REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
Case Number: 145534/24
In the matter between:
SIYAKHULA SONKE EMPOWERMENT First Applicant
CORPORATION (PTY) LTD
TRAIN THE NATION AND ASSOCIATES (PTY) LTD Second Applicant
and
BARBROOK MINES (PTY) LTD First Respondent
(in business rescue)
MAKONJWAAN IMPERIAL MINING Second Respondent
COMPANY (PTY) LTD
(in business rescue)
VANTAGE GOLDFIELDS (PTY) LTD Third Respondent
(in business rescue)
ROBERT CHARLES DEVEREUX N.O. Fourth Respondent
ARQOMANZI (PTY) LTD Intervening Party
GOLD STREAM (PTY) LTD Intervening Party
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: No
10/10/2025
DATE SIGNATURE
2
JUDGMENT
MANOIM J:
Introduction
[1] This is an application for the provisional liquidation of three companies
presently in business rescue. The companies are Barbrook Mines (Pty) Ltd (in
Business Rescue) the first respondent, Makonjwaan Imperial Mining Company
(Pty) Ltd (MIMCO) (in Business Rescue) the second Respondent, and Vantage
Goldfields Pty Ltd (in Business Rescue), the third respondent. For convenience
I will from now on refer to the three as the respondents. The respondents are
all related to one another through a common shareholding.
[2] The two applicants, Siyakhula Sonke Empowerment Corporation ( Pty) Ltd
(SSC) and Train the Nation and Associates (Pty) Ltd, (TTN) are creditors of the
various respondents.1
[3] The application is opposed by the fourth respondent , Robert Deveraux, the
business rescue practitioner (BRP), as well as two other parties, Gold Stream
(Pty) Ltd and Arqomanzi (Pty) Ltd , who are also creditors of the respondents.
The latter two firms were not joined in the application , but at the time of the
hearing they applied for leave to intervene in the case, which I granted.
1 SSC is a post-commencement financier of Barbrook and Vantage Goldfields, and TTN is a creditor
of MIMCO. SSC is owed a total amount (including interest calculated up to 30 November 2024) of:
R26 650 806.63 by Vantage Goldfields for PCF; and R1 834 630.42 by Barbrook for PCF. TTN is
owed a total amount of R689 814.00 by MIMCO, which claim has been accepted b y the BRP. TTN’s
claim is in respect of training services rendered to MIMCO prior to the business rescue.
3
[4] Although the application was argued before me on 22 April 2025,I have only
delivered judgment now. This is because at various times since then I was
requested by the BRP, to delay my judgment because of developments that
happened since the case was argued. Specifically, I was told that there was a
buyer for the three companies waiting in the wings. I acceded to these requests
and held several case management meetings with the parties waiting for
anticipated development to take place. Up until the last case management
meeting held on 30 September 2025, the buyer had not taken any conclusive
steps.
[5] But simultaneously at the same case management meeting another
prospective intervenor emerged to assert the claims of another potential buyer
for the assets. At that stage that prospective suitor looked no more certain than
the one advanced by the BRP. Since that date, the attorneys for the intervenor
have suggested that their suitor has taken further steps to indicate the
seriousness of its prospects.
[6] The history of this case illustrates two contradictory features. It has remained
unresolved after the elapse of 9 years since the first of the three respondent
companies was placed in business rescue. That might suggest passivity by the
BRP. Yet during this period there has been a constant flux. Litigation has ensued
on several occasions and candidates to buy the companies have come and
gone. Granted the BRP has been accused by his critics at best of vacillation
and at worst of placing his own interests ahe ad of those of the creditors. But I
can make no finding in this respect because the record which is confined to the
papers is inconclusive on this important point.
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[7] At the same time, the creditors themselves are not ad idem. The applicants are
creditors seeking provisional liquidation. Arqomanzi the largest creditor ,
appears, up until now, to back the efforts of the BRP to conclude an agreement
with a Chinese based firm called Ultra Concepts Limited (UCL).
[8] Gold Stream, the second largest, whilst opposing liquidation, has changed its
position on what outcome it wants several times. When it intervened, it sought
to promote another possible buyer , Macquarie Metals (Pty) Ltd (Macquarie) .
