IN THE HIGH COURT OF SOUTH AFRICA
FREE STA TE DIVISION, BLOEMFONTEIN
In the matter between:
FRANCOIS STRAUSS
HENRY ARDEN SMITH
and
ORTHOTOUCH(PTY)LTD
ZEPHAN PROPERTIES (PTY) LTD
LUKE BERNARD SAFFY N.O.
MICHAEL NICOLAS GEORGIOU
GEORGE NICOLAS GEORGIOU
JOHANNES FREDERICK KLOPPER N.O.
JACQUES DU TOIT N.O. replaced by
LEBOGANG GRACE MPAKATI N.O.
DEREK PEDOE COHEN N.O.
HIGHVELD SYNDICATION NO 15 LIMITED
Not reportable
Case no: 3201/2023 and 3202/2023
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
SEVENTH RESPONDENT
EIGTH RESPONDENT
NINTH RESPONDENT
HIGHVELD SYNDICATION NO 16 LIMITED
HIGHVELD SYNDICATION NO 17 LIMITED
HIGHVELD SYNDICATION NO 18 LIMITED
HIGHVELD SYNDICATION NO 19 LIMITED
HIGHVELD SYNDICATION NO 20 LIMITED
HIGHVELD SYNDICATION NO 21 LIMITED
HIGHVELD SYNDICATION NO 22 LIMITED
COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION OF SOUTH AFRICA (CIPC)
ALL INVESTORS in the so-called Highveld
Syndication Property Schemes
2
TENTH RESPONDENT
ELEVENTH RESPONDENT
TWELFTH RESPONDENT
THIRTEENTH RESPONDENT
FOURTEENTH RESPONDENT
FIFTEENTH RESPONDENT
SIXTEENTH RESPONDENT
SEVENTEENTH RESPONDENT
EIGHTEENTH RESPONDENT
Neutral citation: Strauss and Others v Orthotouch (Pty) Ltd and Others (3201/2023
and 3202/2023) [2026] ZAFSHC 277 (7 May 2026)
Coram: REINDERS ADJP
Heard: 28 November 2025
Delivered: This judgment was handed down in open court and electron ically by
circulation to the parties' representatives by email and released to SAFLII. The date hand
down is deemed to be 07 May 2026.
Summary: Business rescue proceed ings - conversion in terms of s 132(2)(a)(ii) of
the Companies Act 71 of 2008 - provisional liquidation - locus standi.
3
ORDER
In application 3201/2023
1 Leave is granted to the applicants to commence and proceed with their
application against the second respondent company in terms of s 133(1)(bJ of the
Companies Act 71 of 2008;
2 The business rescue proceedings in respect of the second respondent company
are converted into liquidation proceedings in terms of s 132(2)( aJ(ii) of the Companies Act
71 of 2008;
3 The second respondent company is placed under provisional liquidation in the
hands of the Master of this Court.
4 A provisional liquidation order is hereby issued calling upon all interested parties
to show cause, if any, to the court on the 18th day of JUNE 2026 at 09h30 why a final
order of liquidation should not be granted against the second respondent company.
5 Service of this rule nisi and a copy of the notice of motion and annexures shall be
effected on the second respondent company at its registered office or its principal place
of business within the court's jurisdiction.
6 This order shall, without delay, be published in the Citizen and the Government
Gazette.
7 The sheriff shall ascertain whether the employees of the second respondent
company are represented by a trade union and whether there is a notice board on the
premises to which the employees have access.
8 A copy of the provisional liquidation order shall be served on -
8.1 every registered trade union that as far as the Sheriff can reasonably ascertain,
represents any of the employees of the second respondent company.
8.2 the employees of the second respondent company by affixing a copy of the
application and provisional liquidation order on any notice board to which the employees
have access inside the second respondent company's premises or if there is no access
to the premises by the employees, by affixing a copy to the front gate or front door of the
premises from which the second respondent company conducts any business.
8.3 The South African Revenue Services.
4
9 Costs to be in the liquidation.
In application 3202/2023
1 Leave is granted to the applicants to commence and proceed with their
application against the first respondent company in terms of s 133(1 )(b) of the Companies
Act 71 of 2008;
2 The business rescue proceedings in respect of the first respondent company are
converted into liquidation proceedings in terms of s 132(2)(a)(ii) of the Companies Act 71
of 2008;
3 The first respondent company is placed under provisional liquidation in the hands
of the Master of this Court.
