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[2013] ZAKZPHC 40
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Taboo Trading 232 (Pty) Ltd v Pro Wreck Scrap Metal CC; Joubert v Pro Wreck Scrap Metal CC (6366/2013; 7159/2013) [2013] ZAKZPHC 40; 2013 (6) SA 141 (KZP) (10 July 2013)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
(REPUBLIC
OF SOUTH AFRICA)
Case
No: 6366/2013
In
the matter between:
TABOO
TRADING 232 (PTY) LTD
....................................................................
APPLICANT
and
PRO WRECK SCRAP METAL CC
...............................................................
RESPONDENT
BARRIS VAN HOUTEN
.................................................
FIRST
INTERVENING CREDITOR
SKILLFULL 112 (PTY) LTD
......................................
SECOND
INTERVENING CREDITOR
Case No: 7159/2013
CHARLES THEODORUS JOUBERT
................................................................
APPLICANT
and
PRO WRECK SCRAP METAL CC
...............................................................
RESPONDENT
JUDGMENT
C.J.
HARTZENBERG AJ
This judgment deals with two separate
but interrelated applications, both concerning the close
corporation,
Pro Wreck Scrap
Metal CC, (the close corporation). The first application is one for
the compulsory liquidation of the close corporation
(the liquidation
application)
1
and the other, an application in
terms of Chapter 6 of the Companies Act
2
,
to place the close corporation under supervision and to commence
business rescue proceedings (the BR application). There is
also an
application by two creditors of the close corporation, namely one
Barris van Houten and Skillfull 112 (Pty) Ltd for leave
to intervene
in the liquidation application, in terms of which those creditors
also seek the winding-up of the close corporation
(the intervention
application). In what follows I shall refer to the applicant in the
liquidation application as Taboo Trading
and the applicant in the BR
application as Mr Joubert.
Background
With regard to the liquidation
application, the following happened: That application was instituted
on 6 June 2013 and enrolled
for hearing, on an urgent basis on 11
June 2013. On the latter date the application was postponed to 27
June 2013. That was done
in terms of a direction of the Deputy Judge
President. On 11 June 2013 a preliminary answering affidavit by one
Mr Vernon Benjamin
Newman, a member of the close corporation, was
delivered. On the same date it was agreed between those representing
Taboo Trading
and the close corporation that the close corporation
would deliver further answering affidavits by 19 June 2013 and that
Taboo
Trading would deliver its replying affidavits on or before 24
June 2013. As it turned out, no further answering affidavits were
delivered on behalf of the close corporation. Taboo Trading’s
replying affidavit was however delivered on 25 June 2013.
In the meantime, and on 24 June 2013,
the intervention application was delivered.
With regard to the BR application the
following transpired: although the notice of motion is dated 18 June
2013, the founding
affidavit deposed to by Mr Joubert was deposed to
only on 26 June 2013. That is also the date when the application was
lodged
with and issued by the Registrar of the Court. The notice of
motion states that application would be made for the relief sought
at 10h00 on 27 June 2013.
On 27 June 2013, I directed that the
liquidation application and the BR application be heard together. I
further directed that
the intervention application be dealt with, if
necessary, after the fate of the liquidation application and the BR
application
had been determined. Counsel representing the
intervening creditors indicated that those creditors would abide the
decision in
the other two applications before formally entering the
arena, as it were, should the need arise to do so.
The
issues
The first issue which was debated was
what the effect is of the BR application upon the liquidation
application. Counsel for the
close corporation and Mr Joubert
contended that the effect of s 131(6) of the Companies Act, in the
circumstances, was to suspend
the liquidation proceedings. Counsel
for Taboo Trading, on the other hand, contended that, on a proper
interpretation and application
of ss 131(1) to (3) and (6) read with
s 132(1)(b) of the Companies Act, no such suspension had come about.
He submitted that
the events which had occurred, by the time when
the matters were heard, did not trigger the suspension of the
liquidation proceedings
in terms of s 131(6). Counsel for Taboo
Trading, therefore asked for an order provisionally winding up the
close corporation.
The second issue, assuming that the first issue
was decided in favour of Taboo Trading, was whether it had made out
a case for
the provisional liquidation of the close corporation. I
shall deal with each of these issues,
seriatim
.
