2
DE VOS AJ
[1] On 17 January 2025 this Court granted an order in the following terms:
1. The first, second, third, fourth and fifth respondents are granted leave to intervene
as respondents in the ex parte application.
2. The order granted on 10 December 2024, under case number 144936/2024 is
reconsidered and set aside .
3. The applicant (Sheldrake Game Ranch CC) is order ed to pay the costs of the
application as on the scale between Attorney and Cl ient, including the costs of two
counsel.
[2] These are the reasons for the order.
CONTEXT
[3] Sheldrake has, since 1985, conducted hunting and safari operations on six farm s,
totalling almost 12 000 ha. On these farms live a buffalo herd of 220 worth R 15
million, as well as exotic game such as the Livingstone Eland and Zimbabwean Blue
Ostrich. Sheldrake ’s day -to-day was managed by Mr Gerhard Cornelius Minnaar. In
October 2024 Mr Gerhard Min naar passed away unexpectedly in a gyrocopter
accident. Mr Minnaar was the sole occupant of the gyrocopter when it collided with
the Soutpansberg , about 3 km from Louis Trichard in inclement weather. Mr Minnaar’s
unex pected death left his wife, Ms. Eileen Minnaar , in charge of Sheldrake.
[4] Lost in the accident was Mr Minnaar’s computers and cellphones , leaving Ms. Minnaar
unable access any of the information on these machines. Ms. Minnaar also did not
have the necessary passwords or information concerning Sheldrake’s bank accounts.
Her immediate concern was the buffalo herd. Due to a devastating drought in the
Vhembe District , north of the Soutpansberg, the farms received no substantial rain
since October 2023. As there was no natural grazing grass, the herd therefore had to
be fed grass, costing R 75 000 per month. Ms. Minnaar could not ensure that the herd
survives, she explained, as she had no access to any bank accounts . She faced the
immediate obligation to step into Mr Minnaar’s shoes, without any information
necessary to do so. She was advised that an elegant solution would be to put
Sheldrake into business rescue.
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[5] Giving effect to this advi ce, a resolution was passed on 28 October 2024 to place
Sheldrake in business rescue . The basis of the business rescue, advises Sheldrake ,
is that it was handsomely solvent, but immediately , in financial distress. Over time it
would be able to meet its expenses and had reasonable prospects of recover y but
required immediate intervention in terms of business rescue.
[6] Section 129(3) of the Companies Act requires publication of the resolution within five
days of the resolution . Publication did not take place in time. The fire that followed Mr
Minnaar’s accident was fueled by lithium batteries. Notwithstanding that a helicopter
dropped approximately 28 1000 litre buckets of water on the wreckage, the fire raged
fully for five days. Mr Minnaar could only be identified af ter the fire had been
extinguished through dental records. As a result, Mr Min naar’s death certificate was
only obtained three weeks after his death. In addition , there were delays within the
CIPC. The outcome is that publication in terms of section 129(3) did not take place
within five days of the resolution. It is this delay in publishing the section 129(3) notice
which led Ms. Minnaar to pass a second resolution and to approach th is Court for
authorisation to file the second business rescue resolution in terms of section
129(5)(b) of the Companies Act. Mis Minnaar was successful as this Court granted
an ex parte order on 10 December 20204 authorising Sheldrake to file the second
resolution.
[7] The ex parte order was presented as a cure for a technical problem with timeous
publication, caused by events outside of Ms Minnaar’s control and which the Court is
statutorily empowered to provide a solution. It was presented to the Court , sitting in
urgent court hearing an ex parte matter, as a neat solution with no complications.
From what will become clear below, not much more was presented to the Court
dealing with the ex parte application.
[8] This innocuous technical and procedural step , authori sing the second resolution, is
defined as an attempt to derail existing proceedings in the Polokwane High Court by
four parties : CJ Minnaar, Corneli us Jacobus Minnaar N.O., Jacobus Petrus Minnaar
N.O., Esmelau Eiendomme (Pty)Ltd and Fontaine Bleau Langoed (Pty) Ltd . For ease
of reference, I will refer to these four parties as “ the Minnaar parties”. In essence they
contend that the ex parte application was intended to render a pending application in
the Polokwane High Court , moot. The existing proceedings in the Polokwane High
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Court is an application brought by some of the Minnaar parties to set aside the
business rescue proceedings.
