IN THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION,
(MIDDELBURG LOCAL SEAT)
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED YES/NO
4 FEBRUARY 2026
DATE
In the application between:
IGOR JOHAN PINTO
AND
H.F. FOURIE
SIGNATURE
IPP EQUIPMENT (PTY) LTD
COMETA ASSETS (PTY) LTD
JUDGMENT
FOURIE AJ
CASE NUMBER: 2025-237542
APPLICANT
RESPONDENT
INTERVENING RESPONDENT
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INTRODUCTION:
[1] This is an application seeking the provisional liquidation of the Respondent. The
application, by way of an amended Notice of Motion, was set down to be heard on
the Urgent Roll of 3 February 2026 on the facts as the Applicant highlighted in the
Supplementary Founding Affidavit.
[2] The application is not opposed by the Respondent , who, in essence, if the
supporting affidavit by their sole director is to be understood , supports the
application for provisional liquidation of the Respondent.
[3] It is the submissions made by the Respondent in their supporting affidavit that, on
the Applicant's version, render the application urgent and to be dealt with as such.
[4] As has almost become the norm in liquidation applications, on the day of trial, the
Court is faced with an application for intervention, postponement and/or ancillary
relief. This matter has proven not to be the exception.
[5] On 20 January, the application in its converted form as an urgent application for
the provisional winding-up of the Respondent was brought and served on all the
respective and interested parties, and on the intervening party at the latest on
22 January 2026.
[6] The intervening and postponement applications by the proposed intervening party
were uploaded to the Case Line System on 2 February 2026 at 5:02 pm, after close
of business.
[7] The Intervening Respondent seeks not leave to file papers to oppose the
liquidation application, either provisional or final, but wishes, if the postponement
is granted, to pursue the filing of a business rescue application placing the
Respondent under business rescue in terms of Section 131(1) of the Companies
Act, 71 of 2008.
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[8] At the time the application was heard, it was generally accepted that the proposed
business rescue application had already been drawn up and provided to the
Applicant by the Intervening Party. This Court has, however, not had sight of such
an application, nor is such an application served before me. The Court is, however,
satisfied that, for purposes of Section 131(6) of the Companies Act, supra, the
application is not yet “made” specifically if regard is had to the principles of when
an application is “made” as enunciated in the matter of Lutchman N.O v African
Global Holdings [1]. Absent proof that such an application has been sufficiently
made, this court is not precluded from dealing with the matter.
URGENCY:
[9] This Court shall not be tied down to an academic evaluation on the principles of
urgency. During the hearing of the matter the Court found and conveyed same to
the parties that the very nature of the relief sought together with the submissions
made by the respective parties in their papers justify this Court dispensing with the
normal timeframes and to adjudicate the respective matters as urgent, not to do
so, given the facts of the matter would not only be impractical but it would be to the
detriment of the Respondent.
PROPOSED COURSES TO BE FOLLOWED:
[10] The parties' submissions on how the matter ought ultimately be dealt with provide
insight into the order this Court is requested to make.
[11] The Applicant seeks the Court's dismissal of the postponement application and the
provisional winding -up of the Respondent. The Applicant submits that they
acknowledge the Intervening Party's right to bring a business rescue application,
but that the position of the Respondent ought to be safeguarded pending such an
application.
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[12] The Intervening Party seeks the Court to hold over on an adjudication pertaining
to the liquidation of the Respondent until such time as the proposed business
rescue application is made as, so the Intervening Party contends the starting
position from which the Court ultimately hearing the matter would differ and the
provisional liquidation of the Respondent would have a detrimental effect on the
ultimate success of the business rescue application.
[13] On the submissions made by the respective parties , I am convinced that, prior to
the ultimate hearing on the liquidation of the Respondent, a business rescue
application shall be made and that ultimately at some time such an application for
either the final liquidation or the business rescue of the Respondent shall be heard.
The conundrum that this Court is seized with is whether, as an interim measure ,
the Company ought to be provisionally liquidated or not. This is the crux of the
issue serving before this Court.
INTERVENTION APPLICATION:
[14] The intervention of the Intervening Respondent was not opposed by the Applicant
nor the Respondent , and the intervention of Cometa Assets (Pty) Ltd as an
intervening Respondent was granted when the matter was heard.