The first issue
(Suspension of the liquidation
proceedings)
s 131(1) of the Companies Act
provides that unless a company has adopted a resolution as
contemplated in s 129
3
an affected person may apply to a
Court at any time for an order placing the company under supervision
and commencing business
rescue proceedings. s 131(2) provides that
an applicant in terms of s 131(1) must serve a copy of the
application on the company
and the Commission
4
and must notify each affected person
of the application in the prescribed manner. s 131(3) provides that
each affected person
has a right to participate in the hearing of
such application. In terms of s 131(4) the Court may, after
considering such application,
make an order placing the company
under supervision and commencing business rescue proceedings. For
that happen the Court must
be satisfied
inter
alia
that the company is
financially distressed and that there is a reasonable prospect for
rescuing the company. The Court also may
dismiss the application and
make any further necessary or appropriate order, including an order
placing the company under liquidation.
s 131(6) provides as follows:
“
(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; or
(b) the business rescue proceedings
end, if the court makes the order applied for.”
5
s 132(1)(b), insofar as is relevant,
is to the following effect:
“
(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)….”
6
The words underlined in ss 131(6) and
132(1)(b) of the Companies Act, at face value, are words of general
import. The two possible
interpretations of these words, which were
debated during argument, were these:
8.1. The mere lodging with the
Registrar and the issuing of a business rescue application
constitutes the event triggering the suspension
of the liquidation
proceedings.
8.2. Both the lodging and issuing of
the business rescue application as well as due compliance with the
service and notification
requirements of ss 131(2)(a) and (b) of the
Companies Act, are required for the suspension of the liquidation
proceedings to take
effect.
In interpreting and applying the
provisions of ss 131(1) to (4), 131(6) and 132(1)(b) of the Companies
Act, I am obliged to be guided
by the principles paraphrased by
Wallis JA in
NATAL JOINT
MUNICIPAL PENSION FUND v ENDUMENI MUNICIPALITY
7
,
where he stated:
“
Interpretation is the
process of attributing meaning to the words used in a document, be it
legislation, some other statutory instrument,
or contract, having
regard to the context provided by reading the particular provision or
provisions in the light of the document
as a whole and the
circumstances attendant upon its coming into existence. Whatever the
nature of the document, consideration must
be given to the language
used in the light of the ordinary rules of grammar and syntax; the
context in which the provision appears;
the apparent purpose to which
it is directed and the material known to those responsible for its
production. Where more than one
meaning is possible each possibility
must be weighed in the light of all these factors. The process is
objective, not subjective.
A sensible meaning is to be preferred to
one that leads to insensible or unbusinesslike results or undermines
the apparent purpose
of the document. Judges must be alter to, and
guard against, the temptation to substitute what they regard as
reasonable, sensible
or businesslike for the words actually used. To
do so in regard to a statue or statutory instrument is to cross the
divide between
interpretation and legislation; in a contractual
context it is to make a contract for the parties other than the one
they in fact
made. The ‘inevitable point of departure is the
language of the provision itself’, read in context and having
regard
to the purpose of the provision and the background to the
preparation and production of the document.”
8
Rogers AJ (as he then was) in
INVESTEC BANK LTD v BRUYNS
9
assumed, without deciding that
business rescue proceedings had commenced as contemplated in terms
of s 132(1)(b) of the Companies
Act, where such applications had
been launched. By that I understand, he meant that business rescue
proceedings commenced as
soon as the applications in question had
been issued by the Registrar.
10
In a number of cases involving
applications in terms of the legislation governing claims for damages
arising from personal injuries
caused by motor vehicle accidents, the
Courts have held that such applications required to have been filed
with the Registrar of
the Court and served, in order for the
applications to have been made within the prescribed time period.
