SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE N o: 13381/2024
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO THE JUDGES: YES/ NO
(3) REVISED: YES/ NO
SIGNATURE: Van Wyk ASL (AJ)
DATE: 2025/01/22
In the matter between:
CJ MINNAAR BEHEREND (PTY) LTD FIRST APPLICANT
[Registration Number: 1985/002461/07]
CORNELIUS JACOBUS MINNAAR N.O. SECOND APPLICANT
[Identity Number: 3 […]]
JACOBUS PETRUS MINNAAR N.O. THIRD APPLICANT
[Identity Number: 5 […]]
ESMELAU EIENDOMME (PTY) LTD FOURTH APPLICANT
[Registration Number: 19 81/010520/07]
FONTAINEBLEAU LANDGOED (PTY ) LTD FIFTH APPLICANT
[Registration Number: 1989/000895/07]
and
BARRY JOHN DU TO IT N.O. FIRST RESPONDENT
SHELDRAKE GAME RANCH CC SECOND RESPONDENT
[Registration Number: 2005/166145/23]
EILEEN MINNAAR THIRD RESPONDENT
[Identity Number: 8 […])
THE COMPANY AND INTELLECTUAL FOURTH RESPONDENT
PROPERTY COMMISSION
THE AFFECTED PERSONS OF THE FIFTH RESPONDENT
SECOND RESPONDENT AS DETAILED
IN ANNEXURE 'X'
JUDGMENT
VAN WYK ASL {AJ) :
INTRODUCTION:
[1] This is an opposed urgent application in terms of which the applicants seeks
relief in the following terms :
"2 That it be declared that the resolution passed by the third respondent
placing the second respondent in business rescue has lapsed and is a nullity.
3 In the alternative to prayer 2 , that the resolution passed by the third
respondent placing the second respondent in business rescue be set aside in
terms of section 130(1)(a)(i) and (iii) of the Companies Act 71 of 2008.
4 That the second and Third Respondents, together with any
respondents opposing the application, be ordered to pay the costs of the
application as on a scale between Attorney and Client, jointly and severally,
the one paying the other to be absolved."
[2] The First to Thi rd Respondents opposes the application and seeks a
dismissal thereof with costs on a punitive scale as between attorney and client on
scale C. In addition, thereto, the Respondents raised certain points in limine , namely:
[2.1] lack of urgency
[2.2] the A pplicants are not "affected parties" and lack locus standi in terms of
Section 128 of the Companies Act, 2008 effectively disputing that the
Applicants are creditors of the Second Respondent.
[2.3] the Second and Third Applicants are not authorised to act as trustees by
the Koos Minnaar Trust.
[2.4] there exists material factual disputes relating to the grounds advanced
for any alleged entitlements as creditors or as owners of game on a private
game reserve...
[3] The parties informed me at the commence ment of their respective arguments
that Collis J granted an ex parte order in accordance with Section 129(5)(b) of the
Companies Act, 2008 in the High Court, Gauteng Division, Pretoria on 11 December
2024.
[4] In my view the proceedings and its result ref erred to in paragraph 3 supra
were not before me and did not form part of the extensive affidavits filed in this
application. I was therefore not tasked to decide whether the court order granted by
Collis J on 11 December 2024 is valid or invalid. During a rgument I referred the
parties to the matter of STS Tyres (Pty) Ltd v Bamboo Rock Plant (Pty) Ltd1 in
support of my view.
1 Case number 2024 -012285) [2024] ZAGPPHC 490 at para 19 to 22.
URGENCY
[5] A litigant that approaches the court for relief on an urgent basis must comply
with Uniform rule 6(12)(b). The rule reads;
'In every affidavit fi led in support of any application under paragraph (a) of this
subru le, the applicant must set forth explic itly the circumstances which is
averred render the matter urgent and the reasons why the applicant claims
that applicant could not be afforded substantial redress at a hearing in due
course'.
[6] The rule requires two legs to be present before urgency can properly be
founded, namely, first the urgency should not be self -created and secondly, it must
provide reasons why substantial relief or redress cannot be achieved in due course.
The im portance of these provisions is that the procedure set out in rule 6(12) is not
there for the mere taking.
