IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
(1) REPORTABLE :NO
(2) OF INTEREST TO OTHER JUDGES: NO
(~ REV~ED: YES
23 April 2025
DATE
In the matter between: SIGNATURE
NICOLAAS JOHANNES DE WET
MARIA CA TH RINA ORIANI-AMBROSINI
In re:
OLIVE TRADING COMPANY {PTY) LTD
and
KUYANDA COMMODITIES 34 CC tla BAFANA
PETROLEUM
(Registration number: CK2001/086230/23) /
Case No. 2024/024546
First Intervening Applicant
Second Intervening Applicant
Applicant
Respondent
1
JUDGMENT
NEUKIRCHER, J
[1] The Winkelhaak Verspreiders Bafana Group of Entities (the Group) conducts
business as a wholesaler of fuel. The various close corporations and companies within
the Group have been supplying over 20 million litres of fuel for over twenty years to its
approximately 2000 clients mainly in the agriculture and mining sectors, but to general
businesses as well. During/about 2019 the Group operated approximately 22
petroleum depots in Mpumalanga, Gauteng, Limpopo and North West Province.
[2] As things stand, Engen Petroleum Ltd (Engen) launched a liquidation
application against four of these and provisional liquidation orders were granted
against them on 26 July 2024 -these orders were granted in the Middelburg Division
of the Mpumalanga High Court. All these are opposed by the present Intervening
Applicants who hold (together) 50% of the member's interest of the various entities in
provisional liquidation. They also allege that they are creditors in each entity. None of
the provisional orders were granted in respect of the present respondent -a close
corporation known as Kuyanda Commodities 34 CC t/a Bafana Petroleum (Kuyanda).
[3] However, during April 2024, 04 Fuel Pty (Ltd) (Q4) launched liquidation
applications against two more close corporations in the Group of which Kuyanda is
one. These applications are pending in the Mpumalanga High Court and both are
opposed by the present Intervening Applicants.
2
[4] On 4 August 2024 and 6 September 2024, the present Intervening Applicants
launched applications to commence business rescue proceedings in respect of the
five provisionally liquidated entities. A sixth business rescue application was launched
in respect of Kuyanda.
[5] It was not argued, nor even suggested by the present applicant (Olive}, that the
provisions of s131 (1) and/or s131 (2) of the Companies Act 71 of 20081 (the 2008 Act)
had not been complied with.
[6] At present it is alleged that:
"2.19 An application has been launched to the Judge President of the Mpumalanga
High Court, Middelburg seat, for case management to commence in terms of the
practice directives of that court, the applications to be considered collectively in relation
to all of the entities by the same Presiding Judge. The Applicants applied for a
collective hearing in terms of their application ;
2.20 The application to the Presiding President in terms of the practice directives,
includes that the pending liquidation applications be case managed together with the
business rescue applications , in order to ensure compliance with the provisions of
section 131 in relation to the interaction between business rescue proceedings being
adjudicated upon first (in terms of section 131 (2)), and the outcome thereof being
determinative of the pending liquidation applications envisaged in section 131 (2);"
1 (1) Unless a company has adopted a resolution contemplated in section 129, an affected person may
apply to a court at any time for an order placing the company under supervision and commencing
business rescue proceedings.
(2) An applicant in terms of subsection (1) must-
(a) serve a copy of the application on the company and the Commission ; and
(b) notify each affected person of the application in the prescribed manner.
Lutchman NO and Others v African Global Holdings Pty (Ltd) and Others 2022 (4) SA 529 (SCA)
paragraph 28
3
(7] On 7 November 2024 Olive issued out summons against Kuyanda. The action
is defended and a plea and counterclaim was filed on 20 February 2025. Although I
will return to the issue later in this judgment, in the counterclaim the very agreement
which founds the basis of Olive's assertion that it is a creditor in terms of s345(1 )(a) of
the Companies Act 61 of 1973 (the 1973 Act), is disputed by Kuyanda.
