THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between:
ACCESS BANK (SOUTH AFRICA) LIMITED
and
SEACOW PROPERTIES PROPRIETARY LIMITED
(IN BUSINESS RESCUE)
WERNER CAWOOD N.O.
DILLION WESSELS N.O.
COMPANIES AND INTELLECTUAL
PROPERTY COMMISSION
Not Reportable
Case no: 2025 - 232376
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
Neutral citation: Access Bank (South Africa) Limited v Seacow Properties
Proprietary Limited (In Business Rescue) and Others (2025-
232376) (22 May 2026).
Heard: 13 February 2026.
Delivered: 22 May 2026.
2
Summary: Company law - business rescue proceedings - section 133( 1) of the
Companies Act 71 of 2008 - general moratorium on legal proceedings against a
company under business rescue - the Court granting leave to proceed with the
application - the creditor status of the applicant questioned - a declarator issued
confirming the creditor status and participation of the applicant in business rescue
proceedings - removal of business rescue practitioners on the grounds set out in
section 139(2)(a), (b) and (e) of the Companies Act - the applicant failing to establish
on the balance of probabilities that the removal is justified - the application partially
granted.
ORDER
1. The applicant, Access Bank (South Africa) Limited, is granted leave to proceed
or commence with the application filed under case no 2025-232376, as
supplemented, in terms of section 133(1 )(b) of the Companies Act 71 of 2008, to
the extent required.
2. It is. declared that the applicant is a creditor of the first respondent, Seacow
Properties Proprietary Limited (in Business Rescue), and entitled to participate
in the business rescue proceedings of the first respondent.
3. The first, second, and third respondents are to pay the costs of the application
as well as those of the postponement application of 12 December 2025, jointly
and .severally, the one paying the other to be absolved, on party-and-party scale,
such costs are to include counsel's fees on scale C, as set out in rule 67 A read
with rule 69 of the Uniform Rules of this Court.
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JUDGMENT
Phatshoane DJP
Introduction
[1] Two urgent applications were filed in this Court under case no 2025-232376
and 2025-232280. Both applications were launched by Access Bank (South Africa)
Limited (the bank). The first application is against Seacow Properties Proprietary
Limited (in Business Rescue), and its two Business Rescue Practitioners (BRPs),
Messrs Werner Cawood and Dillion Wessels, the first to third respondents (the
Seacow matter). The Second application is against Brakhoek Properties Proprietary
Limited (in Business Rescue) and its BRPs, Messrs Werner Cawood and Dillion
Wessels, the first to third respondents (the Brakhoek matter). The relief sought in both
applications is identical. The parties agreed that this Judgment addresses only the
Seacow matter, as what applies to it would also bear upon the Brakhoek matter.
[2] The bank's application against Seacow Properties Proprietary Limited
(Seacow) and the BRPs (collectively referred to as the respondents) was initially for
an order setting aside the resolution that commenced business rescue proceedings in
respect of Seacow. The bank further sought relief that the business rescue
proceedings be terminated, and that Seacow be placed in liquidation (the main
application). The bank amended its notice of motion and supplemented its papers with
leave of this Court. In its amended notice of motion, the bank seeks leave to proceed
or commence with the application filed under case no 2025-232376, the Seacow
matter, as supplemented, in terms of s 133( 1 )(b) of the Companies Act 71 of 2008 (the
Act); a declaration that the bank is a creditor of Seacow and entitled to participate in
its business rescue or liquidation proceedings; an order removing the BRPs of Seacow
from the business rescue proceedings in terms of s 139(2) of the Act; that Seacow be
directed to appoint a new business rescue practitioner in terms of s 139(3) of the Act;
and an order that the BRPs pay the costs of the application and those of the
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postponement application of 12 December 2025, de bonis propriis on the attorney and
client scale.
Background
[3] On 6 December 2019, De Vos Landgoed Proprietary Limited in business rescue
(De Vos Landgoed) and the bank concluded what is labelled a Facility Letter in terms
of which the bank provided the following facilities to De Vos Landgoed: (a) working
capital facility with an initial limit of R 1 500 000 which was subsequently increased to
R 5 000 000; and (b} a term loan facility of R 18 000 000. Pursuant to clause 2.5 of the
Facility Letter, De Vos Landgoed and the bank concluded a term loan facility
agreement (Term Loan Facility Agreement}, the purpose of which was to record the
full terms and conditions of the term loan facility.
[4] Almost three years later, around 4 August 2022, De Vos Landgoed and the
bank entered into a Medium-Pre-Term Agreement/Agreement of Loan and
Acknowledgment of Debt (the August 2022 Agreement}, which replaced the Term
Loan Facility Agreement governing the Term Loan Facility. The working capital facility
remained governed by the Facility Letter. The Facility Letter, the Term Loan Facility
Agreement, and the August 2022 Agreement are collectively referred to as the
Facilities Agreements. It is undisputed that some of these security instruments were
originally entered into by De Vos Landgoed and Grobank Limited (Grobank). Much
emphasis was placed on the bank's failure to prove its lawful succession to Grobank's
rights, an aspect I will address later.
[5] The indebtedness of Seacow to the bank arises from the limited guarantee and
unlimited suretyship executed by Seacow in favour of the bank for the indebtedness
of De Vos Landgoed. In this regard, a guarantee limited to R 22 million was concluded
on 8 December 2019, whereas the unlimited deed of suretyship was entered into on
1 August 2022.
[6] On 27 September 2024, the board of Seacow resolved, inter alia, that Seacow
voluntarily begin Business Rescue Proceedings as set out in s 129 of the Act. This
voluntarily begin Business Rescue Proceedings as set out in s 129 of the Act. This
was intended to facilitate Seacow's rehabilitation on the basis that it was considered
5
financially distressed, and that there appeared to have been a reasonable prospect of
rescuing it. should it be financially and operationally restructured. Seacow commenced
business rescue proceedings on 1 October 2024 pursuant to this resolution, which
was filed with the fourth respondent, the Companies and Intellectual Property
Commission of South Africa (CIPC). Messrs Cawood and Wessels were appointed its
BRPs.
[7J On 11 October 2024, the bank submitted its claim in the business rescue of
Seacow based on the above-mentioned security obligations (limited guarantee and
unlimited suretyship), recording the quantum of the claim and attaching
contemporaneous certificates of balance. At the time of launching the application in
this Court in November 2025, the balance of the claims were R6 713 522.51 together
with interest at the bank's prime lending rate (then 10.25%) plus two percent per
annum from 25 November 2025 to date of settlement and R20 902 914. 91, together
with interest at the bank's prime lending rate (then 10.25%) plus two percent per
annum from 25 November 2025 to date of settlement. The respondents deny that
Seacow owed the aforesaid amounts and that such indebtedness had become due
and enforceable.
[8] On 21 October 2024, the first meeting of creditors of Seacow (in business
rescue), as required by s 147 of the Act, was held. In terms of the minutes of that
meeting, the extension of the publication of the business rescue plan was adopted in
accordance withs 150(5) of the Act. It was agreed that the business rescue plan would
be published by 14 February 2025. On 6 February 2025, the BRPs circulated a notice
to affected persons proposing a further extension of the publication of the business
rescue plan from 14 February 2025 to 28 March 2025. On 10 February 2025, the
bank's attorneys responded to the notice and indicated, inter alia, that the bank did not
support the proposed extension and voted against it.
support the proposed extension and voted against it.
