SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case no. 2023/041861
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE: 17 NOVEMBER 2025
SIGNATURE:
In the liquidation application between:
BUSINESS PARTNERS LIMITED Applicant
(Registration no. 1981/000918/06)
and
MK PROPCO (PTY) LTD Respondent
(Registration no. 2012/185601/07)
Case no. 025/017124
In the business rescue application between:
JUDITH CORNEY Applicant
and
MK PROPCO (PTY) LTD First Respondent
BUSINESS PARTNERS LTD Second Respondent
(Registration no. 1981/000918/06)
COMPANIES AND INTELLECTUAL Third Respondent
PROPERTY COMMISSION
JUDGMENT
The judgment and order are published and distributed electronically.
PA VAN NIEKERK, AJ
INTRODUCTION:
[1] On 11 November 2025 this Court dismissed a business rescue application
under case no.
2025/017124 and confirmed a provisional order for the liquida tion of Respondent in
the liquidation application under case no. 2023/041861. This judgment contains the
reasons for such orders.
[2] In the matter under case no. 2023/041861 ("the liquidation application") the
Applicant is a company with limited liability incorporated and registered in terms of
the Company Laws of South Africa with principal place of business in Houghton,
Johannesburg. The Applicant lends and advances money to entities and individuals
for purposes, inter alia, of acquiring commercial or development properties.
[3] In that Application the Respondent is MK Propco ( Pty) Ltd ("MKP"), a
company with limited liability duly incorporated in terms of the Laws of the Republic
of South Africa with registered address at Bryanston, Gauteng Province. MKP is not
a trading enterprise but a property holding company and registered owner of an
immovable property situate at Erf 2[...], Bryanston, Extension 1, Gauteng.
[4] On 4 May 2023 Applicant launched the liquidation application and therein
sought an order that MKP be placed under a winding -up order in the hands of the
Master of the High Court, and that costs of the application form costs in the winding -
up of MKP.
[5] The Applicant's cause of action in the liquidation application can succinctly be
summarised as follows:
[5.1] The sole director of MKP, Me. Judith Corney ("Corney") approached
Applicant in 2020 for a loan for purposes of funding the purchase of the
immovable property referred to above;
[5.2] On strength of security including a mortgage bond re gistered against
the Title Deed of that immovable property, Applicant lent to Respondent the
loan amount of R6 999 750.00 which was fully disbursed to Respondent by
the 29th of July 2013.
[5.3] During or about 2019 Respondent fell in arrears with the mont hly
payments in terms of the Loan Agreement, and from February 2021
Respondent resumed payment of instalments but payments were made
haphazardly and short payments were made from time to time;
[5.4] During November 2022 Respondent was in arrears with paym ents of
amounts, due and owing and payable in terms of the Loan Agreement, in the
amount of R1 252 213.00. The last payment which Respondent effected was
on the 28th of February 2023 in the amount of R95 625.03.
[6] In terms of the Loan Agreement, in th e event of any instalment remaining
unpaid on due date, the total amount outstanding and other expenses arising from
the agreement shall immediately become due and payable to Applicant.
[7] Applicant thereupon caused a notice in terms of Section 345(1)(a) (i) of the
Companies Act to be served on Respondent on 13 February 2023. Respondent
remained in default to settle all arrears and continued to fail to make payments in
terms of the agreement to Applicant. Applicant therefore relies on Section 344 of the
Companies Act no. 61 of 1973 to submit that the Respondent is deemed to be
unable to pay its debts.
[8] In the Notice of Motion of the liquidation application Respondent was given
notice and directed to serve a Notice of Intention to Defend within 5 days of service
of the application on Respondent failing which the Applicant would proceed to apply
for the winding-up of Respondent on 14 August 2023. The application was served at
the registered address of Respondent on Corney, the sole director of Respondent,
on 18 July 2023. Respondent failed to file a Notice of Intention to Oppose whereafter
the application was enrolled for hearing on 14 August 2023 on the unopposed
motion court roll. However, on 25 July 2023, Notice of Intention to Oppose the
liquidation appl ication was formally served on behalf of the Respondent on the
Applicant's attorneys of record resulting in the matter being removed from that roll.
[9] Having failed to file an Answering Affidavit timeously after serving the Notice
of Intention to Oppose, the Applicant re-enrolled the application for 19 February 2024.
However, on the proverbial eve of the application to be heard on an unopposed
basis, an Answering Affidavit was filed on behalf of the Respondent on the 18 th of
February 2024. In the Answering Affidavit deposed to by Corney the indebtedness of
the Respondent to Applicant is admitted but it was denied that the Respondent is
unable to pay its debts and/or commercially insolvent. Corney also deposed to the
opposing affidavit in the liquidation application stating that she was in the process of
arranging alternative funds in the amount of R2000 000.00 and would shortly settle
the Respondent's liability to Applicant.
[10] The Respondent further sought a postponement of the matter on the basis
that the Respondent sought leave to file a Supplementary Affidavit.
[11] The matter having become opposed on the basis as set out above, was then
re-enrolled on th e Opposed Motion Court roll of 11 February 2025. However, on 11
February 2025 Respondent adopted the stance that a business rescue application
February 2025 Respondent adopted the stance that a business rescue application
will be launched resulting in the court granting a provisional order for liquidation on
11 February 2025 with ret urn date 28 July 2025, the purpose of which was to allow
Corney to launch the envisaged business rescue application.
