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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No: 21859/2025
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: NO
In the matter between:
KIM DRYDEN N.O.
Applicant
and
WALKERVILLE CROSSING (PTY) LTD First Respondent
THE COMPANIES AND INTELLECTUAL PROPERTY
COMMISSIONS
Second Respondent
THE MASTER OF THE HIGH COURT,
JOHANNESBURG
Third Respondent
THEODOR WILHELM VAN DEN HEEVER N.O.
ABDUL BAAKI TAYOB N.O.
Fourth Respondent
ABSA BANK LIMITED Fifth Respondent
SASOL SIYAKHA ENTERPRISE AND SUPPLIER
DEVELOPMENT TRUST
Sixth Respondent
SASOL LIMITED Seventh Respondent
JUDGMENT
This judgment was handed down electronically by circulation to the parties’ legal
representatives by e-mail and uploading it onto the electronic platform. The date and
time of hand-down is deemed to be 10h00 on Tuesday 28 April 2026.
COOKE AJ:
1. The applicant is the executrix of the estate of her late husband, Mr. Evan
Dryden, (estate number: 0[ …] ) (“the Estate”). She has held this role since her
appointment by the third respondent on 26 May 2022.
2. Before his passing, Mr. Dryden was the sole shareholder of the first respondent
(“Walkerville Crossing”), and its initial sole director. Shortly before his death in
2022, Mr Dryden resigned his directorship and his sister, Candice Dryden,
assumed sole directorship of Walkerville Crossing in his stead.
3. Walkerville Crossing's only asset and source of income is an immovable
property situated at the corner of [ …] and M[…] Roads, Walkerville, Gauteng
(“the Property”). In part the Property is a vacant construction site – with only
the foundation for a small shopping mall having been laid. On t he remaining
portion there are a number of shops and, particularly relevant to this
application, a franchised Sasol filling station (“the Filling Station”).
4. The Filling Station is currently owned by Walkerville Filling Station Pty Ltd – of
which the applicant (in her personal capacity) is the sole shareholder and sole
director (“WFS”). A franchise was granted by the seventh respondent to WFS
during 2021. Prior thereto, the franchisee that operated the Filling Station was
EGC Properties (Pty) Ltd (“EGC”) – a company owned by Mr Dryden, his sister:
Candice, and his brother: Gareth.
5. Given Mr. Dryden's interest in all of these companies, there was no rental
agreement between Walkerville Crossing and EGC, and no rent was paid
either. In apparent disregard of the principle of separate and distinct legal
personality, the applicant’s affidavit candidly states:
“My deceased husband did not see the need to charge rental to himself…”
6. This extremely favourable position continued when WFS took up ownership
and operation of the Filling Station in place of EGC.
7. In an understandable state of grief after Mr. Dryden’s passing, the applicant
took no interest in WFS or the Filling Station. At this time both were run and
operated by Candice. By this time, the relationship between the applicant and
Mr. Dryden’s siblings had soured and the intervention of lawyers was required
to return control of the Filling Station to the applicant . This occurred in
September 2022, from which date the applicant (in her personal capacity)
resumed operation of the Filling Station.
8. Walkerville Crossing was placed into final winding- up on 9 November 2023 at
the instance of the fifth respondent (“ Absa”). The fourth respondents (“ the
Liquidators”) were appointed provisionally, and then finally in February 2024 .
At the second meeting of creditors in March 2024, the Liquidators were
authorized to sell the Property by private treaty or public auction.
9. As executrix of the Estate, the applicant took steps to have Candi ce removed
and herself appointed as the director of Walkerville Crossing, which she
achieved in January 2024, notwithstanding that control of Walkerville Crossing
(in liquidation) was then lawfully exercised by the Liquidators . The applicant
says that she did not know of the winding-up order at this time.
10. The applicant attempted to engage with Absa, Sasol, and the Liquidators,
proposing that a monthly rental of R 200,000.00 be paid by WFS to Walkerville
Crossing. She contends that this is sufficient for Walkerville Crossing to show a
profit after paying its monthly expenses. The sixth respondent (“Siyakha”)
disputes this on the basis that the monthly repayment due to it alone by
Walkerville Crossing exceeds the amount tendered as rental by the applicant.
11. The Liquidators obtained a valuation of the Property which reflect s: a market
value of R 13,2 million and R 9,2 million on a forced sale. In either event,
significantly higher than the R 3,9 million asserted by the applicant.
12. On 29 October 2024, Siyakha made an offer for the Property at its market
valuation of R 13,2 million. The Liquidators accepted the offer and transfer is
pending. The effect of the relevant terms of the agreement of sale include that:
12.1. the purchase price would be used to pay the full amount due to Absa
under its first covering mortgage bond, as well as the costs and
charges that have accrued under section 89 of the Insolvency Act 24 of
1936; and
12.2. any and all leases over the Property were cancelled.
