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Tayob N.O and Others v Samons N.O and Others (130746/2025) [2025] ZAGPPHC 873 (2 September 2025)

52 Reportability
Company Law
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Brief Summary

Business Rescue — Appointment of business rescue practitioner — Dispute over locus standi — Mr. Tayob sought to establish himself as a joint business rescue practitioner for the NTI companies, NWS, and ABS, following a board resolution appointing him in April 2025. However, Mr. Samons was the duly appointed practitioner, and the court found that Mr. Tayob's appointment was invalid as it did not comply with the statutory requirements of the Companies Act. The court held that Mr. Tayob lacked locus standi to act as a business rescue practitioner, leading to the dismissal of his application and an order for costs against him.

Comprehensive Summary

Case Note


Tayob and Others v Samons and Others (130746/2025) [2025] ZAGPPHC 10 (2 September 2025)


Reportability


This case is reportable as it addresses critical issues surrounding the locus standi of business rescue practitioners under South African law, particularly in the context of companies undergoing voluntary business rescue. The judgment provides clarity on the legal framework established by the Companies Act for the appointment of business rescue practitioners, which is significant for understanding the dynamics of corporate governance and creditor protection in distress situations. The implications of this case extend beyond the parties involved, potentially influencing the practices of business rescue practitioners and the interpretation of procedural rules within similar contexts.


Cases Cited


Knoop NO and Another v Gupta (Execution) 2021 (3) SA 135 (SCA)


Islandsite Investments 180 (Pty) Ltd v National Director of Public Prosecutions and Others 2024 (5) SA 20 (SCA)


Knoop and Others v Tegeta Exploration and Resources (Pty) Ltd and Others 2025 JDR 2927 (SCA)


Legislation Cited


Companies Act 71 of 2008


Superior Courts Act 10 of 2013


Rules of Court Cited


None specifically cited in the judgment.


HEADNOTE


Summary


This case revolves around an urgent application related to the appointment of business rescue practitioners for Northwest Transport Investments (NTI) and associated companies currently in business rescue. Mr. Tayob sought confirmation of his status as a joint business rescue practitioner alongside Mr. Samons. Central to the application was the legality of Mr. Tayob's purported appointment, which occurred after the commencement of rescue proceedings but without valid authority according to the Companies Act.


Key Issues


The primary issues addressed in this judgment include the validity of Mr. Tayob's appointment as a business rescue practitioner, the legality of the decisions made by the board of directors, and whether Mr. Tayob had the requisite locus standi to bring the application.


Held


The court held that Mr. Tayob was not a validly appointed business rescue practitioner for NTI and the associated companies. It concluded that his appointment did not comply with the statutory requirements defined in the Companies Act, thereby affirming that he lacked locus standi in the application.


THE FACTS


The applicants comprised Mr. Tayob and several companies that were in voluntary business rescue. The respondent, Mr. Samons, was the initially appointed business rescue practitioner for these companies. A humanitarian crisis arose due to non-payment of salaries to employees. This prompted Mr. Tayob to file an urgent application seeking not only salary payments for these employees but also a determination of his status as a joint business rescue practitioner.


Both parties acknowledged an agreement concerning part of the requisite salary payments. However, the crux of the proceedings was whether Mr. Tayob’s appointment as the business rescue practitioner was legitimate and what standing he had to pursue the application.


The companies had previously filed resolutions to begin voluntary business rescue in July, August, and September 2022, with Mr. Samons appointed shortly thereafter. However, in April 2025, the board of these companies resolved to appoint Mr. Tayob as a joint practitioner, leading to disputes regarding the validity of this decision especially given ongoing legal challenges against Mr. Samons' status.


THE ISSUES


The court was tasked with determining whether Mr. Tayob's appointment as a business rescue practitioner was legally valid under the Companies Act. The specific legal questions included his locus standi to bring the application, the authority of the board to appoint a new practitioner given the suspension of the previous order against Mr. Samons, and the interpretation of relevant sections of the Companies Act governing appointment procedures.


ANALYSIS


The court analyzed the statutory framework of the Companies Act, specifically sections concerning the appointment of business rescue practitioners. It emphasized that for a person to be appointed as a practitioner following the initiation of rescue proceedings, the appointment must occur within a defined timeframe. The court found that Mr. Tayob's appointment in April 2025 did not meet this requirement, as valid appointments needed to happen within five business days following the adoption of the relevant business rescue resolutions.


Further, the court assessed claims made by Mr. Tayob about the existence of a residual right of the board to appoint a new practitioner upon the removal or resignation of an existing one. However, it concluded that Mr. Samons had not been validly removed, as an application for leave to appeal against his removal was lodged before the purported appointment of Mr. Tayob, thus suspending any orders that would remove him.


