IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO.: 1993/2025
In the matter between:
LOMAJASA BELEGGINGS (PTY) LTD First Applicant
JOHANNES NICOLAAS WILKEN Second Applicant
and
NASTOWORX PROPRIETARY LIMITED First Respondent
STANDARD BANK OF SOUTH AFRICA LIMITED Second Respondent
THE MASTER OF THE HIGH COURT Third Respondent
THE COMPANIES AND INTELLECTUAL
PROPERTY COMMISSION (CIPC) Fourth Respondent
THE SOUTH AFRICAN REVENUE SERVICES Fifth Respondent
ANY OTHER AFFECTED PARTIES Sixth Respondent
CASE NO.: 1123/2024
In the matter between:
STANDARD BANK OF SOUTH AFRICA LTD Applicant
and
NASTOWORX PROPRIETARY LIMITED Respondent
JUDGMENT
MOLONY AJ:
Introduction
[1] The second respondent in this matter (‘Std Bank’) issued applications for the
winding-up of the first applicant (‘Lamajasa’), the first respondent
(‘Nastoworx’) and a third company, Wilgrow (Pty) Ltd (‘Wilgrow’). The affairs
and financial circumstances of the three companies are intertwined.
[2] Lamajasa is the majority shareholder of Nastoworx.
[3] A provisional winding -up order in regard to Wilgrow was obtained, and then
made final, on 18 May 2025.
[4] The application relating to Lamajasa has been postponed to allow assets of
Lamajasa to be sold in an attempt to pay its debts.
[5] Std Bank obtained a provisional winding -up order (under case number
1123/2024) in regard to Nastoworx on 24 April 2025, along with a rule nisi
calling upon all persons intere sted to show cause on 20 May 2025 why it
should not be made final, and why the costs of the liquidation application
should not be costs in the liquidation.
[6] Lomajasa and the second applicant, Mr Wilken (collectively referred to as ‘the
applicants’), who is a director of both Lomajasa and Nastoworx, launched a
business rescue application on 19 May 2025 in regard to Nastoworx (under
case number 1993/2025), requesting that:
6.1 Nastoworx be placed under supervision and that business rescue
proceedings commence in terms of section 131(4) of the Companies Act,
71 of 2008.
6.2 That the winding -up proceedings under case number 1123/2024 be
confirmed to be stayed in terms of section 131(6) of the Companies Act,
2008.
6.3 That Mr George Rautenbach be appointed as interim bu siness rescue
practitioner of Nastoworx, as intended in section 131 (5) of the Companies
Act, 2008, with all powers and duties entrusted to him in terms of the
Companies Act, 2008, pending ratification by the holders of a majority of
the independent credit ors’ voting interest at the first meeting of creditors,
as contemplated in section 147 of the Companies Act, 2008.
6.4 Costs of the application to form part of the costs in the business rescue,
alternatively to be paid by any party that opposed the relief sought.
[7] This led to the provisional liquidation application being postponed for hearing
on 18 September 2025 with costs reserved, along with provision for the filing
of further papers being made.
[8] Both applications were heard on 18 September 2025, but it was agreed that
the parties would advance argument primarily in regard to the business
rescue application, the agreement being that if the business rescue
application failed, then a final winding-up order was inevitable.
Relevant Law
[9] Section 131(4)(a) of the Companies Act, 2008, sets out that:
‘(4) After considering an application in terms of subsection (1), the court may-
(a) make an order placing the company under supervision and commencing
business rescue proceedings, if the court is satisfied that-
(i) the company is financially distressed;
(ii) the company has failed to pay over any amount in terms of an
obligation under or in terms of a public regulation, or contract, with respect to
employment-related matters; or
(iii) it is otherwise just and equitable to do so for financial reasons,
and there is a reasonable prospect for rescuing the company’.
[10] Section 128(b)(iii) of the Companies Act, 2008, defines ‘business rescue’ as
including:
‘(iii) the development and implementation, if approved, of a plan to rescue
the company by restructuring its affairs, business, property, debt and other
liabilities, and equity in a manner that maximises the likelihood of the
company continuing in existence on a solvent basis or, if it is not possible for
the company to so continue in existence, results in a better return for the
company's creditors or shareholders than would result from the immediate
liquidation of the company’.