(8] On 5 March 2024 Olive launched the present liquidation application against
Kuyanda in this Division2. The application is opposed by Kuyanda. There is also an
application for leave to intervene in the liquidation application by the two minority
members of Kuyanda (the Intervening Applicants). In response, Olive filed a Notice in
terms of Rule 6(5)(b)(iii)3 (sic) -no answering affidavit was filed.
[9] Thus, at the adjudication of this matter on 10 March 2025, the following issues
were argued:
a) whether the application for leave to intervene should be granted;
b) whether the business rescue proceedings in Mpumalanga suspended the
present liquidation application in terms of the provisions of s131 (6) of the
2008 Act;
c) whether the liquidation application should be transferred to the
Mpumalanga High Court, to be heard with the other liquidation
applications brought by Engen and Q4 and/or the business rescue
application.
2 This is because Olive argues that the principle place of business and chosen domicilium are situated
in Gauteng. It is common cause that Kuyanda's registration address is in Mpumalanga at the Farm
Platrond, district Standerton
3 It is clear that what Olive intended to do was file a notice in terms of Rule 6(5)(d)(iii) as the rule it cited
does not exist
4
This liquidation application
[1 O] The facts upon which Olive relies are not complex. It alleges that:
a) Olive and Kuyanda entered into a written Murabaha Fuel Trade
Agreement (the Agreement) on 24 February 2022. At the time, Kuyanda
was represented by a Mr Diedericks who purported to be the "owner and
director" of Kuyanda;
b) Olive would make an amount of money4 available to Kuyanda on certain
terms and conditions and subject to a certain limit;
c) Olive would then, through Kuyanda, purchase goods from a vendor at cost
price and would sell those back to Kuyanda at cost plus profit on deferred
payment terms5 pursuant to the execution of a Transaction Request and
an Offer letter;
d) Kuyanda would then be invoiced and was obliged to pay the amount due
on each deferred payment date.
[11] Olive alleges that it complied with the terms of this written agreement -
unfortunately Kuyanda did not. As a result, and after several demands , Olive served
a formal s345 demand6 on Kuyanda. In this, it demanded payment of the amount of
R9 209 967-91 from Kuyanda within the statutory three-week period, but Kuyanda
failed to pay.
[12] Olive states that Kuyanda's failure to pay the amount demanded "leads to the
only reasonable inference , namely that the respondent is unable to pay its debts within
the meaning of the 1973 Companies Act", that Kuyanda "is accordingly deemed and
4 Which the Agreement calls "the Investment"
5 Which was 30 days
6 In terms of the Companies Act, 1973 (the 1973 Act)
5
demonstrated to be unable to pay its debts" and that Kuyanda should be wound up on
this basis.
The Answering Affidavit
[13) The answering affidavit was filed on 3 June 2024. It is deposed to by one
Adriaan Evert Prakke (Prakke), a forensic chartered accountant who was instructed
by the Intervening Applicants to investigate the affairs of several entities within the
Group. The Intervening Applicants have both provided confirmatory affidavits.
[14] The background is that the Group was established in the early 2000's by Mr.
John Peter De Wet (De Wet). De Wet managed Kuyanda and several other entities
together with Pieter Blignaut Diedericks (Diedericks) each of whom had a 50%
interest.
[15] After De Wet passed away it was agreed that, given his experience and
involvement in the operations and administration of the Group, Diedericks would
continue in this role and would retain his 50% interest. The remaining 50% interest
would be equally shared between the Intervening Applicants.
[16) According to the Intervening Applicants, they invested approximately R43
million in cash in the Group. The agreement between them and Diedericks was that
they would be paid a dividend on this amount in the sum of R2 million each per year.
[17] However, during 2014 the wheels came off and Diedericks terminated his
communications with the minority members and "practically excluded them from the
operations of the entire business enterprise ", including that of Kuyanda.
6
[18] The allegation is made that by 2020/2021 there was tangible evidence that
Diederick was enriching himself "at a large scale". The investigation by Mr Prakke
revealed that, inter alia, the company profile indicates that the Group is "privately
owned by the main shareholder" ie Diedericks. This is incorrect as:
a) De Wet passed away on 12 November 2010 and according to his last will
and testament his estate was inherited in equal shares by each of the
Intervening Applicants;
b) Mr J de Wet (ie first Intervening Applicant) was registered as a member of
Kuyanda on 13 November 2004;
c) Ms Ambrosini (ie second Intervening Applicant) was registered as a
member of Kuyanda on 5 February 2013.