11
The reasoning in the judgments in
these cases was as follows: An application of this nature, required
to be brought by notice of
motion. That being the case, there must be
compliance with the requirements of Rule 6 of the Uniform Rules of
Court. In terms of
Rule 6(2) when relief is claimed against any
person, or where it is necessary or proper to give any person notice
of such application,
the notice of motion shall be addressed to both
the Registrar and such person. Any application, other than one
brought
ex parte
must in terms of Rule 6(5)(a) be
brought on notice of motion conforming substantially to Form 2(a) of
the First Schedule to the
Uniform Rules of Court and true copies of
the notice and all annexures thereto shall be served upon every party
to whom notice
thereof is to be given. Even making due allowance for
the words “application is made” in the relevant
legislation to
be interpreted benevolently, in favour of third
parties it was not too onerous to require of an applicant not only to
issue the
application and to file it with the Registrar, but also to
serve it, within the prescribed time period. It was important to bear
in mind the distinction between procedural steps over which an
applicant has control, like the issue and service of process, on
the
one hand, and steps over which he has no control, like the dates of
hearing, postponements etc, on the other. A further reason
why
service should be regarded as a minimum requirement for the “making
of an application” is that from that stage
onwards it was in
the power of a respondent to prevent any undue delays.
12
This reasoning, in my view, is both
relevant and apposite to a consideration of the interpretation of the
words “apply”,
“application is made” and
“applies” in s 131(1), s 131(6) and s 132(1)(b), of the
Companies Act, with reference
to when a business rescue application
may be considered to be made or had been made.
The aforesaid reasoning was also
applied by the SCA
13
in
FINISHING
TOUCH 163 (PTY) LTD v BHP BILLITON ENERGY COAL SOUTH AFRICA LTD AND
OTHERS
14
where one of the issues to be decided
was what was meant by the term “
initiated
”
,
in an interim interdict which required review proceedings to be
initiated by a certain date. It was held by Mhlantla JA, that
what
was meant by the term in question was that notice of the application
was to be given to the Registrar and that the application
had to be
served on the affected parties by the date stipulated.
15
For reasons with which I fully agree,
Boruchowitz J, in
ENGEN
PETROLEUM v MULTI WASTE (PTY) LTD AND OTHERS
16
held that an application in terms of
s 131 of the Companies Act, must be brought in accordance with Form
2(a) of the First Schedule
to the Uniform Rules of Court, that is to
say, in the long form of the notice of motion.
17
I also agree with Boruchowitz J that
insofar as service on the Commission in terms of s 131(2)(a) is
concerned, service by the
Sheriff, in terms of Rule 4 of the Uniform
Rules of Court is required.
18
Notification of affected persons, in
terms of s 131(2)(b), must comply with the requirements of regs 7
and 124, read with Table
CR3,
19
as well as the requirements of ss
6(10) and (11) of the Act.
20
I also agree with Burochowitz J that
a failure to comply with these requirements constitutes an
irregularity. I am alive to the
criticism by Rogers AJ (as he then
was) in
CAPE POINT
VINEYARDS (PTY) LTD v PINNACLE POINT GROUP LTD AND ANOTHER
(ADVANTAGE PROJECTS MANAGERS (PTY) LTD INTERVENING)
21
of the appropriateness of the
requirement in reg 124 that the full application must be delivered
to affected parties. That criticism
was endorsed by Coppin J in
KALAHARI RESOURCES (PTY)
LTD v ARCELORMITTAL SA AND OTHERS
22
.
For the reasons set out
below, it is not necessary to pronounce on the appropriateness of
such requirement in reg 124.
[11] My views with regard to the
competing contentions concerning the interpretation of particularly
ss 131(6) and 132(1)(b) of
the Companies Act, are as follows:
11.1. Where liquidation proceedings
have commenced certain consequences ensue. In terms of s 348 of the
1973 Companies Act, the
winding-up of a company by the Court shall be
deemed to commence at the time of the presentation of the application
to Court. In
terms of s 358(a), after the presentation of an
application for winding-up and before the winding-up order has been
made, the company
concerned or any creditor or member thereof may
apply to such Court for a stay of any pending action or proceedings
by or against
the company. In terms s 359(1), where the Court has
actually made an order for the winding-up of a company or a special
resolution
for the voluntary winding-up of a company has been
registered, all civil proceedings by or against the company shall be
suspended
until the appointment of a liquidator and any attachment or
execution put in force against the estate or assets of the company,
after commencement of the winding-up shall be void. s 361(1) further
provides that in any winding-up by the Court all the property
of the
company concerned shall be deemed to be in the custody and under the
control of the Master until a provisional liquidator
has been
appointed and has assumed office. s 391 obliges a liquidator in any
winding-up to proceed forthwith to recover and reduce
into his
possession all the assets and property of the company.
