IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number : 2025-186285
Date of hearing: 19 November 2025
Date delivered: 5 December 2025
DELET E WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/PK>
(2) OF INTEREST TO OT HERS JUDGES: YES/H(J'
(3) Rl?ITfSED
r1 ,0lL) .? .. t. .................................. .
DATE GN
In the application between:
ROIHC INVESTMENTS (PTY) LTD
and
GIDEOTECH INVESTMENTS HOLDINGS
(PTY) LTD (IN BUSINESS RESCUE)
JOHAN NEL N .O.
TECHNOLOGY AND MINERAL SOLUTIONS
LTD (IN BUSINESS RESCUE)
NDINGENI MOSES SINGO N .O .
MA TIMU MANDHLAZI N .O.
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
1
THE AFFECTED PERSONS OF TECHNOLOGY
AND MINERAL SOLUTIONS LTD
(IN BUSINESS RESCUE)
THE AFFECTED PERSONS OF
GIDEOTECH INVESTMENTS HOLDINGS
(PTY) LTD (IN BUSINESS RESCUE)
THE COMPANIES AND INTELLECTUAL
PROPERTY COMMISSION
Sixth Respondent
Seventh Respondent
Eighth Respondent
This judgment is handed down electronically by the Judge whose
name is reflected herein, and is submitted to the parties or their legal
representative by email. This order is further uploaded to the
electronic file of Caselines by the Judge or his Registrar. The date
of this order is deemed to be 5 December 2025.
JUDGMENT
SWANEPOEL J:
INTRODUCTION
[1] This application concerns the first respondent's ("Gideotech") 60%
shareholding in the third respondent ("Solutions"). The applicant is the
owner of the remaining 40% shareholding. Both Gideotech and Solutions
have been placed under business rescue in terms of Chapter 6 of the
Companies Act, 71 of 2008. The second respondent is cited in his
capacity as appointed business rescue practitioner of Gideotech. The
fourth and fifth respondents are the appointed business recue
practitioners for Solutions. The sixth and seventh respondents are those
2
persons affected in the business rescue of Gideotech and Solutions
respectively. Relief is only sought against the first, second, third, fourth,
fifth and eighth respondents, the remaining respondents only being cited
inasmuch as they may have an interest in the matter.
[2] The applicant seeks an order that the matter be heard urgently.
Secondly, the applicant seeks leave to sue Gideotech in terms of section
133 (1) (b) of the Companies Act, 71 of 2008 ("the Act"). The substantive
relief that the applicant seeks is a declaratory order that an event of
default has occurred, which entitles the applicant to purchase Gideotech's
shareholding in Solutions, in accordance with clause 18 of a
shareholders' agreement entered into by the applicant and G ideotech
during January 2025. The applicant also seeks ancillary relief relating to
the implementation of the sale of shares in terms of clause 18.
[3] The relevant clauses in the shareholders' agreement read as
follows:
"Insolvency event means in relation to a specific person, any of the
following:
3.23.1 ...
3.23.5. A shareholder is, or takes steps to be placed under business
rescue in terms of the Act.
3
18.1 For the purposes of this clause 18 (Default Option) an 'Event
of Default' in relation to a shareholder means the occurrence
of any of the following:
18.1.1 ....
18.1.5 an Insolvency Event occurring in relation to it; ....
18.2 If an Event of Default happens to a shareholder ('the
defaulting shareholder') it shall give notice to the other
shareholders (the 'Non-Defaulting Shareholders') as soon
as possible and, if it does not, is deemed to have given notice
of it on the date upon which any of the Non-Defaulting
shareholders becomes aware of the Event of Default.
18.3 The Non-Defaulting shareholders shall have the option, within
thirty (30) Business Days of receiving the notice or deemed
notice of an Event of Default to require the Defaulting
Shareholder either to purchase all (but not some only) of the
Shares and Loan accounts held or beneficially owned by the
Non-Defaulting Shareholders or to sell to the Non-Defaulting
Shareholders all (but not some only) of the Shares and Loan
accounts held or beneficially owned by the Defaulting
Shareholder. The option may be exercised by delivering
written notice of default to the Defaulting Shareholder, which
option it wishes to exercise ('Option Notice').