[19] Effectively , what this means is that when the Agreement was signed on 24
February 2022, both Intervening Applicants were existing minority members of
Kuyanda.
(20] Further "evidence" of Diedericks' alleged unlawful conduct was that:
a) he applied for a loan of R4 million as a credit facility from Porta Plant (Pty)
Ltd t/a Porta Verspreiders (Porta Plant) on 29 July 2020; the funds were
advanced to Kuyanda but not repaid to Porta Plant, and as a result, Porta
Plant is taking legal action against Kuyanda;
b) he cashed in and received the proceeds of all endowment policies that
were intended to secure repayment of investments in the Group to the
members , including Kuyanda;
7
c) he took out endowment policies with Discovery without the knowledge of
the Intervening Applicants in the name of "Kuyanda Commodities 34 CC"
-these were paid out without the Intervening Applicants knowledge and
co-operation;
d) he received remuneration greatly in excess of agreed dividends;
e) he failed to properly (or at all) consult (or consult with) the Intervening
Applicants on agreements or payments or receipt of monies which would
either directly profit him or encumber Kuyanda or pose a negative direct
financial obligation on either Kuyanda and/or the Intervening Applicants;
f) he breached his fiduciary duty towards Kuyanda and the Intervening
Applicants by failing to disclose financial benefits he personally received
from transactions he entered into without consulting and obtaining
consent of the majority of members ;
g) he withheld information material to the affairs of the company and
effectively shut the Intervening Applicants out of any decision-making
process and that his conduct was such that it constitutes a fraudulent non
disclosure.
[21] One such transaction , according to the Intervening Applicants, is the
Agreement. The Intervening Applicants argue that there was no meeting held between
them and Diedericks and there is no resolution adopted authorising him to enter into
that Agreement. As stated, the Agreement states that Diedericks is "the owner and
director" of Kuyanda -a fact not borne out by the CIPC records and is, in fact, untrue.
[22] In fact, it is alleged that the Agreement itself contains a condition precedent:
that there be compliance in accordance with schedule 1 which requires that a
8
resolution be obtained from the three members of Kuyanda, together with
documentary proof of compliance that Kuyanda committed itself to the terms of the
Agreement in a resolution which was legally adopted by the members.
[23] The Intervening Applicants also allege that the payment of R9 million is also
not reflected in Kuyanda's bank account and that there is not, nor was there, any
unanimous resolution taken by all three of Kuyanda's members authorising Kuyanda's
further encumbrance. The allegation is also made that, as result of Diederick's
conduct, s75(3)7 of the 2008 Act was breached and the Agreement is void ab initio.
[24] As much as Olive denies that this was a requirement, and argues that
"Diedericks possessed the requisite authority", it is not in a position to make that denial
as it does not possess knowledge of the arrangements or agreement between
Kuyanda's members regarding the day-to-day running of the entity or its financial
arrangements.
[25] Olive is, however, in possession of a suretyship signed by Diedericks to secure
the debt of Kuyanda. It was argued by the Intervening Applicants that Olive is not
without recourse as Diedericks he is personally liable to Olive in terms of s778 of the
2008 Act, as well as the suretyship he signed. As this is not an issue that I am required
to determine, nothing more need be said.
7 75(3) If a person is the only director of a company, but does not hold all of the beneficial interests of
all of the issued securities of the company, that person may not-
(a) approve or enter into any agreement in which the person or a related person has a personal financial
interest; or
(b) as a director, determine any other matter in which the person or a related person has a personal
financial interest, unless the agreement or determination is approved by an ordinary resolution of the
shareholders after the director has disclosed the nature and extent of that interest to the shareholders .