[7] It is trite that the correct and true test to be applied in urgent applications is
whether an applicant will be afforded substantial redress at a hearing in due course.
Notshe AJ in East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd2 in
essence said that if the matter were to follow its normal course as laid down by the
rules, an applicant will be afforded substantial redress. If the applicant cannot be
afforded substantial redress at a hearing in due course, then the matter qualifies to
be enrolled and heard as an urgent application. It means that if there is some delay
in the institution of the proceedings, an applicant must explain the reasons for the
delay and why notwithstanding the delay the applicant claims that it cannot be
afforded substantial redress at a hearing in due course.
[8] In Koen & Another v Wedgewood Village Golf and Country Estate (Pty) Lt d3
Binns Ward J said th e following:
2 [2011] ZAGPJHC 196.
3 2012 (2) SA 378 (WCC)
"It is axiomatic that business rescue proceedings, by their very nature, must
be conducted with maximum possible expedition ".
[9] Considering that business rescue proceedings by their very nature must be
conducted within the strict and " urgent- my emphasis " timelines provided for in the
Act, I am of the view that all proceedings within and flowing from business rescue
proceedings and process are regarded as inherently urgent. Even if rega rded as
"inherently urgent", urgency must still be founded on a properly pleaded case for
urgency as in matters relating to spoliation and contempt of court proceedings.
[10] On an analysis of the applicant's founding affidavit the following is clear:
10.1 On 11 November 2024 the respondents were requested to confirm
whether the second respondent was placed under business rescue.
10.2 On 13 November 2024 the applicant's attorney became aware of the
first respondent's appointment as business rescue prac titioner and requested
all documentation in relation thereto. No response was provided by either the
first respondent, second or third respondents and a further letter was
addressed by the applicant's attorney on 19 November 2024, essentially
repeating req uests for documentation.
10.3 On 25 November 2024 the first to third Respondents attorneys
provided a response, essentially denying that the applicants are " affected
persons " as envisaged by Section 28 of the Companies Act 71 of 2008.
10.4 The applicatio n was issued on the 29th of November 2024 and set
down for hearing in the week of 1 0 December 2024.
10.5 The applicants shall not be afforded substantial redress at a hearing in
due course if the matter is to be heard likely during the fourth term of 202 5.
[11] I agree that business rescue proceedings, statutorily expressed, are
temporary mechanisms which are intended to endure for a period of three months
subject to the terms of an adopted business rescue plan, if any. I further agree that
fundamental public interests exist within such proceedings which materially affects
the rights and interests of third parties to enforce their rights against the subject
company – the second respondent - my emphasis.
[12] I am of the view that even if there was some delays caused to institute these
proceedings, specifically between the periods 29 October 2024 to 13 November
2024 on the one hand and 13 November 2024 to 29 November 2024 on the other,
the applicants have passed the requisite threshold to found the jurisd ictional fact of
absence of substantial redress at a hearing in due course. This is so if the truncated
timelines for business rescue processes and proceedings embodied within the Act
are considered holistically.
[13] I am furthermore of the view that the respondents did not seriously or
convincingly challenge the issue urgency in this matter and suffered no apparent
prejudice by the abridgment of the time periods provided.
[14] Accordingly, I find that the matter is urgent.
LOCUS STAND I
[15] The res pondents challenged the applicant's locus standi to institute these
proceedings premised thereon that the applicants are not affected persons as
defined in section 128 of the Companies Act 71, 2008. It is the respondent's
argument that the applicants are n ot creditors of the second respondent.
[16] Affected person(s), as defined in section 128 of the Act are as follows:
"in relation to a company, means –
(i) A shareholder or creditor of the company.
(ii) Any registered trade union representing employees of the company;
and
(iii) If any of the employees of the company are not presented by a
registered trade union, each of those employees or their respective
representatives".
[17] During argument, Mr Smit representing the respondents submitted that the
applicants are not creditors of the second respondent if consideration is given to the
ordinary meaning of “creditor”4. It seems to be common cause between the parties
that " creditor " is not defined in the Act. Mr Smit further argued that a contingent
creditor is excluded from the ordinary meaning of creditor as defined and should be a
creditor with an existing legal obligation and if the enforcement of a claim is not
liquidated it remains conditional or contingent.
