About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
You are here:
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2026
>>
[2026] ZAGPPHC 481
|
Noteup
|
LawCite
Bahurutse Boo Manyana Traditional Community v Marico Chrome Corporation (Pty) Ltd and Others (2026-068596) [2026] ZAGPPHC 481 (28 May 2026)
Download original files
PDF format
RTF format
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case
No. 2026-068596
(1)
REPORTABLE:
YES
/
NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/
NO
(3) REVISED
DATE:
28 May
2026
SIGNATURE:.
In
the matter between:
BAHURUTSE
BOO MANYANA TRADITIONAL COMMUNITY
APPLICANT
And
MARICO
CHROME CORPORATION (PTY) LTD
FIRST
RESPONDENT
THEODORE
WILHELM VAN DEN HEEVER N.O.
(IN
HIS PURPORTED CAPACITY AS A RECEIVER OF MARICO CHROME)
SECOND
RESPONDENT
KGASHANE
CHRISTOPHER MONYELA N.O.
(IN
HIS PURPORTED CAPACITY AS A RECEIVER OF MARICO CHROME)
THIRD
RESPONDENT
OLCKERS
CHOPOLOGE KOIKANYANG N.O.
(IN
HIS PURPORTED CAPACITY AS A RECEIVER OF MARICO CHROME)
FOURTH
RESPONDENT
SAMANCOR
CHROME LIMITED
FIFTH
RESPONDENT
VEREENIGING
REFRACTORIES (PTY) LTD
SIXTH
RESPONDENT
COMPANIES
AND INTELLECTUAL PROPERTY OFFICE
SEVENTH
RESPONDENT
MASTER
OF THE HIGH COURT
EIGHTH
RESPONDENT
DIRECTOR-GENERAL:
DEPARTMENT OF MINERAL RESOURCES
NINTH
RESPONDENT
Coram:
Millar
J
Heard
on:
12
May 2026
Delivered:
28
May 2026 - This judgment was handed down electronically by
circulation to the parties' representatives by email,
by being
uploaded to the
CaseLines
system of the GD and
by release to SAFLII. The date and time for hand-down is deemed
to be 09H30 on 28 May 2026.
JUDGMENT
MILLAR J
[1]
This is an urgent application for both
declaratory and ancillary mandatory relief brought by the Bahurutse
Boo Manyana Traditional
Community (the Applicant) against the Second
to Fourth Respondents (the Receivers), who assert that they are the
Receivers of the
First Respondent, Marico Chrome Corporation (Pty)
Ltd (Marico Chrome).
[2]
The facts in this case and upon which it is
to be decided, are common cause and are not contentious. Besides the
substantive issue
upon which this case is to be decided, the
Receivers raised several challenges to the
locus
standi
of the Applicant and in
particular the deponent to the founding affidavit on the Applicant’s
behalf as well as to urgency.
[3]
The substantive issue is this –
whether the scheme of arrangement which was made an order of court,
conferred upon the Receivers
the authority to retain custody and
control and management of the affairs of Marico Chrome, in that
capacity even after they had
sought their own discharge as
provisional liquidators?
[4]
It is the case for the Applicant that the
scheme did not survive and that as soon as the Receivers sought their
discharge as provisional
liquidators, their role in any capacity
ceased. The Receivers for their part contend that the scheme of
arrangement by virtue of
its terms and having been made an order of
court conferred both rights and obligations which survived the
discharge of the provisional
liquidation order.
[5]
A useful starting point in this matter is
setting out the timeline of the relevant facts which are germaine to
the determination
of this application. These are:
[5.1]
On 10 May 2016, a provisional winding up order was granted in respect
of Marico Chrome. The Receivers
were appointed as provisional
liquidators.
[5.2]
On 9 June 2020, and pursuant to a Scheme of Arrangement (the Scheme)
between the provisional liquidators
and the creditors, an order was
sought and granted in terms of s 155 of the Company’s Act
[1]
in terms of which the Scheme was made an order of Court.
[2]
[5.3]
The order of 9 June 2020 provided that:
“
1.
The application is enrolled and heard as an urgent application and
compliance with the forms and service
provided for in the Rules of
Court is dispensed with.