[91 Unbeknown to the bank, on 4 March 2025, the BRPs circulated a status report,
dated 28 February 2025, in which they indicated, inter alia, that the motion to further
extend the publication date of the business rescue plan to 28 March 2025 was
approved by the majority of the creditors and that the business rescue plan would be
published on 28 March 2025. On 17 June 2025, the bank's attorneys, oblivious to the
6
extension and the publication of the business rescue plan on 28 March 2025, directed
a letter to the BRPs in which they indicated, inter alia, that the bank was not aware of
an application to court to extend the publication date nor of a vote by the holder of a
majority of the creditors' voting interests extending the publication of the business
rescue plan beyond 28 March 2025. The bank, therefore, required the BRPs to advise
whether the publication date for the business rescue plan had been extended and, if so, to
provide a copy of the notice issued to creditors to vote on the extension. In addition, the
bank enquired whether the status reports for March, April, and May 2025 had been
circulated, and, if not, required the BRPs to provide the reason. The BRPs did not
respond to any of the bank's attorneys' correspondence.
[1 OJ On 14 November 2025, the bank's attorneys sent another letter to the BRPs,
drawing their attention to the bank's 17 June 2025 letter, which had still not received
a response. They further stated, inter alia, that the last status update received was for
February 2025. The BRPs were informed that by their conduct, they abandoned
Seacow. Therefore, the BRPs were urged to apply to the Court for an order
discontinuing the business rescue process and for the placement of Seacow in
liquidation. The BRPs were required to inform the applicant within five working days
that they would comply with the request; failing which, the bank would launch an urgent
liquidation application and seek a cost order against the BRPs in their personal
capacities.
[11] The launch of the present application was precipitated by the BRPs' failure to
respond to the above-mentioned attorneys' letter dated 14 November 2025. In the
main application, the bank relied, inter alia, on s 130 of the Act. It averred that the BRPs
had failed to publish the plan within the period contemplated bys 150, and that no
proper extension was procured from the affected persons or the court. That failure, so
proper extension was procured from the affected persons or the court. That failure, so
it argued, engaged this Court's power to set aside or terminate the business rescue
proceedings in terms of ss 130 and 132, read with s 141 of the Act. The bank stated
that when the main application was filed on 28 November 2025, it had been under the
impression, based on the BRPs' failure to respond to its attorneys' correspondence of 14
November 2025, that the BRPs had failed to publish the business rescue plan and provide
the status reports. The bank further laboured under the impression that the BRPs had
abandoned Seacow.
7
[12) The main application moved the BRPs to file a prolix answering affidavit,
comprising approximately 205 pages, including annexures, after hours on Friday, 5
December 2025, in opposition to the main application. In that affidavit, the BRPs, for
the first time, addressed the bank's queries of 14 November 2025. From the BRPs'
response, the following was apparent. Although the bank was initially included on the
mailing list for affected persons in the business rescue proceedings, the BRPs
removed it from the list. The business rescue plan published on 28 March 2025 was
tabled and voted on at a second creditors' meeting on 11 April 2025. The plan received
26% support but was rejected due to the votes cast by SARS, Wesbank, and the Land
Bank, which collectively accounted for 74% of the voting interest, with Land Bank
alone holding 52.74%. The BRPs had issued an application in the Gauteng Division,
Pretoria, on 23 April 2025, to have the Land Bank's controlling vote declared
inappropriate in terms of s 153(7) of the Act and an order setting it aside.
[13] The bank contended that the BRPs had published a business rescue plan for
Seacow but failed to forward a copy thereof to it despite the bank being a creditor of
Seacow and an affected person in the business rescue proceedings. It further argued
that the BRPs had unlawfully deprived it of its statutory rights to participate in the
business rescue proceedings, including the right to vote for or against the business
rescue plan. The bank further argued that, because the respondents' answering
affidavit contained substantial new facts previously unknown to it, the application v.,as
not ripe for hearing, not due to any fault on its part but because of the BRPs' failure to
timeously respond to its attorneys' correspondence. The bank submitted that it needed
to consider the new facts and, accordingly, amend its notice of motion and supplement
its founding papers. Therefore, the bank delivered an application for postponement of
its founding papers. Therefore, the bank delivered an application for postponement of
the main application and for leave to supplement its papers (the postponement
application).
[14] The respondents opposed the postponement of the main application. The thrust
of their opposition was that the bank sought a postponement to repair a defective
application by rewriting its founding papers after the respondents had exposed
material misrepresentation in the application. The respondents further asserted that
8
the bank was not entitled to receive reports and to be involved in the business rescue
proceedings because the BRPs did not consider it a creditor of Seacow, contending
that it was not an "affected person" as defined in section 128(1)(a), and was therefore
not entitled to business rescue notices, status reports or statutory communications,
with the result that the BRPs were under no legal duty to respond to it. In any event,
so it was argued, the bank cannot be a creditor of Seacow because of: the accessory
nature of suretyship; the absence of any due, enforceable principal debt against
Seacow; the restructuring of any alleged exposure under the De Vos Landgoed
Business Rescue Plan; and the absence of any written demand or contractual trigger
that would give rise to liability. The respondents also questioned the bank's locus
standi on the further basis that the bank had not proven its lawful succession to
Grobank's rights under s 54 of the Banks Act 94 of 1990 (the Banks Act).
[15] In essence, the respondents contended that postponing the main application
would serve no purpose, as the amendment could not cure the inherent jurisdictional,
statutory, and factual defects in the application. They further contended that the
application's urgency was moot because the factual allegations underpinning it had
been shown to be false.
[16] The application was enrolled for hearing on the urgent court roll of 12 December
2025. Stanton J granted the bank leave to supplement its notice of motion and
founding affidavit to address the new facts introduced in the answering affidavit,
directed a timetable for the filing of further affidavits and the re-enrolment of the matter
for hearing on the urgent court roll of 13 February 2026, and reserved the issue of
costs pertaining to the postponement application. It is important to set out in detail the
order made, as much store was set by the respondents that the order did not permit
the bank to craft a new cause of action. The order reads:
the bank to craft a new cause of action. The order reads:
'1. That the Applicant is granted leave to supplement its notice of motion and founding
affidavit to address the new facts introduced in the answering affidavit of the First to
Third Respondents;
2. That the urgent application is postpone_d, with a timetable for the filing of further affidavits
and re-enrolment as follows:
2.1. The Applicant is to file a supplementary founding affidavit on or before Friday,16
January 2026.
9
2.2. The First to Third Respondents are to file any supplementary answering
affidavit (if any) by Friday, 30 January 2026.
2.3. The Applicant is to file any replying affidavit (if any) together with its heads of
argument by Wednesday, 4 February 2026.
2.4. The Respondents are to file their heads of argument by Wednesday, 11
February 2026.
2.5. The application is to be re-enrolled for hearing on the urgent court roll of
Friday, 13 February 2026.
3. That the costs of this application be reserved.'
The respondents' preliminary contention against the main application
[17] The respondents persist with the multiple points in limine raised in the
postponement application. It was argued on their behalf that the application is not
urgent and that this Court lacks jurisdiction to consider it. Additionally, so it was
contended, the bank expanded its case beyond the scope of the 12 December 2025
order; has no standing to bring the application; failed to prove its lawful succession to
Grobank; failed to join De Vos Landgoed in the litigation; and finally, failed to comply
with s 130 of the Act1. I address each of these points in the paragraphs that follow.
