THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1132 /2023
In the matter between:
RESILIENT ROCK (PTY) LTD APPELLANT

and

VOLTEX (PTY) LTD T/A ATLAS GROUP RESPONDENT

Neutral citation: Resilient Rock (Pty) Ltd v Voltex (Pty) Ltd t/a Atlas Group
(1132/2023) [2025] ZASCA 33 (31 March 2025)

Coram: MBATHA, KATHREE -SETILOANE and BAARTMAN JJ A and
VALLY and MOLITSOANE AJJA

Heard : 24 February 2025
Delivered : 31 March 2025
Summary: Insolvency law – section 347(5) of the Companies Act 61 of 1973 –
whether an appeal court ha s jurisdiction to grant a final winding -up order, where a
provisional order had already been granted by another court in respect o f the same
company – section 347(5) precludes another court from granting such an order.

2


ORDER


On appeal from: Gauteng Division of the High Court, Johannesburg (Mudau,
Keightley JJ and Farber AJ sitting as court of appeal):
1 The appeal succeeds with costs , including the costs of senior counsel where so
employed .
2 The order of the full court is set aside and replaced with the following:
‘The appeal is dismissed with costs , including the costs of senior counsel where
so employed .’


JUDGMENT

Vally A JA (Mbatha, Kathre e-Setiloane and Baartman JJA and Molitsoane
AJA concurring):

[1] The appeal in this matter relates to whether an appellate court can grant a final
winding -up order in a proceeding against a company where another court has already
granted a provisional order against the same company.

[2] The respondent, Voltex (Pty) Ltd t/a Atlas Group (Voltex) brought an
application for the liquidation of the appellant , Resilient Rock (Pty) Ltd (Resilient)
on the grounds that Resilient was unable to pay its debts. The high court per
Movshovich AJ found that Voltex failed to prove that Resilient was commercially
insolvent, that the debt was due and payable , and that Resilient had no defence to
the claim of Voltex. On th ese findings, the high court dismissed the application.
3

Voltex applied for leave to app eal the order , which was dismissed by the high court.
Voltex subsequently petitioned this Court for leave to appeal . This Court granted it
leave to appeal to the full court. The full court , per Mudau J with Keightley J and
Farber AJ concurrin g, took a different view and placed Resilient under a final
winding -up order . Aggrieved , Resilient applied to this Court for special leave to
appeal the order of the full court . The matter serves before us with the leave of this
Court.

[3] On 17 January 2 023 another Resilient creditor , Trencon Construction (Pty)
Ltd (Trencon) , applied to the high court for an order winding -up Resilient . On 9 May
2023 the high court handed down its judgment and order in Trencon . It provisionally
wound -up Resilient and issued a rule nisi , return able on 13 June 2023 . On 31 May
2023 , Voltex’s appeal was heard by the full court . At the hearing Resilient applied
for the postpone ment of the matter as the high court had already issued a provisional
winding -up order in Trencon . The application for postponement was supported by
Voltex. However, o n 8 June 2023 t he full court made an order finally winding -up
Resilient . The issuing of the final order led to the removal of the Trencon application
from the roll.

[4] Resilient contended before the full court that it lacked the jurisd iction to issue
a final winding -up order as Re silient was already being wound -up in terms of the
provisional order issued in Trencon . It relied on the provisions of s 347(5) of the
Companies Act 61 of 1973 (the 1973 Act), which provides as follows:
‘The Court shall not grant a final winding -up order in the case of a company or other body
corporate which is already being wound up by or der of Court within the Republic.’
4

Resilient sought support i n the judgments of King Pie Holdings (Pty) Ltd v King Pie
(Pinetown) (Pty) Ltd, King Pie Holdings (Pty) Ltd v King Pie (Durban) (Pty) Ltd1
(King Pie ), Pat Cornick & Co (Pty) Ltd; Bakker & Steyger (1960) (Pty) Ltd v
Mimosa Meubels (Edms) Bpk (Pat Cornick and Co),2 Ex parte WJ Upton Transport
(Pty) Ltd; Man Truck & Bus (SA) (Pty) Ltd v W J Upton Transport (Pty) Ltd (WJ
Upton Transport )3 and FA Konstruksie CC Mhonyini Trading Enterprise CC In Re:
Asphaltic (Pty) Ltd v Mhonyini Trading Enterprise CC (FA Konstruksie) .4 The
principles set out in the aforementioned cases were central to the argument presented
in this appeal.