The court pointed out procedural missteps in how the board convened its meeting to appoint Mr. Tayob, noting that Mr. Samons was neither informed nor involved in this process, rendering the resolutions taken null and void.


REMEDY


The court dismissed the application brought by Mr. Tayob and ruled that he should bear the costs of the respondents, which were to include costs associated with the engagement of two counsels. This outcome affirmed that Mr. Tayob did not have the standing to establish his appointment as a practitioner, thus impacting the ongoing business rescue proceedings for the companies involved.


LEGAL PRINCIPLES


The judgment reinforces several key legal principles under South African corporate law:




  1. Appointment of Business Rescue Practitioners: The statutory requirements for the appointment of business rescue practitioners must be strictly adhered to, especially regarding timelines and procedural legitimacy.




  2. Locus Standi: A party must demonstrate sufficient legal standing to pursue court action, particularly in complex business rescue matters where authority and appointment disputes arise.




  3. Authority of Boards During Business Rescue: Directors retain their authority under certain conditions; however, they must also remain bound to the authority of the appointed business rescue practitioner until any valid removal occurs following established legal processes.




The case serves as a critical reminder for those within the business rescue framework to comply meticulously with statutory provisions to uphold the integrity of the process.

IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DE LET E W H ICHEVER IS NOT APPLICAB LE
(1) REPORTABLE: ¥E5fNO
(2) OF INTEREST TO O rHER JUDGES~ NO
(3) REVISCD
SIGNATURE:.···
1
Case No. 1307 46/2025
In the matter between:
TA YOB , MOHAMED MAHI ER N .O
NORTHWEST TRANSPORT INVESTMENTS
(SOC) LTD (IN BUSINESS RESCUE)
NORTHWEST ST AR (SOC) LTD
(IN BUSINESS RESCUE)
ATTERIDGEVILLE BUS SERVICES (SOC ) LTD
(IN BUSINESS RESCUE )
And
SAMONS, THOMAS HENDRICK N .O
1 ST APPLICA NT
2 ND APPLICAN T
3 RD APPLICANT
4TH APPLICAN T
1 sr RESPONDEN T

MEC FOR THE DEPARTMENT OF COMMUNITY
SAFETY & TRANSPORT MANAGEMENT,
NORTH WEST PROVINCIAL GOVERNMENT
MEC FOR THE DEPARTMENT OF PROVINCIAL
TREASURY OF THE NORTH WEST
PROVINCIAL GOVERNMENT
MEC FOR THE DEPARTMENT OF ROADS &
TRANSPORT GAUTENG PROVINCE
ABSA BANK LTD
TANS NAT COACHLINES (PTY) LTD
TRIPONZA TRADING 548 CC
ALL AFFECTED PERSONS LISTED IN
ANNEXURE X
Coram : Millar J
Heard on: 27 August 2025
2
2ND RESPONDENT
3RD RESPONDENT
4TH RESPONDENT
5TH RESPONDENT
6TH RESPONDENT
7TH RESPONDENT
5TH RESPONDENT
Delivered: 2 September 2025 -This judgment was handed down electronically
by circulation to the parties' representatives by email, by being
uploaded to the CaseLines system of the GD and by release to
SAFLII. The date and time for hand-down is deemed to be 13H00 on
2 September 2025.

3
JUDGMENT
MILLARJ
[1] The main protagonists in this urgent application, Mr. Tayob (the first applicant)
and Mr. Samons (the first respondent) are both highly experienced business
rescue practitioners. At stake in this case, is the privilege to act as the business
rescue practitioner for the NTI companies (second respondent), NWS (third
respondent) and ABS (fourth respondent). None of these entities are insignificant
in terms of their business.
[2] This application was brought by Mr. Tayob to resolve two urgent issues. The first,
was what was described as a "severe and immediate humanitarian crisis arising from
the non-payment of salaries to hundreds of employees of the state-owned NT/
companies". The second, was a "crisis of legality precipitated by the first respondent
(Mr. Samons) unilateral establishment and continued operation of an unlawful escrow
bank account. "
[3] The application was brought in two parts and predicated upon Mr. Tayob having
locus standi to bring it. Part A was for interim orders and part B for final orders.
The orders sought in both parts, besides regarding the payment of salaries, in
their essence boil down to whether Mr. Tayob is a joint business rescue
practitioner with Mr. Samons in the NTI, NWS or ABS companies or not.
[4] When the matter was called, the parties indicated that there was an agreement
in principle with regards to the payment of the salaries and other expenses
pending the outcome of these proceedings. On this aspect, there is no dispute
that the application is urgent and hence it was heard. This agreement was