Urgency
[18] The respondents contended that the alleged failure by the BRPs to publish the
business rescue plan and to respond to the bank's correspondent did not render the
application urgent. These complaints, the respondent argued, had existed for months
prior to the launching of the application and did not prevent the bank from taking earlier
steps under s 130 of the Act. In any event, it was argued that the urgency is moot
because the factual allegations underpinning it have been demonstrated to be false.
Furthermore, it was contended that the urgency is not reinforced by repeated
allegations of the bank's exclusion from the business rescue proceedings. The
respondents further pressed that the bank's introduction of time-lines in the
respondents further pressed that the bank's introduction of time-lines in the
1 Section 130(1) in the relevant part, provides inter alia, that at any time after the adoption of a resolution
in terms of section 129, until the adoption of a business rescue plan in terms of section 152, an affected
person may apply to a court for an order setting aside the resolution or the appointment of the
practitioner on the grounds outlined therein.
10
supplemented papers, with regard to the further conduct of the litigation, suggesting
the setting down of the main application two months later, militated against urgency.
[19] The bank countered that it would not obtain substantial redress in the ordinary
course if its application was not disposed of on an urgent basis. By the time the matter
is heard in the normal course, the business rescue process would be at an advanced
stage, if not finalised, which would equate its efforts to brutum fulmen.
[20] There are varying degrees of urgency. In my view, the multifaceted issues
raised in the papers are serious and require that the matter be disposed of on a semi
urgent basis to prevent any injustice. I am persuaded that the bank may not be
afforded substantial redress at a hearing in due course. Upon the respondents' failure
to provide the bank with a response, following repeated requests, the bank promptly
brought the application. All the necessary affidavits, albeit on suitably truncated
periods, were filed, and the issues fully ventilated through argument. I can conceive of
no prejudice for the disposal of this matter at this stage.
The alleged lack of jurisdiction of this Court
[21] The respondents took issue with the bank's assertion that this Court is endowed with
jurisdiction solely because Seacow's registered address lies within its jurisdiction. They
contended that the Court's assumption of jurisdiction merely on the basis that the
registered address of Seacow fell within its boundaries was factually incomplete and
legally insufficient to establish jurisdiction. This was so because the bank sought
orders that, initially, purported to terminate the ongoing business rescue. Those
proceedings, it was argued, are conducted by the BRPs from their offices in Pretoria
and all the statutory functions under Chapter 6 of the Act are discharged from that
jurisdiction. The respondents further contended that the appropriate forum to challenge the
jurisdiction. The respondents further contended that the appropriate forum to challenge the
conduct of the BRPs and the continuation of the business rescue proceedings is the court
having territorial jurisdiction over the administration of the business rescue, being the
Gauteng Division, Pretoria.
[22) The respondents also challenged this Court's jurisdiction insofar as the relief is now
sought personally against the BRPs. It was submitted that the BRPs did not perform
11
any of the acts complained of in their personal capacities. The protestation is that the
BRPs reside and practice in Pretoria and do not conduct business within this Court's
area of jurisdiction. In any event, the respondents maintained, the proceedings are
jurisdictionally barred by virtue of the statutory moratorium contained in s 133 of the
Act. No court may assume jurisdiction over any proceedings against a company in
business rescue, including liquidation, except with the written consent of the BRPs or
with leave of the court. The bank obtained neither. I deal with the question of the
statutory moratorium later.
[23) This Court's jurisdiction is established by virtue of Seacow's registered office
falling within its area of jurisdiction. 2 In addition, Seacow operates in Colesberg, within
the Northern Cape Province, and therefore, this Court has jurisdiction over it on this
basis as well.3 To my mind, this Court also has jurisdiction over the BRPs even though
they are 'resident' outside the Northern Cape. This is so because the BRPs are joined
as parties to the application, in respect of which this Court has jurisdiction. 4 Accordingly,
the argument advanced to the contrary is without merit.
Expansion of the bank's case beyond the scope of the 12 December 2025 order
[24] The respondents asserted that the principal answering affidavit did not set out
new facts but the correct factual and statutory position. In their affidavit opposing the
postponement, the respondents submitted that the bank, by requesting leave to file
supplementary papers, was attempting to improperly recast the cause of action,
rewrite the notice of motion, introduce a completely new factual basis for its case, and
circumvent the consequences of having launched an urgent application on materially
incorrect facts.
2 See D Davis et al Companies and other Business Structures in South Africa 5ed (2025) at 64-65; see
also Sibakhulu Construction (Ply) Ltd v Wedgewood Village Golf Country Estate (Pty) Ltd (Nedbank Ltd
Intervening) 2013 (1) SA 191 (WCC) para 21 and 23.
3 De Bruyn v Grandselect 101 (Pty) Ltd and Another(1961/2013) [2014] ZANCHC 3 (5 March 2014) para
13; see also Gallo Africa Ltd and Others v Sting Music (Ply) Ltd and Others 2010 (6) SA 329 (SCA) para
10.
4 Section 21 (2) of the Superior Courts Act 10 of 2013, Els v Weideman and Others 2011 (2) SA 126
(SCA) at 132E-F.
12
[25] The respondents further contended that the 12 December 2025 order did not
grant the bank leave to introduce new causes of action; seek new and different relief
not claimed in the original notice of motion; or retrospectively cure jurisdictional or
statutory non-compliance that existed at the time the application was launched. They
argued that the relief now introduced in the amended notice of motion and
supplementary founding affidavit does not arise from any newly disclosed factual
development. Rather, it constitutes a fundamental reformulation of the bank's case.
[26] The respondents objection is not of any great weight. In the postponement
application, the bank specifically pleaded for an opportunity to consider the new facts
and information contained in the answering affidavit so that it could take appropriate
remedial steps, as it may be advised. The bank further explained that the 'disclosure
in the answering affidavit necessitated it to amend and supplement the application
and expand the relief, including the removal of the second and third respondents as
the Business Rescue Practitioners of the first respondent'. The bank went on to state:
' ... given the conduct of the second and third respondents, the applicant has been advised
to seek a costs order de bonis propriis ... '
In the bank's replying affidavit, it said:
'The Applicant must be permitted . . . to place before the Court targeted supplementary
evidence and submissions addressing the Respondents' late disclosures and to calibrate the
relief, including, if necessary, seeking the removal of Practitioners and appropriate
consequential directions'.
[27] The publication of the plan, the decision to exclude the bank as a creditor, and
the purported communication by the BRPs to the affected persons were raised for the
first time in the respondents' answering affidavit. Apparent from the preceding
paragraphs is that the relief sought in terms of the amended notice of motion was
paragraphs is that the relief sought in terms of the amended notice of motion was
foreshadowed in the postponement application and arises directly from the 'newly
disclosed factual development'. The respondents were not taken by surprise. On the
contrary, they were made fully aware of the bank's intentions with respect to the
amendment and supplementation of its papers. What Stanton J did was to grant the
bank what it urged in the postponement application. Naturally, this should have ended
any debate on the bank's entitlement to supplement its papers.