18.4 The Non-Defaulting Shareholders shall within thirty (30)
Business Days of the Option Notice agree the Prescribed
4
Price, failing which any of them may refer the matter to an
expert who shall determine and certify the prescribed Price in
accordance with the provisions of (Schedule 5 Valuation by
Expert), acting as independent expert and not arbitrator."
[4] Clause 18.8 provides for the Non-Defaulting shareholder to deliver
a Disenfranchisement Notice to the defaulting shareholder which
essentially strips the defaulting party of its rights to attend general
meetings and to appoint or remove directors. It prevents directors
appointed by a defaulting party from exercising their rights as directors.
URGENCY
[5] The first matter for determination is whether the application is
urgent. Rule 6 (12) of the Uniform Rules of Court provides that in an
urgent application the Court may dispense with the forms and service
provided for in the rules. In each case the applicant must fully set out the
reasons why the matter should be heard urgently, and each case will be
considered on its own facts.
[6] Relevant to urgency in this case is that the parties recognized that
if there were to be an event of default, it may hamper Solutions' affairs,
and they agreed that in such an event, (which includes a shareholder
being placed under business rescue), the other shareholders would
acquire an entitlement to purchase the defaulting party's shares. The
purpose, applicant says, was to prevent prejudice to Solutions should one
of its shareholders be placed in business rescue or otherwise default.
5
[7] The applicant became aware of the default on 14 August 2025,
and on the same day it delivered an Option and Disenfranchisement
Notice to the second respondent in terms of clause 18.8.
[8] Not only is Solutions in business rescue, its two subsidiaries are
also in business rescue. The business rescue plans of these various
companies are interlinked and are reliant upon the beneficiation of a 21.5
million ton stockpile of minerals that is owned by a Solutions subsidiary.
The applicant says that if the business rescue plan succeeds, it would
result in payment of 100% of creditors' claims. However, the
implementation of the plan requires a capital investment of R 205 million.
[9] In order to raise the capital, the services of Moore Debt Advisory
Johannesburg ("Moore") has been enlisted. On 22 September 2025
Moore wrote to the applicant. It advised that in order to successfully raise
the capital, it was necessary to "present a clean shareholding structure in
which all business rescue processes through the ownership chain have
been concluded .... ". Moore expressed the view that the ongoing business
rescue of Gideotech was a stumbling block to the raising of capital. It is
this letter, the applicant says, that alerted it to the possibility that the
Gideotech business rescue might sabotage the Solutions business
rescue plan, and that of its subsidiaries.
[1 O] In short, the business rescue process in which Gideotech finds
itself is, the applicant says, an impediment to the implementation of the
Solutions business rescue plan, and that of its subsidiaries. The applicant
6
says that the Gideotech business rescue will result in the Solutions
business rescue, and that of its subsidiaries being delayed, it would delay
the settlement of creditor's claims, and ultimately may force the business
rescue practitioners into converting the business rescue process into a
liquidation. This might result in a loss in the order of R 255 million.
[11] Essentially Gideotech says that the applicant has known of the
possibility that the proposed Gideotech business rescue plan might delay
the process since August 2025, and that it has also been aware of the
moratorium in terms of section 133 of the Companies Act since then. It
says that any urgency that there might have been is self-created. It also
says that the shareholders' agreement provides for the possibility of
breach and that an alternative dispute resolution procedure is provided
for in the agreement. Gideotech says that even if there were a delay in
obtaining finance, it would not jeopardize the business rescue process.