13. In December 2024, the applicant launched an application for business rescue
seeking essentially the same relief as that sought in this application. The
Liquidators objected to the first business rescue application on a number of
grounds that were set out in a letter to the applicant attorneys. No response
was received to the queries and difficulties raised by the Liquidators. Instead,
and without withdrawing the first business rescue application, this application
was launched during February 2025. There is no explanation or apparent
rationale for this. The first application was withdrawn before the hearing of this
matter.
14. At the hearing, Ms Ntsele appeared on behalf of the applicant . In their entirety,
her brief and candid submissions were confined to:
14.1. accepting that no case for business rescue had been made out; and
14.2. requesting that costs be granted against the applicant only on the party
and party scale.
15. The nature and ambit of the submissions made on behalf of the applicant are
an appropriate indication of her prospects of success. On nearly every ground
conceivable, there is no basis to sustain the application and every reason to
refuse it. Some of those grounds include:
15.1. the application was not served on interested parties ,1 or it would
appear the CIPC;
15.2. no evidence is proffered, 2 or even cogent allegations made, 3 to
substantiate the conclusion that a business rescue might have any
prospect of succeeding;4
1 Lutchman NO and Others v African Global Holdings and Others 2022 (4) SA 529 (SCA) para 39
2 Southern Palace Investments 265 (Pty) Ltd v Midnight Storm Investments 386 2012 (2) SA 423 (WCC) at para
24
15.3. business rescue is opposed by the majority creditor;5
15.4. on the model postulated by the applicant , it will take more than twelve
years for creditors to be paid;6 and
15.5. there is no mention of post -commencement funding having been
sought, much less that obtaining it will be either likely or sufficient.
16. In bringing the application for business rescue, the applicant apparently
secured a suspension of the winding- up process under section 131(6) of the
Companies Act . Mr Cajee, who appeared for Siyakha, pointed out that this
application was launched a year after the winding- up had been granted, and
after a sale of the Property had already been agreed. He submitted that the
applicant’s abusive and self -serving intention is evident: by delaying the
winding-up and sale of the Property, she secures a financial advantage for her
personally held company, WFS, which occupies the Property without paying
rent, while pocketing the profit that it makes from operating the Filling Station. I
agree with the submission.
17. This conclusion gives rise to two consequences:
17.1. first, the application for business rescue is an abuse which non- suits
the applicant and her application. As Weiner JA held in PFC Properties
(Pty) Ltd v Commissioner, South African Revenue Service and Others:7
3 Nedbank Ltd v Bestvest 153 (Pty) Ltd; Essa and Another v Bestvest 153 (Pty) Ltd and Others 2012 (5) SA 497
(WCC) at paras 40 and 41
4 Oakdene Square Properties (Pty) Ltd and Others v Farm Bothasfontein (Kyalami) (Pty) Ltd and Others 2013
(4) 539 SCA at paras 29 to 31
5 Oakdene Square Properties (Pty) Ltd and Others v Farm Bothasfontein (Kyalami) (Pty) Ltd and Others 2013
(4) 539 SCA at para 38 and Forty Squares (Pty) Ltd and Another v Noris Fresh Produce (Pty) Ltd t/a Golden
Harvest (in Liq) and Others 2023 (5) SA 249 (WCC) at para
6 Grieseel and Another v Lizemore and Others 2016 (6) SA 236 (GJ) at paras 78 and 80; Swart v Beagles Run
Investments 25 (Pty) Ltd 2011 (5) SA 422 (GNP) at para 25
'[36] From what is set out above, it is clear that the DRFT trustees have
sought to use the legal process provided for companies, which may
legitimately be rescued, for an ulterior purpose — to thwart the winding-up
proceedings and the consequences for the De Robillards that may arise
therefrom. This stratagem, as stated in Villa Crop, subverts fundamental
values of the rule of law. The conduct of the DRFT trustees and PFC is so
tainted by impropriety that this court must use the power it has to safeguard
the integrity of its process.
[37] In so acting, the power of this court to non- suit the DRFT trustees is
warranted. As a consequence, their ill -fated application should not have
been entertained by reason of its use in a scheme of abuse. Although the
application was correctly dismissed by the Pietermaritzburg High Court, it
fails in this court, on appeal, for different reasons.
[38] PFC sought to oppose the liquidation application on the basis of the
moratorium provided for in s 131(6) of the Act. But the legislature could
not have intended that a business rescue application, tainted by abuse,
would have that effect. In essence, because the DRFT trustees were non -
suited for the reasons set out above, the doomed business rescue
application was not made, as envisaged in s 131(6). Thus, the moratorium
did not come into operation and did not suspend the winding- up
proceedings. That being so, there was no impediment to the winding- up
proceedings.'
17.2. secondly, the applicant ought to pay the costs of this application on a
punitive scale for the reasons I outline below.