[11] The issue of a court’s discretion in a business rescue application was
addressed in the matter of Oakdene Square Properties (Pty) Ltd and Others v
Farm Bothasfontein (Kyalami) (Pty) Ltd and Others1as follows:
‘[21] With this rather lengthy prelude I can n ow revert to the pertinent
question: does s 131(4) afford the court a discretion in the strict sense
or not? I think the short answer is 'no'. In a case such as this, the
court's discretion is bound up with the question whether there is a
reasonable prospect for rescuing the company. The other pertinent
requirement in s 131(4), namely, that the company must be financially
distressed, seems to turn on a question of fact. As to whether there is
a reasonable prospect of rescuing the company, it can hardly be said,
in my view, that it involves a range of choices that the court can
legitimately make; of which none can be described as wrong. On the
contrary, as I see it, the answer to the question whether there is such
a reasonable prospect can only be 'yes' or 'no'. These answers cannot
both be right.’
[12] The concept of a ‘reasonable prospect’ for rescuing the company is also
addressed in the Oakdene Square Properties2 matter, in which the following is
stated:
‘[29] This leads me to the next debate which revolved around the meaning of
'a reasonable prospect'. As a starting point, it is generally accepted that it is a
lesser requirement than the 'reasonable probability' which was the yardstick
for placing a company under judicial management in terms of s 427(1) of
the 1973 Companies Act (see eg Southern Palace Investments 265 (Pty) Ltd
v Midnight Storm Investments 386 Ltd 2012 (2) SA 423 (WCC) para 21). On
the other hand, I believe it requires more than a mere prima facie case or an
arguable possibility. Of even greater significance, I think, is that it must be a
reasonable prospect — with the emphasis on 'reasonable' — which means
that it must be a prospect based on reasonable grounds. A mere speculative
that it must be a prospect based on reasonable grounds. A mere speculative
suggestion is not enough. Moreover, because it is the applicant who seeks
to satisfy the court of the prospect, it must es tablish these reasonable
grounds in accordance with the rules of motion proceedings which, generally
speaking, require that it must do so in its founding papers.’
[13] Whilst an extensive amount of detail is not required, the applicants are
required to lay an appropriate factual foundation upon which they may claim
1 2013 (4) SA 539 (SCA).
2 Supra.
that a reasonable prospect of achieving one of the goals of business rescue
(as contemplated above) exists.3
Factual Matrix and Analysis
[14] Nastoworx’s total liabilities, as reflected in the first circular to creditors
distributed by Nastoworx’s provisional liquidators, is some
R 162 144 240.00.
[15] Nastoworx owes Std Bank R 46 292 430.49 (excluding accrued interest). The
debt has been due, owing and payable since November 2023.
[16] It is furthermore not in dispute (or not convincingly disputed) that Nastoworx is
unable to pay its debt and is thus commercially insolvent.4
[17] A reading of the papers in the business rescue application points to the fact
that the focus of such business rescue would be a better return for creditors
and shareholders, as opposed to the continuation of the business.
[18] Nastoworx’s primary asset is Fairview Farm (‘the farm’). The farm was
purchased in 2020 for R 76 000 000.00. It was accounted for, at the time, as
property in the accounting records of Lomajasa, but was later transferred to
Nastoworx for the same value.
3 See the Oakdene Square Properties matter (supra) at para 31.
4 According to Mr de la Harpe, who appeared for Std Bank, if one has regard to the papers, the company
appears to have suffered a tax loss every year – see p. 207 of the papers.
[19] Nastoworx was intended to operate mainly as a property holding company.
Lomajasa advanced R 56 000 000.00 of the purchase price. The remaining
shareholder of Nastoworx (the Doornberg Trust) obtained a loan from Std
Bank for R 20 000 000.00 (with the Doornberg Trust’s assets being security
for the loan), which made up the remainder of the purchase price.
[20] On 16 May 2025 (after the provisional liquidation order of 24 April 2025) an
agreement of sale for the business and business assets of Nastoworx
(including the farm) was signed by a neighbouring farmer and businessman
(Mr Malcolm MacKenzie, on behalf of the Nanaga Farming Trust – ‘the NFT’).
[21] The sale of business agreement, which was conditional inter alia upon the
business rescue application being granted, stated that the business and
business assets would be sold for R 66 000 000.00. The sale agreement
referred to Mr MacKenzie acting on behalf of Propco Proprietary Limited
(which was the purchaser).