8 Which prescribes the liability of directors and prescribed officers
9
The application for leave to Intervene
[26] On 12 February 2025, not one month before this hearing, the Intervening
Applicants launched their application. The Notice of Motion seeks the following relief:
"1. That leave be granted to the Intervening Applicants to launch this interlocutory
application in the current and pending liquidation application of the Applicant in
the Gauteng High Court, Pretoria under the above case number;
2. That an order be granted that the liquidation application of the Applicant , is
hereby suspended in terms of section 131 (6) of the Companies Act No. 71 of
2008 until the Mpumalanga High Court has adjudicated upon the pending
business rescue by the Intervening Applicants' application of the Respondent in
the Mpumalanga High Court, the Middelburg Seat, under case number
*3927 /2024;
3. That an order be granted in terms of section 27 of the Superior Courts Act No.
10 of 2013 in terms of which this court orders that the application for liquidation
by the Applicant, Olive Trading Company (Pty) Ltd, of the Respondent Kuyanda
Commodities 34 CC, be removed to the Mpumalanga High Court, Middelburg
seat, to be adjudicated upon in that court;
4. That the costs of this interlocutory application , be costs in the liquidation
application."
[27] Although paragraph 1 of the Notice of Motion is, in my view, somewhat
inelegantly worded. it is clear from the papers, the heads of argument and the (limited)
argument on Prayer 1 that what both Intervening Applicants sought was their joinder
under Rule 12 as respondents to the liquidation application , as well as leave to launch
the interlocutory application set out in Prayers 2 and 3 of their Notice of Motion.
10
[28] It appears that one of the main reasons for the request for leave to intervene is
that Prakke9 unexpectedly passed away on 14 September 2024.
[29] As stated supra, it is common cause that the Intervening Applicants are owners
of 25% each (ie a total of 50%) of the membership interest in all the entities in respect
of which business rescue applications were launched, including Kuyanda. There was
also no argument presented that any of the business rescue applications had not been
properly commenced nor that the requirements set out in s131 of the 2008 Act, met.
[30] The Intervening Applicants allege that they have locus standi based on:
a) their members interest;
b) that they are creditors of Kuyanda and therefore have an interest in the
proceedings, their agreed dividends of R2,5 million per annum10 has
remained unpaid since 201411;
c) that they thus each have claims against the entities for the dividends
accrued to them but not paid.
[31] Rule 12 states:
"Any person entitled to join as a plaintiff of liable to be joined as a defendant in any
action may, on notice to all parties, at any stage of the proceedings apply for leave to
intervene as a plaintiff or a defendant. The court may upon such application make such
order including any order as to costs, and to give directions as to further procedure in
the action as to it may may seem meet."
9 Who has deposed to several affidavits, including the main answering affidavit before this court, and
other liquidation applications, as well as the Business Rescue application.
10 Being interest on their investment of R43 million
11 Which they allege has been established by a forensic accountant appointed by them
11
[32] In SA Riding for the Disabled Association v Regional Land Claims
Commissioner12 the Constitutional Court re-stated the test to be applied:
"[9] It is now settled that an applicant for intervention must meet the direct and
substantial interest test in order to succeed. What constitutes direct and substantial
interest is the legal interest in the subject-matter of the case which could be
prejudicially affected by the order of the Court. This means that the applicant must
show that it has a right adversely affected or likely to be affected by the order sought.
But the applicant does not have to satisfy the court at the stage of intervention that it
will succeed. It is sufficient for such applicant to make allegations which, if proved,
would entitle it to relief.
[1 O] If the applicant shows that it has some right which is affected by the order issued,
permission to intervene must be granted. For it is a basic principle of our law that no
order should be granted against a party without affording such party a pre decision
hearing. This is so fundamental that an order is generally taken to be binding on
parties to the litigation."
[33] The Intervening Applicants allege that they have a direct and substantial
interest in the subject-matter of the present dispute as they are minority members of
Kuyanda and creditors of Kuyanda.