POSTPONEMENT APPLICATION:
[15] For the reasons that follow, if the Court does not grant the postponement
application of the Intervening Party, the provisional liquidation of the Respondent
stands to succeed. The provisional liquidation application remains in all aspects
unopposed and is supported by the Responden t themselves. Accordingly, the
submissions made by the Applicant in the provisional liquidation application ought
to, at the very least , be accepted for the purpose of the provisional liquidation
application.
[16] Although the submissions made by the Intervening Respondent deal with certain
aspects of the submissions made in the founding papers of the Applicant, they do
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not serve as an Answering Affidavit to the liquidation application. Similarly, the
relief sought by the Intervening party does not seek the dismissal of the provisional
liquidation. It seeks the postponement and the implementation of business rescue
procedures after such an application has served.
[17] Any attack or contrary position taken by the intervening party to the founding
papers of the Applicant, for purpose of the matter serving before me, is only in as
far as the Court is requested to utilise same to grant the Intervening Respondent
the relief they seek being the postponement of the matter to allow for the
application for the business rescue of the Respondent to be made.
[18] During argument, neither counsel appearing for the Applicant nor counsel
appearing for the Intervening Respondent seriously addressed the general
principles pertaining to a postponement. It seemed as if the parties were generally
concerned rather with the effects of a business rescue application compared to a
provisional liquidation application.
[19] The Court accepts that the Courts ought not apply a formalistic and rigid approach
to postponements , as matters have differentiating facts, but the guidelines and
norms developed by the Courts over the years still serve as guiding principles
within which the Courts are to consider applications for postponement.
[20] What is, however, clear throughout the legal principles relating to postponement
applications, is the principle that the postponement of a matter cannot be claimed
as a right [2] and ought not to be granted at a particular party’s mere say so.
[21] The principles this Court believes necessary to apply in evaluating whether an
application for postponement ought to be granted are at least the following:
[21.1] An application for a postponement seeks an indulgence [3].
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[21.2] The Applicant must furnish a complete and satisfactory explanation of
the circumstances that give rise to the application for postponement [4].
[21.3] The Applicant for the postponement must present strong reasons [5].
[21.4] The postponement application must be bona fide and must not be used
as a tactical manoeuvre to obtain an advantage to which the Applicant
is not entitled [6].
[21.5] The application for postponement must be timeously made [7].
[22] As is so often the case in the development of legal jurisprudence in our country ,
the interest of justice and the broader public interest will, in most matters, have an
overarching principle to be applied to issues such as condonation or
postponements, such as in the current matter.
[23] Usually, a postponement being granted can be cured by the granting of an
appropriate cost order, and no real prejudice will befall the litigants if such an order
is made. When Courts are , however, faced with an application for the liquidation
of a company or to place a company in business rescue, the underlying principles
pertaining to such an application not only make those matters inherently important
and urgent to be dealt with, but th ey also affect not only the litigants present in
Court. These types of applications have a far -reaching effect on the concursus
creditorum of the company against whom they are made, its employees, its
directors, its shareholders, and many other affected parties. The effectiveness of
a cost order in applications of this nature cannot be regarded as sufficient and
effective as in other matters, for instance, dealing with mere economic interests or
the repayment of a debt.
[24] In matters such as liquidation applications or applications for business rescue, the
Court, knowing that a Cost order would not, in most instances, be soothing balm,
must consider whether the interests of justice and the prevailing facts nonetheless
justify granting such an order.
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[25] The principal remedy of costs not generally being a sufficient soothing balm,
according to me, places a higher burden on a party seeking a postponement,
knowing full well that a costs order would either not be sufficient nor effective in a
particular matter.
[26] Knowing that Courts generally take a lenient approach to intervening parties such
as employees or other affected parties, unfortunately, it ever so often happens that
litigants seeking a delay in the finalisation of a liquidation application utilises the
tactic of, at the eleventh hour , usually on the night before or the morning of the
hearing, seeking a postponement of the application in order for such a party to
partake in the proceedings. Although there is no doubt certain instances where a
last-minute application for postponement or intervention would be warranted, the
Courts should be mindful not to grant such applications at the Applicant’s mere say
so. To step into this trap would lead to the undesirable practice of employing
unsubstantiated, time -delaying tactics for an ulterior motive, with the court
condoning them.
[27] Knowing that the Court will generally be sympathetic to employees and intervening
parties and that the postponement will often not have the effect of an adverse cost
order against such intervening parties, litigants continue to employ these tactics
without giving due consideration to the remaining and necessary requirements for
a postponement application to be granted.
