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2025
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[2025] ZANCHC 98
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Standard Bank of South Africa Ltd and Another v POJK Mining Solutions and Another (576/2025) [2025] ZANCHC 98 (3 October 2025)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case no: 576/2025
In the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LTD
(Registration
Nr: 1962/000738/06)
First Applicant
SB GUARANTEE COMPANY
(RF) (PTY) LTD
(Registration
Nr: 2006/021576/07)
Second Applicant
and
POJK
MINING SOLUTIONS (PTY)
LTD
(Registration
Nr: 2017/035527/07)
Respondent
THABISO
GERALD KGOPODITHATA
Intervening Party
Coram:
MAMOSEBO J
Heard:
01 September 2025.
Delivered:
03 October 2025.
Summary:
Court – Jurisdiction – Provisional
liquidation granted in the Northern Cape Division – On the
return date –
Interested party applied for leave to intervene –
Intervening party having launched a business rescue application in
the
Local Division, South Gauteng High Court – Whether the
business rescue proceedings suspend this liquidation proceedings as
contemplated in
s 131(6)
of the
Companies Act 71 of 2008
–
Applicants object to the jurisdiction of the South Gauteng High Court
– Respondent’s registered office and
principal place of
business in Kuruman, Northern Cape – Respondent’s
indebtedness established – Final liquidation
order granted.
ORDER
1.
The application by Thabiso Gerald
Kgopodithata to stay the winding-up proceedings of the respondent
company, pending the determination
of an application before the South
Gauteng High Court (Johannesburg) under Case Number 2025-092348 to
place the respondent company
under supervision and commencing
business rescue proceedings, is dismissed with costs.
2.
The respondent is placed under a final
winding-up order in the hands of the Master.
3.
Mr Thabiso Gerald Kgopodithata is liable
for the costs of the adjournment application on the scale as between
party and party.
4.
The costs of the liquidation application
are in the liquidation.
JUDGMENT
Mamosebo J
[1]
This is an application brought in terms of
schedule 5 of the Companies Act 71 of 2008 (the 2008 Act) read with
s 344 and s 345
of the Companies Act 61 of 1973 (the 1973
Act) for the liquidation of the respondent, POJK Mining Solutions
(Pty) Ltd (POJK), on
the basis that it is unable to pay its debts.
[2]
On 13 March 2025 POJK was served with the
notice of motion, founding affidavit and its annexures in which the
applicants asked the
court to place the respondent under provisional
liquidation in the hands of the Master of the High Court. On 13 June
2025 this
Court placed the respondent under provisional liquidation
based on its failure to pay its underlying debt of about R12 000 000
(twelve million rand) which was admitted by the respondent. A rule
nisi
was
also issued calling upon interested parties to furnish reasons on 25
July 2025 why the provisional liquidation order should
not be made
final.
[3]
On
25 July 2025 the matter was postponed and the rule
nis
i
extended to 29 August 2025 in the unopposed motion court. On the
return day, Mr Richards, for the intervening party, sought
an
adjournment of the application in terms of s 347(1) of the 1973
Act.
[1]
The intervening party, Mr Thabiso Gerald Kgopodithata who is
also a director of the respondent, sought an adjournment of the
liquidation application pending the outcome of an application he
brought before the South Gauteng High Court under Case Number
2025-092348 to place the respondent company under supervision and
commencing business rescue in terms of s 131 (1) of the
2008
Act. Mr Els, for the applicants, opposed the adjournment application.
I adjourned the matter until Monday, 01 September 2025
for argument.
[4]
Neither the respondent nor Mr Kgopodithata
filed an answering affidavit in the liquidation application. Instead,
Mr Kgopodithata
deposed to the founding affidavit in the adjournment
application to show cause why a final order of liquidation should not
be granted.
He explained as follows:
‘
7.
I am advised, which advise I accept as correct
that in terms of the provisions of section 131 (6)(a)
and (b) of
the
Companies Act 71 of 2008
, once a business rescue application is
successfully launched, it suspends the liquidation proceedings until
the court has adjudicated
on the said application.
8.
On the 18
th
of June 2025, I launched a business rescue
application in the High Court in Johannesburg under case number
2025-092348. A copy
of the application is attached hereto as Annexure
C.’