[5] First, in King Pie , King Pie Holdings (KPH ) applied for the compulsory
winding -up of King Pie (Pinetown) (KPP) and King Pie (Durban) (KPD) on 19
February 1998. On 28 May 1998, the members of KPP and KPD , taking advantage
of the provisions of s 351 of the 1973 Act,5 resolved to place each of them in
voluntary winding -up. The resolutions were duly registered on 1 June 1998. On the
other hand, t he application for compulsory winding -up was heard on 3 June 1998.
King Pie Holdings (KPH ) contended that the fact that the two entities were
voluntarily wound -up was no bar to the grant ing of a compulsory winding -up order.
The court issued provisional winding -up order s in each application , and set asi de the
voluntary winding -up orders . On the return date , the liquidator appointed in terms

1 [1998] 4 All SA 179 (D) ; 1998 (4) SA 1240 (D).
2 1961 (4) SA 119 (T).
3 1985 (1) SA 312 (W).
4 [2022] ZAMPMBHC 59.
5 Section 351 provides:
‘Creditors ’ voluntary winding -up
(1) A voluntary winding -up of a company shall be a creditors ’ voluntary winding -up if the resolution contemplated
in section 349 so states, but such a resolution shall be of no force and effect unless it has been registered in terms of
section 200.
(2) Unless otherwise provided, in a creditors ’ voluntary winding -up the liquidator may without the sanction of the
Court exercise all powers by this Act given to the liquidator in a winding -up by the Court subject to such directions
as may be given by the creditors. ’
5

of the voluntary winding -up opposed the provisional winding -up orders being made
final. The court held that there was no bar to proceeding with the compulsory
winding -up and that it had a wide discretion to set aside the voluntary winding -up,
where necessary . In making the final order the court stated that incidents of two
winding -up applications being brought simultaneously was not unusual . The full
court agreed with this, but did not deal with the holding that only one winding -up
order can be given. It held that King Pie was of no assistance in determining whether
a court is prohibited from issuing a winding -up order against a company that has
already b eing wound-up in terms of a provisional winding -up order.

[6] Second, in Pat Cornick and Co , two applications f or a winding -up of a
company were brought simultaneously in the same court and heard on the same day.
The court held that ‘[i]t is, nevertheless, now established practice and quite clear that
I can grant one petition only ’.6 The full court accepted that the court in Pat Cornick
and Co acknowledged that two provisional liquidation orders cannot be issued, but
distinguished th at case from the present one in the following terms:
‘[Pat Cornick ] related to two simultaneous competing applications, which had been enrolled for
hearing by a High Court on the same day. This is not the situation facing the court in this appeal.
The court accepted that two provisional orders should not be granted. Howe ver, the court in Pat
Cornick was not required to and, …did not address the effect of a retrospective order on appeal on
an existing provisional order.’7
It further distinguished Pat Cornick and Co from the case before it on the basis that
it was an appellate court whose decision would have a retrospective effect .

[7] Third, in WJ Upton Transport the court dealt directly with the issue of whether
a court is entitled to make an order liquidating a company when a provisional

6 Pat Cornick and Co fn 5 at 121D.
7 Voltex (Pty) Limited t/a Atlas Group v Resilient Rock (Pty) Ltd [2023] ZAGPJHC 675 (Full court decision) para 29.
6

liquidation order against that very same company is already in place . It held that it
was not . The full court took the view that this case was not helpful as it dealt with
‘competing liquidations’ whereas that was not the case before it . It held that it was,
in any event, exercising ‘ an appellate jurisdiction and is not precluded from doing
so by virtue of the existence of a provisional order.’8

[8] Lastly, in FA Konstruksie the court dealt with a situation where there was a
provisional winding -up order as well as a final one, issued by the same court against
the same company but in two separate cases . The court was called upon t o confirm
the provisional order. The court conclu ded that the FA Konstruksie order should not
have been issued and decided to set it aside. The provisional order was made final.

[9] The full court , with respect, did not understand the rationale for the decision
in FA Konstruksie to be an impediment to the issuance of a final winding -up order
by itself , despite the existence of the provisional one iss ued in Trencon . The full
court distinguished FA Konstruksie on the basis that the court dealt with two
applications in the same court, whereas it was sitting as a court of appeal . It said in
this regard:
‘Importantly, when a matter is taken on appeal as in this instance, the appeal is against the High
Court. If the appeal is upheld, the effect of the order on appeal is to substitute the order given by
the appeal court for the order given by the court of first instance. ’9
It found further that as an appeal court it would be deciding the matter on the facts
that existed at the time the high court , as the court of first instance , dealt with the
matter , and not on the facts as they appeared at the time of the appeal before it. The
full court dealt with the matter on the basis that the order in Trencon did not exist

8 Full court decision para 30.
9 Full court decision para 32.
7

because at the time the high court dealt with the matter the order in Trencon had not
been made. In doing so i t relied on Weber -Stephen ,10 which held:
‘… this Court in deciding an appeal decides whether the judgment appealed from is right or wrong
according to the facts in existence at the time it was given and not according to new circumstances
which c ame into existences afterwards.’11

[10] The full court’s reliance on Weber -Stephen is misplaced for the following
reasons:
1 First, on a plain reading of s 347(5), the court was obligated by the legislature
to take the new fact of the existence of the order in Trencon into account;
2 Second, in Weber -Stephen this Court was faced with an application to adduce
new evidence , which concerned facts that were not present when the matter was
called in the high court . In this case , there was no such application .
3 Third, i t was required to take into consideration the order in Trencon as that
order was relevant to the issue before it.
4 Fourth, the Trencon order had a practical effect on the appeal in that it affected
the date when the concursus creditorum was established.
5 Finally, a court is enjoined to enquire into the practical effect of the order it is
asked to make. In other words, to inquire if the matter is moot or not. 12