18. A court’s justification for holding a litigant liable to pay costs on a punitive scale
was set out in Alluvial Creek:8
An order is asked for that he pay the costs as between attorney and client. Now
sometimes such an order is given because of something in the conduct of a party
which the Court considers should be punished, malice, misleading the Court and
which the Court considers should be punished, malice, misleading the Court and
things like that, but I think the order may also be granted without any reflection
upon the party where the proceedings are vexatious, and by vexatious I mean where
7 2024 (1) SA 400 (SCA)
8 In re: Alluvial Creek Ltd 1929 CPD 532 at 535
they have the effect of being vexatious, although the intent may not have been that
they should be vexations. There are people who enter into litigation with the most
upright purpose and a most firm belief in the justice of their cause, and yet whose
proceedings may he regarded as vexatious when they put the other side to
unnecessary trouble and expense which the other side ought not to bear. That I think
is the position in the present case.
19. The ambit and scope of ‘ vexatiousness’ was considered in Fisheries
Development Corporation of SA v Jorgensen:
9
In its legal sense, "vexatious" means
"frivolous, improper: instituted without sufficient ground, to serve solely
as an annoyance to the defendant"
… Vexatious proceedings would also no doubt include proceedings which, although
properly instituted, are continued with the sole purpose of causing annoyance to the
defendant; "abuse" connotes a mis -use, an improper use, a use mala fide, a use for
an ulterior motive.
20. The latter finding in Jorgensen was expanded in Syfrets Mortgage Nominees
Ltd v Cape St Francis Hotels F (Pty) Ltd ,10 where this was said of a
respondent’s opposition:
… would seem to be merely dilatory and designed to keep the plaintiff out of his
legitimate remedy. It was not a bona fide defence, but one designed primarily to buy
time for the defendant. It seems to me that the Court would therefore be justified in
expressing its disapproval of the defendant's conduct by ordering it to pay the costs
on the scale of attorney and client
21. In addition to those general principles, an applicant’s liability to pay punitive
costs in circumstances where they seek business rescue for an ulterior purpose
is well established. In Pro-Wiz,
11 Wallis JA found:
9 1979 (3) SA 1331 (W) at 1339E-F
10 1991 (3) SA 276 (SE) at 289G. See also In re Alluvial Creek 1929 CPD 532
It is apparent that Pro- Wiz could never have thought that a viable business rescue
could be instituted in relation to Oljaco. Its failure to engage with the liquidators or
the principal creditor on that subject prior to launching its application speaks
volumes in that regard. The timing of the application suggested that its true purpose
was to stultify the interrogation of Mr Smith. The failure to deal with any of the
issues raised by the liquidators and Sars in this regard indicates that no response
was possible. Finally, the withdrawal at the very last minute, without explanation,
when confronted with the reality of having to argue the application in court,
conveyed the impression of an absence of any bona fide belief in the merits of the
case and a lack of intention genuinely to pursue it. I conclude that it was brought to
provide a reason for avoiding Mr Smith's interrogation and with a view to delaying
the liquidators in their enquiries as to the squirrelling away of assets.
All of that constituted an abuse of the process of the court and an abuse of the
business rescue procedure. It has repeatedly been stressed that business rescue
exists for the sake of rehabilitating companies that have fallen on hard times but are
capable of being restored to profitability or, if that is impossible, to be employed
where it will lead to creditors receiving an enhanced dividend. Its use to delay a
winding-up, or to afford an opportunity to those who were behind its business
operations not to account for their stewardship, should not be permitted. When a
court is confronted with a case where it is satisfied that the purpose behind a
business rescue application was not to achieve either of these goals, a punitive costs
order is appropriate.
22. I am of the view that the applicant’s conduct in seeking to derail the winding-up
with a still- born application for business rescue is vexatious not only in its
effect, but also in its intent. This alone renders her liable to pay attorney and
effect, but also in its intent. This alone renders her liable to pay attorney and
client costs. In additio n, the finding in Syfrets (there applied to a respondent)
applies equally to an applicant who brings an application to frustrate a process
that is well underway, as it too keeps creditors out of their legitimate remedy.
23. These general principles flow seamlessly into the rationale of Wallis JA in Pro -
Wiz. Litigants who see fit to abuse the process of business rescue for self -
serving and ulterior reasons , while the very creditors that they have neglected
11 van Staden NO and Others v Pro-Wiz Group (Pty) Ltd 2019 (4) SA 532 (SCA) at paras 21 and 22
are kept out of their legitimate remedy, are not deserving of the leniency for
which they ultimately and inevitably plead when their cases eventually come to
court.
I make the following order:
1. The application is dismissed;
2. The applicant is to pay the costs of both the fourth and sixth respondents
on the scale as between attorney and client , such costs to include the
costs of counsel.
_______________________________
M J COOKE
ACTING JUDGE OF THE HIGH COURT
GAUTENG, JOHANNESBURG
DATE OF HEARING 23 April 2026
DATE OF JUDGMENT 28 April 2026
APPLICANT’S COUNSEL T Ntsele
APPLICANT’S ATTORNEYS SP Attorneys Inc
4th RESPONDENT’S COUNSEL E L Theron SC
4th RESPONDENT’S ATTORNEYS De Vries Inc
6th RESPONDENT’S COUNSEL M Cajee
6th RESPONDENT’S ATTORNEYS Bowman Gilfillan Inc