IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)
(1) REPORTABLE: NO/YES
(2) OF INTEREST TO OTHER JUDGES;..NO/YES
(3) REVISED
SIGNATURE.
6/01/2026
DATE
In the matter between:
THE EMPLOYEES OF BOTHANGANA TRADING
(PTY) LTD (IN LIQUIDATION)
SIPHO GIVEN MBAMBA
and
BOTHANGANA TRADING (PTY) LTD
(IN LIQUIDATION)
SESFIGILE PLANT HIRE (PTY) LTD
KARIEN FORTEIN N.O. (In her capacity
CASE NO. 2433/2022
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
1
2
as Final Liquidator of the First Respondent)
THE MASTER OF THE HIGH COURT FOURTH RESPONDENT
MIDDELBURG
THE STANDARD BANK OF SOUTH AFRICA FIRST INTERESTED PARTY
FIRST NATIONAL BANK SECOND INTERESTED PARTY
This judgment was handed down electronically by circulation to the parties and/or parties’
representatives by email. The date and time of hand-down is deemed to be 6 January 2026
at 14:00
______________________________________________________________________
JUDGMENT ON LEAVE TO APPEAL
BAM, AJ
[1] On 3 February 2025 I upheld the First and Third respondents’ point in limine and
dismissed the Applicants’ application for rescission. This application for leave is
against my order in this regard and is premised on the provisions of Section
17(1)(a)(i) of the Superior Courts Act No. 10 of 2013 which provides that leave to
appeal may be granted where in the judge’s opinion , “the appeal would have a
reasonable prospect of success.” A brief ventilation of the issues is necessary as
the order was made ex tempore.
[2] The First Respondent Bothangana Trading (“the company”) was placed in final
liquidation on 14 November 2022 per the order of Mthimunye AJ. The Third
Respondent was appointed liquidator of the company by the Master and is
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opposing the rescission application in her official capacity and on behalf of the
company in liquidation.
[3] The First Applicants are the erstwhile employees of the company while the Second
Applicant is its director and has joined up with them to bring the recission
application. The Second Respondent is the creditor in whose favour the final
liquidation order was made. The two interested parties, namely Standard Bank of
South Africa and First National Bank , are cited in their capacities as the only two
creditors of the company disclosed by the director Mr Mbamba and do not oppose
the rescission application, neither are they opposing this application for leave to
appeal. In view of the foregoing, I shall refer to the First and Second Applicants
collectively as “the applicants ” and individually as “the employees ” and “Mr.
Mbamba” respectively. The Third Respondent will be referred to as “the
respondent” or ‘the liquidator” which reference shall include the company where
the context dictates.
[4] At the hearing of the application for rescission, the respondent’s counsel, Advocate
Jolindie Ferreira, raised a point in limine of non-joinder in respect of creditors for
which she blamed the failure or refusal by Mr. Mbamba to complete and submit the
statement of affairs form (“Annexure CM 100”) in which amongst other things he is
supposed to disclose all the compan y’s creditors to enable the liquidator to give
them proper notice of the liquidation process. Whether these creditors decide not
to oppose the rescission application is a different matter, but they must be aware
of the process and especially the litigation. Much as the liquidator had discovered
some of the creditors through her own efforts, it was imperative that the director
submits the completed statement of affairs. Section 355 of the old Companies Act
provides that creditors must be notified in the event that a liquidation order is being
provides that creditors must be notified in the event that a liquidation order is being
reviewed. The section provides that notice to the liquidator shall be deemed to be
notice to the creditors. It is this task of the liquidator which in this case is said to be
hampered by the failure/refusal of Mr. Mbamba to cooperate. Counsel pointed out
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that the situation is made worse by the conduct of Mr. Mbamba of entering into
further credit agreements in the name of the company despite being aware since
August 2023, according to him, that there is an order placing the company in final
liquidation. He applied for credit with an entity called Westpac on 15 November
2023, which transaction came to the liquidator ’s attention only a year later , on 11
November 2024 . He had essentially evaded the liquidator for a period of three
years.