[28] During argument, the Court requested clarification from the respective legal
representatives on the dates on which the intervening party obtained knowledge
of the current urgent liquidation application and the initial liquidation application.
[29] It is generally accepted that the initial application came to the Intervening
Respondent's knowledge in early December 2025, and that the current urgent
liquidation application came to the Intervening Respondent's knowledge on about
22 January 2026.
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[30] On 22 December 2025, the Intervening Respondent made an application for the
Respondent to be placed under business rescue, which was set down for hearing
on 13 January 2026.
[31] I do not intend to deal with the first business rescue application, as the Intervening
Respondent has withdrawn it, but the existence thereof remains important insofar
as it relates to knowledge of the pending proceedings.
[32] The Respondent seeks leave, in essence, for the provisional liquidation application
to be stayed whilst they prepare their business rescue application , and although
not phrased as such, that is the effect of the order the Intervening Respondent
seeks.
[33] Whilst the Court accepts that the anticipated business rescue application was
being drawn up in the meantime, the timing of the ultimate notice of such a
business rescue application can only be regarded as curious.
[34] Counsel for the Intervening Respondent was further requested to indicate what
engagement followed between the Intervening Respondent and the Applicant
since obtaining knowledge of the application, as set down for hearing on the
3rd of February 2026. The papers filed on behalf of the Intervening Respondent
were silent on any engagement between the respective parties, an aspect which
the Court finds perplexing. The Intervening Respondent conceded that no
interaction was made between the respective parties, nor was any prior indication
given by the Intervening Respondent to the Applicant of the intention of the
Intervening Respondent to make the business rescue application, the intervention
application, or the application for postponement. The difficulty in accepting the
bona fides of the timing of the application to a great degree turns on this point as
it was evident to the Intervening Respondent on the moment the urgent liquidation
application was received that they would proceed with the current applica tion for
application was received that they would proceed with the current applica tion for
postponement and intervention, yet despite this fact, they elected for a period of
nearly 2 weeks to remain silent on their proposed actions, without any engagement
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with the Applicant only to, at the last available junction and after close of business
on the evening before the matter was ultimately set down, to serve the application.
[35] Even if the application was still in the making, the Intervening Respondent had no
reason not to inform the Applicant of its intention to make the application and to
convey to the Applicant the relief it would ultimately seek. The only effect that the
timing of the postponement and intervention application had was that it left the
Applicant without proper time to consider the application and to answer thereto or
to rebut any of the averments as made by the Intervening Respond ent. Under
circumstances where the giving of notice of the intended application at the very
least could be considered as reasonable, by failing to do so, the Intervening
Respondent gained a strategic advantage when the application was ultimately
heard.
[36] The identities of the respective parties and the legal representatives were by
22 January 2026, known to all the respective parties, and the Court fails to accept
that a letter or telephone call conveying the intention of the Intervening Respondent
could be regarded as an unreasonable measure to be expected of the Intervening
Respondent.
[37] If the Court were to refuse the postponement application, it would not preclude the
Intervening Respondent from making its business rescue application; the only
difference the granting of the postponement would make would be that the
Intervening Respondent would have the strategic advantage of having the
business rescue application tried while the Respondent is not provisionally wound-
up.
[38] The Applicant, the Respondent, and the Intervening Respondent are at least in
agreement that some form of financial distress exists within the Respondent and
that the Respondent ought either to be wound up or placed in business rescue.
[39] The Intervening Respondent states, per their Founding Affidavit, that the grant of
[39] The Intervening Respondent states, per their Founding Affidavit, that the grant of
a provisional liquidation application before the business rescue application is
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considered will undermine the prospect of successful business rescue. The
Intervening Respondent states that a provisional liquidator will incur immediate
administrative costs, the business bank account will be frozen, and market players
and service providers will stop trading with the Respondent. Without pronouncing
on this point, the court cannot accept that a company with the enormous assets
and tradables such as the Respondent, more than R1 billion, and the prospects of
its recovery, can be on this delicate knife-edge.