13
[28) The bank had to address its "creditor/affected person's" status and the BRPs'
compliance with their statutory duties. The supplementation of the papers was an
appropriate means to address the belated material disclosures for the sake of fairness
and completeness. These core substantive issues could only be dealt with by the
Court with the benefit of a complete record. I am satisfied that the bank, when
supplementing its papers, in accordance with the terms of the order of 12 December
2025, did not impermissibly expand its case beyond the scope of that order.
The locus standi of the bank under Chapter 6 of the Act
[29) The actual area of controversy in this case is the question whether the bank is
the creditor of Seacow. The respondents accuse the bank of fabricating rights that the
Act does not confer. They contended that the bank is not a creditor of Seacow, it holds
no voting interest in it, and therefore it is not an affected person under s 128( 1 )( a) of
the Act. They further submitted that the statutory architecture of the business rescue
proceedings presupposes identifiable and quantifiable indebtedness, not derivative or
contingent exposure dependent upon future enforcement events. Insofar as the bank's
claim against Seacow is grounded in the limited guarantee and unlimited suretyship
executed by Seacow in respect of De Vos Landgoed's indebtedness, the respondents
argued that the suretyship in question is not autonomous and does not constitute an
independent payment obligation. Seacow's liability arises only when the principal debt
is due, the principal debtor is in default, and enforceability is legally permissible under
the Act. None of these, argued the respondents, were established by the bank.
[30] The respondents further contended that De Vos Landgoed's indebtedness to
the bank was fully incorporated into De Vos Landgoed's business rescue plan, which
is currently subject to a s 153(7)5 application. That plan, it was argued, restructures
is currently subject to a s 153(7)5 application. That plan, it was argued, restructures
the bank's claim, prescribes when and how that is to be paid, and suspends
enforcement pending judicial finalisation. The respondents further argued that even if
the Court was to accept that the limited guarantee created a contingent obligation on
the part of Seacow, such an obligation has not matured into an enforceable, due-and-
5 This is an application for an order that the vote on a business rescue plan be set aside.
14
payable liability. The bank's claim, the respondents' state, never met the statutory
threshold to qualify as a claim in the business rescue proceedings.
[31) It is to be remembered that the bank, in its amended notice of motion, now
seeks a declaration order that it is a creditor of Seacow. In light of the substantial ·
overlap, it is convenient to jointly dispose of the preliminary point raised by the
respondents and the declaration sought by the bank. The Act does not expressly define
the term "creditor" in the context of the business rescue proceedings. Section 128(1)(a)
of the Act defines an "affected person" in relation to a company, as (i) a shareholder or
creditor of the company; (ii) any registered trade union representing employees of the
company; and (iii) if any of the employees of the company are not represented by a
registered trade union, each of those employees or their respective representatives.
[32] Mr Louw, for the bank, called in aid Rogal Holdings (Pty) Ltd and Another v
Victor Turnkey Projects (Pty) Ltd and Others6, (Rogal), in support of the bank's
argument that it is a creditor of Seacow. In Rogal, the Court dealt with the question
whether a person is a creditor for purposes of business rescue proceedings. There,
the Court held that if a person has made out a case that a cause of action exists and
that it has a claim that should be tried by a court of law, even if a dispute exists as to
the liability of the debtor (and that the latter has a counterclaim), that person is a
creditor. The following dicta in paragraph 34 of that decision is apposite:
' .. . It is not only creditors who have proven claims against the debtor that are to be regarded
as affected parties. The [2008 Companies Act] does not require that the creditor must have a
liquidated claim before being recognised as a creditor for purposes of Chapter 6 of the [2008
Companies Act]. Where a party holds a debt that is "owing" in that a complete cause of action
Companies Act]. Where a party holds a debt that is "owing" in that a complete cause of action
for the recovery of the debt exists, and that party would be precluded from enforcing its claim
because of the business rescue proceedings except if in accordance with the provisions of the
business rescue plan, that party holds a direct and substantial interest in the business rescue
proceedings and is an affected party, irrespective as to whether it acquired any voting
interests.'
[33) The respondents do not deny that Seacow stood as surety and guarantor for
De Vos Landgoed. As already discussed, the indebtedness of Seacow to the bank
6 2022 JDR 1031 (GP).
15
arises from a limited guarantee and an unlimited suretyship. Insofar as the nature of
the suretyship is concerned, Seacow guaranteed and bound itself jointly and severally
as surety in solid um for and co-principal debtor with De Vos Landgoed ( now in
business rescue), renouncing the benefit of excussion. The bank contended that it did
not rely solely on the unlimited suretyship but primarily on the guarantee. Here,
Seacow guaranteed irrevocably and unconditionally the due and punctual repayment
of monies .owed by De Vos Landgoed,.andwould make payment to the bank against
receipt of .the first written demand. Seacow renounced all benefits or exceptions. It is
important to recite below, although copious, some of the insightful terms of the
guarantee.
Clause 1 of the guarantee stipulates: •
'The Guarantor hereby irrevocably and unconditionally guarantees to and in favour of Grobank
the due and punctual repayment by the Borrower of all amounts whatsoever arising out or in
connection with the Facilities (the "Obligations"), regardless of how evidenced or documented,
whether now existing or hereafter created, originally contracted with Grobank, secured or
unsecured, direct or indirect, absolute or contingent, matured or un-matured, falling which the
Guarantor shall make payment to Grobank, against receipt of first written demand therefore,
of any amount(s) in respect of the obligations which are not paid by the Borrower duly and
punctually.'
Clause 6 provides:
'This Guarantee shall be effective regardless of the validity or enforceability of the Obligations,
any related documentation, any collateral security for the Obligations and any other guarantee
of the Obligations. If as a result of the bankruptcy, dissolution, reorganization, intervention,
arrangement or liquidation proceedings (or proceedings similar in purpose or effect), or if for
any other reason any payment received by Grobank in respect of the Obligations is rescinded
any other reason any payment received by Grobank in respect of the Obligations is rescinded
or must be returned by Grobank, this Guarantee shall continue to be effective as if such
payment had not been made. Notwithstanding that there may from time to time be no
Obligations, this Guarantee shall continue to be effective until the Borrower unconditionally
and irrevocably has discharged all its liabilities and obligations under the Borrower.'
Clause 9 records, in part:
'9.1. The Guarantee shall at all times be fully and immediately enforceable, despite the fact
that:
16
9.1.5. the Borrower and/or the Guarantor may be wound-up, placed in liquidation (whether
provisionally or finally), business rescue or may become subject to any legal disability or to
any law for the benefit or assistance of debtors and/or creditors or any change in status,
function, control and/or ownership in the Borrower and/or the Guarantor. .. or
9.1.8. Any .other fact or circumstances ~ich may have the effect of wholly or part,ally
relieving the Guarantor of its obligations, including any fact or circumstance which arises by
, • .· .
reason of any act or omission on the part of Grobank, other than factors or circumstances
involving wilful or wrongful misconduct o( Groba~k.'
Clause 11 states:
The Guarantor hereby agrees and undertakes in favour of Grobank during the period of this
Guarantee that it shall not
11 .4. In respect of any claim arising out 0f -tliis Guarantee, raise the defence that there is no·
cause (i.e. reasonable basis) for Grobank1s'claim or the granting of the Guarantee.'
Clause 15 deals with renunciations as follows:
The Guarantor hereby renounces the legal benefits and exceptions of no cause of debt,
revision of accounts, errors in calculation,' division and all other benefits or exceptions which
might or could be taken hereto to the Guarantor's liability in terms of the Guarantee, the
Guarantor declaring it to be fully acquainted with the full meaning and effect of this
renunciation.'