[9] Some context is required . Before Mr Minnaar passed, a family dispute arose within
the Minnaar clan. The dispute involves claims for monies and membership in
Sheldrake. These disputes have grown to twelve pieces of litigation to be considered
by Naude -Odendaal J in Polokwane J during the last week of February 2025. These
pieces of litigation will be referred to as the civil claims.
[10] The Minnaar parties contend that the business rescue proceedings were commenced,
not to recover a financially distressed Sheldrake, but rather with the sole aim of
obtaining a moratorium. A business in business rescue attracts, statutorily, a
moratorium ag ainst existing claims. The moratorium halts the civil claims . As
Sheldrake is in business rescue – these claims cannot be pursued. This, say the
Minaar parties , is the true impetus behind the business rescue.
[11] The Minnaar parties launched proceedings to set aside the business rescue
proceedings, and it was to be heard on 9 December 2024. These proceedings will be
referred to as the setting aside proceedings. However, due to a conflict in the Court –
the matter was stood down to 13 December 2024. It is in this gap, created by the
setting aside proceedings being stood down in Polokwane – that Sheldrake obtained
its ex parte order in this Court , in Pretoria .
[12] The Minnaar parties launched urgent proceedings before this Court in terms of Rule
6(12)(c) to reconsider and set aside the ex parte order . The Minnaar parties contend
that the ex parte order was granted with no notice to them, without them being heard
and was not authorised by the legislation . In addition this Court was not informed that
it lacked jurisdiction. Centrally , the Minnaar parties contend that Sheldrake did not
comply with its duties to disclose all relevant facts in the application. Specifical ly, it
did not disclose, fully, the relevance of ongoing litigation in the Polokwane High Court
– specifically the impact of these proceedings on the setting aside application . The
Minnaar parties also contend that the true reason for launching the ex parte
application was not to solve a technical issue of non -compliance, but rather to render
the setting aside proceedings – which were being argued in the same week in a
different division – moot.
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RECONSIDERATION
Jurisdiction
[13] Before this Court, t he Minnaar parties request a reconsideration of the ex parte order
on the basis that the Court seized with the ex parte application did not have
jurisdiction. Sheldrake is a Close Corporation. It is regulated by the Close Corporation
Act 69, of 1984 which in s ection 7 provides that the High Court within whose area of
jurisdiction the registered office or main place of business of the close corporation is
situated shall have jurisdiction.
[14] The only home which a corporation can be said to have is the place where the
operations for which it was called into existence are carried on (TW Beckett & Co Ltd
v H Kroomer Ltd 1912 AD 324 at 334) . It is common cause that the principal place of
business, also, is in Musina. Concretely , the farms are in Musina and Sheldrake has
chosen Musina as its registered address. The Court has the CIPC report indicating
that Sheldrake’s registered address is Musina, Limpopo. Sheldrake’s only home is in
Musina, Limpopo. As Musina is in Limpopo, the dispute falls within the jurisdiction of
the Polokwane High Court. The court with jurisdiction is the Polokwane High Court.
[15] In addition, our courts have held that a s supervision for business rescue purposes is
a matter going to the status of the subject business ; and that the power to make a
determination on a question of status involves a ratio jurisdictionis exercisable only by
the court within whose jurisdiction the company 'resides' (Sibakhulu Construction (Pty)
Ltd v Wedgewood Village Golf Country and Others 2013 (1) SA 191 (WCC) . Business
rescue is also a matter which is “interlinked in such a manner by the provisions of the
2008 Act that it is u ndesirable for reasons of comity between courts of equal status,
efficiency, commercial convenience and certainty that they be amenable to
proceedings in concurrent jurisdictions”. These are considerations militating in favour
of the recognition of a regim e that recognises a company only to be resident in one
place rather than two thereby assuring that only one court will have jurisdiction. ”
(Sibakhulu para 23)
[16] The Polokwane High Court is therefore the Court with jurisdiction and the sole court
with jurisdiction. The position under the Companies Act appears to be stricter in that
it appears that in respect of every business there will be only a single court in South
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Africa with jurisdiction in respect of winding -up and business rescue matters. In this
case, this dispute need not engage the court, as both the registered and principal
place of business, both, are in Musina.