[18] It was submitted on behalf of the respondents that the applicants claim for
payment arising from an action instituted in this court under case number 92 06/2024
relates to a peculiar claim for payment in essence disqualifying them to be cloaked
as creditors within the meaning as defined. The further reasons are essentially that
the funds generated from a game auction are not held or possessed by the second
respondent. My understanding is that there are disputes which relate to ownership
over the game and the applicants claim includes payment for 50% of the funds
generated from the game auction sale.
[19] During argument, Mr E ls representing the applicants submitted that the
applicants are affected parties as envisaged in the Act, more specifically they are
creditors of the second respondent. It was submitted that the applicants instituted
legal proceedings against the second respondent for payment exceeding R 900 000 -
00 under case number 9206/2024 for 50% payment from the game sale auction.
Further, invoices were issued by the Fourth and Fifth respondents to the Second
applicant ostensibly for occupational usage.
4 Henochsberg on the Companies Act, 71 of 2008, commentary on section 128.
[20] In Rogal Holdings (Pty) Ltd and Another v Victor Turnkey Projects (Pty) Ltd
and Others5 van der Schyff J was confronted with facts similar to the matter at hand.
The main question for determination was whether Rogal, an affected creditor, had
locus standi to institute proceedings in accordance with Section 130(1) of the Act.
VTP argued that Rogal's claim was premised on unliquidated damages and as such
could not be deemed a creditor in business rescue proceedings. The court accepted
that Rogal's claim was unliquidated and the Companies' Act failure to define
"creditor''. Van der Schyff J, after considering a host of authorities, held that Rogal is
a creditor of VTP.
[21] Trengrove J in Gillis -Mason Construction Co (Pty) Lt d6 found that a person (or
entity) that has a claim for unliquidated damages for breach of contract can be
regarded as a creditor for purposes of Section 113 of the Companies Act 46 of 1926
(repealed). He said:
"The mere fact that the claim may still be unliquidated, at the time of the f iling
of the winding up petition, should not in itself disqualify such an applicant from
petitioning for winding up".
[22] Wilson J in Wescoal Mining (Pty) Ltd and Another v Mkhombo NO and
Others7 stated the following:
"There are several indications of this in the text of statute. The first is the
definition of "affected persons" in section 128. By rolling creditors into a
broader category of "affected persons", it seems to me that the Act means to
refer to creditors who have an interest in the business rescue process that is
meaningfully comparable to those other "affected persons": unions,
employees and shareholders. These are persons who are "affected" by the
commencement of the business rescue process itself"
5 [2022] ZAGPPHC 167 (28 March 2022).
6 1971 (1) SA 524 (T).
7 (2023 -079991) [2023 ] ZAGPJHC 1097; 2024 (2) SA 563 (GJ).
[23] In this matter, whether peculiar or not, the applicants instituted claim for inter
alia liquidated payment (R 911 970 -00) against the respondents. Further, invoices
were issued by the Fourth and Fifth respondents to the Second applicant ostensibly
for occupational usage. The fact that these funds are kept on trust by an attorney
pending litigation against inter alia the second respondent has no relevance to the
questio n whether the applicants are creditors of the second respondent. It is not for
this court to decide whether the claim for payment is valid or not or whether the
applicants are entitled to payment premised on ownership, usage, or otherwise. The
only relevan t issue is whether the applicants are affected persons and creditors of
the second respondent within the context of business rescue proceedings. The point
is a long unfortunate history of family disagreements and litigation exists with various
payment dema nds and/or claims made, some of which is sub-judice.
[24] The Act does not draw a distinction between creditors and contingent
creditors and considering the authorities listed herein supra, the question remains
whether the applicants are affected parties as creditors within its ordinary meaning,
context and within the purpose of the Act. I am satisfied that the applicants will be
affected by the commencement of business rescue and its proceedings and
consequently I am of the view that they are affected par ties, i.e. creditors of the
Second Respondent.
NON -JOINDER OF TRUSTEE, MRS LAURETTE MINNAAR. AUTHORITY. AND
LOCUS STANDI
[25] It is trite that if authority to institute legal proceedings are challenged it is the
institution and the prosecution there of which must be authorized and not the
deposition to an affidavit as such. My understanding is that uniform Rule 7 provides
for such a procedure which may be followed by a respondent who wishes to
challenge the authority of an attorney who instituted moti on proceedings on behalf of
an applicant8. On the conspectus of the facts before me, this is not the challenge
raised by the respondents.
