
to
place
i
tself
under
business
rescue.
Pursuant to
the
resolution
filed on 2
December
2014,
the
Companies
and
Intellectual
Property
Commission
appointed
the
BRPs.
The
BRPs
called
and
arranged
the first
meeting
of
creditors
which was
held on
18 December
2014.
Claims
totalling
R14 073
060,92
were
proved
by
creditors
against
the
CC. mSenwes
is by far the largest creditor with
i
ts
claim representing 55,27% of the voting interest.
[1]
[10]
Numerous further meetings of creditors were held at which the BRPs
eventually submitted to the creditors an improved business
rescue
plan dated 29 April 2015 to be voted upon at
the next meeting of creditors.
Senwes was concerned that in the proposed plan, its security,
the proceeds from the crops, was earmarked to be utilized to
cover
the CC's operating costs. Senwes recorded at the meeting that if an
agreement or an arrangement could be arrived at in order
to preserve
Senwes' security, then Senwes will support the plan. The BRPs were
not prepared to accept the suggestion and indicated
that the crops
are necessary to pay for the expenses of the CC.
[11]
Senwes then voted against the adoption of the plan at the final
meeting of the creditors held on 19 June 2015. Section 152
(2) (a) of
the Act requires 75% of the creditors to vote in favour of the plan.
As Senwes held 55,27% of the voting interests,
its dissenting vote
was fatal for the adoption of the plan.
[12]
The BRPs then indicated that Senwes had exercised its vote
inappropriately and brought the ordinary application to court to
set
aside the voting on the basis that Senwes had exercised its vote
inappropriately as contemplated in section 153 (1) (ii) of
the Act.
On the other hand, Senwes requested an undertaking from the BRPs that
the proceeds of the crops would not be dealt with,
pending the
outcome of the intended ordinary application. When the BRPs intimated
that they did not intend giving the undertaking,
Senwes then brought
its urgent application.
Senwes'
urgent application
[13]
Against the
above-mentioned
background,
counsel for
the
CC
and the
BRPs
[2]
submitted
that
the
urgent
application
must
be
dismissed
with
costs as
no
reason(s)
existed for
Senwes to have proceeded with the application. Counsel argued that
the
dispute
between
Senwes and
the BRPs
had
been
in
existence
for
a
number
of
months
and
there
was
lack
of
urgency
in
so
far
as
the
application
i
s
concerned.
Counsel further submitted that the fact that the urgent application
was not proceeded
with,
i
s
i
ndicative
of the fact
that
no
urgency
existed
and that
the
urgent
application
was an abuse of the court processes.
[14]
Senwes'
counsel
[3]
submitted
that an urgent
application
was launched
as Senwes
had
the
concerns
that
as
a
secured
creditor
it
would
be
prejudiced
if
the
object
of its security would be utilized in an expensive risky business of
an entity under business rescue, to pay for enormous
running expenses
to establish crops. Counsel however argued that the urgent
application became academic when it later became evident
that the
security of the proceeds of the crops had already been utilized by
the BRPs. Having regard to the background of these
matters, I do not
find any merit on the argument that the urgent application was an
abuse of the Court processes.
The
striking
application
[15]
The CC in business rescue made an application to have the further
supplementary affidavit filed by and on behalf of Senwes
struck with
costs in light of the fact that the content of the affidavit is
scandalous, vexatious and irrelevant Counsel for the
CC and the BRPs
submitted that the affidavit stands to place the BRPs in a negative
light before this Court by requesting a punitive
costs order against
them. It was argued on behalf of the BRPs that it is opportunistic of
Senwes to criticize the BRPs for the
projections which they, in the
spirit of the Act need to consider in moving forward with the
development of a business rescue plan.
[16]
It was further submitted by the BRPs counsel that the supplementary
affidavit has been filed outside the parameters of the
Rules of Court
and that the affidavit is irrelevant for purposes of deciding the
status of the vote by Senwes and should not be
allowed. Although the
BRPs filed an answering affidavit in answer to Senwes' further
affidavit, counsel argued that this cannot
be construed as conceding
to the further affidavit to be allowed.
