SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO.: 2427/2020
REPORTABLE
In the matter between:
G[...] D[...] Applicant
and
G[...] J[...] D[...] 1st Respondent
JOHAN DU TOIT N.O. 2nd Respondent
PETER COWEN 3rd Respondent
PCOWEN HOLDINGS (PTY) LTD 4th Respondent
DISRUPTIVE VISION (PTY) LTD 5th Respondent
INVESTEC BANK LIMITED 6th Respondent
ALL OTHER CREDITORS OF DISRUPTIVE VISION
(PTY) LTD 7th Respondent
1TEC INVESTMENTS (PTY) LTD 8th Respondent
CIPC 9th Respondent
KATHEA ENERGY (PTY) LTD 10th Respondent
IN RE
G[...] D[...] (previously D[...]) Plaintiff
And
G[...] J[...] D[...] 1st Defendant
G[...] J[...] D[...] N.O. 2nd Defendant
G[...] D[...] N.O. 3rd Defendant
NICHOLAS GORDON ALP N.O. 4th Defendant
PAUL WARWICK SPENCER N.O. 5th Defendant
MOORE STEPHENS WK TRUST AND
ESTATE PLANNING (PTY) LTD N.O. 6th Defendant
Herein represented by JOHANNES MARTHINUS
WILHELM VIVIERS
THE MASTER OF THE HIGH COURT
PRETORIA, GAUTENG 7th Defendant
JUDGMENT
GQAMANA J
[1] This application is brought in terms of Rule 6(12)(c) of the Uniform Rules of Court
for the reconsideration of the order granted by this Court1 on 24 June 2025. It is brought
by the employees of the fifth respondent and certain creditors of the seventh
respondent.2
[2] As a brief background, the applicant and the first respondent are involved in an
acrimonious divorce proceeding which are still pending before this Court. Amongst the
hotly contented issues in that action is the maintenance of the applicant and the minor
children as well as the proprietary consequences of their marriage. The applicant
contends that in or during 2021, she came across a document authored by the first
respondent entitled ‘plan of attack’ which explained a strategy by the latter to ensure
that she would not be the children’s primary carer and that she would be rendered
financially destitute. The applicant believes that the first respondent has consistently
executed such ‘plan of attack’ in the divorce proceedings. In the divorce proceedings
the applicant has obtained two orders in terms of Rule 43 for interim maintenance for
her and the minor children and for payment of other welfare expenses, inter alia, school
fees, accommodation and their medical expenses. Despite the existence of the Rule 43
orders, the first respondent has consistently failed to comply with them and
1 per Makaula J.
2 Their names and full details are as listed in annexures A1 and A2 attached to the Notice in terms of Rule
6(12) (c).
consequently he was found guilty of contempt of court on 27 March 2025.3 The first
respondent was ordered to comply with the Rule 43 orders or to face a penal sanction.
[3] The applicant contends that the first respondent in an attempt to circumvent the
contempt order, he resolved on 16 April 2025 to place the fifth respondent in business
rescue and has also applied to voluntary surrender his estate. Although she was aware
during April 2025 that the fifth respondent is in business rescue but, she only received
the business rescue plan on 13 June 2025. Simultaneously she became aware of the
contemplated meeting of creditors in terms of s 151 and 152 of the Companies Act
which was scheduled for 24 June 2025. On the basis of that information, she brought
the urgent application seeking an order inter alia, the suspension of the business rescue
process, the postponement of the section 151 creditors meeting, the suspension of the
implementation of the business rescue plan pending the final determination of her
anticipated review application. Only two of the fifth respondent’s creditors were served
with that application before the hearing, although the notice refers to the seventh
respondent as being “All other creditors of Disruptive Vision Pty Ltd.” The Uniform Rules
of Court make provision for an urgent reconsideration of the order granted on 24 June
2025.
