IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
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Reportable
Case no: 2818/2025
In the matter between
STANDARD BANK OF SOUTH AFRICA LIMITED
SB QUARANTEE COMPANY (RF) (PTY) LTD
and
THEWO DEVELOPMENT AND
CONSUL TING ENGINEERS CC
FIRST APPLICANT
SECOND APPLICANT
RESPONDENT
Neutral citation: Standard Bank South Africa and Another v Thewo Development and
Consulting Engineering CC (2818/2025) [2026] ZAFSHC 245 (16 April 2026)
Coram: MHLAMBI ADJP
Heard: 26 February 2026
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and time for hand
down is deemed to be 11 h00 on 16 April 2026.
Summary: Companies Act 71 of 2008 - final liquidation order - when will an
application placing the company under superv ision and commencing business
rescue proceedings, suspend liquidation proceedings - service by sheriff- final order
granted.
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ORDER
Final liquidation order granted
JUDGMENT
Mhlambi ADJP
[1] The applicants applied for the respondent's provisional liquidation on 3 June 2025.
The application was opposed, and a provisional order was granted on 16 January 2025,
returnable on 19 February 2025. On 19 February 2025, the respondent sought a
postponement because its counsel was unavailable due to urgent family business.
Second, a business rescue application was issued and served that morning, and it was
argued that this suspended the liquidation proceedings ..
[2] I ordered that the rule nisi be postponed and extended to Thursday, 26 February
2026, for argument, and that the respondent provide proof of proper service of the
application for business rescue before 12:00 on Monday, 23 February 2026. A service
affidavit by Mr. Yonela Mvana, a practising attorney and director at Mvana and Associates
incorporated in Cape Town, was filed, and paras 3 and 4 read as follows:
'3. On 19 February 2026 at 1 0h43 am I duly attended to the issuing and service of a Notice of
Motion, Founding Affidavit and Annexures thereto in respect of an application for Business
Rescue of Thewo Development and Consulting Engineers CC on all the Respondents cited
undercover of case number 2026- 037927 before this Honorable Court via electronic mail at the
below e-mail addresses at litigation7@egc.co.za; admin.@ecg.co.za;
HighCourtLitigation@sars.gov.za; and corporatelegalservices@cipc.co.za. I attach hereto, the
proof of service via electronic means marked as annexure "A".
4. In this regard, and since personal service or service upon a person older than 16(Sixteen)
years of age was not possible, I duly affected service of the Notice of Set Down by delivering
same and into a message box at the premises and by way of electronic service as well.'
[3] It appears that the business rescue application was filed, citing the following six
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respondents: Thewo Development and Consulting Engineers CC, Standard Bank of
South Africa Limited, SBA Guarantee Company (RF) (PTY) Ltd, and the Commissioner
for the South African. Revenue Service (SARS), the Companies and _Intellectual Property
Commission (CIPC), and the First Respondent's Known Affected Persons.
[4] . On 26 February 2026, Mr. Mvana appeared on behalf of the respondent and
informed the court that the counsel briefed on the matter had left Bloemfontein the
previous day because his father had passed away. He sought a postponement, which the
applicant opposed and which was denied. As the applicants' counsel presented his
argument on the merits, he again applied for a further postponement, stating that he was
unprepared and unable to continue with the matter. This secondary application was
opposed. After the argument, I denied the application.
[5] After the applicants' counsel had argued their case, Mr. Mvana indicated that he
wanted to address the court, given the applicants' address and the granting of the final
order. After addressing the court, the applicants' counsel replicated. I then reserved
judgment.
[6] The first postponement application was dismissed under the Companies Act 71 of
2008 (the Act) and the Uniform Rules of Court. Section 131 of the Act provides that an
applicant who applies to a court at any time for an order placing the company under
supervision and commencing business rescue proceedings must serve a copy of the
application on the company and the Commission and notify each affected person of the
application in the prescribed manner.