[5]
The adjournment application pivots on
whether the launching of an application by the respondent’s
director for business rescue
suspends liquidation proceedings as
contemplated in s 131 (6) of the 2008 Act which stipulates:
‘
If
liquidation proceedings have already been commenced by or against the
company at the time an application is made in terms of
subsection
(1), the application will suspend those liquidation proceedings
until-
(a)
the court has adjudicated upon the application; or
(b)
the business rescue proceedings end, if the court makes the order
applied for.’
[6]
Of significance in the business rescue
application, particularly focusing on the respondent’s conduct,
are the following:
(a)
The business rescue application was
launched in another division, the South Gauteng High Court.
(b)
The applicant is Mr Kgopodithata; the first respondent is POJK; the
second and third respondents
are Standard Bank South Africa Ltd and
SB Guarantee Company (RF) (Pty) Ltd, respectively.
(c)
The second and third respondents were served with the business rescue
application
on 23 June 2025.
The
application was therefore launched three months after the launch of
the winding-up application.
(d)
There is an attached list of POJK creditors on “BR21”
purportedly collectively
owed an amount of R10 337 836.48. The list
of creditors does not reflect the amount of R12 million claimed by
the applicants and
admitted by POJK in the liquidation application.
Mr Richards made the submission that POJK is making repayments of
R100 000 per
month.
(e)
It was contended that there is a possible source of payment from a
third party, Mr
Taunyane, a primary school principal, who has offered
to pay an amount of R3 million but only attached a confirmatory
affidavit
to the papers. I cannot be expected to take this figure on
face value without more.
(f)
This leaves the respondent with a Services Supply Agreement with
Afrimat Iron Ore
(Pty) Ltd providing its source of income. Mr
Richards contended that the agreement has potential for better
conditions.
(g)
Mr Richards further submitted that the respondent has two bonded
properties emphasising
their value of R10 million. But the court
shall not refuse to make a winding-up order on the ground only that
the assets of the
company have been mortgaged to an amount equal to
or in excess of those assets.
[2]
[7]
Mr Els, for the applicants in the
winding-up application, challenged the jurisdiction of the
Johannesburg High Court to hear the
business rescue application
contending that both the registered office and principal place of
business of POJK were in Kuruman
in the Northern Cape. This
contention was not disputed by Mr Richards whose response was that
the Johannesburg High Court was clothed
with the necessary
jurisdiction by the fact that Standard Bank and SB Guarantee, who
have an interest in the outcome of the matter,
are domiciled in
Johannesburg. The contention is that in such instances, there is
concurrent jurisdiction and the business rescue
application could be
brought before this Court or the South Gauteng High Court.
[8]
Mr
Richards relied on this Division’s judgments namely,
Lonsdale
Commercial Corporation v Kimberly West Diamond Mining
[3]
(
Lonsdale
)
by Lacock J and
De
Bruyn v Grandselect 101 (Pty) Ltd and Another
[4]
(
De
Bruyn
)
by Phatshoane J. He further contended that not only
Sibakhulu
Construction (Pty) Ltd v Wedgewood Village Golf Country Estate (Pty)
Ltd (Nedbank Ltd Intervening)
[5]
(
Sibakhulu
),
but also
PFC
Properties (Pty) Ltd v Commissioner, South African Revenue Services
and Others
[6]
(
PFC
Properties
)
are authority for his contention that the Johannesburg High Court has
jurisdiction to hear the business rescue application. The
contention
by Mr Richards is misplaced as neither of the mentioned authorities
assist the intervening party’s case as it
shall be demonstrated
in the analysis below.
[9]
In
all the mentioned authorities, the point of departure for purposes of
jurisdiction is the registered address or the principal
place of
business of the company under purported provisional liquidation.
[7]
Not once has it ever been the registered address of the interested
parties or creditors in particular. In
Lonsdale
the respondents relied on
Sibakhulu
to argue that this Court had no jurisdiction to hear the liquidation
application because the registered office of the company under
liquidation was not within its area of jurisdiction. It is in this
regard that the Court said the following pertaining to
Sibakhulu
[8]
:
‘
A
finding that the legislature intended the provisions of section 23(3)
of the 2008 Act to be construed “for purposes of jurisdiction”
(a phrase repeatedly used by Binns - Ward J in
Sibakhulu)
is, to my mind, tantamount to a finding
that the legislature intended to limit or oust a local- and
provincial division’s
jurisdiction derived from the common law
and/or section 29 of the Supreme Court Act in respect of the
liquidation and/or business
rescue proceedings of a company that
“resides” or has its principal place of business within
the Court’s area
of jurisdiction, but not also its registered
address. I am not persuaded that the reasons advanced by the learned
judge justify
such a drastic limitation of a Court’s
jurisdiction.
