Africa Agriculture and Trade Investment Fund v Vienings (74/2024) [2026] ZASCA 19 (24 February 2026)

70 Reportability

Brief Summary

Company Law — Business rescue practitioner — Personal liability — Appellant seeking to hold business rescue practitioner personally liable for debts of company in business rescue — Allegations of reckless conduct and gross negligence — High Court dismissing application, finding no reckless or grossly negligent conduct — Appeal dismissed, confirming High Court's findings that practitioner acted within reasonable bounds of discretion and kept creditors informed.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 74/2024
In the matter between:

AFRICA AGRICULTURE AND TRADE INVESTMENT FUND APPELLANT
and
FRANCOIS VIENINGS RESPONDENT

Neutral citation: Africa Agriculture and Trade Investment Fund v Vienings (74/2024)
[2026] ZASCA 19 (24 February 2026)
Coram: MOKGOHLOA, GOOSEN, KATHREE-SETILOANE and KOEN JJA and
MODIBA AJA
Heard: 19 August 2025
Delivered: This judgment was handed down electronically by circulation to the parties’
representatives by email, publication on the Supreme Court of Appeal website and
released to SAFLII. The time and date for hand -down of the judgment is deemed to be
on 24 February 2026 at 11h00

Summary: Company Law – Companies Act 61 of 1973 – whether conduct of business
rescue practitioner constituted reckl essness within the meaning of s 424 (1) or gross

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negligence within the meaning of s 140(3)(c)(ii) of the Companies Act 71 of 2008 which
rendered him personally liable for the debts of the company in business rescue.

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ORDER

On appeal from : Eastern Cape Division of the High Court, Makhanda (Noncembu J
sitting as court of first instance):
The appeal is dismissed with costs, including the costs of two counsel where so
employed.

JUDGMENT

Mokgohloa JA (Goosen, Kathree -Setiloane and Koen JJA and Modiba AJA
concurring):

[1] The appellant, Africa Agriculture and Trade Investment Fund (AATIF), appeals a
decision of the Eastern Cape Division of the High Court, Makhanda (the high court), which
dismissed its application to declare the respondent , a business rescue practitioner, Mr
Francois Vienings (Mr Vienings), personally liable for all the debts of Cape Concentrate
(Pty) Ltd (in liquidation) (Cape Concentrate) due to AATIF. The application was based on
the provisions of s 424(1) of the Companies Act 61 of 1973 (the old Act) , read with item
9 to Schedule 5 to the Companies Act 71 of 2008 (the new Act) and s 140(3)(c)(ii) thereof.

The facts
[2] Cape Concentrate carried on the business of manufacturing and selling tomato
paste. It sourced raw tomatoes from its sister company Rumibyte (Pty) Ltd (Rumibyte),
which was also subsequently liquidated, which conducted a tomato farming operation.
Cape Concentrate and Rumibyte shared the same board of directors.

[3] Rumibyte started to experience difficulties in securing a continuous flow of
tomatoes and was placed under business rescue. Mr Vienings was appointed as its
business rescue practitioner. Rumibyte’s distressed status affected the business of Cape

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Concentrate and caused it to suffer financial distress. It too was placed under business
rescue with Mr Vienings appointed as its business rescue practitioner.

[4] The business rescue proceedings of Cape Concentrate commenced on
16 May 2013. The first meeting of creditors and employees of both Cape Concentrate
and Rumibyte was held on 24 May 2013. At the meeting, Mr Vienings expressed the view
that the possibility existed that both companies could be rescued. He stated that he was
in negotiations with possible funders to obtain capital for both Cape Concentrate and
Rumibyte.

[5] In early December 2013, Mr Vienings became involved in the establishment of the
Tyefu Community Farming Trust (the Trust), comprising a number of community farmers
whose beneficiaries were various cultural co-operatives and community organisations in
the area in which Rumibyte is located. This was done in order to procure funding from
the Department of Agriculture, Forestry and Fisheries and the Land Bank.

[6] During March or April 2014, Mr Vienings held discussions with the Humansdorp
Cooperation Ltd (HDC), a local agricultural co-operative, to obtain funding for the
commercial farmers and the Trust. This culminated in HDC’s willingness to provide
funding and facilities for purposes of preparing fields to plant tomatoes.