[12] On 6 March 2025, Corney in her capacity as applicant launched an
application under case no. 2025/017124 against MKP as First Respondent, Business
Partners Ltd (Applicant in the liquidation application) ("BPL") as Second Respondent
and the Companies and Intellectual Property Commission as Third Respondent
seeking the appointment of a Business Rescue Practitioner and placing MKP under
business rescue.
[13] The business rescue application was struck off the roll for lack of urgency on
26 March 2025 and a punitive order for costs was made against Corney. On 28 July
2025 the return date in the liquidation application was further extended to th e
opposed Motion Court roll for hearing on 10 November 2025, specifically to enable
the pending business rescue application to be heard simultaneously with the
liquidation application.
[14] Corney took no further steps to have the business rescue applic ation enrolled
for hearing, and the business rescue application was thereafter enrolled by BPL to
be heard simultaneously with the liquidation application of BPL against MKP.
[15] Corney is the sole director and shareholder of MKP. At all relevant times
Corney deposed to the affidavit resisting the winding -up of MKP in the liquidation
application, as well as the Founding Affidavit in the business rescue application and
the Replying Affidavit in such application. From a consideration of the history of the
matter as set out above, it is clear that Corney attempted to frustrate the liquidation
application by failing to oppose the matter timeously, by then failing to file an
Opposing Affidavit timeously, and then launching a business rescue application at a
time strategically engineered to prevent the liquidation application to proceed on 11
February 2025.
[16] When the matter was called for hearing on 10 November 2025, Corney
appeared in person in her capacity as the Applicant in the business rescue
application and purported to represent MKP in the liquidation application after the
application and purported to represent MKP in the liquidation application after the
attorneys who previously represented Corney as well as MKP withdrew as attorneys
of record.
THE BUSINESS RESCUE APPLICATION:
[17] The business rescue application is premised on the av erment that MKP will
soon be able to settle the liabilities of BPL. In the Founding Affidavit which was
deposed to on 9 February 2025 Corney made the following averments;
[17.1] MKP is financially distressed as envisaged in section 131(4}(a) of the
Companies Act.
[17.2] MKP obtained post commencement finance in the amount of
R275000.00 which are held in trust. No further particulars in relation to this
bold averment is provided.
[17.3] MKP is in the process of recuperating R300 000.00 of arrear rentals,
has concluded two new lease agreements, and achieved sales of
R2567048.85 from 1 March 2024 to date of the affidavit.
[17.4] MKP will thus be able to settle the liability to BPL, the only creditor of
MKP.
[18] Business reduce applies where there is a rea sonable prospect for rescuing
the company. 1 It was held in Oakdene Square Properties (Pty) Ltd v Farm
Bothasfontein (Kayalami) (Pfy) Ltd [2020 ] 3 All SA 303 (SCA) that the term
"reasonable prospect of rescuing a company " as contemplated in terms of Section
131(4) of the Companies Act is to be interpreted as follows:
"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 emphasise on 'reasonable' - which means
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 establish these reasonable grounds in
accordance with the rules of motion proceedings which, generally speaking,
require that it must do so on its founding papers."
1 See: Section 131(4}(a) of the Companies Act 71 of 2008
[19] A perusal of the Founding Affidavit contains the bold averments as set out
above, but no supporting facts are provided to substantiate the averment that MKP
would be in a position to settle is liability to BPL, when placed under business rescue.
On the contrary, it was illustrated in the answering affidavit that Corney, the sole
director of MKP, manage MKP for her own exclusive benefit by inter alia repaying a
substantial loan account to the Corney Investment Trust, which is related to Corney,
notwithstanding the fact that this loan is an interest -free loan with no specified time
for re-payment, and that this r epayment was effected during the period that Corney
avers that MKP is financially distressed. This fact draws the inevitable inference that
Corney is using the business rescue application and opposition to the liquidation
application to indirectly benefit herself.
[20] During the hearing of the application on 10 November 2025 Corney, in her
personal capacity, addressed the court and informed the court that a "business plan"
was formulated by her which would enable MKP to continue as a viable concern.
Apart from the fact that none of these issues raised by Corney during her address to
this court is contai ned in any of the affidavits or substantiated by any tangible
evidence, upon direct questioning from the court she confirmed that no payments
were made to BPL since the launch of the proceedings. This confirmation
proverbially flies in the face of the aver ments made in the founding affidavit as set
out above, and which have been made 9 months ago.
[21] In my view, the failure of MKP to make any further payments to BPL is a clear
indication that MKP remains unable to settle its debts and notwithstanding the
averments made by Corney some 9 months ago, remains unable to do so. This fact
is contra indicative of a reasonable prospect that MKP may recover from its inability
to pay its liabilities.
[22] The application for business rescue therefore does not satisfy the
[22] The application for business rescue therefore does not satisfy the
requirements of section 131(4) of the Companies Act71 of 2008.
THE LIQUIDATION APPLICATION:
[23] Although Corney disputed the exact quantum of the alleged liability of MKP to
BPL in the Opposing Affidavit in the liquidation application, it was admitt ed that MKP
was substantially in arrears in terms of the original loan agreement, and unable to
satisfy that liability. This inability to satisfy the liabilities of MKP to BPL was de facto
confirmed by the fact that Corney launched the business rescue a pplication and
stated therein that MKP was "financially distressed”.
[24] In the premises, it follows that MKP failed to provide any proper reasons why
the provisional winding -up order granted on 11 February 2024 should not be
confirmed and I accordingly granted a final order of liquidation of MKP in terms of the
draft order which was handed up by counsel acting on behalf of BPL.
PA VAN NIEKERK AJ
Acting Judge of the High Court
Gauteng Division, Pretoria