11.2. Suspension of the liquidation
proceedings as contemplated by s 131(6) of the Companies Act, has
significant consequences,
in the context where liquidation
proceedings had already commenced. Clearly, such suspension may and
probably will in most instances
have a disruptive effect on the
liquidation proceedings. Any delay of the hearing of a pending
liquidation application, may in
some instances have the result that a
company or close corporation continue trading in insolvent
circumstances.
11.3. The purpose of the notification
required by s 131(2)(b), is to facilitate participation in terms of s
131(3), by affected
persons in the hearing of the business rescue
application. Creditors, being affected persons, in the business
rescue application,
also have a material interest in the liquidation
proceedings. In my view, it is implicit in ss 131(2)(b) and 131(3),
that reasonable
notification must be given to affected persons. Short
notice which renders participation in the hearing impossible, cannot
be regarded
as due compliance with s 131(2)(b). There is a strong
policy justification for interpreting these provisions in a way which
would
not facilitate a dilatory or supine approach by an applicant in
business rescue proceedings. Service of a copy of the application
on
the Commission, and notification of each affected person, are not
merely procedural steps. They are substantive requirements,
compliance with which is an integral part of the making of an
application for an order in terms of s 131(1) of the Companies Act.
11.4. A business rescue application is
thus only to be regarded as having been made once the application has
been lodged with the
Registrar, duly issued, a copy thereof served on
the Commission
23
,
and each affected person has been properly notified of the
application.
24
[12] I proceed to consider whether the
liquidation application, in this matter had effectively been
suspended in terms of s 131(6)
of the Companies Act by the BR
application.
[13] In my view, the BR application,
is both substantively and procedurally fatally flawed. My reasons for
such view are as follows:
13.1. At the hearing on 27 June 2013,
counsel for Mr Joubert was not able to produce proof that there had
been compliance, or even
substantial compliance with the service and
notification requirements of ss 131(2)(a) and (b) of the Companies
Act. Whilst not
abandoning his submission that the mere lodging and
issuing of the BR application had the effect of suspending the
liquidation
application, he, in the alternative, asked that both the
BR application and the liquidation application be postponed to 30
July 2013 to enable Mr Joubert to
comply with the service and notification requirements, to produce
proof thereof. The request for
such postponement was opposed by Taboo
Trading. Bearing in mind that the founding affidavit in support of
the BR application was
only signed on 26 June 2013, it is hardly
surprising that counsel for Mr Joubert was unable to produce proof of
compliance with
the provisions of s 131(2). On my interpretation of
particularly ss 131(6) and 132(1)(b), there was no proper business
rescue application
before me. A similar conclusion was reached by
Coppin J in
KALAHARI
,
where there had not
been proper compliance with the provisions of s 131(2)(b).
25
13.2. The BR application in several
respects also does not comply with the requirements of Rule 6 of the
Uniform Rules of Court:
First, in the first paragraph of the notice
of motion, it is stated that the applicant intends to make
application for the relief
sought on 27 June 2013 at 10h00. Yet, on
page 2 of the notice of motion, the parties to whom the notice of
motion is addresses
are to notify the applicant’s attorneys in
writing within 5 days of service of the application and within 15
days of giving
such notice to oppose the application, to deliver
their answering affidavits. It is then stated that if no notice of
motion to
oppose be given, application will be made on 31 July 2013
at 10h00. Such unmitigated confusion, constitutes an irregularity.
Second,
assuming that the service or notification particulars of the
affected persons to whom the notice of motion was addressed, are set
out in the notice of motion, it is apparent that a variety of modes
of service, delivery and notification would have to be employed
in
order to comply with the requirements of ss 131(2)(a) and (b) of the
Companies Act, which included service or delivery at a
physical
address, notification by way of facsimile transmission and electronic
notification. Assuming further that such service
and notification
were envisaged to take place after the application had been issued,
in my view, completely inadequate notice would
have been given to
affected parties in order to make it possible for them to participate
in the hearing of the application on 27
June 2013. This also
constitutes an irregularity. Third, while the founding affidavit by
Mr Joubert was deposed to on 26 June 2013,
the confirmatory affidavit
by Mr Peter Banda (the Union representative), was deposed to already
on 21 June 2013. Mr Banda, in his
confirmatory affidavit purports to
refer to and confirm certain of the allegations in Mr Joubert’s
affidavit. This is also
an irregularity. Fourth, the founding
affidavit contains no averments as are required by Rule 6(12),
setting forth explicitly the
facts and circumstances which rendered
the matter urgent and the reasons why the matter had to be heard on
27 June 2013. Explicit
reasons ought also to have been set out why Mr
Joubert could not be afforded substantial redress at a hearing in due
course. This
failure also constitutes an irregularity. Indeed, the
abiding impression one has is that the BR application had been
hastily cobbled
together and its lodging and issuing by the Registrar
procured as a manoeuvre to thwart the liquidation application.