Then it allowed the UCL bid to be given a chance. Now that the bid has resulted
in a stalemate, it seeks the removal of the BRP.
[9] Then another creditor, Salamander Mining (Pty) Ltd (Salamander), applied at
the last minute to intervene in order to promote the interest of another potential
buyer, Lions Bay Resources (Pty) Ltd from Canada.
[10] In short, this matter has been plagued by both a lack of resolution and continual
moving parts. For this reason, I consider it premature to give any other remedy
except to adjourn the application. This might seem anomalous given the history
of the case which cries out for resolution, but I go on to explain why.
Essence of the application
[11] The applicants’ case is premised on section 132(2)(a) of the Companies Act,
71 of 2008 (the Act) , which grants the court the power to convert business
rescue proceedings into liquidation proceedings. The applicants advance two
reasons why such a conversion is justified. First, the length of time the business
rescue has taken without resolution, and secondly, the conduct of the BRP,
which is described in unflattering terms by the applicants as animated by
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“unmeritorious, speculative tactics.” Put in less emotive language the complaint
is that the BRP has persisted in supporting a bid for the respondents ’ assets
that has failed to progress , when it should have been clear to him that this
course of conduct was futile.
[12] The applicants make the point that the business rescue has now taken over 9
years without success. While the Act does not prescribe how long business
rescue should last it does give a strong interpretive steer in section 132(3)
where it states that if a company’s business rescue has not ended within three
months of the start the BRP must prepare a progress report.
[13] In South Cables and Electrical (Pty) Ltd and Another v Walro Flex (Pty) Ltd and
Others 2021 JDR 3408 (GJ) both issues that arose in this case (duration and
the conduct of the BRP) were considered relevant by the court which ordered
that the business rescue proceeding be converted into liquidation proceedings.
The court there stated:
“When the purpose of placing a company under business rescue is not
achieved, or there is prima facie evidence of abuse of the proceedings, thereby
prolonging the proceedings when winding up would better benefit creditors, or
where the BRP has failed in his/her duties and functions as an officer of the
Court, a conversion of the proceedings into liquidation proceedings may be
appropriate. Importantly, the rights of third parties to enforce their rights against
the subject company have to be guarded.”
In Van Staden NO & Others v Pro-Wiz Group (Pty) Ltd, Wallis JA said:
6
"It has repeatedly been stressed that business rescue exists for the sake of rehabilitating
companies that have fallen on hard times but are capable of being restored to profitability or, if
that is impossible, to be employed where it will lead to creditors receiving an enhanced dividend.
Its use to delay a winding-up, or to afford an opportunity to those who were behind its business
operations not to account for their stewardship, should not be permitted. When a court is
confronted with a case where it is satisfied that the purpose behind a business rescue
application was not to achieve either of these goals, a punitive costs order is appropriate."
It may be added that even in the absence of a deliberate use of these
proceedings to delay a winding -up the inability to conclude proceedings
expeditiously is itself a cause to call for the halting thereof.
[14] In seeking to make its case on these two grounds – the duration of the process
and the conduct of the BRP - the applicants rely on the history of the business
rescue process as it unfolded both before the hearing in April 2025 and then
subsequently. Hence, I deal with the history separately.
History
a. Pre-April 2025
[15] The events leading to this case start in February 2016 when a collapse at the
Lily Mine in Barberton causing the death of three miners , led to operations at
the mine ceasing. In June 2016 , MIMCO, the respondent which owned the
mine, was placed into business rescue. But the closure also had a domino effect
on the fortunes of the other two respondents. Barbrook lost crucial processing
income from the Lily Mine, and it was placed into business rescue in December
2016. At the same time Vantage also felt the strain of the loss of Lily Mine and
was also placed in business rescue on the same day in December 2016.This
7
is when the BRP entered the picture. The current BRP , Robert Deveraux had
been first appointed as the BRP of M IMCO, and in December 2016, he was
appointed the BRP of the other two firms.