[11] The full court rejected the established law that a court is prohibited by s 347(5)
from issuing a winding -up order against a company if it is already in the process of
being wound -up. It concluded that as an appellate court it was entitled to issue a n
order which would have retrospective effect . As a result , it held that the prohibition

10 Weber -Stephen Products Co v Alrite Engineering (Pty) Ltd & Others 1992 (2) SA 489 (A).
11 Ibid at 507C
12 See Public Investment Corporation SOC Ltd and Another v Trencon Construction (Pty) Ltd and Another [2023]
ZASCA 88; 2024 (1) SA 66 (SCA) para 9.
8

did not apply to it. The full court disregarded the plain meaning of the word s in
s 347(5) in arriving at this conclusion .

[12] At the hearing, counsel for Resilient referred u s to Standard Bank of South
Africa Limited v Khewija Engineering and Construction (Pty) Ltd (Khewija)13 and
to Eamonn Courtney v Izak Johannes Boshoff NO and Others (Eamonn Courtney) .14
Khewija served before the high court shortly after the full court deliver ed its
judgment . The facts in Khewija are similar to the facts in this case. In that matter the
court held that the full court’s decision cannot be relied upon to avoid the provisions
of s 347(5).15 It accordingly held t hat it was disbarred by the provisions of s 347(5)
from issuing any winding -up order. The finding is consistent with the authorities
referred to above. Eamonn Courtney dealt with the situation where a court in an
unopposed application made a final sequestration order when no provisional order
was in place. Two years after the order was made Mr Courtney decided to challenge
the final order of sequestration on the basis that it was a nullity and was ‘void ab
initio’ as it was made without a provisional sequestration order being in place. This
Court held that while the court that issued the final sequestration order did so without
a preceding provisional sequestration order being in place, its order ‘exists in fact
and may have legal consequences until a court sets it aside. …Therefore, [it]
continued to operate and had force and effect’ .16 Eamonn Courtney is of no
assistance to Voltex: it does not detract from the findings in all the authorities cited
above that s 347(5) prohibits a court from issuing a final winding -up order against a
company that is already being wound -up in terms of an order that is already in place.
On the contrary, it supports the case of Resilient that the order in Trencon had ‘force

13 (2022/16061) [2025] ZAGPJHC 5 (10 January 2025) .
14 (483/2023) [2024] ZASCA 104 (21 June 2024).
15 Khewija fn 13 para 18.
16 Eamonn Courtney fn 14 para 24. See the cases cited therein in support of this principle.
9

and effect’ when the full court heard the appeal as a result of which the provisions
of s 347(5) could not be avoided.

[13] Section 347(5) expressly prohibits a court from granting a final winding -up
order in relation to a comp any that is already being wound -up. The words used , ‘[t]he
Court shall not grant a final winding -up order’, make it crystal clear that the
prohibition is peremptory . The trite principles of interpretation require the court to
consider the text, context and purpose of the statute in ascertaining the intention of
the legislature.17 In the present case, the plain, or rather natural, meaning of the words
used, reveals that the injunction imposed on the court is absolute. It is noteworthy
that the provision does not restrict its application to a court of first instance dealing
with a winding -up application. It applies equally to a court of appeal. This much is
clear from the definition of court in the 1973 Act, which is as follows:
‘“Court ”, in relation to any company or other body corporate, means the Court which has
jurisdiction under this Act in respect of that company or other body corporate, and, in relation to
any offence under this Act, includes a magistrate’s court having jurisdiction in respect of that
offence.’

[14] Accordingly, the full court was required to give effect to the legislative intent
by either postponing the appeal as sought by both Resilient and Voltex , or by striking
it off from the roll on the ground that it was moot . The order sought by Voltex had
already been granted by the court in Trencon , which order remained extant. The
upshot of this is th at by failing to give effect to the prohibition set out in s 347(5) the
full court fell into error , which resulted in an incorrect order.


17 See Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC) ; 2014 (8) BCLR 869
para 28.
10

[15] In conclusion, I find that s 347(5) disbarred the full court from issuing a
second winding -up order. Accordingly , the appeal succeed s with costs .

[16] For all the reasons set out above, the following orders are made:
1 The appeal succeeds with costs , including the costs of senior counsel where so
employed .
2 The order of the full court is set aside and replaced with the following:
‘The appeal is dismissed with costs , including the costs of senior counsel where
so employed .’



______________________
B VALLY
ACTING JUDGE OF APPEAL

11

Appearances

For the appellant : J L Mÿburgh (with B H Steyn)
Instructed by: Rina Rheeders Attorneys, Pretoria
McIntyre van der Post Attorneys, Bloemfontein

For the respondent : S Symon SC (heads of argument complied by S
Symon SC and N Segal)
Instructed by: Orelowitz Inc Attorneys, Johannesburg
Lovius Block Inc., Bloemfontein .