4
subsequently reduced to writing in the form of an order of court and was made
an order before I reserved judgment.
[5] The humanitarian crisis averted, it was agreed that the court should decide
whether Mr. Tayob is in fact a joint rescue practitioner with Mr. Samons or not. In
other words, does Mr. Tayob have locus standi? The answer to this question in
the positive will mean that the further relief sought in both parts A and B of the
notice of motion may require further consideration. If, however, the answer is in
the negative, then that is the end of the matter.
[6] It is not in dispute that Mr. Samons is a duly appointed business rescue
practitioner of the NTI companies, NWS or ABS . In this regard:
[6.1] For the NTI companies, on 20 July 2022, the board of directors
resolved to commence voluntary business rescue proceedings as
provided for in section 129 of the Companies Act1 (the Act). The next
day the resolution was filed with the Companies and Intellectual
Properties Commission Office (CIPC) and on the same day, Mr.
Samons was appointed.
[6.2] For ABS , on 1 August 2022, the board of directors resolved to
commence voluntary business rescue proceedings in terms of section
129 of the Act. On 3 August 2022, the resolution was filed with CIPC
and the next day, 4 August 2022, Mr. Samons was appointed.
[6.3) For NWS , on 13 September 2022, the board of directors resolved to
commence voluntary business rescue proceedings in terms of section
1 71 of 2008.

5
129 of the Act. On 16 September 2022, the resolution was filed with
CIPC and on the same day, Mr. Samons was appointed.
[7] After a meeting of creditors and with 96% of the independent voting creditors
voting in favour of the proposed business rescue plan in respect of all the entities,
it was adopted. The business rescue proceeded. On 10 April 2024, an
application was launched to remove Mr. Samons as the business rescue
practitioner of NTI companies, NWS and ABS .
[8] The application was opposed, and the litigation followed its course and the case
was heard. On 21 November 2024, judgment was delivered ordering the removal
of Mr. Samons as the business rescue practitioner. On 6 December 2024, an
application for leave to appeal was delivered by him and on 20 December 2024,
the applicant in that matter delivered an application in terms of section 18(3) of
the Superior Courts Act.2
[9] The application for leave to appeal and the application in terms of section 18(3)
were heard on 12 February 2025 and on 27 March 2025, judgment was delivered.
The application for leave to appeal by Mr. Samons was dismissed and the
application in terms of section 18(3) ordering the immediate implementation of
the order granted on 21 November 2024 ie the removal of Mr. Samons wa s
granted.
[1 O] On 7 April 2025, Mr. Samons lodged an application for leave to appeal with the
Supreme Court of Appeal as well as a notice of appeal in terms of section 18(4)
of the Superior Courts Act. The effect of.the delivery of these is that the order of
21 November 2024 removing Mr. Samons , as well as the Section 18(3) order for
2 10 of 2013.

6
its immediate implementation, were both suspended.3 Subsequently, the
Supreme Court of Appeal on 2 July 2025, granted Mr. Samons leave to appeal
to the full court of this division. Both the appeal in respect of the main application
as well as the section 18(4) appeal are thus extant and yet to be heard.
[11] Meanwhile, on 10 April 2025, the boards of the NTI companies, NWS and ABS ,
met and resolved to appoint Mr. Tayob as the business rescue practitioner for
each of the companies. Each of the resolutions is titled "Resolution of the
Directors" and contains the following clauses:
"A. Mr. Mohamed Mahier Tayob is hereby appointed as the Business Rescue
Practitioner of the company; and
B. The appointment is effected from 10 April 2025."
[12] The day after this resolution was passed, Mr. Tayob wrote to Mr. Samons. Mr.
Samons described the letter that he received in the following terms:
"On Friday, 11 April 2025 at 17h34, I received a letter from Tayob's offices,
informing me that he has been appointed as the BRP of the Companies. In this
letter, ... , Tayob made various demands of, and concerning, the affairs of the
Companies. This amounted to some 54 items and required that I collate and/or
make available such documents by 13h00 on Monday , 14 April 2025."
[13] The enthusiasm of Mr. Tayob is readily apparent. It explains, without going into
any detail, how subsequently because of the conflict between Mr. Tayob and Mr.
Samons that arose, that the business rescue process was subverted and those
most vulnerable and dependent upon the process, were unnecessarily placed in
3 Knoop NO and Another v Gupta (Execution) 2021 (3) SA 135 (SCA) at para [22) in dealing with both the
suspension of the main order as well as the section 18(3) order.