[22] The farm was appraised in June 2025, with the open market value of the farm
being set at R 114 500 000.00, and the forced sale value at R 73 400 000.00.
The applicants proposed the sale of the farm which, they submitted, would
lead to a better return for Nast oworx’s creditors than would be received in a
liquidation of Nastoworx.
[23] The purchase price for the farm, as reflected in the sale agreement, is
significantly less than the farm’s appraised market value and its forced sale
appraised value. It is also significantly less than the original purchase price of
the farm (R 76 000 000.00).
[24] A proposed business plan, to support the business rescue application, was
annexed to the replying affidavit. 5 Ignoring for the moment that this had the
appearance of attempting to make out a case in reply, the proposed business
plan provided a more detailed overview of the proposal made in the founding
affidavit.
[25] According to the applicants’ proposed plan, the shortfall after the above -
mentioned sale would be made up by the s ale of a farm and water rights by
Lomajasa.
[26] Lomajasa, according to the applicants, has, in fact, already concluded an
agreement of sale of one of its properties (‘Teebus Flats’). The sale will
allegedly render an amount of R 29 000 000.00, all of which will, ultimately, go
to Std Bank.6
[27] Lomajasa is also selling other water rights, and the proceeds received which
can be allocated to Std Bank are approximately R 3 500 000.00. The
proposed business rescue plan also includes that the sale of Wilgrow’s
moveable assets, which are expected to yield approximately R 6 222 843.20.
The applicants furthermore have noted (without providing specific detail) that
there are also other creditors of Nastoworx which will need to be settled.
5 See annexure ‘RA1’ at p. 148.
6 R 23 340 000.00 will be paid to Std Bank on registration, with R 5 660 000.00 being ceded to Std Bank and,
upon transfer of certain water rights, will be paid to Std Bank.
[28] A final winding -up order has already been granted in regard to Wilgrow. It is
furthermore worth noting that Nastoworx provided guarantees in regard to part
of Wilgrow and Lomajasa’s debt to Std Bank, which forms part of Nastoworx’s
current debt predicament.
[29] The proposed path, in regard to the financial assistance to be provided by
Lomajasa, is inter alia self-evidently flawed, as Lomajasa is a separate entity
to Nastoworx, and itself faces a winding -up application, which was postponed
in order for Lomajasa to sell assets to meet the liabilities of Lomajasa.
[30] Nastoworx’s business is also reliant, to some extent, on Wilgrow, which rents
part of the farm from Nastoworx and assists with the running of the business.
The fact that Wilgrow was finally liqui dated on 20 May 2025 would mean that
the operation of Nastoworx’s business would cease, unless the business was
sold to a purchaser who could take over the running thereof.
[31] According to the applicants, an amount of roughly R 50 000 000.00 will
allegedly emanate from the sale of Nastoworx’s business, which will be
payable to Std Bank upon registration of transfer of the farm.
[32] The above-mentioned proceeds would, according to the applicants, inter alia
allow Std Bank to receive 100 cents in the Rand, or th at concurrent dividends
could later be expected, and for employees to retain their employment.
[33] How the proposed business rescue plan will cater for Lomajasa and Wilgrow’s
own debt issues, is not readily apparent, nor is an objective factual foundation
to support the applicants’ averments laid - this would include a basis being
laid as to why the appointed liquidators of Nastoworx could not achieve
substantially the same result when selling Nastoworx’s assets.
[34] The appointed provisional liquidators of Nastoworx, on 22 July 2025, obtained
an order effectively extending their powers in order, amongst other needs, to
allow for the farming operations of Nastoworx to continue in the interim, thus
maintaining the existing value of the business and its assets.
[35] The risks of the proposed business rescue plan are not dissimilar to those of
liquidating (according to the proposed business rescue plan itself).
[36] Std Bank’s view is that once the farm has been transferred to another entity,
Nastoworx will become an empty shell. It also cannot be overlooked that Mr
Rautenbach, if appointed, will have no control over the assets of Lamajasa,
upon which much of the proposed plan relies.