[34] In Levay and Another v Van Den Heever and Others NNO13 the court stated:
"[20] In my view the conclusion in Rega/14 should not be confined to sole shareholders
or majority shareholders. A share in a company consists of a bundle, or conglomerate,
of personal rights entitling the holder thereof to a certain interest in the company, its
assets and dividends. Those rights include the right to attend and vote at meetings of
12 2017 (5) SA 1 (CC)
13 2018 (4) SA 473 (GJ)
14 Registrar of Banks v Regal Treasury Private Bank Ltd (under Curatorship) and Another (Regal
Treasury Holdings Ltd Intervening) 2004 (3) SA 560 (W)
12
shareholders. For this reason a minority shareholder does in my opinion have a
sufficient legal interest to intervene in a winding-up application in order to oppose it
and does not have to show an additional interest. This is consistent with Regal where
the court questioned the proposition that a shareholder must show an interest in
addition to his shareholding in order to be allowed to intervene."15
[35] In response to the application , Olive filed a notice in terms of rule 6(5)(d)(iii) in
which it takes the following points:
a) that the Intervening Applicants have not established any substantial
interest in terms where they should be or maybe joined to the proceedings;
b) that the fact that they have conceded that Kuyanda carries on business
within the court's jurisdiction means that they raise no cognizable claim,
even though all the other applications are presently pending in
Mpumalanga;
c) no proper case is made out to suggest that it is not convenient for this
court to exercise its jurisdiction over the application for liquidation and that
removal of the application to Mpumalanga at this late stage hampers the
efficient exercise of justice;
d) that only a liquidator has the authority to set aside any impeachable
dispositions, and insofar as the allegations exist that these exist, any
business rescue practitioner (BRP) would have no power to deal with this
at all. Thus liquidation is the more expedient and justifiable course of
action;
e) Kuyanda conducts business, hold its assets, and has its employees at its
Pretoria main place of business within the jurisdiction of this court and
15 Also: Shapiro v South African Recording Rights Association Ltd (Galeta Intervening) 2008 (4) SA 145
(W)
13
therefore it is convenient that the application for liquidation be heard within
this court jurisdiction;
f) s131 (6) of the 2008 Act does not automatically suspend this liquidation
application.
Is Olive's liquidation application suspended?
[36] This question flows from the provisions of s 131 (6) of the 2008 Act:
"(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."
[37] Olive does not argue that the business rescue proceedings in Mpumalanga
were not properly commenced16 -its argument is that that application does not
automatically suspend this liquidation application.
[38] The argument is that s131 (6) distinguishes between a business rescue
application and liquidation proceedings. It argues that in Absa Bank Ltd v Summer
Lodge (Pty) Ltd17 (Summer Lodge) Makhoba J aligned himself with the view of Van
Der Byl AJ in First Rand Bank Ltd v Imperial Crown Trading 143 (Pty) Ltd 18 (Imperial
Crown) where the court stated that for purposes of s 131 (6), liquidation proceedings
only commence by the granting of a liquidation order, whether provisional or final and
16 Engen Petroleum Ltd v Multi Waste (Pty) Ltd and Others 2012 (5) SA 596 (GSJ)
17 [2013] ZAGPPHC 554 paragraph 9-15
18 2012 (4) SA 266 (KZD)
14
that the provisions of s131 (6) do not suspend any liquidation proceedings prior to the
granting of a provisional or final order.
[39] However, in Standard Bank of South Africa v A-Team Trading CC19 (A-Team)
Ploos van Amstel J stated:
"[12] I regret to say that I find the reasoning of both judges in Summer
Lodge unpersuasive. They seem to have overlooked the fact that liquidation
proceedings are commenced by the launching of an application , and that subsection
(6) refers to liquidation proceedings 'by or against' the company. If a liquidation
application is dismissed the proceedings come to an end. That does not mean that the
application did not constitute liquidation proceedings. If a liquidation order is granted
the company is, in terms of section 348 of the Companies Act of 1973, deemed to have
been placed in liquidation when the application was launched. And the liquidation
proceedings continue until the order is discharged or the company is deregistered on
completion of the liquidation process. I think with respect that Van Der Byl AJ misread
section 348. It is not the liquidation proceedings which are deemed to have
commenced when the application was presented -it is the winding up of the company.