[17] For these reasons, this Court, t he North Gauteng Court did not have jurisdiction as
neither Sheldrake’s place of business nor registered address are within this Court’s
jurisdiction. This is determinative of the reconsideration application. On this basis
alone, the ex parte order is to be set aside.
[18] The facts which give rise to this finding on jurisdiction do not appear in the papers that
served before this Court in the ex parte application. Notably absent in the ex parte
founding affidavit is an allegation regarding Sheldrake’s registered address or
principal place of business. The Court seized with the ex parte application was not
informed that Sheldrake’s registered address did not fall in this Court’s jurisdiction.
Rule 6(12)(c) applies in exactly such an instance, where a vital piece of evidence was
not presented to the urgent court, that a reconsiderat ion of the order granted – based
on incomplete evidence – was based.
[19] Sheldrake’s response is not to dispute that the principal place of business or
registered address are within this Court’s jurisdiction. Rather, they present, for the
first time in reply, the argument that the business rescue practitioner’s address gives
this Court jurisdiction.
[20] The parties filed three affidavits in this matter. The original founding affidavit by
Sheldrake in the ex parte application. The Minnaar parties filed an answering affidavit
and Sheldrake then filed a replying affidavit. In the replying affidavit Sheldrake seeks
to explain why this Court had jurisdiction. The explanation is that the business rescue
practitioner, Mr du Toit’s business premises are in Pretoria.
[21] Sheldrake’s first problem is that it is inappropriate to make out a case in reply,
particularly in the context of reconsideration applications. Reconsideration
applications can be set down on the original papers and it is not open to the original
applicant to bolster its original application by filing a supplementary founding affidavits
(Afgri Grain Marketing (Pty) Ltd v Trustees [2019] ZASCA 67). Even if an affidavit is
filed, it does not preclude the party seeking reconsideration from arguing at the outs et,
on the basis of the applicant’s papers alone, that the applicant has not made out a
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case for the relief. The absence of jurisdiction, is exactly such an argument which a
party can make in reconsideration or an order granted. That is a well -established
entitlement in application proceedings an d there is no reason why it should not be
adopted in reconsideration applications ( Afgri para 13). Sheldrake’s attempt to
ground this Court’s jurisdiction by providing new allegations in reply is not permitted.
This Court’s jurisdiction to determine the ex parte application is to be considered
based on the founding affidavit. In the founding affidavit no allegation appears that the
Court has jurisdiction on the basis that Mr du Toit resides in Pretoria.
[22] Even if Sheldrake were permitted to make out this case, it does not alter the outcome ,
as it is legally unsound . Sheldrake’s response is beset with obstacles . Centrally, Mr
du Toit replaces the Board. As a business rescue practitioner steps into the shoes of
the Board. The residence of a director does not provide a court with jurisdiction (De
Bruyn v Grandselect 101 (Pty) Ltd (1961/2013) [2014] ZANCHC 3 ). It is the place of
business or registered address of the company, not the Director which determines the
Court’s jurisdiction. Similarly the place of business of a business rescue practitioner
does not ground jurisdiction.
[23] In addition, the Companies Act contemplates that only one Court would have
jurisdiction ( Sibakhulu Construction (Pty) Ltd v Wedgewood Village Golf Country 2013
(1) SA 191 (WCC) ). Business rescue procedures are regulated in terms of chap 6 of
the 2008 Companies Act. Section 131 resorts in chap 6. The word 'court is specially
defined for the purposes of chap 6 of the Act. In terms of s 128(1)(e) of the Act, 'court',
in this context means the High Court that has jurisdiction over the matter. It is perhaps
significant that the court contemplated in the definition is referred to by the definite
rather than the indefinite article, which suggests on the face of it that only a single
High Court is held in view. It would defeat the various purposes of only one court
having jurisdiction, identified in Sibakula and set out above, over business rescue
proceedings, if the business rescue practitioner’s address would grou nd jurisdiction.