8 Ganes and Another v Telecom Namibia Ltd 2004(3) SA 615 (SCA).
[26] My understanding is that the respondents qualms are twofold; In the first
instance it translates to the non -joinder of the curatrix ad litem, Advocate Maryke van
Rooyen', appointed on behalf of 'erstwhile' trustee Mrs Laurette Minnaar. It is the
respondent's argument that the curatrix ad litem has a direct and material interest in
these proceedings. Secondly, the S econd and Third Respondents are not authorized
to institute legal proceedings on behalf of the trust.
[27] In my view neither of the points raised by the respondents are factually and/or
legally sustainable. Firstly, paragraph 4.2.1 of the trust deed prov ides as follows:
" Die trustees van die trust sal nie minder as twee en nie meer as vyf persone
wees nie. Enige vakature wat onstaan sat so spoedig moontlik gevul word by
wyse van kooptering deur die oorblywende trustees onderhewig aan 4.2.2
hierna."
[28] Secondly, paragr aph 5 of the trust deed provides the following:
"Die amp van 'n trustee sal ipso facto beeindig en vakant wees: 5.2: ashy
geestelik versteurd of swaksinnig raak. 5.3: indien hy onbevoe g of
onbekwaam is om as trustee of the tree."
[29] In accordance with the trust deed and the paragraphs referred to herein supra ,
I am of the view that Mrs Laurette Minnaar' office as trustee and capacity to act as
such terminated ipso facto at the time w hen she became incapacitated or
incompetent to act as trustee, but at the latest on the date when the curatrix ad litem
was appointed on her behalf. In consequence the curatrix ad litem, Adv Maryke van
Rooyen has no direct, substantial, material or legal i nterest in this application. The
issue of 'non joinder of the curatrix ad litem is accordingly dismissed.
[30] In accordance with the trust deed with specific reference to paragraph 4.2.1
thereof, a quorum is established to represent the trust. On 29 Nov ember 2024, the
second and third respondents in their respective capacities as trustees of the Koos
Minnaar Trust resolved that
"1. The trustees waived any applicable time periods required for notice of this
meeting, if applicable."
"2. It is noted that Mr CJ Minnaar and Mr JP Minnaar are the only two serving
trustees at this time. Clause 4.2.1 of the Trust Deed requires a minimum of 2
(two) trustees to serve on behalf of The Koos Minnaar Trust."
"3. It be resolved that the Koos Minnaar Trust is an affect ed party pertaining to
the business rescue proceedings of She/drake Ranch CC.
"4. It be resolved that the Koos Minnaar Trust must institute legal proceedings
in terms of the attached copy of the Notice of Motion marked "A".
[31] The principles in Thorpe and Others v Trittenwein and Anothe r9 are trite. The
supreme court of appeal endorsed that unless the trust deed provides otherwise the
trustees must act jointly if the trust is to be bound by their acts.
[32] Considering the matter at hand and the respo ndents challenge the second
and third applicants' authority to institute legal proceedings on behalf of the trust
and/or act on behalf of the trust, I am satisfied that the second and third applicants
are the only two remaining and/or existing trustees of the Koos Minnaar trust and as
such duly resolved to institute these legal proceedings. Accordingly, I find that the
second and third respondents were duly authorized to institute these proceedings
and to act on behalf of the trust. Further, considering the affidavits filed on record I
am not persuaded that 'LEDET' (Limpopo Department : Economic Development
Environment and Tourism) has any material, legal, or substantial interest in these
proceedings and it matters not whether the Boabab Nature Reserve is de clared a
protected area or whether the applicants and/or the respondents are owners of the
farms forming part of the protected area(s). The point in limine raised herein is
accordingly dismissed.
MERITS
9 2007 (2) SA 172 (SCA)
[33] It was argued on behalf of the applicants that the first and second
respondents failed to comply with the peremptory provisions of section 129 of the Act
and that the business rescue proceedings were initiated with ulterio r purposes by
preserving the assets of the second respondent. On 29 October 2024, the third
respondent filed a resolution to commence business rescue proceedings in
accordance with section 129 of the Act.