13.3. Whilst I am alive to the
divergent views which were expressed by some Courts and writers
26
,
with regard to the meaning of the overarching benchmark requirement
of s 131(4) that “there must be a reasonable prospect
of
rescuing the company”, in my view, even at face value, Mr
Joubert has not established this requirement. The annual financial
statements of the close corporation as at 29 February 2012, indicate
that as at that date, the current assets of the close corporation
amounted to R 2 447 519 while its current liabilities were
R 4 461 280.
Prima facie
the
close corporation, even at that time, was certainly not in a position
to pay its current liabilities as and when they fell due.
Trading
conditions, after 29 February 2012, were difficult for the close
corporation. A host of problems are mentioned, including
strikes, a
fall in commodity prices (bearing in mind that the close
corporation’s business entails chrome beneficiation),
liquidity
problems, as well as a shortage of raw materials. Mr Joubert, in his
founding affidavit in the BR application attached,
what purports to
be a draft business rescue plan. If regard is had to the draft
business rescue plan, the following is evident:
The plan contains
projections of income and expenditure as from July 2013 to 2016. It
proposes that assets of the close corporation
be realised to pay
creditors. Such assets are not in any way identified. What is known
is that the close corporation’s movable
assets have been
attached, in terms of a notarial bond held over such assets by Taboo
Trading. The essence of the plan seems to
be that it is envisaged
that the close corporation would “trade itself out of”
its financial distress. No suggestion
is made as to sources of fresh
capital to be introduced to finance the close corporation’s
trading activities. There are
also no suggestions with regard to
further credit which the close corporation will require to finance
its working capital needs.
The documents put up as part of the
suggested elements of the business rescue plan, are extremely vague.
Bearing in mind even the
most generous consideration which one may
give to what is contained in the draft business rescue plan, in my
view, the close corporation’s
debt burden is so overwhelming,
the operational constraints under which it struggles to survive so
foreboding and its future prospects
of trading successfully so
speculative, that any notion of it being rescued is completely
unrealistic.
[14] I am also of the firm view that
no useful purpose would be served to postpone the BR application
either to the date proposed
by counsel for Mr Joubert or to some
other date. The application is fatally flawed. To provide it with
some lifeline, in my view,
would be prejudicial to affected persons
and, may create false expectations.
27
The second issue
(The liquidation application)
[15] Taboo Trading relies in the
liquidation application upon a claim which it has against the close
corporation in terms of a written
agreement,
28
concluded on 28 November 2012. In terms thereof
the close corporation acquired a claim which Taboo Trading had
against a company,
Minco Reduction Works (Pty) Ltd (in liquidation),
for a purchase consideration of R 2 250 000. In terms of the
agreement the purchase
consideration would be payable to Taboo
Trading in instalments. The close corporation paid the first three
instalments of R 75
000 each but has failed to make any further
payments.
On the papers, the outstanding
balance owing by the close corporation to Taboo Trading, is presently
some R 2 867 626,40, with interest
accruing on that amount at 15,5 %
per annum as from 31 May 2013. The close corporation, in the
preliminary affidavit deposed to
by Mr Newman, did not dispute its
indebtedness to Taboo Trading. It was further admitted that it failed
to make the instalment
payments due to Taboo Trading in terms of the
agreement for the months of March, April, May and June 2013. It was
alleged however
that such failure was caused by events beyond the
close corporation’s control. Such events, it was stated, were
unexpected
and temporarily adversely affected the close corporation’s
cash flow. It was alleged further that the close corporation’s
assets exceeded its liabilities by approximately R 38,3 million. In
making these allegations, Mr Newman relied on what he described
as a
“balance sheet” of the close corporation. Perusal of the
document shows however that it is indeed very generous
of Mr Newman
to label the document a balance sheet. What the document shows is a
list of vehicles and equipment. Some of these
items are subject to
instalment sale agreements. The date at which the figures are
reflected purports to be 28 February 2013. Scant
detail is given of
the liabilities of the close corporation. The document does not
reflect any current assets. It is questionable
whether it is proper
for vehicles which are the subject of instalment sale agreements
should appear on the balance sheet at all.