[24] In summary, Sheldrake’s attempt to present a factual basis for the business rescue
practitioner’s address to ground the Court’s jurisdiction is rejected. In any event, even
if this factual case had been made out, it would not matter as Sheldrake’s busines s
and registered address are in Musina.
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[25] The Court has a wide discretion under the rule. O nce these jurisdictional facts of rule
6(12)(c) have been established , the Curt is free to consider in the widest sense of the
word – thus it can most certainly issue an order of rescission by way of final judgment
(Oosthuizen v Mijs 2009 (6) SA 266 (W) p 267 E to 269D ). Several factors may be
taken into account in order to reconsider an order obtained ex parte(Erasmus,
Superior Court Practice vol 2 at D1 -89). These include whether an imbalance,
oppression or injustice has resulted, and if so, the nature and extent thereof and
whether alternative remedies are available. There is a clear imbalance and injustice
where a party obtains an order on an ex parte basis in circumstances where the Court
lacked jurisdiction.
[26] The Court finds that the ex parte application was launched in the wrong Court . As
such, that is the end of the matter. As the Court granting the ex parte order did not
have jurisdiction, the order is to be set aside.
[27] In order to follow a belt and braces approach, in the event of an appeal, the Court also
considers whether Sheldrake complied with its duty of utmost good faith.
Duty of utmost good faith
[28] Section 129 permits a party to launch an ex parte application. It is not clear whether
the section intended that a party could, in circumstances where there is an existing
challenge to the validity of the business rescue proceedings, use section 129 on an
ex parte basis. Assuming section 129 permits an ex parte approach in the
circumstances of this case, without deciding the issue, Sheldrake attracted a duty to
act in utmost good faith.
[29] Ex parte applications deviate from the fundamental principle that a Court must listen
to all parties affected by an order before reaching a conclusion . An ex
parte application, by its nature, places only one side before the court ( Pretoria
Portland Cement Co Ltd v Competition Commission 2003 (2) SA 385 (SCA)) . An ex
parte application is one in which relief is being obtained behind an opponent’s back
(South African Airways SOC v BDFM Publishers 2016 (2) SA 561 (GJ) at para 22).
Ex parte applications, as an exception to this rule, requires the applicant who comes
to court to provide the court with all relevant information. It is therefore vital that such
a party is not permitted to be selective in what facts it presents to the Court. Therefore,
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an applicant in an ex parte application bears the duty of utmost good faith in placing
before the court all the relevant material facts that might influence a court in coming
to a decision . Facts that are material and which are within the applicant’s knowledge
should be disclosed. (Powell and Others v Van der Merwe and Others 2005 (5) SA
62 (SCA) para 42).
[30] An ex parte application must be tested against these propositions :
1. in ex parte applications all material facts must be disclosed which might influence a
court in coming to a decision;
2. the non -disclosure or suppression of facts need not be wilful or mala fide to incur the
penalty of rescission;
3. the Court, apprised of the true facts, has a discretion to set aside the former order
or to preserve it.’ (Powell NO and Others v Van der Merwe and 2005 (5) SA 62
(SCA) para 73) .
[31] Unless there are very cogent practical reasons why an order should not be rescinded,
the Court will always frown on an order obtained ex parte on incomplete information
and will set it aside even if relief could be obtained in a subsequent application by the
same applicant.’ (Schlesinger at 350B -C)
[32] The central position is this: good faith is sine qua non in ex parte applications. Material
facts that might weigh with a court must be disclosed. Whether they were omitted,
inadvertently or deliberately matters not. Whether a court will upon disclosure of all
relevant facts grant the relief in any event, is not determinative.
[33] Even in cases where the statute permits ex parte applications – the duty remains. This
is clear from the host of cases dealing with search and seizure operations. ( NDPP v
Braun and another 2007 (1) SACR 326 (C) para 20 ). The statutory permission to
approach the Court ex parte does not relieve the applicant from “ the normal burden
imposed on every applicant who approaches the court for an ex parte order ”. (NDPP
v Braun para 21). Sheldrake’s reliance on section 129(5) permitting an ex parte
approach does not assist them. The duty remains, even if statute permits an ex parte
application.