2.
The Scheme of Arrangement and
Compromise ("the Arrangement") entered into by the
concurrent creditors of Marico Chrome
Corporation (Pty) Ltd
("Marico") on 28 May 2020 is approved and sanctioned in
accordance with
section 155(7)
of the
Companies Act 71 of 2008
; and
3.
The costs of this application are
treated as a cost in the winding-up of Marico.”
[5.4]
On 22 September 2023 an order was granted by this Court in the
following terms:
“
1.
The Rule that the rule nisi, granted in this matter, for the
provisional liquidation of the Respondent,
is hereby discharged and
the provisional liquidation order is set aside;
2.
That the costs of the application for liquidation, be costs in the
Scheme of Arrangement and Compromise,
which was made an order of
Court on 9
th
of June 2020.”
[5.5]
On the same day, the Receivers duly represented by Mr. van den
Heever, the Second Respondent, notified
the Master of the High Court
that
“
the Company has been
revested with its assets and that all administration costs have been
paid.”
[6]
In
circumstances where provisional liquidators and the provisional
liquidation order have been discharged, the management of the
company
(together with custody and control of its assets and its obligations)
reverts or revests in its board of directors. This
is specifically
provided for in
section 66(1)
of the Company’s Act.
[3]
In addition, the Act prescribes standards for the conduct of
directors as well as liability setting out their liability if they
fail to meet those standards.
[4]
[7]
Section 155
of the Act, applicable to the
present matter provides:
“
155(1)
This section applies to a company, irrespective of whether or not it
is financially distressed
as defined in
section 128(1)(f)
, unless it
is engaged in business rescue proceedings in terms of this Chapter.
155(2)
The board of a company, or the liquidator of such a company if it is
being
wound up, may propose an arrangement or a compromise of its
financial obligations to all of its creditors. . .
155(7)
If a proposal is adopted as contemplated in subsection (6) –
(a) the
company may apply to the court for an order approving the
proposal; and (b) the court, on an application in terms of paragraph
(a), may sanction the compromise as set out in the adopted proposal,
if it considers it just and equitable to do so . . .
155(8)(c)
[A copy of an order of the court sanctioning a compromise] is final
and binding on all of the company’s
creditors or all of the
members of the relevant class of creditors, as the case may be, as of
the date on which it is filed.”
[8]
Turning now to the Scheme in the present
matter.
The Scheme says that the Receivers
“
means the Liquidators who
undertake to act as Receivers under the Arrangement. Mr. Theodor van
den Heever will also act as Chairman
at all Meetings in connection
therewith.”
[9]
The Scheme goes on to provide that:
“
3.1.8
There are no secured creditors and the preferent creditors (being the
preferent employee
claims) have been settled and this
Arrangement
is only applicable to Concurrent Creditors
.
The Concurrent Creditors currently amount to approximately
R74 700 249,61.”
(own
emphasis).
And
“
3.1.10
The intention of the Arrangement is to provide a
mechanism to ensure the continued operation of the mine
and a
mechanism through which Creditors and subordinate creditors can be
paid dividends
whilst the Company
is in
provisional
liquidation,
as soon as
possible, as and when possible (pursuant to income being derived from
the mining operations).The Receivers (once appointed)
will
accordingly trade the mine to the benefit of Creditors post
sanctioning the scheme. In this regard, and as will be indicated
below, the Arrangement allows for the Receivers to draw up interim
and regular liquidation and distribution accounts as the Resource
is
mined and sold, in order to pay Creditors what is available at any
given point in time.”
(own
emphasis added).
And
“
3.1.11
The Receivers (once appointed)
only anticipate taking the Company out of Liquidation, in the event
that the rehabilitation liability
and subordinated loans are fully
dealt with.”
(own emphasis
added).
And
“
4.1
The proposed debt moratorium for the Company is that dividends will
be
paid to Creditors as and when the funds become available, and
there is not set date when Creditors will receive the 60 Cents in
the
Rand (and thereafter payments in accordance with the Distribution
Waterfall). The intention of the Receivers is to however
pay
Creditors at least 60 Cents in the Rand (and thereafter in accordance
with the Distribution Waterfall), over a period of time,
however long
that may take (pursuant to interim and regular liquidation and
distribution accounts being drawn up).