‘…
I
fully agree with Binns-Ward J’s finding that the provisions of
section 23(3) of the Act
[9]
justify the inference that the legislature intended that a company’s
principal place of business and its registered address
should be one
and the same.’
The Court in
Lonsdale
found that the respondent had its principal place of business on
the farm situated within the area of jurisdiction of this Court
and
was therefore satisfied that it had the necessary jurisdiction to
issue the provisional liquidation order and to finalise the
application.
[10]
In
De Bruyn,
the directors of Grandselect 101 (Pty)
Ltd had resolved to voluntarily commence with business rescue
proceedings by placing it under
the supervision of a business rescue
practitioner. The applicant approached the court on an urgent basis
asking the court to set
aside the resolution to initiate business
rescue proceedings and to grant a provisional order followed by a
final order winding-up
Grandselect 101 (Pty) Ltd in the hands of the
Master of the High Court. The respondent had argued that this Court
lacked the necessary
jurisdiction because both the registered address
and the principal place of business of Grandselect 101 (Pty) Ltd were
Cape Town.
It was common cause that the registered office of the
company was indeed in Cape Town. Therefore, the dispute was whether
its principal
place of business was situated in that same area or in
the Northern Cape.
[11]
Counsel for Grandselect 101 (Pty) Ltd had
also relied on
Sibakhulu
and argued that in the wake of the 2008 Act, only a high court in the
area where the registered office of the company is situated
would
have jurisdiction to entertain the liquidation application. This
would be so that, even if the company’s principal
place of
business is within this Court’s area of jurisdiction, this
Court would still not have jurisdiction over the liquidation
application by virtue of the company’s registered office being
outside its area of jurisdiction. In that regard, this Court
pronounced:
‘
There
can be no doubt that the approach propounded by Binns-Ward J is
commercially sound and brings about certainty. The examples
of
problematic situations that may arise if only one Court is intended
to have jurisdiction in respect of liquidations and business
rescue
proceedings highlighted by Binns-Ward J in para 24 of his judgment
are compelling. Nevertheless, considerations of convenience
as stated
in
Dairy
Board
should
also be taken into account. I wish to add that in certain instances
this may be decisive. I share the view expressed by Lacock
J that the
hurdles alluded to by Binns-Ward J are not insurmountable and
sufficient to oust the Court’s jurisdiction in respect
of a
company whose principal place of business is situated in its
boundaries.
I
am of the view that this Court would have jurisdiction to determine
the liquidation or business rescue application of a company
whose
principal place of business and/or registered office is situated in
its area of jurisdiction.
[10]
(Emphasis added).
[12]
For
completeness’ sake, I emphasise that even in
Sibakhulu
,
one of the issues was that business rescue proceedings had been
instituted in Gqeberha (Port Elizabeth) while the registered address
of the company against whom liquidation was sought was Cape Town.
Liquidation proceedings were pending in the Western Cape Division
when the business rescue application was launched. It was common
cause that the respondent company’s only business enterprise
at
the time was in Port Elizabeth. Therefore, the point of departure on
the issue of jurisdiction was the registered address and
the
principal place of business of the company under liquidation, not
that of interested parties.
[11]
[13]
In
casu
,
the intervening party is not arguing that the respondent’s
registered address or the principal place of business is in Gauteng.
Indeed, such an argument would fly in the face of the undisputed fact
that both the registered office and the principal place of
business
of POJK are in the Northern Cape and within this Court’s area
of jurisdiction. Unprecedentedly, the intervening
party’s
argument seeks to establish jurisdiction in relation to the
domicilia
of interested parties, creditors in particular. Mr Richards’
contention lacks merit and is not supported by the authorities
relied
on. I am also not aware of any authority for such contentions.
Standard Bank and SB Guarantee are creditors. It is settled
that the
address that forms the subject matter in applications of this nature
is that of the respondent (POJK as the company that
is the subject of
liquidation).