[4] It is common cause that the opposing affected persons were not served and
joined in the application before it was heard. But before I engage with the legal
principles dealing with reconsideration and the submissions by both Counsel, it is
necessary to briefly mention the nature of the fifth respondent’s business operation.
[5] The fifth respondent has been in operation since 2016 as an importer and
distributor of solar energy infrastructure and components. Its business structure has two
divisions, the residential and commercial divisions. The residential side of the business
distributes the products suitable for use in houses and the commercial side focuses on
suitable solar energy generation and backup power solution for commercial and
3 per Ellis AJ’s judgment.
industrial infrastructure with high electricity demand. However, in 2023 and 2024 the
fifth respondent experienced significant trading losses and as a result it was placed in
business rescue in April 2025. The second respondent was appointed as its business
rescue practitioner (‘BRP’) on 23 April 2025.
[6] The business rescue plan which was voted on contemplates that the commercial
division of the fifth respondent would be sold to the tenth respondent, while the
residential division will remain with the company and will be wound down over a period
of six months. Further the plan makes provisions to retain the employment of the
affected employees and to have their employment contracts transferred over to the
tenth respondent. Additional thereto, all the creditors of the fifth respondent would
receive payments of their claims in full.4
[7] Furthermore the plan provides for post-commencement finance from Investec
Bank in terms of which the latter has agreed with the BRP to continue to provide finance
for the fifth respondent’s operation until the plan is finally implemented. However, that
funding would cease on 31 July 2025.5
[8] It is the affected person’s case that, the fifth respondent has funds available to it
until the end of July 2025, because in terms of the amendments to the plan, Investec
has agreed to release the proceeds of its security until 31 July 2025 and that there
would be no further extension. It is their contention that because the plan has been
adopted and it cannot be amended further. That contention is under oath and is further
confirmed by the BRP in his confirmatory affidavit filed herein.
4 The plan was adopted at the section 151 Creditors meeting held on 30 June 2025.
5 Clause 6.6.1 in its amended form reads: In order to ensure a successful rescue of the Company, an
agreement has been reached between Investec and the BRP, whereby Investec has consented to the
use of the proceeds from debtors, which has been ceded to Investec, and the sale of assets, which are
subject to Investec’s perfected general notarial bonds, to fund the continuation of the Company’s
operations until 31 July 2025. This has been treated as a release of proceeds and assets from Investec’s
security and not PCF.
[9] The applicant, however submitted that, there is no evidence to support the
affected persons’ case that Investec will cease its funding to the fifth respondent post 31
July 2025. The applicant contended that, there is every indication that Investec will
continue and be willing to extend the funding. Further, her contention is that, in terms of
s 133(1) of the Companies Act, Investec is precluded from proceeding with any legal
steps without the consent of the court. Therefore, no liquidation proceedings can be
initiated against the fifth respondent until the termination of the business rescue
proceedings. In addition, her contention is that, in terms of sections 136(1)(a), 136(2A),
144 of the Companies Act and section 189A of the Labour Relations Act, the
employees’ contract of employment is protected during the business rescue process
and they would continue to receive their remuneration.
[10] The affected persons have approached this court and have raised five grounds
upon which they rely on for the reconsideration of the Order. Mr Smallberger SC
(together with Mr Gibson) submitted that the non-joinder of the affected parties is fatal
and dispositive of the matter if upheld.
[11] As a point of departure, Rule 6(12)(c) provides:
‘A person against whom an order was granted in such person’s absence in an
urgent application may by notice set down the matter for reconsideration of the
order.’
[12] When hearing the reconsideration application, the onus remains on the applicant
to establish the ground for the relief sought and granted in the order sought to be
reconsidered.6
[13] Factors to be considered by a court in a reconsideration application of this nature
includes inter alia:
6 Afrigrain Marketing (Pty) Ltd v Trustees for the time being of Copenshib Bulkers A/S (in liquidation) and
Others 2024 (1) SA 373 (SCA) at para [59]–[61].