The
provisional liquidation order will remain in place
.”
(Own emphasis added).
[10]
The Scheme specifically provides that it
does not affect the rights of the shareholders in Marico Chrome. The
Scheme lists the shareholders
as Samancor Chrome holding 42,5%,
Vereeniging Refractories holding 42,5% and the Applicant as holding
15%. It specifically records
in para 3.7 that
“
The
Arrangement, if implemented, will not have any effect on the
shareholders and they will remain the shareholders of the Company.”
[11]
Of the concurrent creditors of
approximately R74 700 249,61 reflected in Schedule A to the
Scheme, a claim of R11 682
871,40 was included in favour of
Vereeniging Refractories, no claim in favour of Samancor Chrome and a
claim of R519 815,95
in favour of the Applicant. These were the
claims, together with the other creditors in respect of whom the
Scheme was entered
as a compromise and arrangement.
[12]
Do the terms of the Scheme contemplate a
role for the Receivers after the discharge of the provisional
liquidation order?
[13]
The
principles governing receivership and the receiver’s powers are
comprehensively described in the United Kingdom’s
Insolvency
Law.
[5]
However,
in South Africa, the terms “receiver” and “receivership”
are not explicitly defined in the Insolvency
Act nor the
Companies
Act. What
can be established from case law is that receivership is
established in terms of an agreement (compromise), and the receivers
derive
their powers from such an agreement/court order.
[6]
All their rights and duties are contained therein, and they are bound
by the terms of the compromise.
[14]
In
Ex
parte Ensor NO:
re
Cape Natal Litho
,
[7]
the court held that:
"I
have no doubt that, unless the compromise itself equips him with it,
a receiver has no authority whatsoever to permit a
claim to be lodged
late or to recognise one which is.
He
is a creature of contract
,
appointed by the compromise with the term of reference prescribed
therein, and his only powers are those which it confers on him,
either expressly or by necessary implication. The compromise, once
sanctioned, binds all concerned, including him. His sole function
is
to interpret and implement it, within its four corners. If its true
effect is to disqualify a particular creditor from its benefits
because of circumstances hitting him for which such is the stipulated
result, that is the end of the matter. (Cf Olbrich KG v Cohen
NO
1975
(4) SA 621
(W) at 624D-625C.) Nor, in my opinion, has the Court any
power to relieve the creditor from that consequence. Although this
compromise
gets its force from the Court's imprimatur, this does not
mean that its intrinsic character is any the less contractual. After
sanctioning it and thus bringing it into operation, the Court has no
greater control over it than any other sort of contract. A
default in
its performance cannot
be judicially
'condoned'. Nor at that stage at any rate, can the Court vary it. (CF
Steel v Shanta Construction (Pty) Ltd and Others
1973 (2) SA 537
(T)
at 543A.)"
(Own emphasis added).
[15]
Like
a liquidator, a receiver’s duty towards the creditors is a
position of trust,
[8]
but a
receiver does not axiomatically acquire the same powers as a
liquidator.
[9]
In fact, as
stated in
Ex
parte Kaplan and Others NNO: In re Robin Consolidated Industries
Ltd
,
[10]
“
[t]he
receiver is simply the administrative manager of the composition. His
function is to distribute properly, in terms of the
scheme, the
available funds according to its tenor.”
[16]
On 22 September 2023, the order in terms of
which Marico Chrome was placed under provisional liquidation was
discharged and on the
same day, Mr. van den Heever, a provisional
liquidator and Receiver notified the Master of the High Court that
Marico Chrome had
been revested with its assets and that all
administration costs had been paid.
[17]
A
necessary precondition to this having occurred was that the Scheme
had been implemented and all the concurrent creditors paid.
In
Scania
Finance Southern Africa (Pty) Ltd v Mathafeng Investment Holdings
(Pty) Ltd
,
[11]
the Court held:
“
The
winding up jurisdiction of this Court is a statutory remedy. It is
invoked upon proof of established grounds for liquidation.