[34] Section 128(1)(b) of the Act defines the term s 'business rescue' as follows:
means proceedings to facilitate the rehabilitation of a company that is
financially distressed by providing for -
(i) the temporary supervision of the company, and of the management of
its affairs, business and property.
(ii) a temporary moratorium on the rights of claimants against the company
or in respect of property in its possession; and
(iii) the development and implementation, if approved, of a plan to rescue
the company by restructuring its affairs, business, prope rty, debt and other
liabilities, and equity in a manner that maximises the likelihood of the
company continuing in existence on a solvent basis or, if it is not possible for
the company to so continue in existence, results in a better return for the
compan y's creditors or shareholders than would result from the immediate
liquidation of the company."
[35] The notice procedure commencing business rescue proceedings is
encapsulated in Section 129 of the Act.
[36] Section 129 of the Act provides as follows :
"(1) Subject to subsection (2)(a), the board of a company may resolve that the
company voluntarily begin business rescue proceedings and place the
company under supervision, if the board has reasonable grounds to believe
that-
(a) the company is financia lly distressed10; and
(b) there appears to be a reasonable prospect of rescuing the
company.
(2) A resolution contemplated in subsection (1) –
(a) may not be adopted if liquidation proceedings have been
initiated by or against the company; and
(b) has no force or effect until it has been filed.
(3) Within five business days after a company has adopted and filed a
resolution, as contemplated in subsection (1), or such longer time as the
commission, on application by the company, may allow, the company must -
(a) publish a notice of the resolution, and its effective date, in the
prescribed manner to every affected person, including with the notice a
sworn statement of the facts relevant to the grounds on whic h the
board resolution was founded; and
(b) appoint a business rescue practitioner who satisfies the
requirements of section 138, and who has consented in writing to
accept the appointment.
(4) After appointing a practitioner as required by subsection (3 )(b), a
company must -
10 Financially distressed is defined as follows: 'financially distressed' , in reference to a particular
company at any particular time, means that - (i) it appears to be reasonably unlikely that the company
will be able to pay all of its debts as they become due and payable within the immediately ensuing six
months; or (ii) it appears to be reasonably likely that the company will become ins olvent within the
immediately ensuing six months'
(a) file a notice of appointment of a practitioner within two business
days after making the appointment; and
(b) publish a copy of appointment to each affected person within
five business days after the notice was filed."
[37] When considering an application for business rescue a court must consider
whether the company is financially distressed, whether the company has failed to
pay over any amount in terms of an obligation under or in terms of a public regulation,
or contract and wh ether it is otherwise just and equitable to do so for financial
reasons and that there is a reasonable prospect of rescuing the company.
[38] I am satisfied that the question whether a company is financially distressed is
a matter or question of fact whic h relates to the specific circumstances of the case.
In Oakdean Square Properties (Pty) Ltd & Others v Farms Bothasfontein (Kyalami)
(Pty) Ltd & Others11 in determining whether there are reasonable prospects for
rescuing a company it was held that a cour t has a wide or lose discretion, not a
discretion in the strict sense and the exercise of which involves a value judgment.
[39] In Southern Palace Investments 265 (Pty) Ltd v Midnight Storm Investments
386 (Pty) Lt d12 it was held that "... If the compan y will be reliant on loan capital or
other facilities, one would expect to be given some concrete indication of the extent
thereof and the basis or terms upon which it will be available ..."
[40] In the matter of Engen Petroleum Ltd v Multi Waste (Pty) Ltd and Others13
Boruchowitz J held that:
11 2013 (3) ALL SA 303 SCA. It wa s held further: " A mere speculative suggestion is not enough.
Moreover because it is the applicant who seeks to satisfy the court of the prospect, it must establish
these reasonable grounds in accordance with the rules of motion proceedings which, generall y
speaking require that it must do so in its founding papers ."
12 2012 (2) SA 423 wee. See Nedbank Limited v Bestvest 153 (Pty) Ltd; ESSA & Another v Bestvest
153 (Pty) Ltd 2012 JOL 29185 (WCC) wherein the court endorsed the principles followed in the
Southern Palace matter. The court in Nedbank v Bestvest said, " the application must set out sufficient
facts, if necessary augmented by documentary evidence, from which a court would be able to assess
the prospects of success before exercising its discretion ."