[16] Two years later in November 2018, Daniel Terblanche was appointed as a joint
BRP with Deveraux for all the respondents. He served in this position for about
five years until he resigned in November 2023. He gave various reasons for his
resignation inter alia a breakdown in his relationship with Deveraux. This led to
Deveraux resuming as the sole BRP for the three respondent s, a situation
which pertains till the present day.
[17] Nevertheless, business rescue plans were adopted for all three respondents on
the following dates: MIMCO: 25 May 2016; Barbrook : 6 August 2018; and
Vantage Goldfields: 16 February 2017.
[18] From sometime in 2019 and until at least the end of 2023, the BRP was
embroiled in litigation with creditors. At least two matters went as far as the
Supreme Court of Appeal. The detail s of this litigation are not relevant to this
case. What is relevant is that from the BRP’s perspective these cases have
delayed the finalisation of the business rescue process and hence what seems
an alarmingly long timeline requires some context. The applicants are willing to
concede that the litigation may have retarded the process, but they argue that
since November 2023 there has been no further litigation.2
[19] Noteworthy in the one SCA judgment is the following clamant plea to the
parties from the court:
2 As it turns out this was only the case when these proceeding were launched . As I discuss other
proceedings from other parties have been either threatened or launched.
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“The delay in the finalisation of the business rescue proceedings is most
regrettable. The matter cries out for finality to be reached.”3
[20] In the course of 2024, much correspondence was exchanged b etween the
applicants and the BRP, with the former expressing their frustration with what
they considered was the vacillation of the latter.
[21] Eventually the applicants brought this application for the conversion of the
business rescue to liquidation in December 2024. The succinct basis at that
time for their case was expressed as follows:
It is evident from the history of this matter that Barbrook, MIMCO and Vantage
Goldfields are not capable of being rescued under the current or any
contemplated proposed amended business rescue plans (which are yet to be
forthcoming) and there is no prospect that they can be rescued through
business rescue proceedings. The first to third respondents should therefore
be liquidated in terms of section 132(2) of the Companies Act.
And the applicants went on to add that:
No reasonable BRP , on an objective view of the facts set out above, could in
good faith hold a view that the BR Companies are capable of being rescued
and ----- that they should not be liquidated
a. Post April 2025
[22] This was the state of play when I heard the application on 22 April 2025, and I
reserved judgment. But then the situation changed.
3 Vantage Goldfields SA (Pty) Ltd and Others v Arqomanzi (Pty) Ltd 2023 (4) SA 568 (SCA)
9
[23] Before I had delivered judgment, I was requested by the BRP on 9 June 2025
to file a supplementary affidavit. I allowed this. In the supplementary affidavit
the BRP updated the court on certain new events that had taken place since I
had heard argument.
[24] First the BRP had attempted to arrange a new meeting of creditors in May 2025.
However, before he could do so he had to deal with two challenges. First ,
Salamander had brought an application to get recognised as a creditor of
Barbrook. A settlement was reached with Salamander, and they were
recognised as a credito r. Then Gold Stream brought an urgent application to
get the right to vote despite being a post commencement creditor. Gold
Stream’s application however was struck off the roll . With these threats of
further litigation averted the BRP then organised a meeting of creditors which
was held on 2 June 2025.
[25] At this meeting, an amended business rescue plan for all three respondents
was voted on with the following outcomes: Barbrook: 100% of creditors in
attendance; MIMCO: 94.13% of creditors in attendance; and Vantage: 99.94%
of creditors in attendance. According to the BRP, the applicants were one of the
few creditors who voted against the adoption of the plans . The BRP then met
with the Department of Mineral Resources where he told them of UCL’s interest.
According to him the Department received the news enthusiastically.
[26] At this stage it seemed that the UCL offer was imminent. In his supplementary
affidavit, the BRP nevertheless offered a cautionary note about when the offer
could cross the finishing l ine. Th is was because the funding, which was to
exceed $40 million , required Reserve Bank cleara nce and he had no control
10
over that process. Nevertheless, the court was told that a firm of attorneys had
been appointed to oversee this process. Secondly, the approval of the Minster
of Mineral and Energy was required for the mining licence to be transferred to
the successful buyer in terms of section 11 of the Mineral and Petroleum
Resources Development Act, 28 of 2002.