It is not
a general investigative jurisdiction, nor a mechanism to preserve a
provisional order in the abstract while investigations
are
undertaken, absent a proper legal foundation for the continuation of
liquidation . . . Once the applicant’s
claim was
satisfied, the foundation upon which the application as brought
ceased to exist.”
[18]
The
Scheme’s existence was tied to the status
[12]
of Marico Chrome as being a company in provisional liquidation and
remaining so as provided for in para 4.1 of the Scheme.
[19]
The
scope of the receiver's function, as set out in
Ex
parte Ensor
,
[13]
is
contained in the arrangement as sanctioned by the court. The
arrangement defines “Receiver” as set out in para [8]
above.
The
concurrent creditors having been paid, the provisional liquidation
order discharged, and the Master notified Marico Chrome had
been
revested with its assets, the implementation of the Scheme in the
hands of the Receivers came to an end.
[20]
On
that day, 22 September 2023, control of Marico Chrome vested in its
directors, and the Receivers from then had no lawful authority
to
continue to act as they did. In
AMS
Marketing Holzman and Another
,
[14]
it was held:
“
When
a company is discharged from liquidation there is a complete reversal
of the position described above. The liquidator is immediately
divested of his powers and the directors are restored to their former
position. Nothing in the Act gives the liquidator power to
extend his
activities beyond the moment when the discharge takes place. Up to
that moment all activities performed and all work
done by him in the
continuation of the company's business operations will have been
performed and done by him in his capacity as
a primary organ of the
company. Such activities are the activities of the company itself.
There are no grounds upon which he may
retain any of the assets of
the company and any books, records
and documents which came
into existence must remain with the company when he vacates his
office.”
[21]
It is for the reasons I have set out above
that I intend to grant the order that I do.
[22]
There is no proper explanation before this
Court as to why the discharge of the provisional liquidation order
was not brought to
the attention of the Applicant. It is a
shareholder and the failure to do so does not reflect well on the
Receivers.
[23]
Before dealing with costs, I wish to say
something about Receivers contention that the application was not
urgent as well as the
objections to the standing of the deponent and
representation of Marico Chrome.
[24]
Regarding urgency, it was argued for the
Receivers that the application was not urgent and that there was no
reason why the Applicant
could not obtain substantial redress in due
course. I am of the view that the application is urgent because, the
Applicant has
a direct and substantial interest in Marico Chrome
being managed and operated lawfully.
[25]
The urgency arises from the fact that for
almost 3 years the discharge of Marico Chrome from provisional
liquidation was not communicated
to the Applicant – it had to
ascertain this. It does not lie in the mouth of a party that is
acting without lawful authority
in the running of a corporate entity
to contend that it should be allowed to continue to do so simply
because it has failed to
disclose the true situation over such a
protracted period.
[26]
It is not in dispute that the Applicant is
the holder of the Mining Right or that it is a shareholder in Marico
Chrome. Whether
or not the deponent to the affidavit was authorised
to depose to it or not is to my mind irrelevant to the present
proceedings.
[27]
The
deponent is a member of the Applicant and has placed facts before the
Court that are incontrovertible. Furthermore, the attempt
by the
Receivers to draw a distinction between the Applicant and the
“Traditional Council” insofar as
locus
standi
to bring an unlawful situation to the attention of the Court is
misplaced. Any party is within their rights to bring an
unlawful situation which directly affects their rights (or their
communities rights) to the attention of the Court
[15]
.
[28]
The legal position has been determined from
those incontrovertible facts which are common cause between the
parties – the
terms of the scheme, the date it was made an
order of Court, the date the provisional liquidation order was
discharged and the
failure of the Receivers to notify the Applicant.
[29]
It suffices to state that I do not regard
the
rule 7
challenge to the authority of the deponent or the
Applicant itself, as having any merit. I hold the same view with
regards to the
argument that because the Traditional Council holds
the 15% shareholding in Marico Chrome, that it is separate and
distinct from
the community that it is elected to represent and that
therefore the Applicant has no
locus
standi
. The rights of a community to
complain about an unlawful situation ought not to be thwarted by the
weaponization of the community’s
own representative structures
against it.