Presumably, ownership in
these vehicles had been reserved in favour of the respective sellers
of the vehicles. The document certainly
does not reflect any working
capital or cash resources available to the close corporation.
[16] Counsel for the close corporation
conceded during argument, correctly in my view, that Taboo Trading
had established that it
was a creditor of the close corporation and
that the close corporation was indeed unable to pay its debts as is
contemplated in
terms of s 344(f) of the 1973 Companies Act.
29
[17] Counsel for the close corporation
further conceded correctly in my view, that Taboo Trading had
complied with all the procedural
requirements for a provisional
winding-up order as set out ss 346(3),(4) and (4A) of the 1973
Companies Act. It was not contended
otherwise by counsel for Mr
Joubert either.
I
therefore make the following orders in the two matters:
Case
No 7159/2013
The application is dismissed with
costs.
Case No 6366/2013
The Respondent PRO WRECK SCRAP METALS
CC (CK 2000/05624/23) is hereby placed under provisional liquidation
in the hands of the
Master of the High Court, KwaZulu-Natal
Provincial Division, Pietermaritzburg.
A Rule
Nisi
do issue calling
upon the Respondent and all interested persons to show cause, if
any, before this Court on Friday 6 September
2013 at 09h30 why the
Respondent should not be placed under final liquidation.
This order and a copy of the
application be served on the Respondent at its registered office, at
1 Albert Wessels Street, Newcastle,
KwaZulu-Natal as well as at
Units G4 and G5, Howick Gardens, Waterval Park, Bekker Street, Vorna
Valley, Midrand, Johannesburg,
Gauteng and Portions 155 and 154 of
the Farm Elandskraal, Brits, North West, forthwith.
This order be published once in:
4.1 The Government Gazette;
4.2 a newspaper or newspapers
circulating in Necastle, Johannesburg and Brits;
on or before 16 August 2013.
That the Master be requested and
directed to forthwith appoint a provisional liquidator for the
Respondent.
______________________
C.J. HARTZENBERG AJ
DATE WHEN THE APPLICATION WAS HEARD:
27 June 2013
DATE OF THE JUDGMENT: 10 July 2013
COUNSEL FOR THE APPLICANT
in Case No 6366/2013: Adv E.L. Theron,
instructed
by Austen Smith
Pietermaritzburg
COUNSEL FOR THE RESPONDENT
in Case No 6366/2013: Adv J.A. van
Tonder,
instructed
by Venn Nemeth & Hart
Pietermaritzburg
COUNSEL FOR THE INTERVENING CREDITORS
in Case No 6366/2013: Adv I.
Sardiwalla,
instructed
by Shepstone &
Wylie
Pietermaritzburg
COUNSEL FOR THE APPLICANT
in Case No 7159/2013: Adv W.
Pietersen,
instructed by Geyser, Du Toit, Louw &
Kitching Inc
Pietermaritzburg
TABOO.JUDGMENT
(3 7)
1
In
terms of s 66(1) of the Close Corporations Act, 1984 (Act 69 of
1984), read with item 9 of Schedule 5 of the Companies Act,
2008
(Act 71 of 2008) (the
Companies Act), the
provisions of Chapter XIV
of the Companies Act, 1973 (Act 61 of 1973) (the 1973 Companies
Act), apply to close corporations.
2
The
provisions of Chapter 6 of the Companies Act apply to a close
corporation by virtue of s 66(1A)of the
Close Corporations Act.
References
to a company therefore also apply to a close corporation.
