IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case No: 2025-039841
In the matter between:
STEPHEN MARK VAN ROOYEN FIRST APPLICANT
PATRICK MARCO HAUSOTTER SECOND APPLICANT
JONAS HANDEKYN THIRD APPLICANT
and
GARY DONOVAN WALLACE N.O. FIRST RESPONDENT
In his capacity as provisional liquidator of K2022504463
(South Africa) (Pty) Ltd (in voluntary liquidation) &
The Beach Country and Safari Collection (Pty) Ltd
(in voluntary liquidation)
RISCHARD CASSIM N.O. SECOND RESPONDENT
In his capacity as provisional liquidator of K2022504463
(South Africa) (Pty) Ltd (in voluntary liquidation)
ZAHEER CASSIM N.O. THIRD RESPONDENT
In his capacity as provisional liquidator of The Beach
Country and Safari Collection (Pty) Ltd
(in voluntary liquidation)
MARCEL YVON MARIE DE FOURTH RESPONDENT
MAUDAVE BESTEL
SHERIFF FOR THE HIGH COURT FOR FIFTH RESPONDENT
THE DISTRICT OF BONNIEVALE (HL)
THE MASTER OF THE HIGH COURT SIXTH RESPONDENT
CAPE TOWN
THE COMPANIES AND SEVENTH RESPONDENT
INTELLECTUAL PROPERTY COMMISSION
Neutral citation: Stephen Mark Van Rooyen and 2 Others v s Gary Donovan
Wallace and Others (Case no 2025-039841)
Coram: O’Brien,AJ
Heard: 03 December 2025
Delivered: 29 January 2026
JUDGMENT IN LEA VE TO APPEAL
O’BRIEN, AJ:
1. The applicants challenge the full order issued on 23 September 2025,
which dismissed the main application with costs. They allege a
misapplication of principles concerning voluntary liquidation as opposed
to compulsory liquidation.
2. Section 17(1) of the Superior Courts Act 10 of 2013 ("the Act") stipulates
the following:
"Leave to appeal may only be granted when the judge or judges concerned are of the
opinion that -
a. (i) The appeal would have reasonable prospects of success; or
b. (ii) There is some other compelling reason why the appeal should be heard ...
3. The Act has raised the threshold for granting leave to appeal. Applicants
now face a higher and more stringent standard. In S v S mith 2012 (1)
SACR 567 (SCA) at para 7, the court said:
"What the test of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a court of appeal could reasonably
arrive at a conclusion different to that o f the trial court. In order to succeed,
therefore, the appellant must convince this court on proper grounds that he has
prospects of success on appeal and that those prospects are not remote , but have a
realistic chance of succeeding. More is required to e stablish than that there is a mere
possibility of success, that the case is arguable on appeal, or that the case cannot be
categorised as hopeless. There must, in other words, be a sound, rational basis for the
conclusion that there are prospects of success on appeal." (Footnote omitted)
The present facts fall short of this benchmark; thus, the application does
not meet the criteria for leave to appeal.
4. The applicants listed twenty -nine grounds of appeal in their application
for leave to appeal. These can be grouped into three main categories.
First, the applicants argue that the court misapplied the legal principles
for setting aside a winding-up, as the companies were placed in voluntary
liquidation by a special resolution passed by the fourth respondent.
They contend the court erred in law by treating the application as one to
set aside a winding-up order, rather than a voluntary winding-up.
The principles for setting aside a voluntary winding -up differ from those
for a winding-up order.
5. The applicants further allege that the court failed to apply the principle
that if the special resolution and accompanying statement of affairs are
found invalid and declared void ab initio, the winding -up must be set
aside.
They also argue the court erred by not finding that the requirements for a
special resolution under Section 363 of the Companies Act 1973,
including those regarding the statement of affairs, are mandatory.
According to the applicants, failure to comply with the statement of
affairs requirement renders the special resolution void and its registration
invalid.
6. The applicants rely on Enyuka Prop Holdings (Pty) Ltd v United
Merchants CC (in liquidation) & Others (2021/30511) [2025] ZAGPJHC
559 at para 97. However, unlike in Enyuka, the applicants in this case did
not challenge the resolution taken by the fourth respondent. There was no
dispute that the special resolution was defective due to a defective
statement of affairs. In Enyuka, the special resolution was directly
challenged and found defective.
7. In this case, I considered the unique nature of the companies, noting their
classification as domestic companies similar to partnerships, which
required a higher standard of good faith from directors. Furthermore, the
Enyuka case involved an explicit challenge to the special resolution,
whereas here the applicants neither disputed its validity nor proposed an
alternative. This lack of dispute over the special resolution distinguishes
this matter from Enyuka.
8. Secondly, I have addressed the disputed facts in my judgment and will
not repeat them here. The applicants also argue that the co urt failed to
consider less drastic remedies than liquidation, but they did not specify
what those remedies were. The applicants, in their heads of argument,
contend that Mr Bestel should have pursued other options under section
163 of the new Companies Ac t. Strangely, they did not plead what those
options were.
9. Given the hostility between the applicants and the fourth respondent,
including allegations of fraud and impropriety, I found it just and
equitable not to set aside the liquidation.
10. The applicants argued that the fourth respondent, Mr Bestel, should not
have appeared in person to oppose the application for leave to appeal. In
my view, this procedural challenge is without merit, as nothing prevented
the fourth respondent from appearing in person.
11. For these reasons, the applicants have not shown a reasonable prospect
of success or a compelling reason for a higher court to consider the
application. The application does not demonstrate any re alistic chance of
success or present compelling grounds and therefore does not meet the
required legal standard.
12. The application for leave to appeal is dismissed with costs on Scale A.
___________________________
O’ BRIEN, AJ
Acting Judge of the High Court of South Africa
Western Cape Division, Cape Town
APPEARANCES:
For the Applicants: Adv G Elliott SC
Ashman Attorneys Inc
For the First, Second & Third Respondents: Adv M Filton
Koos van Rensburg Attorneys
For the Fourth Respondent: In Person