[14]
Accordingly,
I find that the South Gauteng High Court would be competent to decide
on the business rescue application if the respondent
had either its
registered office or principal place of business within that court’s
jurisdiction.
[12]
Evidently,
the respondent’s business is conducted in Kuruman. I am
therefore of the view that the contention by Standard
Bank and SB
Guarantee that the business rescue proceedings have not been
competently instituted in the court having jurisdiction
is sound.
This therefore means that the winding-up application has not been
suspended by virtue of s 131(6) of the 2008 Act. I
therefore proceed
to decide the liquidation application.
[15]
As already stated, POJK failed to file an
opposing affidavit having been served with the provisional winding-up
order. The only
affidavit filed was by Mr Kgopodithata in the
adjournment application which also attempted to show cause why the
provisional winding-up
order should not be made final. The only
reason proffered in that affidavit, which is POJK’s argument in
a nutshell, is that
the business rescue application in the
Johannesburg High Court suspended the liquidation application as
contemplated by s 131(6)
of the 2008 Act. This, so the argument went,
placed a general moratorium on the liquidation application in
accordance with s 133
of the 2008 Act.
[16]
The
Supreme Court of Appeal made these remarks in
Afgri
Operations Ltd v Hamba Fleet (Pty) Ltd
[13]
:
‘
Notwithstanding
its awareness of the fact that its discretion must be exercised
judicially, the court a quo did not keep in view
the specific
principle that, generally speaking,
an
unpaid creditor has a right,
ex
debito justitiae,
to a
winding-up order against the respondent company that has not
discharged that debt
. Different
considerations may apply where business rescue proceedings are being
considered in terms of Part A of chapter 6 of the
new
Companies Act
71 of 2008
. …The court a quo also did not heed the principle
that, in practice,
the discretion of a
court to refuse to grant a winding-up order where an unpaid creditor
applies therefor is a “very narrow
one” that is rarely
exercised and in special or unusual circumstances only
.’
(Emphasis added.)
[17]
In light of my findings on the incompetency
of the business rescue application pending before the Johannesburg
High Court, there
remains no other reason proffered before this Court
for it not to grant the final liquidation order.
[18]
I
am also mindful of the remarks by the Supreme Court of Appeal in
PFC
Properties
[14]
:
‘
From
what is set out above, it is clear that the DRFT trustees have sought
to use the legal process provided for companies, which
may
legitimately be rescued, for an ulterior purpose – to thwart
the winding-up proceedings and the consequences for the
De Robillards
that may arise therefrom. This stratagem, as stated in
Villa
Crop
, “subverts fundamental
values of the rule of law”. The conduct of the DRFT trustees
and PFC is so tainted by impropriety
that this court must use the
power it has to “safeguard the integrity of its process”.
In so acting, the power
of this court to non-suit the DRFT trustees is warranted. As a
consequence, their ill-fated application
should not have been
entertained by reason of its use in a scheme of abuse. Although the
application was correctly dismissed by
the Pietermaritzburg High
Court, it fails in this court, on appeal, for different reasons.
PFC sought to oppose the
liquidation application on the basis of the moratorium provided for
in s 131(6) of the Act. But the legislature
could not have intended
that a business rescue application, tainted by abuse, would have that
effect. In essence, because the DRFT
trustees were non-suited for the
reasons set out above, the doomed business rescue application was not
“made”, as envisaged
in s 131(6). Thus, the moratorium
did not come into operation and did not suspend the winding-up
proceedings. That being so, there
was no impediment to the winding-up
proceedings.’
[19]
Despite the business rescue application not
being before me and pending in the South Gauteng High Court, I still
find that it was
used as an abuse of the court process. This is in
light of the fact that the respondent was meant to file opposing
papers in May
2025 but instead, its director instituted business
rescue proceedings in June 2025 in Johannesburg. It appears to me
that the respondent’s
director might have known that the
respondent had no defence against the liquidation application hence
the institution of business
rescue application first, and then
reliance on same to oppose these liquidation proceedings.
[20]
Moreover, the business rescue application
seems to have been specifically brought in the Johannesburg High
Court than this Court
as means to further the stratagem to confuse
and delay the liquidation proceedings. This is so because the
applicants, whose convenience
the respondent’s director would
ostensibly accommodate by approaching the Johannesburg High Court,
have themselves brought
the liquidation application in this Court.