The reliance by Makgoba J on the dictionary definition of the words 'liquidation ' and
'proceeding ' is not helpful. The words are used together in section 131 (6) and they
must be understood in the proper context. By way of analogy, eviction proceedings in
every day practice commence with an application for an eviction order and include the
process of serving the eviction order and ejecting the unlawful occupant. I do not see
why it should be different in the case of liquidation proceedings."
[40] Olive's argument is that, as Makhoba J's judgment emanates from this Division,
this court is bound by it in accordance with the principle of stare decisis: a court is
19 2016 (1) SA 503 (KZP)
15
bound and must abide by and consistently apply its prior decisions and those of courts
of an equal or higher status unless they are patently flawed.
[41] In Director of Public Prosecutions , KwaZulu-Natal v Ndlovu20, the SCA
explained the principle thus:
"(24] Therefore , it is necessary to say something about the fundamental importance
of precedent and the doctrine of stare decisis. In S v Cock; S v Manuel, Pickering J,
who penned the unanimous judgment of the court, was cognisant of the intrinsic value
of precedent when he rightly noted that:
'a deviation from a Supreme Court of Appeal decision can only be justified on one of three
possible grounds. Firstly, where the case before the Judge is on the facts so distinguishable
that the rationes decidendi of the Supreme Court of Appeal does not find application , however
this requires a careful factual analysis and [is] a ground that must be ventured into carefully so
as not [to] undermine the principle of stare decisis on perceived differences that are more
contrived than real. Secondly a decision of the Supreme Court of Appeal can be deviated from
if it is rendered per incuriam. Per incuriam does not refer to an instance where a lower court
deems the Supreme Court of Appeal to have erroneously interpreted the law. It refers to the
situation where the Supreme Court of Appeal overlooked legislation governing the case.
Thirdly, a decision of the Supreme Court of Appeal is rendered nugatory or obsolete due [to]
subsequent legislative development.'
(25] And the Constitutional Court unambiguously tells us in Camps Bay Ratepayers'
and Residents' Association & another v Harrison and another that:
'Observance of the doctrine has been insisted upon, both by this court and by the Supreme
Court of Appeal. And I believe rightly so. The doctrine of precedent not only binds lower courts,
but also binds courts of final jurisdiction to their own decisions. These courts can depart from a
previous decision of their own only when satisfied that that decision is clearly wrong. Stare
decisis is therefore not simply a matter of respect for courts of higher authority. It is a
20 2024 (1) SACR 561 (SCA) para 24-26
16
manifestation of the rule of law itself, which in turn is a founding value of our Constitution . To
deviate from this rule is to invite legal chaos.'"
(42] I am of the view, for the reasons set out in A-Team -with which I respectfully
agree -that Summer Lodge and Imperial Crown were incorrectly decided. But even
were this view to be flawed, the SCA has put this issue to bed in Richter v ABSA
Bank21 (Richter) where it stated:
"[17] There is no sensible justification for drawing the proverbial 'line in the sand'
between pre and post final liquidation in circumstances where the prospects of success
of business rescue exist. The legislature did not do so and to restrict business rescue
to those cases in which a final winding up order has not been granted is inimical to the
Act."
(43] In my view, it is clear that, as the decision of Richter was decided after Summer
Lodge and Imperial Crown, it has overruled them.
(44] The main thrust of the argument centered around whether or not this liquidation
application was automatically suspended in terms of s131 (6) -in my view, it is. The
fact is also that the entire basis upon which Olive relies to found its liquidation
application is in dispute and forms the subject matter of a pending action, which also
means that a court would eventually decide whether Olive is a creditor or not.
[45] A brief overview of the thrust of the business rescue application pending in
Mpumalanga demonstrates the following prima facie facts:
21 2015 (5) SA 57 (SCA)
17
a) the application is one of six presently pending in that court in which it is
alleged that there are prospects of success to turn around the financially
parlous state of Kuyanda;
b) the Intervening Applicants rely on the provisions of s163(1 )(a) to (c), as
read with s163(2)(c) of the 2008 Act22 to found their complaint that, as
minority members, they were subjected to oppressive conduct by
Diedericks , that they are thus entitled to seek the remedy of business
rescue, especially as it is admitted that Kuyanda is in financial distress23;
c) that the Group has assets of approximately R180 million, four gully
operational depots (including that of Kuyanda) and that Kuyanda has
assets recently valued at R40 million;
d) thus there are prospects of success in the business rescue proceedings
via-a-vis Kuyanda.