[7] If liquidation proceedings have already been commenced by or against the
company when an application is made for an order placing the company under
supervision and commencing business rescue proceedings, the application will suspend
those liquidation proceedings until the court adjudicates the application or the business
rescue proceedings end, if the court makes th~ order applied for.
rescue proceedings end, if the court makes th~ order applied for.
[8] Uniform Rule 4(1 ){a) provides that service of any process of the court directed to
the sheriff, and, subject to the provisions of paragraph (aA), any document initiating
application proceedings, shall be effected by the sheriff in a specified manner. In
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Lutchman No and Others v African Global Holdings and Others, 1 it was held that, on
proper interpretation, such an application would be made only when it was issued and
served on the company and the Companies and l!ltellectual Property Commission, and
all reasonable steps had been taken to identify affected persons, obtain their addresses,
and notify them of it.2 The business rescue application had not been made, as only one
of four liquidators had been served with it and only part of its employees had been notified,
with no indication that reasonable steps had been taken to identify and notify the
remainder.
[9] The court stated the following:
'[40) On a proper conspectus of the papers, it cannot be said that there has even now been
compliance , or even substantial compliance, with the service and notification prescripts of s
131 (2) of the Companies Act and the Regulations. First, the business rescue application ought to
have been served by the sheriff on each joint liquidator of each of the six Bosasa companies in
the manner provided for in rule 4(1 )(a) of the Uniform Rules of Court. It is a substantive form 2(a)
application , and not an ancillary or interlocutory application, which, in terms of rule 4(1 )(aA), may
be served upon an attorney representing a party in proceedings already instituted. In general, rule
4(1 )(aA) applies to proceedings already instituted so that it in effect applies to ancillary and
interlocutory applications . . .'
[1 O] The respondent only served the applicants' attorneys, SARS, CIPC, and the
respondent's director by email. He failed to serve the applicants, the first respondent, and
the first respondent's known affected persons, and the second, third, and sixth
respondents in the business rescue application in the prescribed manner. The business
rescue application was therefore not made within the meaning of s 131 (6) of the
Companies Act, and the suspension of the liquidation proceedings was not triggered in
Companies Act, and the suspension of the liquidation proceedings was not triggered in
terms of that section. 3 The application for the postponement was dismissed on this basis.
[11] Mr. Mvana again sought a postponement and informed the court that his counsel
was in Bloemfontein but had left the day before because his father had died. He was
therefore unprepared to proceed with the liquidation application and requested a
postponement. The applicant opposed the request, stating that since the rule nisi was
1 Lutchman No and Others v African Global Holdings and Others [2022] ZASCA 66; 2022 (4) SA 529 (SCA).
2 Ibid paras 24, 28 and 31.
3 Ibid para 42.
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granted, the respondent had failed to file an affidavit explaining why a final order should
not be granted. No heads of argument were submitted. The court denied the request for
a postponement.
(12] The applicant argued that the liquidation application was not fairly opposed
because the respondent did not dispute its indebtedness to the applicant. The respondent
conceded that the debt was not disputed but argued that business rescue, even though
the application was not before the court, would benefit not only the applicants but also
the creditors, as a whole.
(13] A company deemed to be unable to pay its debts may be wound up solely on this
ground.4 The best proof of solvency is that a man should pay his debts.5 In the present
matter, it is undisputed that the respondent is unable to pay his debts, and there is no
reason why a final order should not be granted.
Order
(14] Consequently, I grant the following order:
A final order of liquidation is granted,
JUDGE OF THE HIGH COURT
4
Scania Finance Southern Africa (Ply) Ltd v Thomi-Gee Road Carriers CC a,nd Another [2012] ZAFSHC 148;
2013 (2) SA 439 (FB) para 14.
5 De Waard v Andrew & Thienhaus Ltd 1907 TS 727 at 733.
Appearances )
For the Appellant:
Instructed by:
For the Respondent:
Instructed by:
Adv J Els
EG Cooper Majiedt Inc
MrY Mvana
Mvana & Associates Inc
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