7
harm's way . It does not reflect well upon either Mr. Tayob or Mr. Samons that
this occurred.
[14] Was Mr. Tayob in fact appointed as a business rescue practitioner for the entities
concerned by virtue of the resolutions passed on 10 April 2025?
(15] Mr. Tayob asserts that he is a joint business rescue practitioner. Two different
arguments were advanced in this regard.
[16) Firstly, in terms of section 128(1)(d) of the Act, more than one person may be
appointed as a business rescue practitioner. However, for this to occur in the
case of voluntary business rescue, this must take place in terms of section 129(3).
The appointment must be made within 5 business days after the adoption and
filing of the resolution putting the company into voluntary business rescue.
[17] In the present case, since the resolutions putting the companies into voluntary
business rescue were passed in July, August and September 2022, Mr. Tayob's
appointment in April 2025 does not pass muster.
[18] Secondly, it was argued that the board retained a residual right upon either the
death, resignation or removal of a business rescue practitioner to appoint a new
practitioner. For this argument, I was referred to section 139(3)4 of the Act.
[19] This argument is predicated on the fact that Mr. Samons was actually «removed"
as the business rescue practitioner. It was argued for Mr. Tayob that since the
Supreme Court of Appeal in its court order of 2 July 2025 had referred to the
application for leave to appeal only having been lodged with it on 14 April 2025,
4 "The company. or the creditor who nominated the practitioner, as the case may be, must appoint a new
practitioner if a practitioner dies, resigns or is removed from office, subject to the right of an affected
person to bring a fresh application in terms of section 130(1)(b) to set aside that new appointment.• [My
underlining].

8
there was an interregnum being the period between 27 March 2025 and 14 April
2025. It was in this interregnum of just over two weeks that the board, on the
assumption that Mr. Samons was removed, was permitted in terms of section
139(3) of the Act to meet and to resolve to appoint Mr. Tayob.
[20] Besides the fact that this does not accord with what actually occurred, I am not
persuaded that there is any merit to this argument. There are two reasons for
this. The first is that a matter of fact, the applications for leave to appeal and
hence the suspension of both orders, were delivered on 7 April 2025. The legal
effect of this, is that Mr. Samons remained as the business rescue practitioner.
[21] None of the resolutions passed on 10 April 2025 foreshadow the reason for the
meeting of the board or the passing of those resolutions. Section 137(2)(a)
provides that during business rescue proceedings, each director of the company
must "continue to exercise the functions of director, subject to the authority of the
practitioner." The directors were all subject to the authority5 of Mr. Samons from
the time of his appointment in 2022.
[22] It is inexplicable how , without informing him or ascertaining from him whether he
intended to appeal the judgments, that they nonetheless proceeded to call a
board meeting and vote on the appointment of a new business rescue
practitioner.6 It is not in issue that Mr. Samsons neither knew of nor authorised
any meeting of the directors and for that reason, the meeting and the decisions
taken at it are void.7
[23] Since Mr. Tayob was neither appointed in terms of section 129(3) nor appointed
by any valid resolution of the board of directors, it follows that he does not hold
5 Knoop and Others v Tegeta Exploration and Resources (Pty) Ltd and O thers 2025 JDR 2927 (SCA) at
paras (14]-(17].
6 lslandsite Investments 180 (Pty) Ltd v National Director of Public Prosecutions and O thers 2024 (5) SA
20 (SCA ).

20 (SCA ).
7 Knoop and Others v Tegeta Exploration and Resources (Pty) Ltd and O thers ibid at para (17].

9
office as a business rescue practitioner of the NTI companies, NWI or ABS . He
has no locus standi.
[24] The costs will follow the result. In view of the situation brought about by Mr.
Tayob's attempt to assert that he was a business rescue practitioner for the
entities, the "severe and immediate humanitarian crisis arising from the non-payment of
salaries to hundreds of employees of the state-owned NT! companies" arose. This in
and of itself rendered this matter urgent and warranted on the part of the
respondents the engagement of more than one counsel. Furthermore, the
respondents engaged both senior and junior counsel and it is thus apposite that
the costs should be on the scale C.
[25] In the circumstances, I make the following order:
[25.1)
[25.2]
HEARD ON :
The application is dismissed.
The applicant is ordered to pay the costs of the respondents who
opposed the application on the scale as between party and party,
such costs to include the costs consequent upon the engagement
of two counsel. The scale of counsel's costs is scale C .
A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
27 AUGUST 2025
JUDGMENT DELIVERED ON: 2 SEPTEMBER 2025

COUNSEL FOR THE APPLICANT: ADV. G HULLEY SC
INSTRUCTED BY : MAYET INC.
REFERENCE: MR. A MAYET
COUNSEL FOR THE1 ST RESPONDENT : ADV. AJ DANIELS SC
INSTRUCTED BY:
REFERENCE:
COUNSEL FOR THE 5 TH, 7TH AND
ONE OF THE arH RESPONDENTS :
INSTRUCTED BY :
REFERENCE :
ADV . C DE VILLIERS-GOLDING
RICHTER ATTORNEYS
MR. B RICHTER
ADV. A GOVENDER SC
ADV . M DAFEL
CUZEN RANDEREE DYASI INC.
MR. Z RANDEREE
NO APPEARANCE FOR THE 2 ND, 3RD, 4 TH AND 5TH RESPONDENTS
10

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