3
That
is a resolution by the board of the company voluntarily to begin
business rescue proceedings and placing the company under
supervision
4
The
Companies and Intellectual Property Commission established by s 185
of the Companies Act (the Commission)
5
My
underlining
6
My
underlining
7
2012(4)
SA 593 (SCA)
8
Para
[18] at 603 F – 604 D
9
2012(5)
SA 430 (WCC)
10
Paras
[10] to[12] at 433 C – 434 C
11
FISHER
v COMMERCIAL UNION ASSURANCE CO OF SA LTD, 1977(2) SA 499 (C)
PETERS v UNION AND NATIONAL SOUTH BRITISH INSURANCE CO
LTD, 1978(2) SA 58 (D)
TLADI v GUARDIAN NATIONAL INSURANCE CO LTD, 1992(1) SA
76 (T)
12
PETERS
v UNION AND NATIONAL SOUTH BRITISH INSURANCE CO LTD,
supra
at 60 G – H
TLADI
v GUARDIAN NATIONAL INSURANCE CO LTD,
supra
at 79 D – 80 C
Cf MAME ENTERPRISES (PTY) LTD v PUBLICATIONS CONTROL
BOARD, 1974(4) SA 217 (W) at 219 H – 220 D
13
Supreme
Court of Appeal
14
2013(2)
SA 204 (SCA)
15
Paras
[17] – [20] at 210 B – 211 B
Vide
also GOVERNMENT OF THE ISLAMIC REPUBLIC OF
IRAN v BERENDS, 1998(4) SA 107 (Nm) at 112 H – 120 G for a
comprehensive review
of the authorities
16
2012(5)
SA 596 (SGJ)
17
Paras
[12] – [17] at 599 D – 600 C
18
Para
[18] at 600 D - E
19
The
Companies Regulations, 2011 promulgated in terms of s 223 of the
Companies Act, by GNR 351, published in Government Gazette
34239, on
26 April 2011
20
Paras
[20] – [24] at 600 G – 602 B
21
2011(5)
SA 600 (WCC) para [16] at 605 B - D
22
[2012]3
All SA 555 (GSJ) para [60] at 18
23
s
131(2)(a) of the Companies Act
24
s
131(2)(b), read with ss 6(9), 6(10) and 6(11) of the Companies Act,
together with regs 7 and 124, and Table CR3
25
Para
[66] of the judgment at page 575
26
SOUTHERN
PALACE INVESTMENTS 265 (PTY) LTD v MIDNIGHT STORM INVESTMENTS 386
LTD, 2012(2) SA 423 (WCC) para [24] at 432 A –
E
KOEN AND ANOTHER v WEDGEWOOD VILLAGE GOLF & COUNTRY
ESTATE (PTY) LTD AND OTHERS, 2012(2) SA 378 (WCC) para [17] at 383 E
–
I
NEDBANK LTD v BESTVEST 153 (PTY) LTD; ESSA AND ANOTHER
v BEDTVEST 153 (PTY) LTD AND OTHERS, 2012(5) SA 497 (WCC) paras [33]
–
[39] at 505 F – 507 D
AG PETZETAKIS INTERNATIONAL HOLDINGS LTD v PETZETAKIS
AFRICA (PTY) LTD AND OTHERS (MARLEY PIPE SYSTEMS (PTY) LTD AND
ANOTHER INTERVENING),
2012(5) SA 515 (GSJ) paras [13] – [19]
at 521 A – 523 C
OAKDENE SQUARE PROPERTIES (PTY) LTD AND OTHERS v FARM
BOTHASFONTEIN (KYALAMI) (PTY) LTD AND OTHERS, 2012(3) SA 273 (GSJ)
para
[18] at 281 F - H
PROPSPEC INVESTMENTS (PTY) LTD v PACIFIC COAST
INVESTMENTS 97 LTD AND ANOTHER, 2013(1) SA 542 (FB) paras [8], [11]
– [13]
at 544 E – F and 545 E – H
P. Delport, HENOCHSBERG ON THE
COMPANIES ACT, 71 of
2008
pages 463 - 471
27
ENGEN
PETROLEUM v MULTI WASTE (PTY) LTD AND OTHERS,
supra
,
para [27] at 602 E
28
The
“Claim Purchase Agreement”
29
Vide
STANDARD BANK OF SOUTH AFRICA LTD v R-BAY
LOGISTICS CC, 2013(2) SA 295 (KZD) paras [8] – [11] and [29]
at 297 D –
298 B and 301 F - J