[7] AATIF became involved around November 2013. Negotiations were held between
AATIF and Cape Concentrate of a possible AATIF investment in the business rescue
process of Cape Concentrate. During February 2014 , AATIF conducted a due diligence
on Cape Concentrate business. This included among others: the inspection of the factory
operation and farming operations and a staff assessment for both Rumibyte and Cape
Concentrate; the challenges faced by both companies in securing a sufficient supply of
tomatoes for the factory operations; the financial statements of both companies and how
the historical financiers had become involved and how the funding was allocated; and the

the historical financiers had become involved and how the funding was allocated; and the
financial model, cash flow and shareholding. The information on the proposed funding
from HDC was also disclosed to AATIF.

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[8] There were interactions between AATIF and HDC in which AATIF provided input
on the proposed HDC funding terms. On 14 August 2014 AATIF and HDC concluded an
Investment Partner Agreement in terms of which HDC undertook to make facilities
available to qualifying commercial farmers for the production of tomatoes, and to ensure
that these farmers are able to repay their respective obligations without becoming over
indebted. Four days later, on 18 August 2014, AATIF and Cape Concentrate concluded
the Facility Agreement in terms of which AATIF undertook to loan US$8 million to Cape
Concentrate. The agreement specified when and how the loan would be repaid. The
recital in the agreement recorded that: ‘The Lender has agreed to grant a loan to the
Borrower for the financing of its tomato farming and processing operations in the Eastern
Cape region, South Africa.’

[9] AATIF advanced the loan as agreed. Thereafter, HDC demanded that Cape
Concentrate provide guarantees for its loan. Mr Vienings provided the guarantees to
HDC. On 7 May 2015 , HDC called up the demand guarantees for an amount of
R22 268 848.85. This amount was paid from the loan granted by AATIF to Cape
Concentrate. On 19 May 2015, Mr Vienings resigned as Cape Concentrate’s business
rescue practitioner and was replaced by Mr Daniel Terblanche (Mr Terblanche). About
six months later, Mr Terblanche informed the creditors of Cape Concentrate that there
were no reasonable prospects of rescuing Cape Concentrate and it was placed under
liquidation.

In the high court
[10] On 11 June 2019 , AATIF brought an application in the high court in which it
claimed the following relief:
(a) An order declaring that Mr Vienings be personally liable without limitation of liability,
for all the debts of Cape Concentrate due to AATIF in terms of s 424(1) of the old Act
read with item 9 of Schedule 5 and s 140(3)(c)(ii) of the new Act.
(b) An order directing Mr Vienings to pay an amount of R134 543 413.99 to AATIF,

(b) An order directing Mr Vienings to pay an amount of R134 543 413.99 to AATIF,
together with interest.

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[11] AATIF claimed that Mr Vienings’ conduct of not discontinuing the business rescue
proceedings between August 2014 to January 2015 , and not placing Cape Concentrate
under liquidation rather than allowing it to incur further debts; and, utilizing the loan funds
from AATIF to pay HDC, constituted a reckless exercise of the powers and functions of
a business rescue practitioner in terms of s 140(3)(c)(ii) of the new Act. It claimed further
that Mr Vienings’ conduct rendered him personally liable to the liability of Cape
Concentrate to AATIF in terms of s 424(1) of the old Act.

[12] Mr Vienings argued that the belief that reasonable prospects existed to rescue
Cape Concentrate was shared by AATIF. He kept AATIF informed on the progress of the
business rescue process. He submitted that he held meetings with AATIF’s delegates
where further progress was discussed and there was never a stage where AATIF
suggested that the business rescue should be discontinued . He further submitted that
AATIF knew of the rand -for-rand security through the use of AATIF loan capital since
2014. This issue, according to Mr Vienings, was discussed in detail in January 2015 when
the representatives of AATIF visited South Africa.

[13] The high court dismissed the application with costs . It held that as a reasonable
business rescue practitioner, Mr Vienings may well have terminated the rehabilitation
process between August 201 4 and January 2015. It found that since AATIF was
appraised and had knowledge of the progress of rehabilitation and had no issue with the
progress, it cannot be said that Mr Vienings’ conduct amounted to negligent or reckless
conduct which warrant the extreme punishment provided for in s 424 of the old Act.