[46] Although the business rescue application had been filed on Caselines, the
parties informed me that it was unnecessary to read it, and that the papers were
incomplete. I accept that the respondent and Intervening Applicants version in respect
of the business rescue application -as set out in the application before me -is not so
untenable or far-fetched24 that their version should be rejected. In my view, they have
thus demonstrated that there are prospects of success in the business rescue
22 163. ( 1) A shareholder or a director of a company may apply to a court for relief if-
(a) any act or omission of the company, or a related person, has had a result that is oppressive
or unfairly prejudicial to, or that unfairly disregards the interests of, the applicant; ... or
(c) the powers of a director or prescribed officer of the company, or a person related to the
company, are being or have been exercised in a manner that is oppressive or unfairly prejudicial
to, or that unfairly disregards the interests of, the applicant.
(2) Upon considering an application in terms of subsection (1 ), the court may make any interim
or final order it considers fit, including-
··· (c) an order placing the company under supervision and commencing business rescue
proceedings in terms of Chapter 6, if the court is satisfied that the circumstances set out in
section 131(4)(a) apply;
23 Section 163 as read with s 131 ( 4 )( a )(i) of the 2008 Act
24 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
18
proceedings and the liquidation proceedings should thus be suspended in terms of the
provisions of s 131 (6) of the 2008 Act.
Removal to Mpumalanga
[47] Olive argues that this Court has the jurisdiction to entertain the liquidation as
the principal place of business of Kuyanda is within this Court's jurisdiction, as are its
assets -this is admitted by Kuyanda. It argues that the court is seized with the matter
and should not, at the eleventh hour have to hear argument to remove the matter -
the removal would simply result in a waste of judicial resources and time in an already
strained court.
[48] In Goode, Durrant and Murray (SA) Ltd and Another v Lawrence25 (Lawrence)
the respondent applied for a transfer of the matter to the Durban and Coast Local
Division alleging that it would be more equitable and convenient for that Division to
hear the matter as:
a) the issues to be enquired into ie voidable dispositions had occurred in that
court's jurisdiction ;
b) the respondent , his wife and other witnesses resided there;
c) it was only the two applicants , apparently the remaining creditors of the
respondent , who resided out of the jurisdiction of that court, where there
was also certain other properties of the respondent.
[49] In granting the removal, the court stated that the question of convenience is
decided with reference to what happens after the order is granted and that:
25 1961 (4) SA 319 (W; at 330G
19
"It follows the moment that an order for sequestration is granted, that the Court granting
the order is vested with jurisdiction in regard to everything that follows upon the order;
all applications to Court and the Master's control of that estate is absolute and even
rehabilitation must be in that forum. On a consideration of the present facts, I must look
to the case made out by the applicant, not that made out by the respondent, because
I must look to the convenience in the event of an order being granted and not in the
event of an order being refused. I think that the convenience is overwhelming in favour
of the Durban and Coast Local Division. The matters to be enquired into occurred in
the jurisdiction of that Court; the respondent and his wife who will have to be examined ,
reside there; their witnesses reside there; and on the other hand, the two applicants,
apparently the only remaining creditors of the respondent , reside out of the jurisdiction
of that court, and it is said that their convenience is of importance because they will
have to give instructions to the trustee. No doubt the affairs of Windsor Motors will
have to be enquired into and the records of those affairs are within this jurisdiction , but
that I did not find inconvenient. In practice one knows from experience that creditors
have very little to do with what happens after an order of sequestration has been
granted; they give verbal or written instructions to the trustee and he proceeds to carry
on with the investigation. The records of the liquidation of Windsor Motors can easily
be transmitted to the other Court, I have come to the conclusion that everything paints
to it being equitable and convenient that not this Court but the Durban and Coast Local
Division should hear the matter."