This Court must use its power to safeguard the integrity of its
process. The moratorium
did not come into effect. There is therefore
no impediment to granting the final winding-up order as prayed for.
[21]
In the result, the following order is made:
1.
The application by Thabiso Gerald
Kgopodithata to stay the winding-up proceedings of the respondent
company, pending the determination
of an application before the South
Gauteng High Court (Johannesburg) under Case Number 2025-092348 to
place the respondent company
under supervision and commencing
business rescue proceedings, is dismissed with costs.
2.
The respondent is placed under a final
winding-up order in the hands of the Master.
3.
Mr Thabiso Gerald Kgopodithata is liable
for the costs of the adjournment application on the scale as between
party and party.
4.
The costs of the liquidation application
are in the liquidation.
_____________________
MC MAMOSEBO
JUDGE OF THE HIGH
COURT
NORTHERN CAPE DIVISION
Appearances
For the
Applicant:
Adv. J Els
Instructed
by:
Phatshoane Henney Attorneys
c/o
Van de Wall Inc
For the Respondent and
The Intervening
Party:
Mr F Richards
Instructed
by:
Richards Inc Attorneys
c/o
Motlhamme Pino Attorneys
[1]
Section
347 (1) of the 1973 Act provides:
347. Power of Court
in hearing application.
(1)
The Court may grant or dismiss any application under section 346, or
adjourn the hearing thereof,
conditionally or unconditionally, or
make any interim order or any other order it may deem just, but the
Court shall not refuse
to make a winding-up order on the ground only
that the assets of the company have been mortgaged to an amount
equal to or in
excess of those assets or that the company has no
assets.
[2]
Section
347 (1) of the 1973
Act.
[3]
(312/2012
)
[2013] ZANCHC 11
(17
May 2013).
[4]
(1961/2013)
[2014] ZANCHC 3
(5 March 2014) para 13.
[5]
[2011] ZAWCHC 439;
2013
(1) SA 191 (WCC).
[6]
[2023] ZASCA 111;
2024
(1) SA 400 (SCA).
[7]
See also
Wild
and Marr (Pty) Ltd v Intratrek Properties (Pty) Ltd
(27814/2018) [2019] ZAGPPHC 613 (20 May 2019) and
Van
der Merwe v Duraline (Pty) Ltd
(7344/2013)
[2013] ZAWCHC 213
(23 August 2013). These two cases demonstrate
the long-standing practice that jurisdiction in these matters is
determined
in relation to the company under purported liquidation
and not the creditors or other interested parties.
[8]
Supra
fn
4 para 6.2 and 6.4.
[9]
Section
23 (3) of the 2008 Act provides:
23. Registration of
external companies and registered office
(3)
Each company or external company must-
(a)
continuously maintain at least one office in the Republic; and
(b)
register the address of its office, or its principal office if it
has more than one office-
(i) initially in
the case of-
(aa)
a company, by providing the required information on its Notice of
Incorporation; or
(bb)
an external company, by providing the required information when
filing its registration in terms of subsection
(1); and
(ii) subsequently, by
filing a notice of change of registered office, together with the
prescribed fee.
[10]
Supra
fn 5 para 13.
[11]
The
issue having been raised in light of the 2008 Act having repealed
most of the provisions of the 1973 Act of which s 12 (1)
of the
latter Act had expressly provided for concurrent jurisdiction in
these matters.
[12]
For example, see
X
Pharm (Pty) Ltd v Emoyamed Hospital (Pty) Ltd
[2023] JOL 59331
(FB) where the company under provisional
liquidation had its registered address in Bloemfontein while its
principal office of
business had been moved to Gauteng. There, the
high court in Bloemfontein was seized with the liquidation
application wherein
the subsequent business rescue proceedings were
brought in Pretoria. The court held that the liquidation proceedings
were suspended
by the business rescue proceedings because the
company in question had its principal place of business in Gauteng
which clothed
the Pretoria High Court with the necessary
jurisdiction to entertain the business rescue application.
[13]
[2017]
ZASCA 24
;
2022 (1) SA 91
(SCA) para 12.
[14]
Supra
fn 8 paras 36 – 38.