Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional M agistrates: NO
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between :
JAN HENDRIK DU PLESSIS
N.O.
CATHARINA CRONJE N.O.
and
FIRSTRAND BANK LIMITED
WARRENSVLAKTE(PTY)LTD
(IN LIQUIDATION)
CAROLINE MMAKGOKOLO
LEDWABA N.O.
CASE NUMBER:5870/25
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
THEODORE WILHELM VAN
DEN REEVER N.O.
COMPANIES AND
INTELLECTUAL PROPERTY
PROPERTY COMMISSION
Coram: WESSELS AJ
Date of hearing
Date of judgment
2
FOURTH RESPONDENT
FIFTH RESPONDENT
:5 FEBRUARY 2026
:5 FEBRUARY 2026
ORDER
1. The counter-application brought by the first applicant is struck
from the roll due to a lack of urgency.
11. Costs are reserved for determination by the court seized with the
hearing of the business rescue application.
JUDGMENT
Introduction
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[1] The main app lication before this Court is an application to place the
second respondent ('the company') in bus iness rescue . The compa ny,
which has been finally liquidated, is the owner, among other assets, of
a farm in the Vryburg district ('the farm'). The third and fourth
respondents, the company's appointed liqu idators, caused the farm to
be auctioned on 30 October 2025. On 29 October 2025, the appl icants
filed the business rescue application.
[2] Already on 30 October 2025 , the first respondent filed its notice of
intention to oppose the business rescue application. On 8 December
2025, the first respondent brought a counter-applicat ion (' the counter
applicat ion') wherein it inter alia seeks relief to have the business
rescue application dismissed on account of what it a lleges to be the
lack of locus standi of the applicants as affected persons in terms of
the Companies Act 1 ('the Companies Act'). In the alternative to the
aforementioned relief, the first respondent seeks an order declaring the
upliftment of the suspension of the liquidation proceedings under s
131 ( 6) of the Companies Act and a declaration on the validity of the
sale of the farm at auct ion. The counter-app lication came before me
on the urgent roll on 30 January 2025.
[3] The First respondent brought the counter-application on an urgent
basis. Due to the limited time the parties had to argue the matter and
the filing of an affidavit addressing the fina lity of the second
respo ndent's liquidation order , it was prudent to allow the parties the
opportunity to file supplementary heads of argument.
' Companie s Act 71 of 2008.
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[ 4] The principal consideration, given the nature of the counter
applicat ion, is its urgency. The application of the principles to be
considered for urgency is trite and requires no in-depth discussion. In
keeping w ith the esta blished principles of urgency, I can do no better
than to refer to the succinct summary on the issue of urgency as found
in the following passage in East Rock Trading 7 (Pty) Ltd and Another
v Eagle Valley Granite (Pty) Ltd and Others2 :
'[6] The import thereof is that the procedure set out in rule 6( 12) is not there for
taking. An applicant has to set forth explicitly the circumstances which he avers
render the matter urgent. More importantl y, the App licant must state the reasons
why he claims that he cannot be afforded substantial redress at a hearing in due
course. The question of whether a matter is suffic iently urgent to be enrolled and
heard as an urgent app lication is underpinned by the issue of absence of substant ial
redress in an applicat ion in due course. The rules allow the court to come to the
assis tance of a litigant because if the latter were to wait for the normal cou rse laid
down by the rules it will not obtain substantial redress.'
[5] Not only is the onus on the first respondent to make out a case for the
urgency of the relief that it seeks, but an essential element of this onus
is the first responden t's exp lanation for the delay in bringing the
counter-applicatio n. This principle had been highlighted in the matter
of Amcu v Northam Platinum Ltd3 as follows:
• [26] A final consideration where it comes to urgency is expedition when taking
action. In other words, the more immediate the reaction by the litigant to remedy the
situation by way of instituting litigation, the better it is for establishing urgency. But
the longer it takes from the date of the event giving rise to the proceedings, the more
the longer it takes from the date of the event giving rise to the proceedings, the more
2 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others ( 11/33767) [2011) ZAG PJHC 196 (23 September 201 1).
3 Amcu v Northam Platinum Ltd [2016) I I BLLR 1151 (LC).
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urgency is diminished. In short, the appl icant must come to court immediately, or risk
fai ling on urgency.'