13 2012 (5) SA 596 SG
"An applicant must satisfy the court that all reasonable steps have been taken
to notify all affected persons known to the applicant ... At the very l east it is
incumbent upon an applicant to demonstrate that all reasonable steps have
been taken to establish the identity of the affected persons and their
addresses to which the relevant notices are to be delivered".
[41] In Taboo Trading 232 (Pty) Ltd v Pro Wreck Scrap Metal CC and Others14 it
was held that "... In my view, it is implicit in ss 131(2)(b) and 131(3), that reasonable
notice must be given to affected persons... Service of a c opy of the application on
the Commission, and notification of each affected person, are not merely procedural
steps. They are substantive requirements, compliance with which an integral part of
the making of an application for an order in terms of Section 131(1) of the Act ".
[42] The applicants are affected parties and in consequence were entitled to
receive notice of the business rescue proceedings as envisaged in Section 129(3) of
the Act. On a proper conspectus of the papers, it cannot be said that the re was
compliance, or even substantial compliance with the Section 129(3) notification and
publication requirement articulated in the Act and Regulations.
[43] I could not find any evidence that the affected persons or parties were
provided with a resolut ion or a sworn statement which articulates the facts in support
of the business rescue of the second respondent and the resolution adopted as such.
I am satisfied that the respondents failed to comply with the peremptory provisions of
section 129(3) and (4 ) of the Act.
[44] I already said that the proceedings before Collis J on 10 December 2024 in
the High Court of South Africa, Pretoria was not before me, and I cannot interfere
with the order she granted in accordance with Section 129(5)(b) of the Act. Ho wever,
I considered that the respondents took further steps in accordance with the Act
which in my view, at least insofar as this matter is concerned, through their conduct
14 2013 (6) 141 (KZP)
conceded that they failed to comply with the peremptory provisions of section 129(3)
and (4) of the Act.
[44] I analyzed and dissected the affidavits filed on record. I am of the view that
the respondents failed to meet the requirements for providing sufficient or substantial
factual and supporting evidence th at the second respondent is financially distressed.
The allegations made, at best for the respondents, translate to be speculative in
nature. I considered the facts in support of the peremptory statutory non -compliance
by the First Respondent. I am persuad ed that the First Respondent failed to provide
any or sufficient facts which enabled him to conclude that the second respondent is
financially distressed specifically considering that he was not aware of any creditors
or affected persons, he did not consid er the bank statements or financial statements
of the second respondent, and in unaware of the second respondents income.
[45] As a result I am of the view that the respondents failed to comply with the
peremptory statutory provisions articulated by secti ons 129(3) and (4) of the Act and
failed to demonstrate that the second respondent, on a factual and supportive basis,
are financially distressed.
[46] During argument, Mr Smit appearing for the respondents said that the
applicants relief is fatally flawed in the absence of declaratory relief claiming that the
second respondents business rescue is terminated. This proposition and argument
were unde rscored with reference to Panamo Properties (Pty) Ltd and Another v Ne/
and Others NNO15. I disagree with this argument.
[47] I am of the view that if this court or any court sets aside a resolution
commencing business rescue proceedings based on the inva lidity thereof that
invalidity operates retrospectively16, and the business rescue proceedings terminate
automatically as a result. It is consequently not necessary for this court to declare
that the business rescue proceedings of the second respondent are terminated when
setting aside a resolution commencing business rescue proceedings.
15 2015 (5) SA 63 (SCA)
16 National Energy Regulator of SA & Another v PG Group (Pty) Ltd 20 20(1) SA 450 (CC) at para 91
vn 46.