[14] The High Court found that reports were submitted to AATIF on 30 September 2014
and 30 December 2014, informing AATIF that the budgeted funding for the purchase of
tomatoes had been used as security for the HDC debt. Further, Mr Vienings held

tomatoes had been used as security for the HDC debt. Further, Mr Vienings held
meetings with AATIF where the issue of payment of rand -for-rand guarantees to HDC
were discussed and efforts were made to minimi se this risk. While the reports do not
indicate that Mr Vienings acted in accordance with the terms of the facility agreement in

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tendering and paying for the guarantees, it does take away the notion that his action was
not known to AATIF.

[15] The high court held that Mr Vienings put Cape Concentrate’s rehabilitation at risk
when he used the funding provided by AATIF to secure guarantees of the Trust to HDC,
and such conduct amounted to negligence. It, however, found that since it was a known
factor that the Cape Concentrate needed both working capital and raw materials for it to
be rehabilitated and to succeed, it could not be said that Mr Vienings’ conduct amounted
to gross negligence. The high court held that without the support of HDC, there would be
no farming and consequently no raw materials to be purchased by Cape Concentrate.
Finally, the high court found that Mr Vienings’ conduct cannot be said to amount to gross
negligence or reckless conduct that warrants the consequences provided for in s 424.

In this Court
[16] Before us, the same arguments that were raised in the high court were reiterated
on behalf of AATIF and Mr Vienings . AATIF persisted that the respondent acted
recklessly in providing the guarantees of R22 million of Cape Concentrate’s funds to HDC
when he knew that was not permitted. It contended that Mr Vienings acted recklessly by
not discontinuing the business rescue proceedings between August 2014 to January
2015, when he noticed that the re no longer remained a prospect for rescuing Cape
Concentrate. AATIF contended further that Mr Vienings should be declared personally
liable for Cape Concentrate’s debt and be ordered to pay an amount of R110 333 170.76
which is AATIF’s outstanding debt.

[17] Mr Vienings submitted that AATIF was not only advised of the business rescue
progress but also that its agricultural specialist conducted a technical visit to the farming
operation in January 2015 to inspect the status and progress. The report of the
agricultural specialist was favo urable, and the specialist was pleased with the farming

agricultural specialist was favo urable, and the specialist was pleased with the farming
side, the hectarage that had been planted, including the potential harvest, and the
projected yield at that stage. With regard to the HDC’s guarantees, he submitted that
AATIF was informed of the guarantees. According to Mr Vienings, AATIF contacted HDC

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in an effort to find a solution for the security requirements. In April 2015, AATIF, HDC,
and Mr. Vienings held a meeting at which HDC was requested to release the guarantees,
but it refused.

[18] Mr Vienings submitted further that AATIF came to know of the use of its funding
to secure HDC’s credit in September/October 2014 . At no stage subsequent thereto did
AATIF claim that Cape Concentrate breached the terms of the funding agreement or
acted contrary to the investment objectives . Neither did AATIF suggest that he acted
recklessly nor that he caused Cape Concentrate to breach its obligations under the
agreement. In fact, so went the submission, AATIF did nothing to undo the guarantees
for months after it had knowledge thereof.

[19] Mr Vienings further submitted that in the event it is found that he acted recklessly,
then AATIF’s claim has prescribed. He contended that the issue of the HDC’s security
and the rand-for-rand demand guarantees provided were discussed in detail with AATIF
in the week preceding 19 January 2015. This, according to Mr Vienings, is when the claim
arose. AATIF issued the application on 11 June 2019 , four years after it had knowledge
of Mr Vienings’ identity and the facts upon which it relies for the debt.

[20] The issue in this appeal is whether Mr. Vienings’ conduct of: (a) failing to
discontinue the business rescue proceedings and convert them into liquidation
proceedings between August 2014 and January 2015; and (b) authorizing and/or using
the loan funds ad vanced by AATIF to pay guarantees for HDC, breached the funding
agreement and constituted reckless conduct and/or gross negligence justifying
punishment or liability under s 424 of the old Act.

[21] Section 424 is a provision of the old Act. The old Act was repealed by the new Act,
but s 424 was retained and continues to apply in respect of the winding up and liquidation
of companies. The relevant portion of s 424(1) reads:

of companies. The relevant portion of s 424(1) reads:
‘Liability of directors and others for fraudulent conduct of business

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(1) When it appears, whether it be in a winding -up, judicial management or otherwise, that any
business of the company was or is being carried on recklessly or with intent to defraud creditors
of the company or creditors of other person or for any fraudulent purpose, the Court may, on the
application of the Master, the liquidator, the judicial manager, any creditor or member or
contributory of the company, declare that any person who was knowingly a party to the carrying
on of the business in the manner aforesaid, shall be personally responsible, without any limitation
of liability, for all or any of the debts or other liabilities of the company as the Court may direct.’