[34] Sheldrake attracted this duty. Its disclosure in the founding affidavit in the ex parte
application must be considered . The Court considers what was disclosed to the Court
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hearing the ex parte application. It appears that a sole paragraph is dedicated to this
where Ms Minnaar then tells the Court that -
“Kobus has launched proceedings in the Limpopo Division in which he seeks to have
the resolution of 28 October 2024 set aside. I attach a copy of the Notice of Motion
which is to be heard urgently on 10 December 2024.”
[35] That is the sole reference to the setting aside application in the Polokwane High Court .
Single and sole reference. This disclosure must be tested against Sheldrake’s duty of
utmost good faith to disclose material facts.
[36] Three categories of facts were not disclosed to the Court dealing with the ex parte
application.
[37] First, Sheldrake did not disclose to the Court that the registered business address and
main place of business was not in the Court’s jurisdiction. No explanation for this
failure has been presented. The ex parte Court was not made aware of this. Had it
been made aware of this, it would not have granted the relief sought.
[38] Second, Sheldrake did not disclose to the ex parte Court that the Minnaar parties
dispute that the jurisdictional fact for business rescue – that the business was in
distress had been proven – and instead it had been launched to abuse the moratorium
which business rescue offers.
[39] Some context is required. Ms Minnaar sought to place Sheldrake in business rescue
as she was having difficulty obtaining access to the bank statements, which rendered
the game on the farm at risk of survival . The Minnaar parties take issue , factually,
with Ms Minnaar’s expressed difficulties in access ing the bank statements. They
submitted that it would not be a herculean task for Ms Minn aar, as the sole member
of Sheldrake, to go to the local branch of the bank, death certificate in hand, and
obtain acc ess to the bank statements. Particularly in the local branch of Musina, this
would not be a task of great duration. The Minnaar parties do not believe Ms Minnaar’s
reason for seeking business rescue.
[40] In addition, they submit if it if were factually true, which they dispute, it is not legally
competent a basis for business rescue. Business rescue is for businesses in financial
distress – who are incapable of paying their debts, not for when there is a problem in
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accessing a bank account . Placing Sheldrake in business rescue is therefore not the
competent use of business rescue.
[41] In addition, the Minaar parties present evidence that Sheldrake is not, in fact,
financially distressed at all. The only creditor at the moment that the Minnaar parties
is aware of is SARS: with Sheldrake owing R 25 .00 to SARS. Ms Minaar describes
Sheldrake as handsomely solvent. In short, submits the Minnaar parties, there is no
distress, there is no harm of creditors not being paid and to refer to Sheldrake as in
financial distress is cynical. This was a central aspect of the proceedings setting aside
the business rescue in the Polokwane High Court. None of this was disclosed to the
ex parte Court.
[42] Third, Sheldrake believed that the ex parte application would render the setting aside
proceedings Polokwane High Court moot. Sheldrake’s attorney received the ex parte
order on 11 December 2024, the same day, a letter is penned to the Minnaar parties,
that the ex parte application is rendered moot, demanding the setting aside
proceedings be withdrawn and demanding punitive costs from the Minaar parties.
Sheldrake should have disclosed to the ex parte Court that Sheldrake believed that
the ex parte order would bring to an end, litigation to be heard in the same week in
the urgent court of another division . This would have been a material consideration
to the ex parte Court.
[43] No doubt, had the ex parte Court been informed that it was not only engaging in the
authorisation of a technical problem caused by the difficulty in obtaining Mr Minnaar’s
death certificate, but rather that it would be the end of opposed litigation in another
division, it would hav e at a minimum been a relevant consideration for the ex parte
Court.
[44] Among the factors which the court will take into account in the exercise of its discretion
to grant or deny relief to a litigant who has been remiss in his duty to disclose, are the
extent to which the rule has been breached, the reasons for the non -disclo sure, the
extent to which the court might have been influenced by proper disclosure, the
consequences, from the point of doing justice between the parties, of denying relief
to the applicant on the ex parte order, and the interest of innocent third parties such
as minor children, for whom protection was sought in the ex parte application (Averda
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South Africa (Pty) Limited v Unlawful and Unauthorised Individuals and Pickers
Traversing Property (19700/18) [2019] ZAGPJHC 221 para 16) .