[34] Apparent from the clauses cited is that the guarantee in issue is an irrevocable
undertaking which must be honoured without judicial interference and or contestation
unless fraud is at play. The terms of the guarantee are fatal to the respondents'
argument regarding the purported material disputes of fact on the bank's creditor
status. All that is required for paymenr is a demand by the beneficiary, stated to be
based on the event specified in the gt,.1ar~ntee. In State Bank of India and Another v
Dene/ Soc Limited and Others7, it was $aid:.
Dene/ Soc Limited and Others7, it was $aid:.
'A "first demand" guarantee, such as the principal guarantees, is independent of the underlying
contract which gives rise to the guarante~. Therefore, regardless of a dispute between the
parties to the underlying contract, the guarantee must be paid on demand.'
7 [2015) 2 All SA 152 (SCA) para 8.
17
[35) In terms of the guarantee, the grantor (Seacow) shall make payment to the bank
against receipt of the first written demand thereof of any amounts in respect of the
obligations which are not paid by the borrower duly and punctually. De Vos Landgoed
failed to make payment of the amounts owing to the bank under the Facilities Agreements.
Therefore, on 26 August 2024, the bank demanded payment from it. It can hardly be
argued that the principal debt is not presently due and enforceable, given that, on 9
September 2024, prior to the commencement of Seacow's business rescue proceedings
on 1 October 2024, the bank demanded payment from Seacow of the amounts owing to
it under the Facilities Agreements. Additionally, the bank enforced its claim by submitting
it to Seacow's BRPs. This triggered payment by Seacow because the event stated in the
guarantee materialised. All these demonstrate the bank's creditor standing in this
litigation. Stated otherwise, the bank is owed a debt and unquestionably qualifies as a
creditor of Seacow.
[36] Mr Louw argued that the impact of the De Vos Landgoed business rescue plan
is of no moment insofar as the bank and Seacow are concerned. That is so because the
latter is obliged to make payment to the bank of amounts due by De Vos Landgoed on
the basis that Seacow is a guarantor and co-principal debtor. The only notional impact
of the De Vos landgoed business rescue plan may be a reduction in the quantum of
the bank's claim against Seacow. That argument is manifestly cogent and buttressed
by Clause 9 of the guarantee, which stipulates that the Guarantee shall at all times be
fully and immediately enforceable despite circumstances which may have the effect of
wholly or partially relieving the guarantor of its obligations.
Failure of the bank to prove lawful succession to Grobank limited (Grobank)
[37] To further bolster their case that the bank had no standing in the litigation, the
[37] To further bolster their case that the bank had no standing in the litigation, the
respondents argued that all facility agreements , guarantees , and securities forming
the basis of Seacow's indebtedness were concluded exclusively with Grobank.
According to them, the bank has previously admitted under oath that it did not acquire
Grobank's rights through a name change but by a mandatory statutory transfer
governed by s 54 of the Banks Act. In the answering affidavit, the respondents rely on
an extract from an affidavit deposed to on behalf of the bank in another matter filed
under case no 2025-134472 in this Court, where it was stated that the bank took over
18
the assets and liabilities of Grobank in terms of s 54 of the Banks Act. It was contended
that the bank failed to show that it obtained a prior written consent of the Minister of
Finance for the amalgamation, merger and arrangement referred to in s 54(1) of the
Banks Act read with Chapter 5 of the Act, the shareholders' resolution approving the
amalgamation, and the registration of the transfer by the Prudential Authority in terms
of s 54(5) to (7) of the Banks Act.
(38] The bank is undoubtedly the same entity as Grobank, with the same registration
number. It simply changed its name from Grobank to its current name. This is apparent
from CIPC Form 14.3 (Amended Registration Certificate), which clearly states that the
bank filed an amendment to its memorandum of incorporation in terms of s 16 of the
Act, changing its name from Grobank to Access Bank (South Africa) Ltd, which change
took effect on 21 April 2021. The South African Reserve Bank Prudential Authority
issued a "Certificate of Change of Name" dated 7 May 2021, confirming that Grobank
changed its name to Access Bank (South Africa) Limited. Additionally, the South
African Reserve Bank released a media statement on 31 March 2021, stating that
Grobank Limited would be "renamed and rebranded as Access Bank (South Africa)
Limited". Accordingly, there is sufficient basis to conclude that the rights and
obligations under the agreement in issue, concluded between Grobank and Seacow,
remain enforceable by the same entity, now known as Access Bank (South Africa)
Limited. The respondents' objection is thus not well-founded.
Non-joinder of De Vos Landgoed
[39] The respondents submitted that the bank's supplementary case is grounded on
the alleged enforceability of obligations arising from the indebtedness of De Vos
Landgoed (in business rescue). Therefore, they argued that De Vos Landgoed has a
direct and substantial interest in the determination of whether its debt is enforceable;
direct and substantial interest in the determination of whether its debt is enforceable;
the timing and manner of any enforcement; the effect of its business rescue plan on
any alleged suretyship; and any finding which may be made regarding its alleged
default, which would have a direct and prejudicial legal effect on its own business
rescue proceedings and its relationship with its other creditors.
19
[40] The bank's amended relief is against Seacow and the BRPs. No relief is sought
against De Vos Landgoed. It is common ground that the BRPs in this case are also
the Business Rescue Practitioners appointed for De Vos Landgoed. The BRPs have
treated the bank as a creditor in the business rescue of De Vos Landgoed itself. The
bank's claim was admitted in that process, and the bank is reflected as a creditor in
the De Vos Landgoed business rescue plan.
[41] A person must be joined as a party to the proceedings if it is determined that
their joinder is necessary. That would be the case if a party has a material direct or
substantial interest in the relief claimed, unless it has waived that right. A direct and
substantial interest is an interest in the right which is the subject matter of the litigation.
More importantly, for present purposes, a mere financial interest is an indirect interest
and may not require joinder.8 The mere fact that a party may have an interest in the
outcome of litigation does not warrant a non-joinder plea. The right of a party to validly
raise the objection that other parties should have been joined to the proceedings has
thus been held to be limited. 9
[42] I have already dealt with the immediate enforceability of the limited guarantees
as against Seacow, and with the only hypothetical impact of the De Vos Landgoed
business rescue plan being a reduction in the quantum of the bank's claim against
Seacow. De Vos Landgoed, in my view, holds a mere financial interest. Therefore, the
respondents failed to demonstrate that De Vos Landgoed has a direct and substantial
interest in the subject matter of this litigation, which may be affected by this Court's
judgment and order. Its non-joinder is of little consequence.
Non-compliance withs 130 of the Act
[43] Less needs to be said about the bank's purported non-compliance withs 130(1)
of the Act, which provides:
8 Eugene Prinsloo v Donovan Theodore Majiedt N.O and Another (257/2024) [2025) ZASCA 74 (30
8 Eugene Prinsloo v Donovan Theodore Majiedt N.O and Another (257/2024) [2025) ZASCA 74 (30
May 2025) para 13.
9 Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA)
para 12.