[22] In Ebrahim and Another v Airport Cold Storage (Pty) Ltd 1 this Court, dealing with
the provisions of s 424 stated that:
‘The section retracts the fundamental attribute of corporate personality, namely separate legal
existence, with its corollary of autonomous and independent liability for debts, when the level of
mismanagement of the corporation’s affairs exceeds the merely inept or incompetent and
becomes heedlessly gross or dishonest. The provision in effect exacts a quid pro quo : for the
benefit of immunity from liability of its debts, those running the corporation may not use its formal
identity to incur obligations recklessly, grossly negligent or fraudulently. If they do, they risk being
made personally liable’.

[23] The test for reckless ness was described in Fourie NO and Another v Newton
(Fourie)2 as follows:
‘The test for recklessness has both objective and subjective elements. It is objective, to the extent
that the Defendant’s actions are measured against the standard of conduct of a notional
reasonable person. Accordingly, a defendant’s honest but mistaken belief as to the prospects of
payment of a claim by the company when due is not determinative of whether he was reckless; if
a reasonable person or businessman in the same circumstances would not have held that belief,

a reasonable person or businessman in the same circumstances would not have held that belief,
the Defendant’s bona fides is irrelevant. The test is subjectiv e, to the extent that it must be
postulated that the notional person belongs to the same group or class as the Defendant, moving
in the same sphere and having the same knowledge or means of knowledge.’

[24] The Court went further and warned that:

1 Ebrahim and Another v Airport Cold Storage (Pty) Ltd [2008] ZASCA113; 2008 (6) SA 585 (SCA) para
15.
2 Fourie NO and Another v Newton [2010] ZASCA 150; [2011] 2 All SA 265 SCA (Fourie) para 28.

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‘In evaluating the conduct of directors, courts should not be astute to stigmatise decisions made
by businessmen as reckless simply because perceived entrepreneu rial options did not in the
event pan out. What is required is not the application of the exact science of hindsight, but a value
judgment bearing in mind what was known or ought reasonably to have been known, by individual
directors at the time the decisions were made.’3

[25] In Philotex (Pty) Ltd and Others v Snyman and Others4 this Court held that:
‘Participation in business necessarily involves taking entrepreneurial risks but s 424 only penalizes the
subjection of third parties to where (apart from the case of fraudulent trading) it is grossly unreasonable. If,
therefore, in a given case there is so me ground for thinking that creditors will be paid but a reasonable
businessman would nonetheless, because of circumstances creating a material but not high risk of non -
payment, refrain from running that risk, the director who does run that risk by incurring credit, and thus falls
short of the standard of conduct of the reasonable businessman, trades unreasonably and therefore
negligently vis-à-vis creditors. That departure from the reasonable standard could not fairly be described
as gross, however, and the director concerned would not be hit by the section. By contrast, an instance
that manifestly would fall foul of the section is where the reasonable businessman would realise that in all
circumstances payment would not be made when due. To incur credit i n that situation would, as a matter
of degree, be so plainly serious a departure from the required standard than the conduct in the first example
that one has no difficulty categorizing it as grossly unreasonable and therefore grossly negligent .’

[26] It is clear from the above cases that for Mr Vienings to be held personally liable for
the debts of Cape Concentrate, it has to be found that he carried on the business of Cape

the debts of Cape Concentrate, it has to be found that he carried on the business of Cape
Concentrate recklessly, grossly negligent or with intent to defraud the creditors of the
company. AATIF does not allege fraud on the part of Mr Vienings.

[27] The business rescue process was introduced in the new Act. The new Act came
into effect on 1 May 2011. Its purpose is to facilitate the rehabilitation of a company that
is financially distressed by providing for the temporary supervision of the company and
of the management of its affairs, business , and property. It is to prevent the demise of
such a company through winding -up by making provision for its possible rescue, to
ensure that a better return for the company’s creditors or shareholders than payment
under the law relating to winding-up is achieved.

