IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024 /013591
In the matter between:
TABRAZ ENTERPRISES (PTY) LIMITED T/A COPPER CHIMNEY Applicant
[Registration Number : 2015/366142/07]
And
KITTY NAICKER PROPERTY HOLDINGS CC T/A WATERFALL Respondent
CENTRE
[Registration Number : 1998/010558/32]
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 05 May 2025
Signature: _
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JUDGMENT
NYATHI J
A. INTRODUCTION
[1] This is an urgent application for the rescission of a provisional liquidation order
granted on 3 F ebruary 2025, alternatively, for the suspension of the said order
pending its return date .
[2] The application is opposed both on the basis of urgency and on the merits.
[3] The appl icant contends that the matter is urgent because there is a pending
action before the Randburg Magistrate between the same parties over the
payment of fees. The respondent has approached the court prematurely before
the Magistrate’s court makes a determination on the indebtedness of the
applicant or otherwise.
[4] Furthermore, if the applicant were to wait for the return date, it would be
tantamount to acquiescence to the granting of the provisional liquidation order
and render its eventual withdrawal academic in nature.
[5] In opposition to the application, Mr. Van Schalkwyk submitted that:
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5.1 The respondent does not take issue with urgency. The
submission is made based on the lack of merit in both the main
relief as well as the alternative relief.
5.2 That the rescission cannot succeed. The applicant's reliance on
Rue 42 of the Uniform Rules of Court is misplaced.
5.3 the alternative relief can also not succeed for the following
reasons:
5.3.1 First, the applicant does not have the requisite locus standi.
5.3.2 Second, the applicant has not cited the Master. The property of the
applicant vests in the Master until such time as a provisional liquidator
is appointed.
5.3.3 Third, even if it is found that the applicant has the requisite locus
standi and that the applicant has joined the relevant and necessary
parties (and given notice to the relevant parties), the applicant has no
right to seek the relief it seeks.
5.3.4 Fourth , the applicant has not satisfied the requirements for interim
relief .
5.4 It is submitted that the applicant has launched a hopeless case.
In circumstances where a hopeless case is pursued, the legal
practitioners ought to be held accountable. This consideration is
amplified by the fact that the applicant is litigating with mone y
belonging to the concursus (and which currently vests in the
Master as aforesaid).
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B. MAIN RELIEF
[6] The applicant ’s main relief is a rescission based on the provisions of Uniform
Rule 42(1)(a). Rule 42 (1)(a) reads as follows :
“42 Variation and rescission of orders
(1) The court may, in addition to any other powers it may have, mero motu or
upon the application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby; ” [emphasis added]
[7] For the applicant to become entitled to the relief it seeks, it must therefore prove
that (a) an order was granted in its absence and (b) an error was committed by
the court . In this regard the Constitutional Court decision of Zuma v Secretary of
the Judicial Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector Including Organs of State1 is instructive on the
meaning of the absence requirement :
The words "granted in the absence of any party affected thereby", as they exist in
rule 42(1)(a), exist to protect litigants whose presence was precluded, not those
whose absence was elected. Those words do not create a ground of rescission
for litigants who, afforded procedurally regular judicial process, opt to be absent.
[8] In the instant case, the applicant was aware that the matter had been set down
for 3 February 2025. Moreover, the applicant's legal representatives had the
1 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the
Public Sector Including Organs of State 2021 (11) BCLR 1263 (CC):
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contact details of the respondent's legal representatives and could easily have
made contact with Madam Justice Khumalo's secretary.2
[9] Additionally, the applicant failed to file heads of argument and chose not to
participate further in the matter.
[10] Quite importantly, the applicant’s defence was considered before the order was
granted.
[11] As regards the second requirement, it was submitted that the applicant’s entire
defence was premised on the allegation that its legal representatives had
limited/restr icted access to the Caselines filing system . This has been
substantively denied by the respondent .
[12] In Bakoven Ltd v GJ Howes (Pty) Ltd 1992 (2) SA 466 (E) , Justice Erasmus held
at 371E -F that:
"An order or judgment is 'erroneously granted" when the Court commits an 'error' in
the sense of a 'mistake in a matter of law (or fact) appearing on the proceedings
of a Court of record' (The Shorter Oxford Dictionary). It follows that a Court in deciding
whether a judgment was 'erroneously granted' is, like a Court of appeal, confined to the
record of proceedings."
[13] On the facts of this matter, the applicant has not made out a case for the main
relief sought.
C. ALTERNATIVE RELIEF
Locus standi
2 Submissions on behalf of the respondent and annexures attached.
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[14] It is the respondent’s contention that the applicant does not have the requisite
locus standi to seek the alternative relief.
[15] Upon a winding -up order being granted against a company , whether provisional
or final, a director's duties cease to exist, save for special residuary powers. The
residual powers are limited and include (a) the right to anticipate a provisional
order in terms of Section 11(3) of the Insolvency Act, 24 of 1936, (b) the right to
appeal and the right to launch a rescission application.
[16] Section 354 of the Companies Act, 61 of 1973 ("the 1973 Act") states:
"354. Court may stay or set aside winding -up –
(1) The Court may at any time after the commencement of a winding -up, on the
application of any liquidator, creditor or member, and on proof to the satisfaction of
the Court that all proceedings in relation to the winding -up ought to be stayed or set
aside, ma ke an order staying or setting aside the proceedings or for the continuance
of any voluntary winding -up on such terms and conditions as the Court may deem
fit.
(2) The Court may, as to all matters relating to a winding -up, have regard to the wishes
of the creditors or members as proved to it by any sufficient evidence."
[17] If regard is had to the founding affidavit, it is apparent that the application is
launched by the applicant company, i.e. its board of directors. It is submitted that
the board does not have the requisite locus standi to launch the proceedings for
the alternative relief.
[18] The founding affidavit is by the applicant's legal representative, Mr Busani Lucky
Nkuna , no confirmatory affidavit is filed. A Rule 7 challenge regarding authority
to litigate remains unanswered as at the hearing date.
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[19] The omission or failure to cite the Master as a party is massively problematic to
the applicant’s case . The applicant’s property vests in the Master “until a
provisional liquidator has been appointed and has assumed office.”3
[20] Concerning the right which the applicant seeks to protect, that right does not
exist by virtue of the effect of the provisional order of winding -up. The director's
duties have ceased to exist.
[21] As regards irreparable harm, the applicant will not suffer this because it will have
an opportunity to oppose the proceedings on the return date of 02 June 2025.
[22] A further alternative and adequate legal remedy is that the applicant may
anticipate the return date under section 11(4) of the Insolvency Act, 24 of 1936.
[23] On the issue of costs of this application , which is premised to fail having regard
to the foregoing reasons, costs generally follow the results. Punitive costs may
be granted in view of the established principles where the application was
pursued unnecessarily at the court’s discretion, judicially exercised.
[24] The following order is made:
The app lication is dismissed. The applicant to pay the costs of the application to
be taxed at scale B.
___
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
3 Section 361 of the 1 973 Act.
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Date of hearing: 18/02/2025
Date of Judgment: 05 May 2025
On behalf of the Applicant : Adv. R. Baloyi
Instructed by: BL Nkuna Attorneys, Pretoria
On behalf of the Defendants: Adv. R. Van Schalkwyk
Instructed by: Kally & Co Inc., Pretoria
Delivery : This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand -
down is deemed to be 05 May 2025.