[17]
Counsel for Senwes, in response pointed out that the supplementary
affidavit in essence dealt with the events that occurred
only after
the previous affidavits were already filed. It was counsel's
submission that the supplementary affidavit dealt with
what appeared
to be the complete erosion of Senwes' security and the reckless
manner in which the BRPs allowed the proceeds of
the crop to be
dissipated. It was however admitted by Senwes' counsel that the
punitive costs order against the BRPs is not to
be proceeded with. In
my view, the supplementary affidavit strikingly reveals and exposes
that Senwes' fears when it voted against
the plan, were real and in
fact had materialized. The application for striking the supplementary
affidavit therefore fails.
Did
Senwes exercise its
vote inappropriately?
[18]
The crisp issue to be determined by this court is whether Senwes
exercised an inappropriate vote against the tabled business
rescue
plan as envisaged in section 153 (1) of the Act.
Section
153 of the Act provides that:
"(1)
(a)
if
a
business
rescue
plan has
been
rejected
as
contemplated in section
152 (3) (a) (c) (ii)
(bb) the practitioner
may
(i)
seek
a
vote of approval from the holders of
voting interest
to prepare
and
publish
a
revised plan;
or
(ii)
advise the meeting
that the company
will
apply to
a
court to set aside the result
of
the
vote
by
the
holders
of
voting
interest
or
shareholders,
as
the
case may be on the grounds that it was inappropriate".
[19]
Section (7) of the Act provides that on an application contemplated
in subsection 1(a)(ii) or 1(b)(i) (bb), a court may order
that the
vote on a business rescue plan be set aside if the court is satisfied
that it is reasonable and just to do so, having
regard to -
"(a)
the interests represented by the person or persons who voted against
the proposed business rescue plan;
(b)
the provision,
if
any,
made
in
the proposed
business
rescue
plan with respect to the interest of that
person or persons;
and
(c)
a
fair
and reasonable
estimate
of
the
return to
that
person or those persons if the company were to be
liquidated".
[20]
Counsel for the CC and BRPs submitted that the inappropriateness of
Senwes' vote is based on a number of factors: namely additional
available security; prior concession by Senwes of successful rescue
plan; and
mala
fides
of Senwes; Counsel
submitted that the cession held by Senwes over the proceeds of the
crops is not the only security held by Senwes.
In light of the
additional secur ity held by Senwes in the form of sureties and
mortgage bonds its vote against the business rescue
cannot be
considered
bona fide
and/or appropriate.
[21]
In this regard, Senwes' counsel relied on the provisions of section
134 (3) of the Act which reads as follows:
"If
during
a
company's
business
rescue
proceedings, the
company
wishes to dispose of any property over which another person has
any security
or
title
interest,
the
company
must
-
a)
Obtain the prior
consent
of that
other person,
unless
the proceeds
of the disposal would
be sufficient to
fully discharge the
indebtedness protected by that
person's
security or title interest;
and
b)
Promptly
-
i)
pay
to that other person
the sale
proceeds
attributable
to that property up
to the amount of the company's indebtedness
to that
other
person;
or
ii)
provide security
for the amount of those
proceeds,
to the reasonable
satisfaction of
that
other
person".
[22]
It is an undisputed fact that Senwes is a secured creditor. I agree
with the submissions made by counsel for Senwes that the
utilization
of Senwes cession security by the BRPs to pay for risky and
substantial business expenses clearly flies in the face
of the
provisions of section 134 (3). In my opinion there is no merit in the
BRPs argument that the mere existence of additional
security entitled
them to dissipate Senwes' cession security. Furthermore, I do not
agree with the submission made by the CC's
counsel that "property"
as referred to in section 134 (3) does not include the harvest of the
CC's farming enterprise.
[23]
It is further submitted on behalf of the BRPS that prior to casting
its vote, Senwes conceded to the possibility of successfully
rescuing
the CC utilizing the business rescue plan developed and it is argued
that on this basis alone, Senwes' vote against the
business rescue
cannot be considered as appropriate.
[24]
It is evident from the record that Senwes initially accommodated the
attempts by the BRPs to devise a business rescue plan.