[12] It has long been established that commercial interests may in
appropriate circumstances establish urgency:
"In my opinion the urgency of commercial interests may justify the
invocation of Uniform Rule 6 (12) no less than any other interests. Each
case must depend on its circumstances."1
[13] Business rescue proceedings are by their very nature urgent. They
commence when the company files a resolution to place itself under
supervision in terms of section 129 (3) or a court orders that the company
be placed under supervision in terms of section 129 (5) (b).2 A business
7
rescue plan must be published within 25 business days after the
appointment of the practitioner.3 If the process has not ended within three
months after its start, the practitioner must prepare a report for the court
on the progress of the business rescue and update the report at the end
of each subsequent month.
[14] It is therefore undesirable that the process be delayed. The
triggering event for urgency in this case was the Moore letter on 22
September 2025, that warned of possible delays in obtaining capital if
Gideotech continued to be a shareholder of Solutions. The applicant then
pursued the matter with some urgency, issuing this application on 8
October 2025. I do not find that the two week delay in issuing the
application was unreasonable given the complexity of the matter.
[15] It is also apparent that a delay may not only hamper, but might
prevent the raising of capital. The business rescue plans cannot be
implemented until the necessary capital has been raised. Given the fact
that the successful rescue of three companies is at stake, and given the
likely loss that may occur should the business rescue be unsuccessful, I
believe that the matter is urgent.
THE SECTION 133 MORATORIUM
[16] Section 133 (1) (a) and (b) of the Act reads as follows:
8
133 General moratorium on legal proceedings against company
(1) During business rescue proceedings, no legal
proceeding, including enforcement action, against the
company , or in relation to any property belonging to the
company , or lawfully in its possession, may be
commenced or proceeded with in any forum, except-
(a) with the written consent of the practitioner;
(b) with the leave of the court and in accordance with
any terms the court considers suitable; ...
[17] Section 133 contains other exceptions to the general principle that
legal proceedings may not be brought against the company , but they are
not relevant to this case.
[18) Two other provisions are relevant to an understanding of the
moratorium. Section 134 (1) (c) provides that during business rescue
proceedings, notwithstanding any agreement to the contrary, no person
may exercise a right in respect of any property in the lawful possession
of the company, save to the extent that the practitioner consents in
writing. In terms of section 136 (2) of the Act, the practitioner may
suspend the operation of any obligation under a contract entered into prior
to the commencement of business rescue proceedings.
[19] On 20 August 2025 the second respondent wrote to the applicant
invoking the protection of section 133. Gideotech argues that the
9
applicant is, consequently, prohibited from pursuing this application. Two
questions arise:
[19.1] Is this the type of transaction that is hit by the moratorium?
[19.2] If the answer is in the affirmative to the first question, then,
should the applicant be granted leave to bring the application in
terms of section 133 ( 1) (b )?
[20] The purpose of the moratorium was explained in Chetty v Hart4
where the Court said:5
"The obvious purpose of placing a company under business
rescue is to give it breathing space so that its affairs may be
assessed and restructured in a manner that allows its return to
financial viability. The requirement for the practitioner's consent
to be obtained is to give him the opportunity, after his
appointment, to consider the nature and validity of any existing or
pending claim and how it is to be dealt with, for example by
settling it or continuing with the litigation. In particular, the
practitioner's concern is directed at assessing how the claim will
impact on the well-being of the company and its ability to regain
its financial health. A general moratorium on the rights of creditors
enforcing their rights against the company is therefore crucial to
achieving this objective."
[21] The applicant has suggested that this claim is not hit by the
provisions of section 133, on the basis that it is not a "legal proceeding
10
including enforcement action" as envisaged by the section. It says that
the contractual mechanism, the provisions of Clause 18, trigger an
obligation to transfer the Gideotech shares to the applicant. It argues that
this type of obligation is distinct from the enforcement of a normal pre
commencement claim.
[22) The applicant has argued, on the basis of Murray NO and Another
v Firstrand Bank Ltd6 that one must distinguish between enforcement and
termination. It argues that if there is only a termination of a contract, such
termination is not 'enforcement' and falls outside of the ambit of the
moratorium.