20
'(1) Subject to subsection (2), at any time after the adoption of a resolution in terms of section
129, until the adoption of a business rescue plan in terms of section 152, an affected person
may apply to a court for an order-
(a) setting aside the resolution, on the grounds that-
(i) there is no reasonable basis for believing that the company is financially
distressed;
(ii) there is no reasonable prospect for rescuing the company; or
(iii) the company has failed to satisfy the procedural requirements set out in section
129;
(b) setting aside the appointment of the practitioner, on the grounds that the practitioner-
(i) does not satisfy the requirements of section 138;
(ii) is not independent of the company or its management; or
(iii) lacks the necessary skills, having regard to the company's circumstances; or
(c) requiring the practitioner to provide security in an amount and on terms and
conditions that the court considers necessary to secure the interests of the company
and any affected persons.'
[44] The respondents critiqued the bank for not having invoked the s 130 procedure
in the circumstances where the bank had complained, inter alia, that the BRPs failed
to publish a plan timeously, failed to provide reports, and failed to respond to
correspondence. It was contended that an affected party may, in terms of s 130, seek
the setting aside of the business rescue resolution, or an order compelling the BRPs
to perform their duties. The bank bypassed the statutory remedy, circumvented the
procedural safeguards designed to protect affected parties, and attempted to collapse
the business rescue process, so the argument continued. On these bases, it was
contended that the application is fatally defective. In my view, the point, apart from
being bad, is of no consequence and devoid of merit. This application, prior to its
amendment, was partly for an order setting aside the resolution that commenced
business rescue proceedings in respect of Seacow.
business rescue proceedings in respect of Seacow.
Conclusion on the preliminary attack against the application
[45] As I have shown, none of the points in limine raised against the application are
sustainable in law and in fact. This paves the way for the consideration of the main
application.
21
The main application
[46] To recapitulate, the relief the bank is currently pursuing, following the
amendment of its papers, is first, to seek leave to commence with the application as
supplemented in terms of s 133(1)(b) of the Act; and a declarator that the bank is a
creditor of Seacow and entitled to participate in its business rescue or liquidation
proceedings. The bank also seeks an order removing the BRPs of Seacow from the
business rescue proceedings in terms of s 139(2) of the Act; that Seacow be directed
to appoint a new business rescue practitioner in terms of s 139(3) of the Act; that the
BRPs pay the costs of the main application and those of the postponement application
of 12 December 2025, jointly and severally de bonis propriis on the attorney-and-client
scale. I have already determined that the bank is a creditor of Seacow. It is to the
residual issues that I now turn.
Leave to proceed in terms of s 133(1)(b) of the Act
[47] Section 133 provides for a general moratorium on legal proceedings against the
company in a business rescue. Section 133(1 )(b) provides that during business rescue
proceedings, no legal proceeding, including enforcement action, against the company,
or in relation to any property belonging to the company, or lawfully in its possession,
may be commenced or proceeded with in any forum, except with the leave of the court
and in accordance with any terms the court considers suitable.
[48] The respondents objected to the introduction, in the bank's supplemented
papers, of the relief the bank sought in terms of s 133( 1 )(b) of the Act. It was argued
that the initial relief of placing Seacow in liquidation equally required leave in terms of
s 133( 1 )(b), which the bank failed to seek. A failure to comply with s 133, so it was
argued, is not a technical defect. It goes to the competence of the proceedings
themselves. The respondents further contended that the present relief under
themselves. The respondents further contended that the present relief under
s 133(1)(b) is a procedural afterthought designed to retroactively legitimise an
originally fatally defective application.
[49] It bears repeating that in the original notice of motion, the bank sought to set
aside the resolutions commencing business rescue proceedings, that those
22
proceedings be terminated, and that Seacow be placed in final liquidation. The relief
was sought in terms of s 130 and 132(2)(a)10, read withs 14111 of the Act. It has been
held that the statutory moratorium does not find application where the applicant is an
affected person who applies to the court under s 130(1) to have the adoption of the
resolution adopted under s 129 set aside before a business rescue plan is adopted.
[50) In Roga/12, the Court said:
'Since the applicant is an affected person ands 130(1) authorises an affected person to apply
to court to have the adoption of the resolution in terms of s 129 set aside before a business
plan is adopted, the moratorium on legal proceedings does not apply.'
In LA Sport 4X4 Outdoor CC and Another v Broadsword Trading 20 (Pty) Limited and
Others13, (LA Sport), the Full Court pronounced that on the express wording of
s 130(1 ), the right to apply to court is conferred on affected persons and that there is
no textual indication that this right is subject to the moratorium regime ins 133(1 ). The
Court further held:
'The right to approach the court is an essential counterweight to the curtailment of affected
persons' rights licensed bys 129. The purpose of the measures does not requires 130(1) to
be read subject to s 133(1 ).'
[51] The interpretation assigned by the Full Court in LA Sports to s 130(1) commend
itself in this instance. The bank did not require leave in terms of s 133(1)(b) of the Act
when it sought the relief set out in the initial notice of motion, particularly one aimed at
setting aside the resolution placing the Seacow in business rescue. However, on the
amended notice of motion, there appears to be no dispute that leave of the Court is
required to proceed or commence with the application as supplemented in terms of s
133(1 )(b).
10 Objection to a company resolution to begin business rescue proceedings (s 130) and ending the
business rescue proceedings (s 132).
business rescue proceedings (s 132).
11 Section 141, inter alia, places an obligation on a business rescue practitioner to investigate the
company's affairs, business, property, and financial situation, and after having done so, to consider
whether there is any reasonable prospect of the company being rescued. If, at any time during business
rescue proceedings, the practitioner concludes that - there is no reasonable prospect for the company
to be rescued, the practitioner must inform the court, the company, and all affected persons in the
prescribed manner; and apply to the court for an order discontinuing the business rescue proceedings
and placing the company into liquidation.
12 Rogal Holdings (Pty) Ltd and Another v Victor Turnkey Projects (Ply) Ltd and Others, above fn 6,
para 36.
13 {A513/2013) [2015] ZAGPPHC 78 (26 February 2015) paras 35-36.
23
[52) It is trite that a moratorium on legal proceedings against a company under
business rescue is of cardinal importance, as it provides the crucial breathing space
to enable the company to restructure its affairs. This allows the practitioner, in
conjunction with the creditors and other affected parties, to formulate a -business
rescue plan designed to achieve the purpose of the process.14 Section 133(1 )(b)
involves the exercise of the court's discretion, having regard to the interest of justice. The
discretion is to be exercised judicially, taking into account the purpose and objects of
s 133(1)(b), read in the context of the Act as a whole. Considerations of fairness and
convenience are fundamentally important.15 An applicant seeking to obtain leave
under the section must, as a minimum requirement, establish a prima facie case
against the company in business rescue. What is meant by a prima facie case depends
on the context in which it is used.16 There is no closed list of the factors that may be
taken into account in deciding whether or not to grant leave, as each case must be
determined on its own facts. In Arendse17, the Court listed, inter alia, the following:
' ... Without being prescriptive in any way, the following considerations are relevant: (a) The
effect that the grant or refusal of leave would have on the applicants' rights as opposed to
other affected persons and relevant stakeholders; (b) the impact that the proposed legal
proceedings would have on the wellbeing of the company and its ability to regain its financial
health; and (c) whether the grant of leave would be inimical to the object and purpose of
business rescue proceedings as set out in ss 7(k) and 128(b) of the Act.'