[5] Counsel had added that there was a prior rescission application that was also
opposed by the liquidator and was subsequently withdrawn by Mr. Mbamba without
tendering costs incurred by the liquidator. The court could not therefore entertain
the rescission application in the absence of proper notification to the creditors and
a provision for the ir claims should the rescission succeed, including for the
liquidator’s wasted costs . Incidentally, there is a counterclaim to the rescission
application in which th ese issues are raised. There is also Sesfigile, the second
respondent, which br ought the liquidation application. Its debt was paid after the
order for final liquidation was made, and that money was reclaimed by the
liquidator due to the fact that it had become a subject of distribution to all creditors
and the payment was therefore an impeachable disposition by Bothangana / Mr
Mbamba.
[6] Later on during the hearing Ms Ferreira took instructions and informed the court
that they were abandoning the counterclaim; the liquidator will instead launch an
application in terms of section 155 of the Companies Act.
[7] In response to the above, attorney for the applicants, Mr Ashley Seckel, averred
that M r Mbamba had already disclosed to the liquidator that the company had
transactions only with Standard Bank and F irst National Bank. The applicants ’
position is that firstly, the company has got no creditors and secondly, that it should
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not have been liquidated at all in the first place . If the liquidator has discovered
more creditors as alleged in her supplementary affidavit, the question would be
why then she did not notify them of the liquidation order and of th e rescission
application. The two banks cited by the applicants as interested parties are not
opposing the application in any event.
[8] Mr Seckel argued that the section 363 form is not designed to replace the
liquidator’s role to go out there and establish the existence or otherwise of
creditors. Thus far, not much had been done towards the process of liquidating the
company. The liquidator has not convened the second meeting of creditors and in
the first meeting no claims were lodged. It was disingenuous for her to state in her
supplementary affidavit that she had discovered some creditors of the company
and yet not disclose them to the court or give them notice of this litigation as she
is supposed to.
[9] I decided to uphold the point in limine particularly when Mr Seckel, in response to
a question I asked, indicated that there was no particular reason stopping or
preventing Mr Mbamba from completing and delivering the Annexure CM 100. His
contention was that it would not make any difference even if he submitted the form
because the company had no other creditors other than the two banks already
known to the liquidator. The applicants had accused the liquidator of not performing
her duties diligently and prolonging the process, whereas it appears that there is a
recalcitrance to provide her with the necessary information to enable her to
proceed.
[10] It is noteworthy that at the hearing of this application for leave, I was informed that
Mr Mbamba has since complied with the Act and submitted the form. This shows
that there was no obstacle from the outset preventing him from compl ying, he
chose to ignore the court order and continued to trade. It lends credence to Ms
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Ferreira’s contention that the applicants are approaching the court with unclean
hands. Ordinarily, under such circumstances, the court would be justified in
dismissing the application, except that in this case an error was made.
[11] In my ruling upholding the point in limine, I had mentioned that I had not considered
the merits of the rescission application. I was of the view though, that the failure or
refusal by Mr Mbamba to cooperate with a process prescribed by statute and
sanctioned by a court order was serious enough to justify the prevention of the
applicants’ application from proceeding. I did not agree with the proposal by Mr
Seckel that I should adjudicate the rescission application and then issue a rule nisi
for compliance with section 363.
[12] The dismissal of the application therefore goes against the intention to afford Mr
Mbamba the opportunity to comply. To this end, I agree with Mr Seckel that I should
not have dismissed the rescission application itself as it had not been adjudicated
even though mention was made to it during argument on the point in limine . The
application cannot proceed as any further step will be susceptible to attack based
on the principle of res judicata. To this end, I am of the considered view that there
are prospects of success in the appeal.
[13] In the result, the following order is made:
1. The application for leave to appeal to the Full Bench of this Division is
granted.
2. Costs shall be those in the appeal.
APPEARANCES:
FOR THE APPLICANTS:
FIRM:
C/O:
CONTACT DETAILS:
FOR THE RESPONDENT:
INSRTUCTED BY:
CONTACT DETAILS
DATE OF HEARING:
DATE OF JUDGMENT:
LJ BAM
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA (MIDDELBURG LOCAL SEAT)
MR A.Z. SECKEL
SMIT SEWGOOLAM INC.
SAXONWORLD
GFT PISTORIUS, MIDDELBURG
legal@tplaw.co.za / litigasie@tplaw.co.za
013 - 282 7304
ADV. J. FERREIRA
NOORDMANSATTORNEYES
BLOEMFONTEIN
TEL: 051 - 011 9122 / 073 220 1853
anton@noordmans.co.za I
lari@noordmans.co.za
14 November 2025
6 January 2026
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