“(a) the reasons for the parties’ absence;
(b) the nature of the order granted;
(c) the period during which the order remained operative;
(d) whether there will be an imbalance, oppression or injustice due to the grant of
the order and if so the nature and the extent thereof;
(e) whether alternative remedies are available; and
(f) the inconvenience of the parties.”7
[14] It was not my impression that the applicant takes issue with the principle of audi
alteram partem which is sacrosanct in our legal system. However, the submission
advanced on her behalf is that, it was not necessary to join the employees because
their legal rights are legislatively protected and they would be joined in the main review
application. In respect of the creditors, it was submitted that the two undisputed
creditors were served with application, and the others were also notified of the
application.
[15] The applicant must have been alive to the need to join all the creditors because
the seventh respondent is cited as such. However, the affected creditors in this
reconsideration application were not served and specifically joined. They have a direct
legal interest in the matter. As pointed above, in terms of the business rescue plan they
will receive full payment of their claims. But in the event of liquidation, payment of their
claims will be significantly reduced. They stand to suffer severe prejudice. Mr Smith in
argument downplayed the value of the creditors’ claims. But the evidence shows that
they have a substantial claim against the fifth respondent to the value of approximately
R33 695 234 million.
[16] Same material defect, the employees were not cited at all and there was simply
no valid explanation for that. The applicant was acutely aware of the fifth respondent’s
7 ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others 1996 (4) SA 484 (W).
address being the employees’ workplace. The Order was granted in their absence. That
deprived them of the right to provide the court with information about the effect that the
Order would have on them, if granted and consequently they were deprived the right to
be heard. The right to be heard has two-fold effects. The Supreme Court of Appeal said
the following about it:
“ It satisfies the individual’s desire to be heard before he is adversely affected; and it
provides an opportunity for the repository of the power to acquire information which
may be pertinent to the just and proper exercise of the power.”8
[17 The employees and the creditors have a direct and substantial interest in the
matter. The right to participate in the plan and the consequences of its approval is a
legal interest vested on the affected persons. The relief sought and granted had a direct
impact on their rights and such they ought to have been joined and served with the
application.9
[18] The submission by Mr Smith that the creditors meeting and the adoption of the
plan was not interdicted and as such the affected persons proceeded with the meeting
and adopted the plan and accordingly the Order would not affect their rights is
misplaced. Although the plan has been adopted but its implementation has been
suspended. The effect of such suspension will also negatively affect them.
[19] Ms Bizos in her affidavit has been at pains in explaining the effect the Order
would have on them as the employees. All the affected persons confirmed those
averments. If the plan is not implemented the employees will lose their jobs and will
suffer irreparable harm. Unemployment has serious effect on the employees’ financial
obligations, their welfare and those of their families. Same with the creditors, if the plan
is not implemented they will not receive full payment of their claims.
8 Psychological Society of South Africa v Qwelane and Others 2017 (8) BCLR 1039 (CC) at para 34.
9 Independent Development Corporatin of South Africa Ltd v Van den Steen N.O. and others (9935/18)
[2018] ZAGPJHC 70 (6April 2018).
[20] Evidence is there that Investec’s funding will cease on 31July 2025, and from
thereon the funds will dry up. That inevitability would result in the liquidation of the fifth
respondents. The mployees would then lose their employment and the creditors would
not receive full payment of their claims. The moratorium against legal proceedings is
only there for the duration of the business rescue process. It is not difficult to
understand that if the funds dry up, the BRP will have to apply for the liquidation of the
fifth respondent.
[21] To the contrary the applicant has no interest whatsoever to the business rescue
process. She is not the shareholder of the fifth respondent. She is not an employee of
that company either. No maintenance order was granted by the court against the fifth
respondent. Her constitutional rights and claims and as well as those of her minor
children are against first respondent. Her fixation that placing of the fifth respondent in
business rescue is the stratagem by the first respondent as set out in the “plan of
attack” document is unfounded. During argument Mr Smith even submitted that the
BRP, the affected persons’ attorneys, the third respondent, Mr Peter Cowen, and his
entities, the fourth and tenth respondents and Investec are all part and parcel of the
scheme in collusion with the first respondent to implement his “plan of attack.’’ That
submission is not born out of the evidence before me.