[30]
The Applicant argued that the Receivers
over the approximately 3-year period in question had received
approximately R68 600 000.00
in cumulative fees generated
after 22 November 2023. Considering that this amount is almost the
same amount of the concurrent creditors’
claims that were
compromised in the Scheme of Arrangement, it is not unreasonable that
the Applicants are concerned at the fact
that there is no lawful
basis upon which the Receivers have continued to conduct the affairs
of Marico Chrome.
[31]
The Applicants have a clear right to ensure
the proper governance of Marico Chrome, have been excluded from its
governance in terms
of the Act, for almost 16 years and only happened
to ascertain the true position, not having been informed by the
Receivers but
by chance. There is no alternative remedy to the
unlawful conduct of a company other than to restore lawful conduct.
The Applicant
is entitled, in my mind, to all the orders sought.
[32]
Turning now to costs, since the Applicant
has an interest in Marico Chrome, it is a matter of concern that it
was not notified when
the provisional liquidation order was
discharged. There is no allegation that the Traditional Council was
notified either. No member
of the Applicant or of the Traditional
Council appear to have been notified. This is not an oversight of
weeks or even months but
a failure of years.
[33]
I am of the view that the Receivers having
exercised the control they did over Marico Chrome for some 13 years
were aware of their
duty to keep the Applicant and their
representatives, which include the Traditional Council, properly
informed. Their failure to
do so warrants censure and hence the costs
order that I intend to make.
[34]
In the circumstances, it is ordered:
[34.1] The
forms and service provided for in the Uniform Rules of Court (Rules)
are dispensed with and the matter is
permitted to be heard as one of
urgency in terms of Rule 6(12). The Applicant’s non-compliance
with the rules is condoned.
[34.2] The
authority of the Second, Third and Fourth Respondents to act as
receivers of the First Respondent has been
terminated.
[34.3] The
order of this Court dated 9 June 2020, under case number 23881/2020
has been terminated by virtue of the
discharge of the provisional
liquidation order of the First Respondent.
[34.4] The
control and management of the First Respondent has reverted to its
lawful corporate organs subject to and
in accordance with the
provisions of the
Companies Act 71 of 2008
.
[34.5] The
Applicant and the Fifth and Sixth Respondents, as the shareholders of
the First Respondent, forthwith and
in accordance with the
shareholders agreement of July 2011, in the First Respondent, duly
nominate and procure the appointment
of their respective directors of
the First Respondent and undertake to take all reasonably necessary
steps to restore lawful corporate
governance in respect of the First
Respondent.
[34.6] The
Second, Third and Fourth Respondents, within 7 (seven) days of this
order, are to deliver to the shareholders
and directors of the First
Respondent all books, records, accounting documents, contracts,
operational information, bank records,
keys, access credentials,
statutory records, and assets of the First Respondent in their
possession or under their control.
[34.7] The
Second, Third and Fourth Respondents are interdicted and restrained
from holding themselves out as authorised
to act on behalf of the
First Respondent, save insofar as may be strictly necessary to give
effect to this order.
[34.8] The
Second, Third and Fourth Respondents will render a full written
account, within 14 (fourteen) days of this
order, of all actions
taken by them in relation to the business, assets, affairs and
finances of the First Respondent from 22 September
2023 to date.
[34.9] It is
declared that any person acting through or under the authority of the
Second, Third and Fourth Respondents
in purported continuation of the
receivership of the First Respondent after 22 September 2023 being
the discharge of the winding
up of the First Respondent, has acted
without lawful authority.
[34.10] The Seventh
Respondent, only to the extent necessary, gives effect to this order,
to correct and/or update the public
records relating to the First
Respondent to reflect the legal consequences of the relief granted by
this Court.
[34.11] The Second,
Third and Fourth Respondents will pay the costs of this application,
jointly and severally, one paying
the others to be absolved on the
scale as between attorney and client which costs are to include the
costs consequent upon the
engagement of two counsel, one of whom is
senior counsel (where so engaged) on scale C.
A MILLAR
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
HEARD ON:
12 MAY 2026
JUDGMENT DELIVERED ON:
28 MAY 2026
COUNSEL
FOR THE APPLICANT
:
ADV.
