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[2014] ZAGPPHC 221
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CCMA, LLC v Royal Limpopo Resources (Pty) Ltd (29448/13) [2014] ZAGPPHC 221 (7 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 29448/13
Date:
7 March 2014
Not
Reportable
Not
of interest to other judges
In
the matter between:
CCMA,
LLC
...................................................................................................................
Applicant
and
ROYAL
LIMPOPO RESOURCES (PTY)
LTD
.......................................................
Respondent
(REG
NO: 2012/220351/07)
JUDGMENT
BAM
J
1.
The applicant applied for the final
winding up of the respondent company.
2.
On the day of the hearing of the
application on 5 March 2014,1 was informed by Mr Bolt, counsel
appearing for the respondent, that
Business Rescue Proceedings have
been initiated by the respondent and that the application had already
been issued by the Registrar.
The Business Rescue Application,
however, was not at hand.
3.
Mr Bowles, appearing on behalf of the
applicant, conceded that an application for Business Rescue was
apparently served on the applicant
but submitted that in view of the
fact that the Application is not at hand an there is no proof that it
complies with the provisions
of sect 131 of he Companies Act, that a
provisional winding up order should be granted by the court. It was
pointed out by Mr Bitter
that the basis of the winding up application
is not disputed by the respondent.
4.
It
was in fact clear that the applicant has made out a good case for the
winding up of the respondent. This was
conceded
by Mr Bolt. Accordingly, Mr Bowles argued, the respondent will not be
prejudiced if a provisional order is granted. If the respondent
proceeds with its Business Rescue application the winding up
procedure will automatically be suspended.
5.
The issue to be decided is whether
the application for the winding up of the respondent should be
granted or whether it is in law
suspended at this point in time. It
was common cause that if the Business Rescue application complies
with the provisions of section
131, not even a provisional winding-up
order could be granted.
6.
The relevant subsections of Section
131 of the Companies Act provides as follows:
"(1)
Business rescue proceedings begin when
-
(b)
an affected person applies to the court for an order placing the
company under supervision in terms of section 131(1)..."
and
"(6)
If liquidation proceedings have already been commenced by or
against the company at the time an application is made in terms of
subsection (1), the application will suspend those liquidation
proceedings until
-
(a) The court has adjudicated upon the
application
7.
I
have already alluded to the fact that I accepted that the Business
Rescue application has already been lodged with, and issued,
by the
Registrar. Although there was no proof that the Business Rescue
application complied in all respects with the provisions
of section
131,1 am of the view that the application for the winding-up order
should not be granted at this point. It goes without
saying that even
a provisional winding-up order has specific legal and costs
implications. The application for the winding up is
not urgent and it
appears that the applicant will suffer no prejudice in the
circumstances if the winding-up application is postponed
for a
relative short period in order to afford the respondent the
opportunity to furnish proof that the Business Rescue application
complies with the applicable requirements..
8.
Accordingly the following order is
made;
1.
The application for the winding-up
of the respondent is postponed
sine
die.
2.
The
respondent is ordered to furnish documentary proof to the applicant's
attorneys of record, and to file it with the Registrar,
that the
respondent's Business Rescue Application complies in all respects
with the formal requirements provided for in section
131 of the
Companies Act,
No . 71 of
2008.
3.
The
required documentary proof referred to in 2. above must be furnished,
and filed, as ordered, not later than 20 March 2014.
4.
In
the event of the respondent failing to comply with the order in 2.
above, the applicant will be entitled to enroll the winding
up
application on the unopposed roll.
5.
The respondent is ordered to pay
the wasted costs.
AJ
BAM JUDGE OF THE HIGH COURT
5
March 2014