3 Ibid para 45.
4 Philotex (Pty) Ltd and Others v Snyman and Others 1998 (2) SA 138 (SCA) at 146H–147A.

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[28] Section 140(3) deals with the duties and responsibilities of a business rescue
practitioner. The relevant portion reads:
‘(3) During a company’s business rescue proceedings, the practitioner–
(a) . . .
(b) has the responsibilities, duties, and liabilities of a director of the company, as set out in
sections 75 to 77;5 and
(c) other than as contemplated in paragraph (b)–
(i) …
(ii) may be held liable in accordance with any relevant law for the consequences of any act or
omission amounting to gross negligence in the exercise of the powers and performance of the
function of practitioner.’

Analysis
[29] Under s 129 of the new Act, the board of a company may resolve that the company
begin business rescue proceedings and be placed under supervision . It may do so if it
has reasonable grounds to believe that (a) the company is financially distressed and (b)
there appears to be a reasonable prospect of rescuing the company. Mr Vienings had the
belief that there was a reasonable prospect that Cape Concentrate could be rescued.

[30] On 30 April 2013 , the board of directors of Cape Concentrate resolved to
commence business rescue proceedings because it was financially distressed. It required
to secure a substantial capital injection to keep it afloat. To this end, Mr Vienings
approached various financiers including AATIF , which bought into the business rescue
process. Cape Concentrate provided AATIF with the background, operational and
financial information it required to consider its investment in Cape Concentrate. AATIF
conducted an on-site due diligence process of the business of Cape Concentrate. It was
consulted regarding the business rescue process and plan, and it provided conditions to

5 Section 77 deals with the liability of directors and provides in s 77(2)(a) that a director of a company may
be held liable in accordance with the principles of the common law relating to breach of a fiduciary duty, for

any loss, damages or costs sustained by the company as consequence of any breach by the director of a
duly contemplated in ss 75, 76(2) or 76(3)(a) or (b).

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be included in the plan and gave its final approval thereof. On 14 August 2014 AATIF
concluded an Investment Partner Agreement with HDC. Four days later, on 18 August
2014, a Funding Agreement was concluded between AATIF and Cape Concentrate.

[31] During January 2015 AATIF’s agricultural expert visited the farmland and was
pleased with the farming and the hectarage which ha d been planted as well as the
potential harvest. During the same month, AATIF released a press statement and
recorded that:
‘According to Mr Mark Harris, Cape Concentrate CFO: “We are delighted by AATIF’s decision to
invest in Cape Concentrate, which provides important confirmation of the company business
model and key support for the agricultural industry in South Africa. The company will be looking
to capitalize on the support of AATIF and offer a consistent world class product to our customers
while exploring opportunities to expand our operations”.
Thomas Duve, Chairman of AATIF said “The investment in Cape Concentrate fully matches
AATIF’s objective as it supports a venture that not only benefits local ( small-scale) farmers but
also fosters value generation by engaging in processing. Moving upstream along the agricultural
value change generates additional income and reduces South Africa’s dependence on imports”.’

[32] This leads to the inescapable conclusion that AATIF shared Mr Vienings’ belief
that reasonable prospects existed that the business of Cape Concentrate c ould be
rescued. It participated i n the business rescue process having been given the full
background of Cape Concentrate business, its challenges and what it needed to stay in
business. Moreover, AATIF retained this belief even after Mr Vienings resigned as the
business rescue practitioner of Cape Concentrate on 19 May 2015. This is evidenced by
its continued participation in the business rescue process until 24 December 2015 when
Mr Terblanche concluded that there were no longer reasonable prospects of the company

Mr Terblanche concluded that there were no longer reasonable prospects of the company
being rescued and decided to terminate the business rescue process and to place Cape
Concentrate under liquidation.

[33] Counsel for AATIF submitted that from June to August 2014, Cape Concentrate
had not received any income from trading as there were no tomatoes for it to process .
Consequently, it suffered a loss. He submitted that by January 2015, there was no

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prospect of Cape Concentrate receiving the required quantity of tomatoes to conduct its
business for the next six months. Mr Vienings, according to counsel, was well aware that
Cape Concentrate would not be able to service its interest obligations in terms of the
funding agreement.

[34] This may be true in my view. But one must not lose sight of the fact that a business
rescue process is risky. Mr Vienings continued to hold the belief that tomatoes would still
be delivered . It may be that Mr Vienings , acting as a reasonable business rescue
practitioner, could have terminated the business rescue process, but with the anticipated
funding of HDC and AATIF, he continued to hold the genuine belief that Cape
Concentrate could be rescued.