[27] At this point in time the case for the BRP was the strongest it had been in the
history of the business rescue , plagued as it had been by litigious delays.
Nevertheless, with the consent of the parties I arranged a further case
management meeting to get a report back from the BRP on progress with the
Reserve Bank.
[28] But on the arranged date there was no further progress . Case management
meetings were held over the months of June, July, August and September
2025. Each time the report back from the BRP was that the finish line had not
yet been crossed. Different reasons were given for the failure of UCL to come
up with the money , until eventually the report was that there had been an
impasse. UCL was reportedly not willing to come up with money until the section
11 transfer approval had been obtained , but the Ministry wa s not willing to
approve the transfer until the money was in the country.
[29] Eventually even Gold Stream and Arqomanzi , which had thus far allied
themselves with cause of the BRP rather than the app licants, began to lose
patience. At a September case management meeting, Gold Stream, with the
support of Arqomanzi, proposed I issue a much tighter directive . I acceded to
the request and issued the directive. Its terms were that the BRP had to meet
two conditions to be considered to have crossed the finish line. They were:
11
(i) an unconditional bank guarantee from HSBC or BOCOM (two offshore
banking institutions UCL had been dealing with) in favour of Investec and an
Investec credit-approved term sheet for the full USD 40 million; and (ii) written
confirmation from the Department of Minerals and Energy (D ME) that the
Minister is prepared to accept the funding arrangements for the pending section
11 applications.
[30] The BRP was not able to meet either of these conditions. The most he could
produce were the applications to the DME for section 11 approval. But proof of
an application is not evidence of confirmation . Nor was there any explanation
for why the bank guarantee could not be produced. I indicated to the parties
that I would no longer postpone the matter and I would deliver a judgment. I
was requested by the parties to allow them an opportunity for further written
submissions which I agreed to.
[31] But then there was a further twist. At the hearing, an attorney representing
Salamander appeared. That same afternoon Salamander had filed an
application to intervene in the proceedings. The basis was that Salamander ,
latterly recognised as a creditor of Barbrook , had found a potential buyer. The
buyer was a Canadian company called Lions Bay Resources (Pty) Ltd.
[32] The offer had just come in and there was no response yet from the BRP as to
whether the offer was worthy of consideration. I advised Salamander that this
was too late in the day, and I would not delay writing the judgment any further.
Since that date I received a further letter from Salamander. Two points were
made in this letter. The security company responsible for protecting the mines
was no longer able to do so and was itself in business rescue. Nevertheless ,
12
Salamander was willing to continue paying the costs of the security contract
and had already done so for the month of October. Enclosed was a proof of
transfer from Lions Bay Capital Inc in Vanc ouver to the order of Cir cufin
Financial Brokers (Pty) Ltd in Nelspruit.
[33] The upshot of the letter was that Salamander was seeking a direction of when
to bring an urgent application. In other words, this was a repeat of the request
made at the September case management meeting but fortified by alleged
evidence of further developments.
[34] In summary then at the time of the writing of this judgment the following parties
seek the following remedies:
a. The applicants continue to seek an order of conversion to place the
respondents into provisional liquidation.
b. Arqomanzi seeks dismissal of the application, and in the alternative that the
liquidation proceedings be adjourned or stayed pending finalisation of the
process envisaged in the BRP’s business rescue plan. Put differently
Arqomanzi appears to be the only creditor left willing to let the UCL bid
continue.
c. Gold Stream, which had once backed a bid from Macquarie , now seeks a
postponement in order to bring a further remedy – the removal of the BRP.
Thus, Gold Stream and Arqomanzi are no longer ad idem on the way
forward.
d. The BRP now no longer seeks the dismissal of the application at this stage.
Instead, he seeks a suspension for a period of three months (12 weeks), to
13
afford him a final opportunity to attempt to rescue the respondents by
“implementing the Ultra Concepts offer as embodied in the amended (and
adopted) business rescue plans.”
e. Salamander is waiting the wings (it has not yet been recognised as an
intervenor) to bring an intervention application to put forward its proposal
involving a potential purchase by Lions Bay.