[37] The total amount made available via the applicants’ proposed course of action
(some R 82 500 000.00),7 remains (even were the promised funds from other
entities to be provided) far less than Nastoworx’s total liabilities. With this in
mind delaying the winding -up process (in order to engage in the proposed
business rescue process) would achieve little more than a significant increase
in interest on Nastoworx’s debt and Nastoworx’s asset base potentially
degrading in value.
7 Calculated by Std Bank as per the amounts outlined in para 53 of the founding affidavit, at pp. 17 – 18.
[38] In a supplementary affidavit deposed to on 16 September 2025, Mr
Rautenbach confirmed receipt of an email from the ap plicants’ attorneys of
record which recorded inter alia that it was believed that a new transaction
would be concluded with the same purchasers as the sale of business
agreement.
[39] The new transaction would be for the sale of the farm only, and not the en tire
business, to PropCo, for R 70 000 000.00.
[40] The NFT group and the Wilken family would be the shareholders, with NFT
paying approximately R 60 000 000.00 towards the purchase price, whilst the
Wilken family would pay about R 10 000 000.00.
[41] The fina l plan is apparently to subdivide the farm, with each shareholder to
receive a portion of the farm for future operations. The end result would
clearly be one where the Wilken family would retain partial control of the farm,
whilst the remaining portion of the farm (after subdivision) would belong to a
company (which had purchased the farm at a price significantly below its
value) in which the Wilken family was a shareholder.
[42] The above -mentioned plan, when considered in the context of the business
rescue application, has the appearance of an attempt being made (with the
help of a neighbouring farmer) to phase Nastoworx out of the picture, whilst
still retaining a measure of control of the farm and the business. This would
obviously be far less likely to occur in the context of a liquidation run by
independent provisional liquidators.
[43] According to Std Bank, the sale agreement (for R 66 000 000.00) is, in any
event, void, as it was executed on 16 May 2025, which was after the
provisional winding-up order was granted.8
[44] It was submitted on behalf of Std Bank that Std Bank, as Nastoworx’s major
creditor, would not support the business rescue plan, which would also be
fatal to the current application. 9 Such opposition, it was submitted, would not
be unreason able or mala fide given the obvious challenges (aside from Std
Bank’s opposition) the applicants face in the current application.
[45] Std Bank in fact views the business rescue application, given its timing, the
details of the sale of the farm, and the pauc ity of factual detail provided, as
potentially mala fide, not genuine, and not establishing that any of the benefits
of business rescue will be achieved.10
[46] Instead, says Std Bank, it appears that the applicants have launched the
business rescue applicat ion in order to utilise business rescue as an
alternative to liquidation, and without the oversight and controls put in place
by the Companies Act, 1973.11
[47] In my view the proposed business rescue plan, when viewed objectively in the
context of the intertwined nature of Nastoworx, Lomajasa and Wilgrow,
renders it probable that Std Bank’s suspicions are justified.
8 See section 341(2) of the Companies Act 61 of 1973.
9 See Oakdene Square Properties (supra) at para 38.
10 See Richter v Absa Bank Ltd 2015 (5) SA 57 (SCA) at para 16.
11 See Oakdene Square Properties (supra) at paras 33 and 35.
[48] The applicants have therefore, based upon all of the above considerations,
failed to provide the necessary factual basis to demonstrate th at there is a
reasonable prospect of achieving the goals of business rescue.
[49] In the result, the application for business rescue falls to be dismissed.
The Liquidation Application
[50] I am satisfied, having read the papers, that Std Bank has complied with the
requirements of section 346A of the Companies Act, 1973, and see no reason
not to grant a final winding-up order.12
Order
In the result the following is ordered:
(a) The application (under case number: 1993/2025) for business rescue is
dismissed with the applicants, jointly and severally, to pay the costs of the
application.
(b) The provisional order of winding -up (under case number 1123/2024) is
made final.
12 See Afgri Operations Limited v Hamba Fleet (Pty) Ltd 2022 (1) SA 91 (SCA) at para 12.
____________________
MOLONY AJ
Appearances:
For the applicants: Adv Cole SC
Instructed by: Grosskopf Attorneys
c/o Whitesides Attorneys
MAKHANDA
For the second
respondent: Adv de la Harpe SC
Instructed by: Edward Nathan Sonnenbergs Inc.
c/o de Jager Lordan Inc.
MAKHANDA
Heard on: 18 September 2025
Judgment delivered on: 9 October 2025