It was only
when a revised plan proposed that its security was earmarked to be
utilized to cover operating costs that a difference
of opinion then
developed between Senwes and the BRPs. Senwes on the one hand had the
concern that it could never have been the
intention of the
legislature to prejudice a secured creditor by allowing the object of
its security to be utilized in an expensive
risky business of an
entity under business rescue. The BRPs on the other hand adopted the
view that Senwes must accept the risk
to abide by the speculative
possible permutations envisaged in the plan, and that if all goes
well and if the assets of the CC
are sold together with the assets of
the sureties, then Senwes would be paid within 12 months. This in my
view does not make Senwes'
vote against the business rescue
inappropriate.
[25]
Counsel for
the BRP's has submitted that this Court should have regard to what
creditors stand to receive in
a
liquidation scenario.
I
f
regard
i
s
to be had
to
the
proposed and tabled business plan, it is suggested
that
Senwes will
receive
100
cents
i
n
the Rand
with regard to
i
ts
claim, over a period of 12 months whereas
in a
liquidation
scenario,
Senwes
only
stand
to
receive
66
cents
in
the Rand
for
i
ts
claim.
[4]
I
t
is on this
basis that
i
t
is argued that a vote against a business rescue plan with Senwes
standing
to
receive
more
than in
a
liquidation
scenario
does not
represent a
bona
fide
vote.
[26]
It is evident from the record that at the time when Senwes exercised
its vote against the plan, it knew that there was a substantial
yield
which would become available from the crops. Senwes was not willing
to sacrifice its security in exchange for the hope that
over a period
of a year, contemplated by the plan, it must hope for a favourable
realization of the other assets of the CC and
its sureties. Had the
CC been put in liquidation, Senwes would have enjoyed a first right
to the entire proceeds of the crops ahead
of all the other creditors.
Therefore, it cannot be said to be inappropriate for Senwes to prefer
a winding-up instead of a business
rescue. I have no doubt that
Senwes exercised its vote by voting against the plan in the belief
that it would further its interest
this way. I do not find anything
unsuitable or improper by Senwes voting against the plan.
[27]
There is nothing in section 134 (3) of the Act that suggests or
indicates that a secured creditor can be compelled to surrender
his
security. It is inconceivable to view a vote against the plan
to be inappropriate, if the
bona
fide
belief is
that the plan entails a risk for security.
[28]
Counsel
for Senwes argued that contrary to the contention
of the
BRPs that
the
values
of
the
assets
are
common
cause,
it
is
clear
from
the
records
that
the
values are
not common
cause.
The
BRPs, for
example contended
that the
value of
the
crop
which was
available
at the
time
when
the
plan was
voted
upon
i
s
approximately R3
million.
It
has however
been revealed in
the
supplementary
affidavits
exchanged
that the
crops
in
total yielded only
R830 209,07
and that during the entire business rescue proceedings up to June
2014 expenses of R1 012 345,77
were
incurred,
l
eaving
a net loss of R182 136,70.
[5]
[29]
The BRPs made it clear that their refusal to agree to certain upfront
payments to Senwes, was on the basis that such payments
may
potentially create a position where the BRPs would not be able to
make payments towards creditors whose claims related to the
operating
expenses of the CC. It was contended that in this regard, Senwes
would have been elevated above other creditors who claim
in a more
preferred position within a business rescue scenario. It is therefore
submitted on behalf of the CC and the BRPs that
a vote against the
proposed business plan under circumstances where the BRPs were not
prepared to elevate Senwes above the other
creditors is
inappropriate.
[30]
The BRPs attempt to justify their utilization of Senwes' security is
based on the strength of section 143 (5) of the Act which
reads as
follows:
"(5)
To the extent that the practitioner's remuneration and expenses are
not fully paid, the practitioner's claim for those
amounts will rank
in priority before the claims of all other secured and unsecured
creditors".
[31]
In my view, the legislature did not intend section 143 (5) to
override section 134 (3) of the Act, otherwise section 134 (3)
which
affords protection to a secured creditor, would be rendered nugatory.
It could never have been the intention of the legislature
to
frustrated a secured creditor by ensnaring the secured creditor in a
long business rescue process coupled with the uncertainty
and
speculation as to whether or not the secured creditor is ultimately
going to be paid. If the secured creditor is not prepared
to indulge
itself in such a risk it can surely not be said that its vote against
such an uncertain risky plan is an inappropriate
vote. Senwes put its
own resources at risk by granting finance to the CC and the security
served as its safety net in the event
of non-payment by the CC. The
revised business plan clearly recorded the utilization of Senwes'
security in clause 9.6 thereof:
"The
proceeds of the harvests to be realized will be utilized to cover the
operating costs, which represents expenses in business
rescue for the
duration of the business rescue proceedings."
