IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 148479/2024
In the matter between:
MAHLOPI METALS GROUP (PTY) LTD Applicant
(Registration No. 2019/443992/02)
And
STANDARD BANK OF SOUTH AFRICA LIMITED First Respondent
FIRST NATIONAL BANK LTD Second Respondent
INDALO BUSINESS RESCUE & INSOLVENCY Third Respondent
PRACTITIONERS (PTY) LTD
ICON INSOLVENCY PRACTITIONERS (PTY) LTD Fourth Respondent
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 08 August 2025
Signature:
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XIRIMELE TRUSTEES Fifth Respondent
THE MASTER OF THE HIGH COURT IN PRETORIA Sixth Respondent
GRADCO SOUTH AFRICA (PTY) LTD Seventh Respondent
(Registration No. 1999/026872/07)
THE SHERIFF OF THE HIGH COURT Eighth Respondent
JUDGMENT
NYATHI J
A. INTRODUCTION
[1] This matter came before me as an urgent application to interdict the first and
second respondents from continuing the restrictions they had placed on the bank
accounts of the applicant . The two respondents had placed the restrictions
pursuant to a provisional winding up order of this Court dated 18 June 2025 and
returnable on 2 September 2025.
[2] The applicant further seek s an order interdicting all the respondents from
interfering with the applicant’s bank accounts aforementioned. The specifics of
the bank accounts are stated in the papers and are not necessary for current
purposes.
[3] The first and seventh respondents opposed the application.
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B. BACKGROUND
[4] The applicant grounds its contentions on the fact that on the 18 June 2025, the
date of the order, it filed an application for leave to appeal the provisional
winding-up order. According to submissions made on its behalf, the order
became suspended pending the appeal.
[5] It is worth noting that the applicant ha d filed two rule 30 applications which had
not been opposed by the seventh respondent at the time the order was made.
The applicant therefore conten ded that the provisional winding -up order ought
not to have been granted in light of the rule 30 applications.
[6] The initial area of contention is the matter of urgency. Whilst the applicant
contends that the application was urgent, the respondents submitted that the
urgency was self-created on the applicant’s part.
[7] With the order being made on 18 June 2025, the applicant took 20 days to bring
these proceedings to court. The applicant contends that it was triggered by the
events of 9 July 2025 when the banks refused applicant access to its accounts.
[8] Being aware of the consequences of a provisional winding -up order, the
applicant’s explanation and reasoning is devoid of any sense. The application is
liable for dismissal on this basis alone.
[9] Regarding the merits, the applicant insisted that absent any application by the
respondents to enforce the provisional winding-up order of Nobanda AJ in terms
of section 18(3) of the Superior Courts Act 10 of 2013, it is legally impermissible
for the respondents to implement the impugned provisional winding -up order
concerned.
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Effect of the Insolvency Act
[10] A consequence of the granting of the provisional winding -up order is that the
powers of the applicant’s board of directors cease to exist , save for special
residual powers.1 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.
[11] Regard being had to the applicant’s founding affidavit, it is indubitable that the
applicant is a company ostensibly represented by its Chief Executive Officer, a
director.
[12] The board no longer has the requisite authority to initiate these proceedings or
to bring an application for leave to appeal the provisional winding-up.
[13] A further problem for the applicant is Section 150(5) of the Insolvency Act, 24 of
1936. It provides that there shall be no appeal against any order made by the
Court in terms of the Insolvency Act except as provided for in said section. The
Insolvency Act does not provide for the appeal of a provisional order of winding-
up. It contemplates an appeal against the final winding-up order.
[14] Section 339 of the Companies Act, 61 of 1973 made applicable by the
transitional arrangements of the Companies Act 71 of 2008 provides that the law
of insolvency is to apply mutatis mutandis in respect of any matter not specifically
provided for by the 1973 Companies Act. The latter Act does not provide for the
appeal of a provisional order of winding-up.
[15] It was submitted on behalf of seventh respondent that to the extent relevant,
section 18 of the Superior Courts Act, 10 of 2013, in particular section 18(2)
provides that unless a court under exceptional circumstances orders otherwise
1 ABSA Bank Limited v Rhebokskloof (Pty) Ltd and Others 1993 (4) SA 436 (C) at 439A-440E.
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the operation and execution of a decision which is an interlocutory order not
having the effect of a final judgment which is the subject of an application for
leave to appeal is not suspended pending the decision of the appeal. It is a
requisite that the Court would have to so order on proof on a balance of
probabilities or irreparable harm on the part of the applicant and that the other
party will not suffer irreparable harm if not so ordered.
C. DISCUSSION
[16] It is trite that on the granting of the provisional winding -up order, a concursus
creditorum comes into existence. The order sought by the applicant to “unfreeze”
its bank accounts would result in the joint provisional liquidators being unable to
fulfil their obligations by giving the applicant free rein of its bank accounts to the
direct prejudice of the concursus. This position could never have been
contemplated by the legislature in the various statutory provisions traversed so
far.
[17] The provisional winding-up order has a return date of 2 September 2025. This
provision covers either party to assert its interests whether the order should be
discharged or confirmed. This also underlines the fact that the order is
interlocutory in nature, and not finally disposes the issues as contemplated in
Zweni v Minister of Law and Order.2
[18] This matter is at this stage not ripe for an appeal having regard to the provisions
of section 150 of the Insolvency Act. Talk of the order being suspended by virtue
of the filing of an application for leave to appeal is thus premature. Under different
circumstances, even if an order does not meet the Zweni test, a matter may be
appealable if it is in the interests of justice that it should be regarded as such.
2 1993 (1) SA 523 (A).
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In United Democratic Movement and Another v Lebashe Investment Group (Pty)
Ltd and Others, 3 the Constitutional Court made it clear that the ‘interests of
justice approach’ is not limited to the Constitutional Court but applies equally to
this Court.4
D. CONCLUSION
[19] In view of the above considerations, the application stands to fail.
[20] It was submitted on behalf of the respondents that a punitive order de bonis
propriis was justified. I am of the considered view in the exercise of my discretion,
that such a drastic decision would be unwarranted at this stage.
[21] The following order is made:
(a) The application is dismissed.
(b) The applicant is ordered to pay the opposing respondents’ costs on a scale
as between attorney and client.
_
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
3 [2022] ZACC 34; 2023 (1) SA 353 (CC); 2022 (12) BCLR 1521 (CC) para 45.
4 Smith J in MEC for Economic Development, Gauteng and Another v Sibongile Vilakazi and Others (783/2023) [2024]
ZASCA 126 (17 September 2024) at para [22].
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Date of hearing: 22/07/2025
Date of Judgment: 08 August 2025
On behalf of the Applicant: Mr. E Mokutu SC with Mr. Ndamase and Ms. Ledwaba
Instructed by: Vezi & De Beer Inc, Pretoria
On behalf of the First Respondent: Mr. C.G.V.O. Sevenster
Seventh Respondent: Mr. Jan G. Smit
Instructed by: Gothe Attorneys
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 08 August 2025.