4 A provisional liquidation order is hereby issued calling upon all interested parties
to show cause, if any, to the court on the 18th day of JUNE 2026 at 09h30 why a final
order of liquidation should not be granted against the first respondent company.
5 Service of this rule nisi and a copy of the notice of motion and annexures shall be
effected on the first respondent company at its registered office or its principal place of
business within the court's jurisdiction.
6 This order shall, without delay, be published in the Citizen and the Government
Gazette.
7 The sheriff shall ascertain whether the employees of the first respondent
company are represented by a trade union and whether there is a notice board on the
premises to which the employees have access.
8 A copy of the provisional liquidation order shall be served on -
8.1 every registered trade union that as far as the Sheriff can reasonably ascertain,
represents any of the employees of the first respondent company.
8.2 the employees of the first respondent company by affixing a copy of the
application and provisional liquidation order on any notice board to which the employees
have access inside the first respondent company's premises or if there is no access to
the premises by the employees, by affixing a copy to the front gate or front door of the
premises from which the first respondent company conducts any business.
8.3 The South African Revenue Services.
9 Costs to be in the liquidation.
5
JUDGMENT
Reinders ADJP
[1] Before me serves two separate but almost identical applications initiated by the
applicants, to wit case numbers 3201/2023 (in respect of the second respondent company)
and 3202/2023 (in respect of the first respondent company). The relief sought in both are
similar. It is common cause that both respondent companies were placed in business
rescue during November 2019. The applicants now move for orders that such business
rescue proceedings be converted into liquidation proceedings in terms of s 132(2)( aJ(ii) of
the Companies Act 71 of 2008 (the Act) and the first and second respondents' estates be
placed in final. alternatively provisional, liquidation in the hands of the Master of the High
Court, together with ancillary relief.
[2] The applications are opposed by the first, second and seventh respondents (with
the latter cited in a capacity as business rescue practitioner), as well as the fourth and fifth
respondents. The opposition is based on contentions that the applicants have no locus
standi, that the relief sought is /is pendens due to an application pending in the High Court
in Pretoria for relief that a business rescue plan which was adopted in 2023 was unlawful,
alternatively converting the business rescue to liquidation, and that no case for a conversion
into liquidation is made out in casu. It is further alleged that a new business rescue
practitioner has since been appointed, replacing the seventh respondent. I mentio n in
passing that the third respondent (the executor of the estate of the late Mr Georgiou) filed
an answering affidavit, supporting the applicants in the relief sought.
[3] The history of the matter is not seriously in dispute. Between 2005 and 2009,
members of the public were invited to invest in immovable property. The applicants aver
that over 18 000 investors invested more than R4,6 billion. However, only a mere 3,5%
thereof (being R164 537 278.00} appears to still exist. There is no indication of any
thereof (being R164 537 278.00} appears to still exist. There is no indication of any
immovable property to the value of the investments, nor are there any answers as to what
happened to the capital. It is common cause that a new business rescue plan pertaining to
the affairs of both the first and second respondents was adopted on 31 March 2023. It is
also common cause that said business plan did not yield the required results and, on the
6
version of the seventh respondent as appointed on 11 March 2025, no finalized annual
financial statements of the respondent companies exist beyond the financial years ending
February 2015 (for the first respondent) and February 2019 (for the second respondent).
[4] The aim of business rescue in terms of s 128(1)(b)(3) of the Companies Act is to
restructure the affairs of a company in .such a way that it either maximizes the likelihood of
the company continuing in existence on a solvent basis or yield a better return for the
creditors of the company than would result from the liquidation of the company. Such
proceedings are meant to facilitate the rehabilitation of a financially distressed company
within a short space of time.1 Business rescue proceedings should be dealt with
expeditiously by the business rescue practitioner. 2
[5] In Ex Parte: Target Shelf 284 CC; Commissioner South African Revenue Services
and Another v Cawood NO. and Others,3 the court remarked:
' ... I, however , take cognizance of the delay that has been occasioned in finalising the business
rescue process. The business rescue process was initiated as far back as 2013, nearly two years
ago. This was most definitely not the idea of the legis lature that creditors should be held to ransom
and be prevented from exercising their normal contractual rights for such an extraordinary long
period of time. If the process is allowed to go back for the practitioners to commence the liquidation
procedure, it would be highly prejudicial to the creditors. In order to fast track the process , I have to
immediately grant an order for conversion to liquidation proceedings .'4
[6] In Cawood NO. v Claassen,5 Daffue J stressed the urgency of business rescue
proceedings as follows:
1 Standard Bank of South Africa v Remitto (Pty) Ltd and Others [2023] ZAFSHC 25 para 11.
See also: Commissioner for the South African Revenue Services and Louis Pasteur Investments (Pty) Ltd
and Others [2022) ZAGPPHC 230; 2022 (5) SA 179 (GP) (Louis Pasteur Investments) where Millar J
remarked as follows on the duration of a business rescue plan at para 63.2:
' ... It is clear from a consideration of sections 128 to 137 of the Act which deal with business rescue
proceedings. as a whole that such proceedings were designed and intended to be implemented within a
limited period of time. Regard need only be had to the definition of 'business rescue' in section 128(b) and
the use of the word 'temporary' in sections 128(1 )(b)(i) and (ii).' (footnote omitted.)
2 Koen and Another v Wedgewood Village Golf and Country Estate (Pty) Ltd (2011] ZAWCHC 464; 2012
(2) SA 378 (WCC) para 10. See also: Southern Palace Investments 265 Ltd v Midnight Storm (2011]
ZAWCHC; 2012 (2) SA 423 (WCC) paras 24 and 25; Absa Bank Limited v Caine N.O. and Another, In Re
Absa Bank Limited v Caine N.O. and Another [2014] ZAFSHC 46. South African Bank of Athens Limited v
Zennies Fresh Fruit CC [2018] ZAWCHC 11; 2018 (3) SA 278 (WCC) para 36.
3 Ex Parle: Target Sheff284 CC; Commissioner South African Revenue Services and Anotherv Cawood N.O.
and Others [2015) ZAGPPHC 740 (Target Shelf).
4 Ibid para 74.
5 Cawood N. 0. and Another v Claassen and Others (2022) ZAFSHC 119.
7
'[24) A substantial degree of urgency is envisaged once a company has decided to adopt a
resolution to institute business rescue proceedings. While sentiments expressed in adopting
business rescue procedure to avoid liquidation of a company may be noble, it should not lead to
a situation that an extraordinary amount of time is taken in an attempt - often futile - to achieve this
result. Delay is often at the expense of the rights of creditors. Although this is not an application to
terminate business rescue proceedings, I respectfully agree with the following dictum of Kusevitski
[sic] AJ in South African Bank of Athens v Zennies Fresh Fruit CC:
"In my view the mechanisms of business rescue proceedings were not designed to protect a
company indefinitely to the detriment of the rights of its creditors. The delay in the finalisation of the
business rescue proceedings is unreasonable in the circumstances and I am satisfied that an order
terminating the proceedings is justified."'6 (Footnote omitted.)
[7] An application for winding-up of a company may be brought by a creditor of a
company. Such creditor includes a contingent or prospective creditor. A prospective creditor
is a creditor with regards to a liability which by reason of an existing vincilum juris will
become an enforceable liability on a future date or on a date determinable by reference to
future events. 7 The applicants are investors who have a buy-back agreement claim against
inter alia the second respondent, and the first and second respondents were and still are,
treated as one entity in the business rescue plans. 8
[8] It suffices to say that I am satisfied on the facts presented that the applicants have
the necessary locus standi to apply for the orders they seek and I do not deem it necessary
to deal with all the grounds upon which they rely for the orders sought. At the time of the
hearing of this application, more than six years have already lapsed since the first and
hearing of this application, more than six years have already lapsed since the first and
second respondents have been placed in business rescue, without any purposeful result.
The authorities alluded to above are clear - I am of the view that the business rescue
proceedings should be terminated9 and the respective respondents· estates be placed in
provisional liquidation in the hands of the Master of the High Court. The usual order granted
6 On the urgency of the proceedings see also s 132(3)(a) of the Act which mandates the business rescue
practitioner to prepare a report on the progress of such proceedings (and update the same monthly) to
affected persons in the event that the business rescue proceedings have not ended within three months.
7 Choice Holdings Ltd v Yabeng Investment Holding Co Ltd 2001 (3) SA 1350 (W) para 21 .
8 See also Louis Pasteur Investments fn 1 where Millar J_entertained arguments on who may bring an
application for conversion in terms of s 132(2)(a)(ii) of the Act and, having interpreted the said section,
concluded that SARS (as a creditor) could have brought such application in terms of the Act. See also
Target Shelffn 4 paras 72 and 73.