[45] These factors weigh against Sheldrake. There are no reasons provided for the non -
disclosure – despite the Minnaar parties raising the failure to act in the utmost good
faith in the affidavit before this Court. The extent to which the court would have been
influenced is severe. Sheldrake failed to disclose the absence of the Court’s
jurisdiction to hear the matter. Had the Court known this it would have – without
considering anything else and regardless of any other issue – denied the relief sought.
[46] Sheldrake dedicates a single paragraph to reference that the Minnaar parties are
seeking to set aside the business rescue proceedings . This single paragraph fails to
disclose a host of facts, it is at best for Sheldrake a failure to disclose all relevant facts
and at worse, it was acting in bad faith .
[47] Had the material facts been disclosed, the ex parte Court would have been informed
that it is seeking to grant an order urgently on an ex parte basis, that would render
existing proceedings launched in another Division moot in circumstances where this
Division lacked jurisdiction.
[48] It matters not whether Sheldrake is entitled to the relief sought or not – that is an issue
which does not detract from this Court’s discretion to set aside an order on the basis
that the applicant in ex parte proceedings failed to adhere to its duty of utmost good
faith.
Intervention
[49] Sheldrake submitted that the Minnaar parties could not rely on Rule 6(12)(c) as the
rule permits a party “against who” an order was granted to apply for a reconsideration.
The argument is that the ex parte order was not granted against the Min naar parties
and was merely an order authorising Sheldrake to file a further resolution pertaining
to business rescue in terms of section 129(5)(b) of the Companies Act 2008.
[50] The rule was clearly intended to apply in contexts where relief was granted ex parte .
It is not only a party who was a respondent who can rely on Rule 6(12)(c) but any
party against who an order was granted. Rule 6(12)(c) is a safeguard against relief
obtained in urgent court behind an opponent’s back. It would defeat the purpose of
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Rule 6(12)(c) if it did not find application in ex parte proceedings – which are by nature
proceedings behind an opponent’s back.
[51] In any event, Sheldrake’s express position is that the ex parte order renders the
Minnaar parties’ existing litigation in the Polokwane High Court moot. It is unclear how
Sheldrake can in the same breath then contend that the ex parte order does not
operate against the Minnaar parties. Sheldrake’s argument in this regard is rejected.
[52] In any event, the Minnaar parties presented a solution to the argument, b y filing a
notice of intervention on behalf of the Minnaar parties in the reconsideration
application. It might be overly cautious as Rule 6(12)(c) does not require such an
order for intervention, but it has been brought out of an abundance of caution.
Sheldrake demurred regarding the timing, but did not formally oppose the leave to
intervene.
[53] The Minnaar parties were affected by the ex parte order. As the authorisation in s 129
has the impact of ending existing litigation launched by the Min naar parties , they
clearly had a direct and substantial interest.
[54] In these circumstances, the Minnaar parties have a direct interest in the proceedings
and the court granted the leave to intervene.
URGENCY
[55] There are several aspects of law that renders the reconsideration urgent.
[56] The first is that business rescue, to be effective, has to be speed y. It was especially
so enacted by Parliament and has been recognised as such by our courts.
[57] At an additional level, the Minnaar parties contend that a court without jurisdiction has
granted an order. This must be corrected immediately, particularly as it affects existing
litigation in another division. On this score, also, the matter is urgent.
[58] Lastly, Sheldrake has obtained an unfair advantage as a result of several material
non-dislsosure . In such a case, the Court must be astute and ensure that Sheldrake
be deprived, immediately, of any advantage resulting from such a breach of duty . This
requires the Court to consider the matter urgently.
COSTS
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Counsel for respondents : APJ Els SC
AA Basson
Instructed by : Krone & Associates Inc.
Date of hearing : 17 January 2025
Date of order: 17 January 2025
Date of request for reasons: 21 January 2025
Date of reasons : 31 January 2025