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[2013] ZAFSHC 18
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MAN Financial Services (SA) (Pty) Ltd v Blouwater Boerdery CC and Another (4949/2012) [2013] ZAFSHC 18 (28 February 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 4949/2012
In the matter between:-
MAN FINANCIAL
SERVICES (SA) (Pty) LTD
..............................
Applicant
(Registration Number:
1997/011686/07)
and
BLOUWATER BOERDERY
CC
........................................
First
Respondent
(Registration Number:
2002/014845/23)
MR JOHAN CHRISTIAAN
DE BEER
..........................
Second
Respondent
(Identity Number: )
_______________________________________________________
HEARD ON:
31 JANUARY 2013
_______________________________________________________
JUDGMENT BY:
DA ROCHA-BOLTNEY, AJ
_______________________________________________________
DELIVERED:
28 FEBRUARY 2013
_______________________________________________________
JUDGMENT
_______________________________________________________
[1] This is an
application to set aside a resolution by the members of first
respondent placing it under business rescue proceedings.
The
application is opposed by the first respondent and the second
respondent, who is the appointed business rescue practitioner.
[2] The application was
initially brought as one of urgency, set down for hearing on 20
December 2012. On that day the matter was
by agreement postponed to
31 January 2013, costs reserved.
[3] On 29 January 2013
the applicant served and filed a notice of motion stating that it
would at the hearing apply for an order
admitting a further replying
affidavit. In the affidavit in support of the notice of motion it is
stated that applicant will apply
for an amendment of the notice of
motion to include prayers set out in the letter by its attorneys
dated 23 January 2013 so as
to include alternative relief and a
prayer for the return of vehicles to applicant. On 29 January 2013
the first and second respondents
filed a notice to object to the
proposed amendment.
[4] In my view the
applicant has failed to make out a case for the amendment it proposes
at this late stage and for admission of
the supplementary replying
affidavit.
[5] Mr Potgieter, for
applicant, advances the following grounds for setting aside the
business rescue resolution:
(1)
Nullity of the
Resolution:
Mr Potgieter contends
that notice of the appointment of the business rescue practitioner
was filed three business days after the
appointment, not two as
required by section 129(4)(a) of the Companies Act 71 of 2008 read
with section 129(5)(a), and therefore
the resolution is a nullity.
The response of Mr Van
der Merwe, for the respondents, is that a business rescue resolution
can only be set aside on the grounds
listed in section 130(1)(a).
“
130.
Objections to company resolution.
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-
setting aside the resolution, on the
grounds that –
there is no reasonable basis for
believing that the company is financially distressed;
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;”
[6] As to (i), it is not
in dispute that the first respondent is financially distressed.
Regarding (ii), there are reasonable prospects
of rescuing the first
respondent, as appears from paragraphs 2.45.23 and 2.45.31 (pages 90
and 92). The procedural requirements
referred to in paragraph (iii)
were substantially complied with and the notification of the
appointment of the business rescue
practitioner one day out of time,
cannot constitute a reason to set aside the business rescue
resolution with the attendant proceedings
which followed.
[7] (2)
No
reasonable prospect to rescue
The second ground relied
upon by Mr Potgieter for setting aside the resolution, is that there
are no reasonable prospects to rescue
the first respondent. In
support of this contention Mr Potgieter says that the vehicles are
the backbone of first respondent’s
business, but first
respondent is not the owner of the vehicles, applicant is the owner.
Also, first respondent is not in lawful
possession of the vehicles
because applicant has cancelled the credit agreements.
[8] There is no merit in
this argument. It remains to be seen whether the cancellation was
lawful, particularly with regard to section
133, which places a
moratorium on legal proceedings and section 134, which deals with the
protection of property interests.
[9] In my view it is just
and equitable that the first respondent remains under business rescue
proceedings.
[10] I accordingly make
the following order:
10.1 The application is
dismissed with costs, including the costs reserved on 20 December
2012.
_______________________
P.W. DA ROCHA-BOLTNEY
On behalf of applicant:
Adv MvR Potgieter SC
Instructed by:
McIntyre & Van der
Post
BLOEMFONTEIN
On behalf of respondents:
Adv Van Der Merwe
Instructed by:
Cawood Attorneys
c/o Botha & De Jager
Inc
BLOEMFONTEIN
/sp