[23) I do not agree with the applicant. Murray is distinguishable from
this matter on the facts. In Murray the Bank cancelled an Instalment Sale
Agreement, and then, with the consent of the practitioner, it repossessed
the goods. The court held that the cancellation was a unilateral step not
subject to the moratorium. In this case, the applicant says that it has
terminated Gideotech's shareholding by its election to acquire the shares.
The distinction between these cases lies in the fact that the applicant not
only seeks to terminate Gideotech's • shareholding, it also seeks the
transfer of the shares. In that sense it is seeking to take ownership of
Gideotech property, and it is hit by the moratorium. In my view the
distinction that the applicant seeks to make is a distinction without a
difference.
11
[24] The applicant has also argued that the moratorium operates only
in relation to 'property' of the company in rescue, and does not extend to
third party assets such as shares in another company.
[25] As for what is 'property' in our law, the Court in African Banking
Corporation of Botswana Ltd v Kariba Furniture Manufacturers (Pty) Ltd7
held that the right to claim payment from a debtor and the right to vote at
a statutory meeting constituted 'property' within the meaning of the Act.
The Constitutional Court has cautioned that assigning a comprehensive
meaning to the concept 'property' was not wise. The Court said8:
"In Law Society of South Africa and Others Minister of Transport and
Another this court was faced with a right which is not universally
enforceable but sourced in the law of obligations. The court assumed,
without finding, that a claim for loss of earnings or spousal support is
property .... It would be in accordance with developments in other
jurisdictions where personal rights have been recognized as
constitutional property .. "
[26] In my view, there is no reason to depart from the ordinary meaning
of the word 'property', which is "things owned"9, or "a thing that is owned
by someone ".10 It would be consonant with the approach taken by the
Constitutional Court to regard the incorporeal rights arising from the
shareholding to be property for purposes of section 133. The moratorium
therefore applies to this application.
SHOULD LEAVE BE GRANTED UNDER SECTION 133 (1) (b)
12
[27] That is not the end of the matter. The next issue is whether the
applicant should be granted leave to bring this application, and if so, the
ultimate question is whether it is entitled, under the shareholders'
agreement, to the transfer of the shares.
[28] The Courts have often repeated the principle that the moratorium
is not an absolute bar to the commencement of legal action against a
company under supervision.
[29] In Chetty it was argued that the practitioner's consent was a
jurisdictional requirement to legal proceedings. The Court held that
consent is not a jurisdictional fact that is required to be established, but
rather a procedural bar to the initiation or continuation of legal
proceedings. The point of the moratorium is to give the practitioner
breathing space to consider whether or not to resist legal proceedings,
and to prevent a company that is in financial distress from being dragged
through litigation.
[30] As Chetty held though 11:
" ... s133 (1) (a) is not a shield behind which a company not needing
the protection may take refuge to fend off legitimate claims. Thus
s 133 (1) (b ), which is to be read conjunctively with s 133 (1) (a)
because of the word 'or' in exceptions (a) to (e), permits a creditor
to seek the court's imprimatur to initiate or continue legal
proceedings against the company in the event of a practitioner's
refusal to give consent, or directly, even without permission of the
13
practitioner having been sought. Sos 133 (1) (a) is not an absolute
bar to legal proceedings being instituted or continued against a
company under business rescue."
[31] In African Bank 12 the Court pointed out that business rescue
proceedings were not intended to protect a company against all
creditors at all costs.
"Section 7 (k) of the Act specifically states that one of the purposes of
the Act is to 'provide for the efficient rescue and recovery of financially
distressed companies in a manner that balances the rights and
interests of all relevant stakeholders." (my emphasis)
[32] The need to find a balance between the interests of the company
and the competing interests of the creditors was also emphasized in
Oakdene Square Properties (Pty) Ltd v Farm Bothasfontein (Kyalami)
(Pty) Ltd13. In summary therefore, the purpose of section 133 is to give
the company an opportunity to regroup, for the practitioner to assess its
financial affairs, and to devise a plan to bring the company to financial
health. It is not intended to prevent a creditor from bringing a claim in
circumstances where the claim would not prejudice the company
financially nor the implementation of the business rescue plan.