[35] I turn now to discuss these remedies.
Remedies
[36] The two planks of the applicants’ case for provisional liquidation appear at first
blush unassailable. First, is the length of time that the business rescue process
has endured without finality, for more than nine years , in respect of MIMCO,
and approaching that in respect of the two others. Business rescue should
never take this long. Second , the BRP, despite the many hurdles he has
encountered along the way, is still not forthcoming about why the UCL bid , for
which he has justified the requests for several delays, has become becalmed.
Four months have passed since his optimistic indications in June 2025 that the
deal was close to finality.
[37] Nevertheless, a court is not obliged to grant a conversion even on these facts.
As pointed out in the case of E Sacks Futeran and Co (Pty) Ltd v Linorama
(Pty) Ltd; Ex parte Linorama (Pty) Ltd 1985 (4) SA 686 (C) where the court was
faced with two options, one by a creditor for a winding up order and the other
for the approval of a scheme of arrangement:
14
“The principle that an unpaid creditor is entitled to an order ex debito justitiae
applies, however, only as against the company and not as between creditors
(Joubert (op cit para 387 at 364)). The Court therefore, in the exercise of its
discretion, should take the views of creditors into account, where the majority
of those creditors consider that a winding up should not be granted. The views
of the majority are not conclusive and they cannot fetter the Court's discretion
but they must be given great weight.”
Consideration for the views of the majority is also emphasised in cases going
back for many years . In Ex Parte Power NO: In re Amato Consolidated
Industries Ltd 1959 (2) SA 547 (W) at 548, Kuper J noted that:
“It is clear that the power given to the Court may be exercised when the H
petition for a winding -up order is before the Court, but before it has been
granted, and the Court has a complete discretion to direct the petition to stand
over in order that the wishes of creditors might be obtained. In the case of In re
Great Western (Forest of Dean) Coal Consumers Company, (1882) 21 Ch.D.
at p. 773, Mr. JUSTICE FRY said:
“That the Court may have regard to the wishes of creditors in the matter of a winding-up is part
of the statutory enactments which regulate the Court in this jurisdiction. That it ought so to have
regard to those wishes is apparent from the statute itself, as well as from a series of decisions.
As 1959 (2) SA p549 Kuper J against the company, I conceive that, prima facie, a person who
is shewn to have a debt which the company does not satisfy has a right ex debito justiti ae to a
winding-up order. But that p rima facie right may be rebutted, and especially as against other
creditors, the moment it is shown that there is a large mass of other creditors who are opposed
to the winding-up. And, in my judgment, the Court ought to consider, not merely the number of
15
the opposing creditors and the value of their debts, but ought to have some regard to the
reasons which they adduce for the conclusion at which they have arrived."
[38] In the present case as I indicated earlier , the votes in favour of the amended
business rescue plan in June this year were overwhelming. The applicants do
not dispute this but argue that that is because one creditor, Arqomanzi, has a
disproportionate share of the vote given its size in value as the largest creditor.
This may be so but no other creditor apart from the applicants (who in value
terms are minor creditors) seeks liquidation. Gold Stream which now has
reservations about the BRP, seeks his removal, not liquidation, whilst lurking in
the background is Salamander’s promotion of its bidder in the form of L ions
Bay.
[39] But this is more than an issue of creditor democracy by value. It is likely that
someone is going to provide the finances to take the respondents out of
business rescue.
[40] At this stage it is not clear who that will be. The BRP points out that a provisional
liquidator is no more than a caretaker of the assets. These powers , limited as
they are , can be extended but this requires the approval of the Master
introducing another imponderable into an already uncertain and protracted
situation. If the liquidation becomes final the mining rights will be lost and hence
the most valuable assets of the respondent companies. 4 No meeting of
creditors can take place because this can only happen after final liquidation. In
short no case is made out that the avenue of liquidation is likely to bring more
4 Section 56 of the Minerals and Petroleum Resources Development Act.
16
expeditious finality to the present impasse . It would appear that the BRP
possesses greater flexibility than would a provisional liquidator in this situation.