G ROME SC
ADV.
R MAKOANYANA
INSTRUCTED BY:
THOMSON WILKS INC
REFERENCE:
MR. T KGAOBOESELE
COUNSEL FOR THE
FIRST TO FOURTH
RESPONDENTS:
ADV. E THERON SC
INSTRUCTED BY:
DE VRIES INCORPORATED
REFERENCE:
MR. A BONNET
COUNSEL
FOR THE SIXTH RESPONDENT
:
ADV.
A BOOYSEN
INSTRUCTED BY:
SHEPSTONE & WYLIE
ATTORNEYS
REFERENCE:
MR.
A DONELLY
NO
APPEARANCE FOR THE FIFTH RESPONDENT.
THE
SEVENTH, EIGHTH AND NINTH RESPONDENTS FILED NOTICES TO ABIDE THE
DECISION OF THE COURT.
[1]
71
of 2008.
[2]
The
order was granted under case no 23881/2020.
[3]
The
section provides “
(1)
The business and affairs of a company must be managed by or under
the direction of its board, which has the authority to exercise
all
of the powers and perform any of the functions of the company,
except to the extent that this Act or the company’s
Memorandum
of Incorporation provides otherwise.”
[4]
See
ss 76
and
77
respectively.
[5]
Fletcher
The law of Insolvency 2 ed (Sweet and Maxwell Limited, London 1996)
at chapter 14.
[6]
Airlink
Proprietary Limited v South African Airways SOC Limited
[2023] ZAGPJHC 832 at para 6;
Nu
harvest (Pty) Ltd v Mcquarrie NO
[2025] ZAGPJHC 790 at paras [32] and [41] the court (despite the
different context of the appointment of the receiver) remarked
that
the nature of the receiver’s appointment is akin to that of a
curator. Also see:
Bekker
NO v Nel NO
1999 JDR 0039 (T) at paras 11 and 13 and
Ex
parte Kaplan and Others NNO: In re: Robin Consolidated Industries
Ltd
1987 (3) SA 413
(W) at 432.
[7]
(3)
SA 908 (D) at 911A-D. Also see:
Morris
NO v Airomatic (Pty) Ltd t/a Barlows Airconditioning Co
1990
(4) SA 376 (A).
[8]
Ex
Parte Reynolds and Another NNO in re: Waterhouse Group (Pty) Ltd
[1997]
JOL 480
(W) at 4.
[9]
Morar
NO v Akoo and Another
2011
(6) SA 311
(SCA) at para 22-23 and
Morris
NO v Airomatic (Pty) Ltd t/a Barlows Airconditioning Co
1990 (4) SA 376
(A) at 401F – G and
Ex
parte Kaplan and Others NNO: In re Robin Consolidated Industries Ltd
1987 (3) SA 413
(W) at 432B-E and
Gunn
and Another, NNO v Victory Upholsterers (Pty) Ltd
1976
(1) SA 127
(D) at 135B-D.
[10]
1987
(3) SA 413
(W) at 432B-E.
[11]
(65023/2020)
[2026] ZAGPPHC 227 at paras [77]-[82].
[12]
Nel
NO and Others v Master of the High Court and Others
2002 (3) SA 354
(SCA) at para [6].
[13]
1978
(3) SA 908
(D) at 911A-D. Also see:
Morris
NO v Airomatic (Pty) Ltd t/a Barlows Airconditioning Co
1990 (4) SA 376
(A).
[14]
1983
(3) SA 263
(W) at 269H-270C. Cited with approval by the Supreme
Court of Appeal in
Moodliar
and Others v Recycling and Economic Development Initiative of South
Africa NPC and Others
2020 (6) SA 386
(SCA) at para 28. See also
Ganes
and Another v Telecom Namibia Ltd
2004 (3) SA 615 (SCA).
[15]
Mangope
and Another v Mangope and Another
(1814/2024)
[2024] ZANWHC 126
(14 May 2024) and
Bahurutshe
Boo Manyana Traditional Community and Another v MNTK Enterprise
(Pty) Ltd
and
Others
(2025–178337) [2025] ZAGPPHC 1217 (19 November 2025).