[50] Olive argues that the Lawrence judgment as authority that "if there was
competition between the jurisdiction of two provinces and in the one province there was little
or no assets, and in the other large assets, the court would certainly refuse sequestration in
the Province where the smaller assets were to be found ... "
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[51] In my view, were it not for the fact that the Mpumalanga High Court were seized
with multiple liquidation applications and multiple business rescue applications, all
based on either the same or similar facts, where all those parties are already before
that court and that court's jurisdiction engaged on multiple levels26, I may have agreed
that the issue of convenience should be decided in favour of this court's jurisdiction -
but I do not. In my view, given everything that is presently pending, the present
application should be decided by the Mpumalanga High Court.
[52] In my view, the matter in casu is distinguishable on the facts from the Lawrence
matter exactly because there are pending proceedings against several entities within
the Group, as well as against Kuyanda in Mpumalanga . The Mpumalanga court is
seized with all these applications and the facts germane to each, which all appear to
be intertwined -certainly the facts pertaining to the two Kuyanda applications are.
Were this application to be transferred , the Mpumalanga court can hear both
applications pari passu and may decide (if it dismisses the business rescue
application) to grant a liquidation order -it can only do so if both applications serve
before it.
[53] Were Olive's objection to transfer to be upheld it would also mean that, if
Kuyanda's business rescue application is unsuccessful, Olive would have to apply for
a date of hearing in this Division and wait its turn in the queue and a judge (unfamiliar
with all the facts of all the matters) would have to consider the application. That is not
conducive to the efficient and effective disposal of litigation. It unnecessarily
encumbers scarce judicial resources and enforces a piece-meal disposal of litigation
which is undesirable.
26 Including that the registered address is in Mpumalanga
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(54] As a judge has been appointed to case-manage all the pending applications in
Mpumalanga, it is my view that Olive's liquidation application would be both more
conveniently , expediently and appropriately heard and determined in the Mpumalanga
High Court, Middelburg in terms of s27(1) of the Superior Courts Act 10 of 201327•
Costs
(55] The Intervening Applicants have not sought costs in the in the event they are
successful. They seek an order that the cost of the interlocutory application be costs
in the liquidation application.
The Order
[56] The order I grant is the following:
1. The Intervening Applicants are granted leave to intervene and are granted
leave to launch the interlocutory application in the pending liquidation
application launched by Olive Trading Company (Pty) Ltd against
Kuyanda Commodities 34 CC t/a Bafana Petroleum (GP case no.
2024/024546).
2. The liquidation application of the applicant is hereby suspended in terms
of s131 (6) of the Companies Act 71 of 2008 until the Mpumalanga High
Court has adjudicated upon the pending business rescue application
27 If any proceedings have been instituted in a Division or at a seat of a Division, and it appears to the
court that such proceedings-
{a) should have been instituted in another Division or at another seat of that Division; or
(b) would be more conveniently or more appropriately heard or determined-
(i) at another seat of that Division; or
(ii) by another Division,
that court may, upon application by any party thereto and after hearing all other parties thereto, order
such proceedings to be removed to that other Division or seat, as the case may be.
22
launched by the Intervening Applicants against Kuyanda Commodities 34
CC t/a Bafana Petroleum (case no. 3927/2024).
3. The application for liquidation of Olive Trading Company (Pty) Ltd vs
Kuyanda Commodities 34 CC t/a Bafana Petroleum (GP case number:
2024/024546) is removed to the Mpumalanga High Court, Middelburg in
terms of s27 of the Superior Courts Act 10 of 2013, to be determined by
that court.
4. The costs of the interlocutory application shall be costs in the liquidation
application.
B NEUKIRCHER
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was prepared and authored by the judge whose name is reflected, and
is handed down electronically by circulation to the parties/their legal representatives
by email and by uploading it to the electronic file of this matter on Caselines. The
date for hand-down is deemed to be 23 April 2025.
For the applicant
Instructed by
For the respondent and
Intervening Applicants
Instructed by
Matter heard on
Judgment date Adv M Desai
Govender Patel Dladla Inc
Adv MA Badenhorst SC
Eastes Inc
12 March 2025
23 April 2025
23