[53] I have already demonstrated that the bank is a creditor of Seacow. The bank,
correctly in my view, argued that it stood to be severely prejudiced if the relief currently
sought in terms of s 133(1)(b) of the Act is refused because it would remain excluded
sought in terms of s 133(1)(b) of the Act is refused because it would remain excluded
from the business rescue proceedings despite being a creditor of Seacow and an
affected person with concomitant statutory rights. The bank further contended that it
would be unable to enforce its contractual rights against Seacow and would suffer
financial harm by being precluded from recovering the debt owed to it.
14 Cloete Murray and Another NNO v FirstRand Bank Ltd tla Wesbank [2015) ZASCA 39; 2015 (3) SA
438 (SCA) para 14.
15 Arendse and Others v Van der Merwe and Another NNO 2016 (6) SA 490 (GJ), (" Arendse"), paras
10-11.
16 Arendse (supra) paras 16 and 18.
17 Supra, para 28.
24
[54] A declaration of the bank's creditor status does not, in my view, amount to
premature determination of issues properly falling to be decided in enforcement
proceedings or during statutory Chapter 6 processes, as suggested by the respondents.
In terms of s 145 of the Act, each creditor is entitled, inter alia, to formally participate
in a company's business rescue proceedings to the extent provided for in Chapter 6
of the Act. The removal of the bank from the business rescue proceedings on the basis
that it is not a creditor, when all the indications are that it is, provides an adequate
basis for the lifting of the moratorium on legal proceedings against Seacow in terms of
s 133(1)(bJ of the Act. The suspension of the moratorium ought to be done, in the
interest of justice , in order to fortify the bank's rights to participate in the business
rescue proceedings of Seacow and for its BRPs or their successors to recognise those
rights. The bank's unceremonious exclusion from the business rescue proceedings
was, in my view, unreasonable. It is therefore appropriate that the declarator that the
bank is a creditor of Seacow and an affected person in its business rescue proceedings
ought to issue.
Removal of the BRPs
[55] Section 139 of the Act provides for the removal and replacement of business
rescue practitioners and sets out the grounds for doing so. The bank relies on the
grounds in s 139(2)(a), (b) and (e) in urging that the BRPs be removed. Section 139
provides as follows, in the part relevant:
'(1) A practitioner may be removed only-
(a) by a court order in terms of section 130; or
(b) as provided for in this section.
(2) Upon request of an affected person, or on its own motion, the court may remove a
practitioner from office on any of the following grounds:
(a) Incompetence or failure to perform the duties of a business rescue practitioner of
the particular company;
(b) failure to exercise the proper degree of care in the performance of the practitioner's
functions;
functions;
(e) conflict of interest or lack of independence ; or . . .'
25
[56] The recitation of the dicta in Knoop NO and Another v Gupta and Another18
("Knoop") below usefully elucidates the guiding principles applicable to the Court's
determination of the removal of a business rescue practitioner:
The general nature of the grounds for removal is such that they cannot be established direct ly.
They are factual conclusions or inferences drawn from other proven facts. It is necessary for
the applicant for removal to specify and establish by evidence the conduct on the part of the
BRP that they say justifies an order for removal. Only if there is proper proof of the primary
facts can the question of drawing an inference properly arise. The drawing of inferences from
the facts must be based on proven facts and not matters of speculation. As Lord Wright said in
his speech in Caswell v Powell Duffryn Associated Collieries Ltd [(1939] 3 All ER 722 (HL)
((1940) AC 152) at 733E - F]:
"Inference must be carefully distinguished from conjecture or speculation. There can be no inference
unless there are objective facts from which to infer the other facts which it is sought to establish ...
But if there are no positive proved facts from which the inference can be made, the method of
inference fails and what is left is mere speculation or conjecture".'
At paragraphs 20-21 it was said:
' ... Reliance on this ground [incompetence or a failure to perform the duties of a BRP of the
particular company] required evidence of specific instances of incompetence , or failure to
perform the BRP's duties, in relation to the company under business rescue. Incompetence
suggests that the BRP lacked the necessary skills to perform their duties . It may be
established by proof that the BRP is "of inadequate ability or fitness; lacking the requisite
capacity or qualifications ". That is a reasonably high bar. Merely moderate ability does not
amount to incompetence. Nor does the failure to meet the standards that the affected party
amount to incompetence. Nor does the failure to meet the standards that the affected party
would like to see achieved, whether that relates to the time taken to complete the business
rescue process, or the prices at which assets are sold, or the manner in which the BRP
approaches their task. The alleged incompetence must relate directly to the performance of
the task of a BRP. An inability to perform the role of BRP properly in relation to the
circumstances of the particular company must be demonstrated.
Where a failure to perform the duties of a BRP is relied on it is essential to identify the duties
that the affected party says should have been performed and to show the respects in which
they were not performed. A failure to convene meetings as required by the statute and the
business rescue plan, or a failure to report to the creditors and other affected parties , come to
mind as fairly obvious examples . A general neglect of the duties of a BRP, where the BRP
1a 2021 (3) SA 88 (SCA) para 19.
26
simply fails to deal with matters requiring attention in a regular and timeous fashion, may
suffice, but a BRP who is attending to matters in a manner which the affected party does not
approve of is not failing to perform their duties.'
[57] The bank relies on the alleged failure by the BRPs to report to the creditors and
other affected parties, as a basis upon which it asserts that the BRPs were incompetent or
failed to perform their business rescue duties (s 139(2)(a) of the Act). It was contended
for the bank that it had submitted its claim to the BRPs and remained an active
participant in the business rescue proceedings until the BRPs unilaterally excluded it
from the proceedings without notice. It was further argued that the timing of its removal
from the mailing list of affected persons was telling because, so it was argued, it
happened soon after the bank had voted against a further extension for the publication
of the business rescue plan.
[58) The respondents aver that the bank was initially included in certain
communications as a precautionary measure pending investigation of its claim.
Following the BRPs' analysis, in terms of s 141 of the Act19, it was determined that the
bank held no direct, liquidated claim against Seacow. That its alleged exposure arose
solely from instruments relating to the indebtedness of De Vos Landgoed, not Seacow.
Any alleged claim was at best contingent and disputed. It was on these bases, the
respondents submit, that the bank was removed from the "affected persons" mailing
list. The respondents further intimated that the BRPs are required to communicate with
affected persons, not with entities that held no direct claims against Seacow. They
further aver that the bank's expectation of further communication from the BRPs Js
unfounded, as the bank had been removed from the list of affected persons and not
legally entitled to the information sought.
[59] In Knoop2°, it was held that:
legally entitled to the information sought.
[59] In Knoop2°, it was held that:
'A failure to exercise a proper degree of care in the performance of their functions will in most
instances require proof of negligence. It is difficult to see how that could be shown by way of
general allegations without reference to specific instances of negligence, While proof of harm
19 Section 141 (1) provides that: 'As soon as practicable after being appointed, a practitioner must
investigate the company's affairs, business, property, and financial situation, and after having done
so, consider whether there is any reasonable prospect of the company being rescued.'
20 Supra fn 18 para 22.
27
to the company, whether in the implementation of an approved business plan or from the
perspective of its future operations after business rescue is terminated, may not be a
prerequisite to proof of a failure to exercise a proper degree of care, in the absence of harm it
may be difficult for a court to conclude that the BRP has not exercised a proper degree of care.