[32]
Counsel for the BRPs also raised the plight of the CC's employees as
an issue and argued that the livelihood of employees and
their
families need to outweigh any short-term financial gain a creditor
may derive from a vote against a business rescue plan.
In this
regard, counsel relied on the unreported judgment of this division by
Justice Mavundla in
KJ Foods
CC v
First National
Bank
(75627
1
2013)
[2015)
ZAG -
PPHC 221 (23 April 2015)
para 14
wherein the Court said the objection against the business rescue is
"not appropriate but premised on self-interest".
The Court also added a second element, ie. ". .
.whether
there
are
reasonable
grounds
to believe
that business
rescue is
viable and
job
loss
for many can be averted or even delayed.
.
. "
I
have difficulty in understanding this argument when the BRPs own,
business rescue plan postulates the selling of the CC's farms.
In my
view, a consideration such as the loss of jobs by employees is not
one of the factors a Court may directly take into account
in the
evaluation of whether a vote is inappropriate.
[33]
I agree with the submissions made on behalf of Senwes that concerns
for employees is not a relevant issue in determining whether
the vote
against the plan was exercised inappropriately or not. Counsel in
this regard relied on the unreported judgment of this
division by
Justice Tuchten in
Shoprite
Checkers
(Pty)
Ltd
v
Berryplum
and
Others
47327
1
2014
[2015]
ZAG
PPHC
(9
March
2015)
para
38
wherein the
Court said that the ordinary meaning of
"inappropriate"
is unsuitable, unfitting or improper, and that a vote by a
creditor which is cast in good faith in the sense that the creditor
genuinely
believes that the vote (either for or against the plan)
would advance that creditor's interest, does not fall into those
categories
of
"inappropriate".
I
respectfully disagree with the approach by the BRP's counsel that a
vote based simply on the interest of a single creditor cannot
be
regarded as appropriate and that the test for the appropriateness of
the vote should not be whether or not the vote advances
the interests
of the creditor and not even whether or not such a vote was made on a
bona fide
basis.
[34]
The purpose of business
rescue
proceedings
is to
facilitate the
rehabil
i
tation
of a company that
is
financial
distressed
by
providing for the temporary
supervision
of
the
company,
and
of
the
management
of
i
ts
affairs,
business
and
property;
a temporary
moratorium
on the
rights
of
claimants against
the
company
or
in respect
of
property
in
i
ts
possession
and
the
development
and
implementation
i
f
approved,
of a plan to
rescue the
company
by
restructuring
its
affairs, business, property, debt
and other
liabil
i
ties
and
equity in
a manner
that maxim
i
zes
the
likelihood
of
the company
continuing
in
existence
in
a
solvent
basis,
or,
if
it
is
not
possible
for
the
company
to
so
continue
in
existence,
results
in
a
better
return
for
the
company's
creditors
or
shareholders,
than
would
result
from
the
immediate
liquidation
of
the
company.
[6]
[35]
Clearly, the business rescue plan should maximize the continuing
existence in a solvent basis for the company and its creditors
to get
returns on their investments than would be the case from the
liquidation of the company.
[36]
Senwes, in
casu
exercised its rights, one of the options
allowed to it by law and endeavoured to put itself in a position
equivalent to which it
would have been had the CC been wound up. The
BRPs seem to have adopted the view that Senwes must simply accept the
risk and abide
by the speculative permutations envisaged in the plan,
such as that if all goes well and if the CC's assets are sold,
together
with the assets of the sureties, then Senwes will be paid in
full within 12 months. I wish to point out that Senwes holds security
over some of these assets and it will have to give its consent for
the cancellation of the mortgage bonds. Without such consent,
the
plan can simply not be implemented, regardless of the Court's view on
the appropriateness of the vote. At the end of the day,
the question
is, should consent be granted and the assets be sold, what will be
left for the CC to continue with its operations??
No purpose will
therefore be served by allowing the business rescue plan to continue.