[22] In my view, the order granted on 24 June 2025, it materially and negatively
affects the employees and the creditors’ legal rights and legal interest and as such they
ought to have been joined. They had that right to be joined to the application.
[23] In Mazzeti Management Services v Amabhungane Centre for Investigative
Journalism NPC and Others,10 it was held that:
10 2023 (6) SA 578 (G) at para 14.
“Rule 6(12) (c) confess a wide discretion on the court hearing the reconsideration
application. [It]exists to remedy an injustice if one was done when the [Order]
was granted. What it creates is the opportunity for the respondent to rebut the
case for the Order. To that end a Respondent may either argue that the Order
was unjustified on its own terms or provide additional facts on affidavit to support
an argument that, on an enlarged factual matrix, the Order should set aside. …
The scheme of the Rule takes as its point of departure that the applicant has got
its Order and the reconsideration is about whether it can keep its Order.”
[24] Consequently, on the facts and evidence herein, the non-joinder of the affected
persons was fatal. The employees and the creditors ought to have been joined and
served with the application before it was heard. The Order that was granted in the
absence impacts on them negatively and materially. The employees stand to lose their
jobs if it is not set aside. Similarly, with the creditors their claims will be significantly
reduced if the fifth respondent were to be liquidated and the order is not set aside. In
light of my findings in this regard, it is necessary to consider the other points raised by
the affected persons in this reconsideration application.
[25] With regards to urgency, the applicant was aware as early as in April 2025, that
the fifth respondent is in business rescue. She instituted no legal proceedings to
interdict the business rescue process. She waited for a period in excess of two months
before rushing to Court on 21 June 2025 on truncated time periods without citing all the
relevant parties. Her application was instituted on the eve of the section 151 meeting.
The applicant has proffered no explanation for such dilatory attitude. Therefore, her
application which was heard on 24 June 2025 was not urgent.
[26] However, as far as the reconsideration application, the evidence is that the
Investec funding is available only up to 31 July 2025. If the plan is not implemented and
the Order remains in effect, liquidation is inevitable. The interdict order is the death knell
to the fifth respondent’s business rescue. Further business rescue proceedings are by
their very nature urgent 11. The liquidation of the fifth respondent will be inevitable if the
Order is not set aside.
[27] In the circumstances the following order is issued :
1. The non-compliance by the seventh respondent with the Uniform
Rules of Court relating to forms, service and time periods is condoned and
the application is dealt with as the matter of urgency in terms of Rule 6(12)
as read with Rule 6(12) (c).
2. The Order granted by Makaula J under the above case number on 24
June 2025 is reconsidered and set aside.
3. The application brought by the applicant (G[...] D[...]) on 20 June
2025 under the above case number is dismissed with costs on a party and
party scale C.
4. The costs of this reconsideration application including the costs of
two counsel are to be paid by the applicant (G[...] D[...]) on a party and
party scale C.
N GQAMANA
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Applicant : Adv D A Smith
Instructed by : C/O Heuer & Associates Attorneys
11 Koen v Wedgewood Village Golf and Country Estate Pty Ltd and others 2012 (2) SA 378 (WCC) at
para [10] and Maengo Airlines SOC Limited and others v Minister of Public Enterprises and Others 2024
JDR 0120 (GP)at para [24].
Gqeberha
Counsel for Respondent(s) : Adv A Smalberger SC and Adv C
Gibson
Instructed by : Werksmans Attorneys
C/O Van Heerdens Attorneys Inc.
Gqeberha
Heard on : 22 July 2025
Judgment delivered on : 29 July 2025