1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No: 83176/2026
1. REPORTABLE: YES
2. OF INTEREST TO OTHER JUDGES: YES
3. REVISED: NO
In the matter between:
BUSHVELD VAMETCO HOLDINGS (PTY) LTD
(in business rescue)
First Applicant
BUSHVELD VAMETCO ALLOYS (PTY) LTD
(in business rescue)
Second Applicant
PIERS MARSDEN N.O. Third Applicant
JENNA LEE OSBORNE N.O. Fourth Applicant
and
SPR VANCHEM (PTY) LTD
(in business rescue)
First Respondent
PHAHLANI MKHOMBO N.O. Second Respondent
MOSES SINGO N.O. Third Respondent
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COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION
Fourth Respondent
ALL AFFECTED PERSONS OF SPR VANCHEM (PTY)
LTD (in business rescue)
Fifth Respondent
JUDGMENT
This judgment was handed down electronically by circulation to the parties’ legal
representatives by e-mail and uploading it onto the electronic platform. The date and
time of hand-down is deemed to be 10h00 on Thursday 7 May 2026.
COOKE AJ:
1. The first and second applicants (“ Vametco”) are represented by their appointed
business rescue practitioners – the third and fourth applicants (“ Vametco’s
BRPs”). The first respondent (“Vanchem”) was placed into business rescue by
resolution of its board in December 2025, and is represented in these
proceedings by its business rescue practitioners – the second and third
respondents (“Vanchem’s BRPs”).
2. Vametco contends that it is a creditor of Vanchem, on its version owed more than
R 165 million. Vametco submitted a claim in this amount, which was rejected by
Vanchem’s BRPs. Vametco contends that the rejection by Vanchem’s BRPs is
an unlawful infringement of its rights as a creditor of Vanchem. As a result,
Vametco seeks that, pending the final determination of an application to
determine its claim, Vanchem’s BRPs are interdicted from:
2.1. convening and presiding over the meeting convened in terms of section
151 of the 2008 Act (“the s 151 Meeting”); and
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2.2. permitting any vote in the business rescue of Vanchem, including
pursuant to section 151.
3. Vanchem’s BRPs have given notice of their intention to publish a business rescue
plan on 8 May 2026 (“ the Plan”). A draft has not been circulated and, save for
Vanchem’s BRPs reference to a dispute resolution mechanism that will be
included in the Plan, its proposed terms are not known and have not been
disclosed in these proceedings.
4. Vametco asserts that:
4.1. the matter is urgent as a result of the impending publication of the Plan.
The premise of that assertion is that section 151(1) of the 2008 Act
obliges Vanchem’s BRPs to convene the s 151 Meeting within 10 days
of the Plan being published, although section 151(2) permits the s 151
Meeting to be convened on 5 days’ notice. The result, given the intended
publication date of 8 May 2026, is that the s 151 Meeting will occur on
any day between 15 and 22 May 2026; and
4.2. the fact of the Plan not yet having been published does not detract from
the urgency of the matter because the right that it seeks to protect is the
ability to have its vote counted at the s 151 Meeting.
5. That being the nature of the right contended for, it is evident that the time periods
imposed in Chapter 6 of the Companies Act 71 of 2008 (“the 2008 Act”) are such
that an approach to the urgent court is not only justified but necessary . In the
exercise of my discretion, I accordingly enrol the matter as urgent.
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6. Before I consider whether the requirements for the interdict sought have been
met by Vametco, I outline the relevant parts of the litigation in Volkar NO and
Others v Big Sky Trading1 and its appeal to the full court.2
7. Volkar concerned the reconsideration of a rule nisi that had been sought and
obtained ex parte by the Volkars3 as creditors of Big Sky (a company in business
rescue). The proposed business rescue plan had been published , and t he
Volkars complained that their multimillion Rand claims had been respectively
diminished and effectively reduced to zero, such that their voting interests were
materially diluted as a result. The rule nisi interdicted the section 151 meeting
from being convened, and a vote taken thereat, until the value of the Volkar’s
claims and voting interest had been determined.
8. On the return day, Pietersen AJ reconsidered and discharged the rule on the
basis that no case for an interdict had been made out. Pietersen AJ’s primary
reason for doing so was because the Volkars had an alternate remedy under the
proposed plan. The relevant findings in that regard were:
[44] The respondents submitted that the business rescue plan provides for an
adequate remedy in the event of the business rescue practitioner's decision to
reject a claim. The respondents relied on the following paragraph under clause
4.1.6.9 of the plan:
'The business rescue practitioner's decision to reject a claim shall be
subject to review by the High Court of South Africa upon the
application of any party affected thereby, provided that any such
review proceedings shall be brought within 90 (ninety) days of
receipt of advice of that decision in writing from the business
1 (in business rescue) and Another 2025 (3) SA 667 (KZP)
2 Appeal case number: AR484/24
3 The Volkars were the trustees of a trust and, together with the third applicant a quo and third appellant before
the full court, they contended that their claims had been incorrectly reflected. For convenience’s sake I refer to
them collectively as “the Volkars”
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rescue practitioner, acting in that capacity. Should the affected party
fail to make such an application, they shall be deemed to have waived
their right to dispute such decision and shall thereafter be debarred
from bringing such review proceedings.'
