IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 3085/2025
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA First Applicant
SB GUARANTEE COMPANY (RF) (PTY) LTD Second Applicant
(Registration number: 2006/021576/07)
and
SETSHABELO TRADING 647 (PTY) LTD First Respondent
CHARLES PHIRI N.O.
[In his capacity as appointed business rescue
practitioner of Setshabelo Trading 647 (Pty) Ltd] Second Respondent
Neutral citation: Standard Bank of South Africa and Another v Setshabelo Trading 647 (Pty)
Ltd and Another (3085/2025) [2025] ZAFSHC 208 (7 July 2025)
Coram: Reinders J
Heard: 26 June 2025
Delivered: 7 July 2025
Summary: Company law — Section 129(2)(a) of the Companies Act 71 of 2008 — business
rescue proceedings — resolution adopted to be declared void ab initio
2
a
ORDER
i
4 Leave is granted to the applicants to institute this application in terms of s 133 of the
Companies Act 71 of 2008.
2 Atule nisi is issued, returnable 6 August 2025 at 09h30, calling upon all interested
and affected parties or persons to furnish reasons, if any, why the following order should not
be made final:
‘24 That the resolution adopted, placing the first respondent under supervision by a
business rescue practitioner, be declared void ab initio, invalid and in contravention of
s 129(2)(a) of the Companies Act 71 of 2008 Act and be set aside.’
3 The costs of this application to be costs in the cause.
a
JUDGMENT
ED
Reinders J
[1] The application came before me as an urgent matter and, having heard counsel for
the applicants and first respondent, | directed it to be taken on the court roll.
(2] The relief sought is a declarator that the resolution adopted placing first respondent
(Setshabelo Trading 647 (Pty) Ltd, hereafter ‘Setshabelo’) under supervision by a business
rescue practitioner (the second respondent), be declared void ab initio and in contravention
of s 129(2)(a) of the Companies Act 71 of 2008' (the ‘Act’). The aforementioned order is to
1 The relevant parts of Section 129 of the Companies Act read:
‘(1) Subject to subsection (2) (a), the board of a company may resolve that the company voluntarily
begin business rescue proceedings and place the company under supervision, if the board has
reasonable grounds to believe that-
(a) the company is financially distressed; and
(b) there appears to be a reasonable prospect of rescuing the company.
(2) A resolution contemplated in subsection (1)-
(a) may not be adopted if liquidation proceedings have been initiated by or against the
company; and
(b) has no force or effect until it has been filed."
3
operate as an interim order pending a return date. The first respondent opposes the
application.
[3] According to the applicants (hereafter, for ease of clarity, referred to as ‘Standard
Bank’), under case no 1151/2025, an entity known as Chando Civil Construction t/a Chando
Civils CC (‘Chando’) launched an application wherein liquidation of the first respondent was
sought. It came to the knowledge of applicants that Chando might not proceed with the
liquidation application against Setshabelo, wherefore the applicants on an urgent basis
approached court to intervene in the said liquidation proceedings. Leave to intervene was
granted on 22 May 2025. According to Standard Bank, it came to its knowledge that
Setshabelo thereafter, and contrary to the provisions of the mentioned s 129(2)(a) of the Act,
commenced with business rescué proceedings on 30 May 2025. It is these proceedings that
Standard Bank wishes to set aside.
[4] | Setshabelo denies that, when the order to intervene was granted, there were pending
liquidation proceedings. On the contrary, it avers that it had entered into a settlement
agreement with Chando before 22 May 2025, and in terms thereof, all outstanding debt to
Chando was paid a day prior on 21 May 2025. Chando’s attorney withdrew the application
against Setshabelo before the hearing of the urgent application for Standard Bank’s
intervention. Chando therefore withdrew the pending application before any orders were
granted therein.
[5] From a reading of the record of the proceedings on 22 May 20285, it would appear
that Mr Zietsman SC appeared on behalf of Chando. Counsel informed court at the
commencement of the proceedings that they had been ‘joined’ by Standard Bank,
whereafter counsel! for Standard Bank, Mr Els, informed court that it was urgently seeking
an order to intervene in the liquidation application. Counsel for Standard Bank addressed
this Court on the application for intervention. Mr Zietsman SC informed the court that he had
originally filed heads of argument to move for the liquidation of Setshabelo, however, his
instructions changed that morning and that ‘the original applicant wishes to withdraw his
application’. He thereafter handed up a notice of withdrawal and informed court that
Standard Bank ostensibly does not consent to the withdrawal as is required by Uniform Rule
41. Mr Blair (appearing for Setshabelo) then addressed the court and, amongst others,
informed Deane AJ that the matter was moot as Setshabelo and Chando had settled the
matter. The court then adjourned and later the same day, granted leave to Standard Bank