[40] Whilst the Court accepts that the placing of the Respondent under provisional
liquidation will no doubt have specific immediate effects, the business rescue
application or the ultimate placing of the company under business rescue will no
doubt also have a similar and far -reaching impact on the Respondent. The fact
that the Respondent , on all accounts, is to be regarded as at the very least
financially distressed and owing, on the intervening Respondent’s own account as
per their proposed business rescue pl an, at least approximately R 300 Million,
cannot be overlooked and indicates the financial strain on the Respondent. The
Applicant states that the debts of the Respondent are in excess of R 1 Billion, and
it can be accepted that somewhere in between those two values lies the actual
indebtedness towards the creditors of the Respondent.
[41] The Respondent themselves agreed that the company ought to be wound up at
least provisionally, and although this does not dispose of the matter, much can be
gleaned from this position. The Court agrees that, under appropriate
circumstances, external parties may convince the Court that business rescue
would be a more suitable avenue for a financially distressed company than
liquidation but it cannot be overlooked that at the very least the prima facie position
should be that the company itself has the best possible information pertaining to
should be that the company itself has the best possible information pertaining to
their finances and the possibility of recovering from financial detriments.
Irrespective of this prima facie view, the Court ultimately dealing with these matters
will no doubt evaluate the submissions by the respective parties objectively.
[42] The Applicant , in his founding and supplementary papers, states that the
Intervening Respondent is the cause of the financial distress of the Respondent,
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as the Intervening Respondent mismanaged the Respondent and embarked on
what the Applicant calls a plundering of the Respondent. At the hearing of the
matter, the intervening Respondent tendered that, pending the date on which the
matter is ultimately to be heard and if the postponement is granted, the Intervening
Respondent would not make any payments from the Respondent to the
Intervening Respondent. This tender is noted in good faith, but insofar as it relates
to any control the Intervening Respondent might have over the Respondent, it does
not cure mismanagement of the Respondent, nor does it cure the misappropriation
of funds to any other creditors not being the Intervening Respondent.
[43] The Intervening Respondent states that the claim by the Applicant against the
Respondent ought to be placed under a magnifying glass, but under circumstances
where no evidence exists before this Court indicating that the Applicant is not some
creditor of the Respondent, which is also not denied by the Respondent, these
averments do not preclude the Court from currently dealing with the matter.
[44] The Intervening Respondent’s legal representative urged the Court to take a
cautious and conservative approach by allowing the postponement to have the
business rescue application made. This Court disagrees that that might be the
cautious approach where the Court remains uncertain by which date such an
application will ultimately be made if indeed it is ultimately made, and by which
date the business rescue application is ultimately heard. To leave a compan y of
the magnitude of the Respondent with such significant assets, tradables and debts
hanging in the hopes that the business rescue application is indeed ultimately
made is not a position that can be regarded either in the interest of justice nor in
the interest of the concursus of the Respondent.
[45] Given the magnitude of seriousness of the matter , even a single moment where
[45] Given the magnitude of seriousness of the matter , even a single moment where
the Respondent is not managed correctly and cared for might lead to fatal effects
for its concursus creditorum of which the Intervening Respondent is part. As such,
immediate intervention is required. Whether that immediate intervention by way of
provisional liquidation is ultimately converted into business rescue remains to be
seen.
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[46] The further complexity in the matter is that, at the time this application was heard,
there were at least 4 pending applications for the winding up of the Respondent by
different Applicants in separate applications, all to be heard by this court in the
near future. The court was urged to consolidate all of those matters. I do not see
the need to do so. If any of those applicants want to join issue or take issue , they
are welcome to do so as the matter progresses.
[47] This Court finds that the application for postponement was not timeously made.
The Intervening Respondent knew for a considerable period that the application
would be made, yet, for reasons known only to them, decided to make it at the last
available junction; they did so at their own peril. The postponement of the
application cannot be cured suitably by an order as to costs not only insofar as it
relates to the Applicant but also to all the affected parties already stated in this
Judgment.
[48] The application for postponement is also made exclusively in order for the
Intervening Respondent to gain a strategic advantage , in that it would allow the
business rescue application to be effectively made and for the workings of
Section 131 of the Companies Act to become applicable. The timing of the
application and the strategic advantage the Intervening Respondent would gain
from it if granted negatively affect the prospects of success in the current
application for postponement.