[33] In attempting to strike a balance between the competing interests,
one would have regard to the overall financial situation of the company ;
the company 's ability to settle, either partially or in full, the body of
creditors' claims; the nature of the applicant's claim and the potential
14
impact of the claim on the claims of other creditors if the claim were to
proceed; whether a business rescue plan has been devised, adopted or
implemented, the general current state of the rescue proceedings, and
the potential impact on the business rescue plan should leave to institute
or continue proceedings be granted.
[34] I do not believe that the above are the only factors that would
necessarily be relevant, and each case must, as always, be decided on
its own facts. One would bear in mind, on the one hand, that the creditor
who has a legitimate claim is in principle entitled to enforce that claim,
and that the moratorium has a stifling effect on the claim. One would
consider, on the other hand, the impact that the claim may have on the
company and the practitioner's attempts to restore it to financial health.
[35] Gideotech's argument is essentially the following: It denies that an
insolvency event occurred as defined in the shareholders' agreement, in
that it denies committing an act of insolvency. It says, further, that even if
there had been an insolvency event, the enforcement of the agreement
is prevented by the moratorium. In other words, Gideotech's argument is
that it agreed to sell its shares if it were to be placed under business
rescue, but the moment it was placed under business rescue, it said that
it could not be forced to sell its shares. The argument simply does not
make sense.
[36] None of the allegations in the answering affidavit disclose
prejudice to Gideotech or its creditors should the shares be sold to the
15
applicant. On the contrary, the sale would likely enhance Gideotech's
liquidity once the sale has been completed. There is also no evidence
that the implementation of the shareholders' agreement would impede the
business rescue of either Gideotech or Solutions. Consequently, I will
grant leave for the applicant to bring this application.
IS THE APPLICANT ENTITLED TO PURCHASE THE SHARES
[37] The respondent essentially raises two defences in relation to the
agreement (save for the moratorium defence). Firstly, Gideotech says
that the inception date of the agreement occurs once the agreement is
executed and the Memorandum of Incorporation ("MOI") has been filed.
It says that the MOI was never filed, and that the shareholders' agreement
therefore never became effective.
[38] Gideotech's argument is incorrect for two reasons: Firstly, the
"Completion/Effective Date" of the agreement is specifically stated as
being 29 January 2025. Secondly, the parties, including Gideotech, have
conducted themselves on the basis that the agreement is fully of effect.
Gideotech has, for instance, appointed directors in terms of the
shareholders' agreement, share certificates have been issued reflecting
the respective shareholdings in the company , and Gideotech's attorneys
have accepted payment of monies from the applicant in accordance with
the terms of a settlement agreement that underlies the shareholders'
agreement. Both parties have, therefore, given effect to the shareholders'
agreement.
16
[39] The second defence is that there has not been an "insolvency
event" as defined by the shareholders' agreement. Gideotech avers that
the agreement intended to provide for an insolvency event by a director,
not by a shareholder. It says so because of a formatting error in the
document. The document reads as follows:
"3.23 Gideotech Director" means a director (or directors)
appointed by Gideotech in accordance with this Agreement
"Insolvency Event" means in relationship to a specified person
any of the following: ...
3.23.5 a Shareholder is, or takes steps to be placed under
business rescue and/or is placed under business rescue in
terms of the Act."
[40] Gideotech advances the argument that "insolvency event" refers
to an act of insolvency by a director. Perusal of the document makes it
clear that the heading "insolvency event" was accidently typed on the
same line as, and at the end of the definition of, "Gideotech director". It
was a formatting error, and a mere reading of clause 3.23.5 shows that
the words "insolvency event" referred to an insolvency event in respect of
a shareholder, not a director. It specifically refers to 'business rescue', a
process that cannot apply to an individual. If one reads clause 3.23
together with 3.23.5 the interpretation placed on the clause by Gideotech
does not make sense.