9 See Louis Pasteur Investments fn 1 wherein Millar J held at para 45: The Act clearly envisages three
separate scenarios in which business proceedings, one commenced in terms of section 132(1) may be
terminated . . .'. (emphasis added.)
8
in this division in respect of a provisional liquidation, shall follow below. In my discretion, I
deem an appropriate order in respect of costs to be that such be in the liquidation.
[9] The following orders will issue:
In application 3201/2023
7 Leave is granted to the applicants to commence and proceed with their
application against the second respondent company in terms of s 133(1)(b) of the
Companies Act 71 of 2008;
8 The business rescue proceedings in respect of the second respondent company
are converted into liquidation proceedings in terms of s 132(2)( a)(ii) of the Companies Act
71 of 2008;
9 The second respondent company is placed under provisional liquidation in the
hands of the Master of this Court.
1 0 A provisional liquidation order is hereby issued calling upon all interested parties
to show cause, if any, to the court on the 18th day of JUNE 2026 at 09h30 why a final
order of liquidation should not be granted against the second respondent company.
11 Service of this rule nisi and a copy of the notice of motion and annexures shall be
effected on the second respondent company at its registered office or its principal place
of business within the court's jurisdiction.
12 This order shall, without delay, be published in the Citizen and the Government
Gazette.
7 The sheriff shall ascertain whether the employees of the second respondent
company are represented by a trade union and whether there is a notice board on the
premises to which the employees have access.
8 A copy of the provisional liquidation order shall be served on -
8.1 every registered trade union that as far as the Sheriff can reasonably ascertain,
represents any of the employees of the second respondent company.
8.2 the employees of the second respondent company by affixing a copy of the
application and provisional liquidation order on any notice board to which the employees
have access inside the second respondent company's premises or if there is no access
have access inside the second respondent company's premises or if there is no access
to the premises by the employees, by affixing a copy to the front gate or front door of the
premises from which the second respondent company conducts any business.
8.3 The South African Revenue Services.
9 Costs to be in the liquidation.
9
lo application 3202/2023
7 leave is granted to the applicants to commence and proceed with their
application against the first respondent company in terms of s 133( 1 )(b) of the Companies
Act 71 of 2006;
8 The business rescue proceedings in respect of the first respondent company are
converted into liquidation proceedings in terms of s 132(2)(a)(ii) of the Companies Act 71
of 2008;
9 The first respondent company is placed under provisional liquidation in the hands
of the Master of this Court.
10 A provisional liquidation order is hereby issued calling upon all interested parties
to show cause, if any, to the court on the 18th day of JUNE 2026 at 09h30 why a final
order of liquidation should not be granted against the first respondent company.
11 Service of this rule nisi and a copy of the notice of motion and annexures shall be
effected on the first respondent company at its registered office or its principal place of
business within the court's jurisdiction.
12 This order shall, without delay, be published in the Citizen and the Government
Gazette.
7 The sheriff shall ascertain whether the employees of the first respondent
company are represented by a trade union and whether there is a notice board on the
premises to which the employees have access.
8 A copy of the provisional liquidation order shall be served on -
8.1 every registered trade union that as far as the Sheriff can reasonably ascertain,
represents any of the employees of the first respondent company.
8.2 the employees of the first respondent company by affixing a copy of the
application and provisional liquidation order on any notice board to which the employees
have access inside the first respondent company's premises or if there is no access to
the premises by the employees, by affixing a copy to the front gate or front door of the
premises from which the first respondent company conducts any business.
8.3 The South African Revenue Services.
9 Costs to be in the liquidation.
10
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
Appearances
For the Applicants:
Instructed by:
For the First, Second and Seventh Respondents:
Instructed by:
For the Third Respondent:
Instructed by:
For the Fourth Respondent:
Instructed by:
For the Fifth Respondent:
Instructed by:
11
CHJ Maree
Theron & Partners Attorneys
c/o Horn van Rensburg Attorneys ,
Bloemfontein.
AJ Daniels SC
C de Villiers-Golding
Richters Attorneys
Johannesburg
SB Coetzer
Coetzer & Partners
c/o Phatshoane Attorneys ,
Bloemfontein
PG Cilliers SC
RJ Groenewald SC
Fluxmans Inc. Attorneys
c/o EG Cooper Majiedt Inc,
Bloemfontein .
CM Eloff SC
MHI Attorneys
c/o McIntyre van der Post,
Bloemfontein.