[49] The only remaining question is whether the interest of justice nonetheless permits
the application to be granted. For all the reasons as stated herein and in order to
avoid the abuse of Court process to gain unfair strategic advantage, which this
Courts e valuates together with the rights of the Applicant, the views of the
Respondent company itself , and the need for the protection of the concursus
creditorum all being balanced against the request of the Intervening Respondent
creditorum all being balanced against the request of the Intervening Respondent
to make the business rescue application the question needs to be answered in the
negative. The fact that the business rescue application can still be made sways
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the Court in finding that the strategic advantage that would be gained from granting
the postponement would not be in the interest of justice.
[50] The change in the status that the provisional liquidation of the Respondent brings
and the effect thereof on the business rescue application that is to be brought has
not been proven on such a grave scale that moves the application in favour of the
Intervening Respondent, and for all these reasons, the application for
postponement cannot succeed.
PROVISIONAL LIQUIDATION APPLICATION:
[51] After evaluating the papers filed, the court is satisfied that all the statutory
requirements have been met, as would be necessary for the Court to consider
granting a provisional liquidation order.
[52] The claim by the Applicant as creditor of the Respondent, the submissions made
by the Applicant pertaining to the need for liquidation of the Respondent coupled
with the confirmation by the Respondent that it would be in their best interest to be
at the very least provisionally wound-up all lead to this Court finding that it would
under the circumstances be appropriate for such an order to be made.
COSTS:
[53] Ordinarily, when dealing with liquidation applications, costs merely form part of the
liquidation of a company. In the current matter , however, the Court has been
requested to adjudicate upon an intervention and a postponement application.
Although the Intervening Respondent was unsuccessful in seeking a
postponement, they were successful in obtaining relief as an intervening party,
and, to a great degree, the issues between the Applicant, the Respondent, and the
Intervening Respondent remain alive. The Court is similarly mindful not to make
an adverse cost order against a party where it is evident that significant litigation
will follow between the parties currently before the Court. Whether either the
Applicant or the Intervening Respondent achieves ultimate success in their litigious
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endeavours remains to be seen, and as such this Court finds it just to Order that
costs be cost in the application.
ORDER:
[54] For all the above-stated reasons, the following Order is made:
[54.1] The Intervening Respondent is granted leave to intervene as a Respondent
in the main application for the liquidation of the Respondent.
[54.2] The application by the Intervening Respondent for the postponement of the
matter as set down for 3 February 2026 is dismissed.
[54.3] The Respondent is placed under provisional liquidation in the hands of the
Master of the High Court of South Africa.
[54.4] Rule nisi is issued calling upon the Respondent, the Intervening Respondent
or any other interested parties to show cause, if any to this Court on ____ 30
March 2026___ at 10h00 as to why:
[54.4.1] A final liquidation order should not be granted against the Respondent.
[54.4.2] Costs of the application should not be costs in the liquidation of the
Respondent.
[54.5] It is ordered that the service of this Order shall be effected as follows:
[54.5.1] On the Respondent at its registered address and principal place of
business.
[54.5.2] On the Intervening Respondent at their legal representatives.
[54.5.3] On the employees of the Respondent and or any Trade Unions to which
the employees might be affiliated, if any, at the Respondent’s registered
address and principal place of business in terms of the statutory
provisions necessitated by the Applicant.
[54.5.4] At the office of the South African Revenue Service.
[54.5.5] On the Master of the High Court.
[54.5.6] By publication in the Citizen and Die Burger newspapers.
[52.6] Costs shall be cost in the cause.
HF FOURIE AJ
ACTING JUDGE OF HIGH COURT, MIDDELBURG
Counsel for the Applicants: Adv Bothma SC and
Adv Van der Merwe
Counsel for the Intervening Respondent: Adv Patrick SC and
Adv Robertson
Counsel for the Respondent: No appearance
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Judgment reserved on: 3 February 2026
Date of delivery: 4 February 2026
______________________________________________________________
[1] Lutchman N.O v African Global Holdings 2022 (4) SA 529 (SCA) at paragraph 28
[2] National Police Service Union and Others v Minister of Safety and Security and
Others 2000 (4) SA 1110 (CC) at paragraph 4
[3] Grootboom v National Prosecuting Authority 2014 (2) SA 68 (CC) at 75 F – G
[4] National Police Service Union and Others v Minister of Safety and Security and
Others supra at 1112 C – F
[5] Grootboom v National Prosecuting Authority supra at 76 C – D
[6] Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NMS) at 315 E
[7] Physiological Society of South Africa v Qwelane and Others 2017 (8) BCLA 1039
(CC) at paragraph 31