[48] In motion proceedings disputes of fact must be dealt with in accordance with
the principles laid down in Plascon - Evans Paints v Van Riebeeck Paints (Pty) Ltd17
(the Plascon Evans - rule). This rule is to the effect that, where there is a dispute as
to the facts, a final relief should only be granted in motion proceedings if the facts
stated by the respondent together with the admitted facts in the applicant's affidav it
justify such an order. Where facts are clear, though not formally admitted, cannot be
denied, they must be regarded as admitted. In certain instances, the denial by the
respondent of a fact alleged by the applicant may not be such as raising a real,
genuine or bona fide dispute of fact.18 Vague and unsubstantiated allegations are
insufficient to raise real and genuine disputes of fact.19 A bare denial of the
applicant's allegations will generally be insufficient to generate a genuine or real
dispute of fact.20
[49] As a general rule decisions of fact cannot properly be founded on a
consideration of the probabilities, unless the Court is satisfied that there is no real
dispute on the facts in question, or that the one party's allegations are so far -
fetched or so clearly untenable or so palpably implausible as to warrant their
rejection merely on the papers, or that viva voce evidence would not disturb the
balance of probabilities appearing from the affidavits.21
[50] The following was stated in Wightman t /a JW Construction v Headfour (P ty)
Ltd and Another22:
"A real, genuine and bona fide dispute of fact can exist only where the cour t is
satisfied that the party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed. There
will of course be instances where a bare denial meets the requirement
17 1984 (3) SA 623 (A)
18 Room Hire Co" (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163
19 King William's Town Transitional Local Council v Border Alliance Taxi Association (BATA) 2002 (4)
SA 152 (E) at 1561 - J
20 National Director of Public Prosecutions v Zuma 2009 (2) SA 227 (SCA) at 290F
21 Administrator, Transvaal v Theletsane 1991 (2) SA 192 (A ) at 197A - B; Malan v Law Society,
Northern Provinces 2009 (1 ) SA 216 (SCA} at 222B [23]
22 2008 (3) 371 (SCA) at para [13]
because there is no other w ay open to the disputing party and nothing more
can therefore be expected of him. But even that may not be sufficient if the
fact averred lies purely within the knowledge of the averring party and no
basis is laid for disputing the veracity or accuracy of the averment. When the
facts averred are such that the disputing party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true or accurate but, instead of doing so, rests his
case on a bare or ambiguous denial the court will generally have difficulty in
finding that the test is satisfied."
[51] I am of the view that there exists no rea l or genuine factual dispute in the
matter before me. The facts relating to pending litigation do not form part of this
matter and are irrelevant to these proceedings. The only questions remain whether
there was substantial compliance with the peremptory p rovisions of section 129(3)
and (4) of the Act and whether the second respondent is financially distressed
considering the material and substantial facts presented in the affidavits. I found that
the respondents failed to demonstrate compliance with the pe remptory provisions of
the Act and that the second respondent is financially distressed. It follows that the
respondent's version, wherever it conflicts with the applicants' version, is so clearly
untenable or palpably implausible it ought to be rejected o n the papers.
[52] Considering all the facts and evidence on record I am of the view that it is just
and equitable to set aside the resolution dated 29 October 2024 for the reasons
mentioned herein supra. The reasons provided herein elsewhere persuaded me to
order punitive costs against opposing parties, i.e. the first to third respondents.
ORDER
[53] In the circumstances I accordingly make the following order:
1. That the Rules relating to forms and service are dispensed with and
this application is hea rd as one of urgency in terms of Uniform Rule 6(12).
2. The First to Third Respondents points in limine based on urgency, non -
joinder and locus standi are dismissed.
3. The resolution dated 29 October 2024 passed by the Third Respondent
placing the Se cond Respondent in business rescue is set aside in terms of
section 130(1)(i) and (iii) of the Companies Act.
4. The First to Third Respondents are ordered to pay the costs of this
application on an attorney and client scale, jointly and severally, the on e
paying the other to be absolved.
VAN WYK ASL (AJ)
Acting Judge of the High Court
Limpopo Division, Polokwane
HEARD ON : 13 DECEMBER 2024
JUDGMENT DELIVERED ON : 22 JANUARY 2025 . This judgment was handed
down electronically by circulation to the parties'
representatives by email. The date and time for
hand - down of the judgment is deemed to be 22
JANUARY 2025 at 10:00
APPEARANCES
FOR THE APPLICANT :ADV APJ ELS (SC) with him ADV AA SASSON
INSTRUCTED BY :KRONE & ASSOCIATES
FOR THE RESPONDENT :ADV JAN G SMIT
INSTRUCTED BY :CHRISTO RHEEDERS ATTORNEYS