17
[41] Gideotech raised two other defences: the first being misjoinder of
Gideotech's shareholders, and the second, the fact that there are pending
applications for the removal of Solutions' practitioners (the fourth and fifth
respondents). These defences were not persisted with in argument, and
I do not think that they have any merit. Gideotech's shareholders do not,
in my view, have a direct and substantial interest in these proceedings.
As far as the removal application is concerned, even if successful, the
identity of the new practitioners has no impact on the merits of this
application. Gideotech thus has no defence to the applicant's claim for
transfer of the shares.
[42] I therefore make the following order:
[42.1] The applicant's non-compliance with the rules and
forms of Court is condoned, and the matter is heard as one of
urgency.
[42.2] The applicant is granted leave to bring this application
in terms of section 133 (1) (b) of the Companies Act, 71 of
2008.
[42.3] It is declared that an event of default has occurred in
respect of the first respondent, as a result of which:
[42.3.1] The applicant is entitled to exercise and
execute its right to acquire the first respondent's 60%
18
shareholding in the third respondent, in accordance
with clause 18 of the shareholders' agreement;
[42.3.2] The first and second respondents are
ordered to give effect to clause 18 of the shareholders'
agreement;
[42.3.3] The first and second respondents are
ordered to take all reasonable actions to facilitate the
exercise of the applicant's rights in accordance with
clause 18 of the shareholders' agreement, including
nominating a bank account for receipt of payment of the
prescribed price;
[42.3.4] Upon the applicant providing proof to the
fourth and fifth respondents of payment of the
prescribed price in terms of clause 18 of the
shareholders' agreement, the fourth and fifth
respondents are ordered to give effect to the exercise
of the applicant's rights in terms of clause 18 of the
shareholders' agreement by:
[42.3.4.1] Amending the share register of the
third respondent;
[42.3.4.2] Issuing a share certificate to the
applicant reflecting the applicant's acquisition of
19
the first respondent's 60% shares in the third
respondent.
[42.4] The eighth respondent is ordered to give effect to any
changes in shareholding arising from this order.
[42.5] The first and second respondents shall pay the costs of
the application on Scale C, jointly and severally, the one
paying the other to be absolved.
COUNSEL FOR THE APPLICANT :
INSTRUCTED BY :
COUNSEL FOR THE FIRST AND
SECOND RESPONDENTS:
INSTRUCTED BY:
HEARD ON:
JUDGMENT DELIVERED:
SWANEPOELJ
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
ADV . L SIYO
ADV . KGWAZA
JOUBERT GALPIN SEARLE
ATTORNEYS
MR. W NIEDINGER
DUVENHAGE & VAN DER MERWE
INC
19 NOVEMBER 2025
5 DECEMBER 2025
1 Twen tieth Century Fox Film Corporation and Another v Anthony Black Films (Pty) Ltd
1982 (3) SA 582 (W) at 586 G
2 Section 132 of the Act.
3 Section 150 (5) of the Act.
4 Chetty v Hart 2015 (6) SA 424 (SCA)
5 At para 28
6 M urray NO and Another v Firstrand Bank Ltd 2015 (3) SA 43.8 (SCA)
7 African Bank ing Corporation of Botswana Ltd v Kariba Furniture Manufacturers (Pty)
Ltd 2013 (6) SA 471 (GN P)
20
8 In National Credit Regulator v Opperman and Others 2013 (2) SA 1 (CC) at paras 61-
63
9 Cambridge Dictionary
10 Oxford Dictionary
11 At para [40]
12 At para [39]
13 Oakdene Square properties (Pty) Ltd v Farm Bothasfontein (Kyalami) (Pty) Ltd 2012
(3) SA 273 (GSJ)
21