At the very least the potential for harm to have been caused by the actions of the BRP must
be considered, even if that harm was averted or did not materialise.'
[60] The bank argued that the BRPs' failure to recognise it as a creditor and their
failure to notify it of the decision thereof constituted a failure to exercise a proper
degree of care in the performance of the practitioners' functions as contemplated in
s 139(2}(b) of the Act. So too, was their failure to provide the bank with monthly status
reports. In addition, so it was argued, the BRPs' delay in disclosing these facts to the
bank until 5 December 2025 also constitutes a failure to exercise a proper degree of
care in performing the practitioners' functions. The bank further argued that the
manner in which the BRPs approached the litigation is also testament to their mala
fides. Instead of consenting to the postponement, the BRPs, pursuant to the eleventh
hour disclosure of material facts, opposed it, resulting in the multiplication of
proceedings and the incurrence of further costs that could have been obviated. This
shows a lack of independence and incompetence or failure to perform the duties of a
business rescue practitioner as set out in s 139(2)(a), (b) and (e) of the Act. The
conduct of the BRPs caused prejudice to Seacow, an already distressed company,
and its creditors, and constituted a gross violation of the bank's right as a creditor.
(61] The decision of the BRPs to exclude the Bank from further participation in the
business rescue proceedings was, in my view, unwarranted. The displeasure
business rescue proceedings was, in my view, unwarranted. The displeasure
expressed by the bank, occasioned by the BRPs' decision to terminate its participation
and the apparent frustration arising from the bank not being recognised as a creditor
of Seacow, is understandable. However, I am not persuaded that the conduct
complained of, without more, establishes incompetence, a failure to perform the BRPs'
statutory duties, or a failure to exercise the requisite degree of care in the performance
of the BRPs' functions. Nor does the available evidence sustain a finding of conflict of
interest or lack of independence on the part of the BRPs. The removal of business
rescue practitioners is a serious step and ought not to be ordered lightly. 21 The manner
21 See Knoop NO and Another v Gupta and Another2021 (3) SA 88 (SCA), paras 18, 20 - 24.
28
in which the BRPs approach their work is not a ground for their removal. In general, in
this case, the BRPs complied with their statutory obligations. For instance, they
circulated the status reports and published the business rescue plan as contemplated
in s 150 of the Act. Following the filing of the answering affidavit, it became apparent
that the BRPs had not abandoned Seacow, contrary to the bank's initial belief.
[62) It is concerning that the BRPs did not respond to the bank's request for status
reports on the business rescue proceedings. In my view, it did not matter that the BRPs
did not consider the bank a creditor or affected person. At the very least, they ought
to have responded to the bank's attorneys' letters or informed the bank that it had been
removed from the list of affected persons. Failure to do so demonstrates some lack of
courtesy. However, this omission is not of such a nature or degree as to warrant the
removal of the BRPs. This also applies to the BRPs' failure to agree with the bank to
postpone the application, which may have been motivated solely by the exigencies of
the litigation. The evidence is sparse to conclude that the BRPs did not act with probity
or breached the canons of good professional conduct. In my view, the bank did not
establish on the balance of probabilities that the removal of the BRPs is justified in the
circumstances. This leads ineluctably to the conclusion that the relief it seeks on this
score ought to fail.
The question of costs
[63) Section 140(3)(c)(ii) of the Act provides that during a company's business
rescue proceedings, the practitioner 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 functions of the
practitioner.
[64] On some of the grounds set out under s 139(2) of the Act, for the removal of the
BRPs, the bank invited this Court to mark its disapproval of the BRPs' alleged unlawful,
BRPs, the bank invited this Court to mark its disapproval of the BRPs' alleged unlawful,
ma/a fide, and at the very least grossly negligent conduct, by directing that they pay the
costs of both the main and the postponement application, on an attorney-and-client's
scale, from their own pockets, jointly and severally. It was argued for the bank that
awarding costs against Seacow would impose an obvious injustice on the estate and
29
the creditors. In Public Protector v South African Reserve Bank22, the Constitutional
Court observed thus:
'It does not follow that a punitive costs order will always be justified in circumstances where a
personal costs order is warranted. An order for personal costs against a person acting in a
representative capacity is in itself inherently punitive. The imposition of costs on an attorney and
client scale is an additional punitive measure. This could, as pointed out in the first judgment ,
be viewed as "double punishment ". While the test for awarding a personal costs order or costs
on a punitive scale may overlap, an independent , separate inquiry should be carried out by a
court in respect of each order. Both personal and punitive costs orders are extraordinary in
nature and should not be awarded "willy-nilly", but rather only in exceptiona l circumstances .'
(65] Costs on an attorney and client scale are awarded to mark the Court's
disapproval of the conduct of a litigant. Over the years, courts have awarded costs on
an attorney and client scale to mark their disapproval of fraudulent, dishonest or mala
fides conduct; vexatious conduct; and conduct that amounts to an abuse of the process
of court. 23 Furthermore, cost orders de bonis propriis are rarely made.24 They will be
made where a party acted in bad faith, or negligently, or unreasonably. 25 1 have already
determined that the BRPs did not act ma/a fide or negligently, nor did they display a lack
of independence. It follows that an order of costs on an attorney and client scale cie
bonis propriis would be inappropriate in the circumstances of this case.
[66] The bank achieved substantial success in the main application. There is no
reason to deprive it of its costs. As to the costs of the postponement of 12 December
2025, I am of the view that such an application was a reasonable and commensurate
response to the belated disclosures made by the respondents. Had the respondents
response to the belated disclosures made by the respondents. Had the respondents
provided the bank with the information it required at the earliest opportunity, the
postponement could have been avoided. They are to be blamed for the delay
occasioned by the postponement. An order is therefore made:
22 [2019) ZACC 29 (CC); 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113 (CC) para 220.
23 Ibid para 223; see also Plastics Convertors Association of SA on behalf of Members v National Union
of Metalworkers of SA & Others (2016) 37 ILJ 2815 (LAC) para 46.
24 Lushaba v Mee for Health, Gauteng 2015 (3) SA 616 (GJ) para 69.
25 Blou v Lampert and Chipkin, NNO, and Others 1973 (1) SA 1 (A) at 148-C.
30
Order
1. The applicant, Access Bank (South Africa) Limited, is granted leave to proceed
or commence with the application filed under case no 2025-232376, as
supplemented, in terms of section 133(1 )(b) of the Companies Act 71 of 2008, to
the extent required.
2. It is declared that the applicant is a creditor of the first respondent, Seacow
Properties Proprietary Limited (in Business Rescue), and entitled to participate
in the business rescue proceedings of the first respondent.
3. The first, second, and third respondents are to pay the costs of the application
as well as those of the postponement application of 12 December 2025, jointly
and severally, the one paying the other to be absolved, on party-and-party scale,
such costs are to include counsel's fees on scale C, as set out in rule 67 A read
with rule 69 of the Uniform Rules of this Court.
DEPUTY JUDGE PRESIDENT
NORTHERN CAPE DIVISION
Appearances
For applicant:
Instructed by:
For respondents :
Instructed by:
31
PG Louw
Edward Nathan Sonnenbergs Inc, Johannesburg
clo Duncan & Rothman , Kimberley
LK Van der Merwe
Lacante Attorneys Inc, Pretoria
c/o Van De Wall Inc, Kimberley