[35] I am mindful of the warning in Fourie that courts should not be quick to regard
decisions made by a business practitioner as reckless simply because the decision he
took did not work out. In my view, AATIF failed to show any reason why Mr Vienings was
expected to discontinue the business rescue proceedings between August 2014 and
January 2015. If there was any reason, AATIF , as creditors of Cape Concentrate, with
full knowledge of the company’s background and prospects of it being rescued, had every
right to make an application to a court to stop the business rescue.

[36] As alluded to earlier, AATIF was involved in HDC’s contribution to the business
rescue process. It held meetings with Mr Vienings and HDC and provided input into
HDC’s funding terms. This led to the conclusion of the Investment Partner Agreement
between AATIF and HDC , which was a condition precedent to the conclusion of the
Funding Agreement. The issue of HDC’s guarantees was known to AATIF before it
concluded the investment partner agreement. It was included in HDC’ s facilities letter
dated 29 April 2014 that they be ad vanced according to their standard terms a nd
conditions. AATIF had knowledge that neither Cape Concentrate nor the Trust had assets

conditions. AATIF had knowledge that neither Cape Concentrate nor the Trust had assets
that could serve as security for any credit extended by HDC.

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[37] HDC’s rand-for-rand security requirements were reported to AATIF in the monthly
report for the period ending in September 2014. This was the first report after Mr Vienings
had issued guarantees to HDC. It recorded that:
‘The strategic farming partner (HDC) has applied commercial security requirements for all forms
of operating and capital development finance. This has resulted in Cape Concentrate
underwriting, in full, all costs associated to the farming operations in the Tyefu region. This placed
significant strain on free cash and will impact planting capacities in the region.
Cape Concentrate has approached a number of entities in support of securing a commercial
guarantee to limit the amount of exposure faced by Cape Concentrate. Funding budgeted for the
purchase of the tomatoes in the first season has been used as a security instrument to underwrite
current progress.’

[38] After the above report ha d been made to AATIF, Mr Vienings requested and
obtained a further draw-down from the loan facility from AATIF. In terms of Clause 5.1 of
the Funding Agreement, a draw-down would only be permitted if all conditions set out in
the agreement had been met, including conditions set out in Clause 4.2, which provides
that:
‘Subject to Clause 4.1 (Initial conditions precedent), the Lender will only be obliged to comply with
Clause 5.1 (Lender’s disbursement) in relation to the Loan, if on the actual Disbursement Date
for the Loan:
(a) No default is continuing or would result from the Loan;
(b) . . .
(c)
(i) the Lender has received evidence in form and substance satisfactory to it of the
Investment Partner’s funding commitment in an amount of at least ZAR 65,000,000
(or its equivalent in another currency or currencies in respect of the Project; and
(ii) there is no beach of the Investment Partner’s obligations under the Investment
Partner Agreement;
(d) the Lender has received evidence in form or substance satisfactory to it that the relevant

(d) the Lender has received evidence in form or substance satisfactory to it that the relevant
drawdown amount will be used in accordance with the relevant roll -out progress of the
Project and for the specific purpose set out in Clause 3.1 (Purpose) of this Ag reement;
and
(e) all Repeating Representation to be made by the borrower are true and correct.’

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[39] If Mr Vienings had breached the funding agreement by using AATIF’s loan to
provide guarantees to HDC as alleged, then AATIF would not have provided a further
draw-down in terms of the above clause. The fact that a draw -down was provided leads
to the inescapable conclusion that AATIF knew and was satisfied , after having been
notified that its funds were used to satisfy HDC’s security requirements , that the
requirements in Clause 4.2 were met. In any event, without the support of HDC , there
would have been no tomatoes for Cape Concentrate to purchase.

[40] In my view, the high court’s finding that Mr Vienings’ conduct cannot be said to
amount to gross negligence or reckless conduct cannot be faulted. The appeal has to fail.

[41] I make the following order:
The appeal is dismissed with costs, including the costs of two counsel where so
employed.




F E MOKGOHLOA
JUDGE OF APPEAL

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Appearances:
For appellant: C M Eloff SC with J Brewer
Instructed by: Weber Wentzel, Sandton
Webbers Attorney, Bloemfontein

For respondent: E A S Ford SC with J J Nepgen SC
Instructed by: Hiepner & Associates, Johannesburg
McIntyre Van Der Post, Bloemfontein