[6] I am compelled to apply the principl es of urgency to the counter
applicat ion, and nothing advanced by the first respondent has
persuaded me to ass ign less weight to it. The first respondent failed
to adequately justify the excessive delay between the filing of the
business rescue appl ication and the subsequent filing of its urgent
application.
[7] In considering the possib le prejudice that the first respondent may be
suffer ing if the counter application is not heard on an urgent basis, I
would be rem iss in my duty not to mention that s 131 (6) of the
Compan ies Act has a suspensive effect on the liquidation process. To
this extent, the dictum that emanates from the followin g para graphs in
Richt er v Absa Bank Limited➔ , to wh ich I am bound , is apposite:
[16] Counsel for ABSA exp resse d concern that a liberal interp retation o f s 131 (1) may
have negative results for the liquid ation process . These include repetitive disruptions
and uncertainty that may result from various affected parties maki ng applicat ions for
business rescue at different times during the w inding up process, reversion of business
control to the same directors who may have been the cause of the financial distress
experienced by the company, and the capac ity of a company under final liquidation to
conduc t effective business, includin g concludi ng contracts, dur ing the impleme ntation
of the rescue plan. All these conce rns are valid and appear to have been uppermost in
the mind of Barn J when he considered the issues. Indeed implementation of the Act
may produce some seemingly awkward results in the initial stages. However, that
does not justify an unduly restrictive approach in the interpretation of the
provisions of the Act. The simple answer is that a court can dismiss any applicatio n
4 Richter v Absa Bank Limited (20181/2014) (2015] ZASCA 100; 2015 (5) SA 57 (SCA) (I June 2015).
6
for business rescue that is not genuine and bona tide or which does not establish that
the benefits of a successful business rescue will be achieved.
[17] There is no sensible justification for drawing the proverbial ' line in the sand'
between pre and post final liquidation in circumstances where the prospects of
success of business rescue exist. The legislature did not do so and to restrict business
rescue to those cases in which a final winding up order has not been granted is
inimical to the Act.
[I 8] For these reasons, a proper interpretation of' liquidati on proceedings' in
relation to s 131 (6) of the Act must include proceedings that occur after a w inding
up order to liquidate the assets and account to creditors, up to deregistration of a
company.
[8] Although a busines s rescue app lication is, by nature , urgent, the
applicants ' motive s for setting it down on the normal motion court roll
might seem (at least prima facie) questionab le; the merit s of the
busine ss rescue application stand to be determined in the normal
course. If the hearing of the busine ss rescue app lication, in the
ordinary course, is to the detriment of the applicants , it is at their peril.
The counter-app licati on is destine d to be heard with the business
rescue application , as its determination at this stage would militate
against the suspensive effect of s 131 (6) of the Compan ies Act.
[9] Still, it doesn 't detract from the fact that the timeframe between the
filing of the busin ess rescu e application and the urgent counter
application remains unexplain ed and amounts to self-created urgency.
[10] The applicants make much of the alleged abuse of the court process
by the first respondent in bringing its counter-application on an urgent
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basis. I cannot conclude that lodging the counter applicat ion on an
urgent basis constitutes an abuse of the court process, at least not
intentionally. For this reason, I will leave the determination of the
wasted costs incurred in bringi ng the counter application to the court
that will be seized with the business resc ue application.
[ 11] Havin g considered the arguments advance d by counse l for the
respective parties as supplemented by the main and supplementary
heads of argument, the first respondent has not made out a case for
urgency.
Order
[ 12] I make the followi ng order:
1. The counter application brought by the first applica nt is struck from
the roll due to a lack of urgency.
11. Costs are reserved for determination by the court seized with the
hearing of the business rescue application.
MWESSELS
ACTING JUDG E OF THE HIGH COURT
NORTH WEST DIVISION , MAHIKENG
APPEARANCES
Counsel for Applicant
Instructed by
Counsel for First Respondent
Instructed by
Counsel for Second to Fourth
Respondents
Instructed by
:Adv Jagga
:Callis Attorneys
:c/o Labuschagne Attorneys
:Mahikeng
:Adv Smit SC
:RWL Inc
:c/o Maree & Maree Attorneys
:Mahikeng
:Adv Maritz
:De Vries Inc
:c/o Maree & Maree Attorneys
:Mahikeng
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