[37]
The BRP's plan extracts only the best case scenarios of their plan
and the estimations presupposes that the properties will
be sold for
the high values postulated. However, Senwes gave classical examples
of how unpredictable the future realization of
immovable assets can
be. It pointed out that different valuators valued the immovable
properties at approximately 40% difference.
This issue was
authoritatively discussed by Brand, JA in
Oakdene
Square
Properties
(Pty)
Ltd
and
Others v
Farm
Bothasfontein
(Kyalami)
(Pty)
Ltd and
Others,
2013
(4) SA 539
(SCA) at
par 33:
"[33]
My problem
with the proposal
that the
business rescue practioner,
rather than
the
liquidator; should
sell
the
property
as a
whole,
is
that
it
offers
no more
than
an
alternative,
informal
winding-up
of
the
company,
outside
the liquidation provisions
of
the 1973
Companies Act
which
had, incidentally been
preserved
for
the
time
being,
by
item
9
of
sch
5
of
the
2008
Act.
I
do
not believe
however,
that
this could have been the intention
of creating
business rescue
as
an
institution. For instance,
the mere
savings
on
the
costs
of
the
winding-up process
in accordance
with
the existing liquidation provisions could hardly justify
the separate institution
of business
rescue. A
fortiori,
I do not
believe
that
business
rescue
was
intended
to
achieve
a
winding-up
of
a
company to avoid the consequences of liquidation proceedings, which
is what the appellants apparently seek to achieve".
[38]
By adopting a resolution to go into business rescue, the CC conceded
that it cannot pay its debts. If the company cannot
pay its
debts, it must perforce liquidate its assets to pay its debts. The
question in
casu
is whether what the BRPs are proposing
is not simply an informal winding-up process, a scenario expressly
dismissed by Brand JA
in
Oakdene supra.
I find it
difficult to agree with the argument that in the informal winding-up
the creditors will be better off, resulting from
the BRPs postulation
that they will sell the assets at a better price than a liquidator.
But if that type of argument were valid,
liquidations should
systematically be business rescues as business rescue systems will
always render better dividends than liquidation.
[39]
By voting against the plan, Senwes casted a vote in good faith in
genuine belief that its vote against the plan would advance
its
interests because if there is no business rescue plan and the CC is
liquidated, Senwes would outrank the claims of all other
creditors on
the proceeds of the crops. In the prevailing circumstances, I find
nothing unfit, unsuitable or improper in Senwes'
vote which is
inappropriate. I therefore cannot, from these considerations
conceivably think how it can be contended that Senwes
had exercised
its vote inappropriately.
[40]
Zellehen Boerdery CC is unable to pay its debts and its position can
only worsen to the detriment of creditors and employees
generally. In
these circumstances, in my view, immediate liquidation is
appropriate.
[41]
I therefore make the following order:
1.The
application
launched
by
Zellehen
Boerdery
CC
under
case
number 50486
/
15
is dismissed.
2.
The resolution
of
Zellehen
Boerdery
CC
to
adopt
business
rescue proceedings
is hereby set
aside.
3.
The appointment
of the second and third
respondents
under case number 5079
9
/
15
as
business
rescue
practitioners
of
Zellehen Boerdery CC
is
hereby
set aside.
4.
A
final
winding-up
order
is hereby
granted placing
Zellehen
Boerdery
CC under
liquidation.
5.The
costs
of
the
urgent
and
ordinary
applications
will
all
be
costs
in
the liquidation of Zellehen Boerdery CC.
________________________
DS
MOLEFE
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
on behalf of Zellehen Boerdery CC
and
the
BRPS :
Adv. L K van der
Merwe
Instructed
by :
Koster Attorneys
Counsel
on behalf of Senwes Ltd :
Adv. M P van der Merwe SC
Instructed
by :
Tim Du Toit & Co INC.
Date
head :
17 February 2016
Date
delivered :
31 March 2016
[1]
Ordinary
application
record p224, par 41
[2]
Advocate LK van der Merwe
[3]
Advocate M P van der Merwe SC
[4]
Record page
1
40,paragraph
1
1
.7
read with paragraph 7 of the amended business rescue plan,
Annexure
"C4"
page
182, paragraph 9 at page 196 of the bundle Urgent Application
[5]
Supplementary affidavit p
300
[6]
Section
1
3>
28(1)
(b) of the
Companies Act