[41] Nor are the prospects of rescue hopeless. The Lily mine may have its
challenges and history of tragedy but it still has gold. According to the BRP “To
the best of my understanding, it is estimated that the gold reserve vesting in the
BR companies is in the region of 4 million ounces of gold, making it one of the
largest remaining gold reserves in the world.”
[42] In a time of historically rising gold price, suitors are likely to come forward and
even the current ones have yet to walk away.
[43] It is also not appropriate for me to consider at this stage the new relief sought
by Gold Stream to have the BRP removed. As the BRP’s representatives have
argued the basis for this application needs to be made out before that can be
considered. At present it has not been made out on the papers by Gold Stream.
[44] Finally, I need to explain why I have not dismissed the application although by
now, that voice from the BRP and other creditors is less clamant than it was in
April. Simply put, it has taken this application to hold all the other players in this
drama’s feet to the fire. While progress has been modest in the business rescue
there is little doubt that this pending application has focussed the minds of all
the significant players . The case for liquidation may still remain if in three
months’ time progress to cross the finishing line, has either not been made, or
if it has, it has not been adequately explained.
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[45] I have left till last , the two points in limine which were argued by Arqomanzi
during the April hearing. Both points involve joinder. Firstly, misjoinder and
secondly non-joinder.
[46] The mis-joinder point was that it was unusual to have three legally separate
entities being the subject of a winding up order in a single application.
Expanding on this Arqomanzi argued that the shareholdings of all three
companies differ. However, this is a point of form without substance. Although
the shareholdings of the firms are not identical, they are all subject to the control
of the same shareholder. Secondly, the same BRP has been appointed for all
three companies. Creditors meetings have taken pla ce at the same time.
Thirdly, the fate of all these firms is interdependent. The collapse of the Lily
Mine as I explained earlier not only affected MIMCO, but it also had a knock-on
effect on the two others. Therefore , all the factors concerning the one are
inextricably linked to the others. Fourthly, all those seeking to buy out the firms
from business rescue have taken the approach that all three companies are
linked. Arqomanzi is a creditor of all three. Does it seriously contend it would be
better off if all three were considered separately ? Legally separate they may
be, but they are part of the same economic family. The misjoinder point falls to
be dismissed.
[47] The joinder point is more complicated. Arqomanzi argues that there should
have been joinder of all the creditors. It relies on cases where the courts have
held that the failure to join creditors to legal proceedings post -adoption of a
18
business rescue plan is fatal to an application relating to the business rescue
proceedings. 5
[48] The applicants argue that these cases are distinguishable as they are not
seeking to set aside a business plan. This is not a point I need to decide now
and can be reconsidered if the matter comes back for consideration. In the
meantime, the applicants have time to consider whether they need to join the
creditors if they consider ex abundante that the point is good.
[49] I have therefore decided to gr ant the request for the adjournment of the
application in terms of section 347(1) of the Act for a period of three months
from date of this judgment.
Costs
[50] Given the order I have made , it is appropriate that costs stand over to a later
time. Costs of the application are reserved.
ORDER
The following order is granted:
1. The application for conversion in terms of section 132(2)(a) of the Companies
Act, (the Act), is adjourned for a period of three months from the date of this
order in terms of section 347(1) of the Act; and
2. The costs of this application are reserved.
5 Most recently in Kransfontein Beleggings (Pty) Ltd v Corlink Twenty Five (Pty) Ltd, (624/2016)
[2017] ZASCA 131 (29 September 2017)( See paragraph 16.
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___ _________
MANOIM J
JUDGE OF THE HIGH COURT
JOHANNESBURG
20
APPEARANCES:
For the Applicants: CHJ Badenhorst SC and K Naidoo
Instructed by: Stein Scop Attorneys Inc.
For the Respondents: J Vorster SC and R De Leeuw
Instructed by: Barnard Incorporated Attorneys
For Arqomanzi: L Acker
Instructed by: Fluxmans Incorporated
For Goldstream: L Hollander
Instructed by: Mendelsons Attorneys
Date of hearing: 22 April 2025
Date of last submission: 3 October 2025
Date of Judgement: 10 October 2025