[45] In the circumstances the applicants would have been entitled to review the
business practitioner's decision not to recognise their claims. On the papers
before me, no reason was advanced why this does not constitute an adequate
alternative remedy.
[46] In addition, the aforesaid alternative remedy clearly provides for an instance
where claims are rejected by the business rescue practitioner and allows an
aggrieved creditor to exercise its rights in court. The alternative remedy
therefore satisfies the requirements in Hotz.
[47] Furthermore, even if the business rescue plan did not contain adequate remedies
in the event of a rejection of a creditor's claim by the business rescue
practitioner, the Act itself provides for remedies to be exercised by aggrieved
affected persons. The applicants approached the matter from the premise that
the vote in respect of their claims will go against them as other creditors are
expected to act in their own interests. That may be so, but the anticipated
outcome of the meeting cannot serve as a justification for its indefinite
postponement pending finalisation of litigation pertaining to the Trust's claims.
The applicants ought to have exercised their rights in terms of s 152(1)(d) of the
Act by attending the meeting and bringing a motion to amend the proposed plan
in order to provide for the full extent of their claims. Alternatively, the applicants
could have brought a motion to direct the business rescue practitioner to
adjourn the meeting in order to revise the plan for further consideration in terms
of s 152(1)(d)(ii). The applicants failed to exercise these remedies.
[48] If the meeting proceeded and the business rescue plan was adopted, the
[48] If the meeting proceeded and the business rescue plan was adopted, the
applicants could further have applied under s 130(1)(a)(ii) to apply to set aside
the resolution to commence business rescue on the basis that there is no
reasonable prospect of rescuing the company, as the plan was not validly
adopted in circumstances where the plan was approved on the strength of
affected persons exercising a voting interest which they did not have.
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[49] In Airports Co v Spain NO Chetty J also made reference to this remedy:
'Whatever the applicant's concerns are in relation to the validity of
the plan adopted on 23 July 2018 or the procedure which preceded
its adoption, the plan was never challenged or set aside by a court.
On that basis, I must assume that the plan adopted was in
accordance with the Act and is therefore binding on all parties until
set aside.'
[50] I am, therefore, satisfied that a number of alternative remedies were at the
disposal of the applicants. The applicants have, therefore, failed to satisfy the
requirements for interim relief, and the rule nisi thus stands to be discharged.
9. On appeal, the full court found that the Volkars were clearly creditors of Big Sky
as their claims were reflected in Big Sky’s management accounts. It held that the
reduction of what is evidently a significant claim to zero divests the creditor of
standing at the section 151 meeting and so they are not permitted to propose
any of the measures provided for in section 152 of the 2008 Act. In overturning
the decision of Pietersen AJ, and confirming the interdict, the full court opined:
[65] To suggest that the interim interdict ought to have been refused on the basis that
the third appellant ought to have attended the meeting convened in terms of s 151 of
the Act, and exercise its non-existent rights as an affected person, is simply
nonsensical. Attending the meeting or instituting proceedings for the review of the
second respondent's decisions, does not provide the third appellant with a coercive
mechanism to preserve the status quo. Only an interdict could have that effect.
10. Vametco relies heavily on the decision of the full court in Volkar and has
fashioned the relief that it seeks in this application according to the relief sought,
and ultimately granted by the full court.
11. During the course of argument I was informed that the decision of the full court
11. During the course of argument I was informed that the decision of the full court
is currently awaiting a hearing on appeal before the Supreme Court of Appeal.
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The nature of Vametco’s asserted right
12. In paragraph 59 of the founding affidavit Vametco stated:
Such harm cannot be adequately cured by relief in due course. A later challenge would
be after the fact, after the meeting has been held, after votes have been cast and a
decision to adopt the plan potentially made, and after the statutory process has
already been driven forward on a potentially incorrect footing, with highly prejudicial
consequences for Vametco
13. Any ‘highly prejudicial consequence’ could only arise if the provisions of the Plan
gave rise to prejudicial, or potentially prejudicial consequence for Vametco.
Necessarily, that cannot be established or even considered until the Plan is
published. Careful to understand the precise nature of the right that Vametco
contended for in these proceedings, I put that difficulty to Mr Franklin who
confirmed that what Vametco seeks to protect in this application is the right to
vote at the s 151 Meeting,
4 and necessarily the extent of its voting interest.
14. Having confined the asserted right for purposes of these proceedings, the
consequent rights that a proved creditor might enjoy in the business rescue are
not relevant to this application. Indeed, they may well be obtained in due course
by following the dispute mechanism in the Plan.
5 An assertion of rights that may
or may not arise, and similarly may or may not be harmed, pursuant to the vote
and adoption of the Plan would non-suit Vametco for two reasons:
4 There was some suggestion in reply that Vametco sought to exercise its rights under section 152(1)(d) of the Act
and either propose an amendment to the Plan or direct Vanchem’s BRPs to revise it. However, in circumstances
such as these where the Plan has not been published, Vametco cannot know whether it wishes to exercise either
right and so the application would be premature in the circumstances
5 It is fundamental that in both the body of their affidavit and in correspondence between the parties, Vanchem’s
BRPs have alluded to Vametco’s ability to employ the dispute resolution mechanisms ordinarily incorporated
into the plan. The foreshadowed inclusion of a mechanism by which Vametco could establish its claim in due
course means that the refusal to admit Vametco’s claim by Vanchem’s BRPs at this juncture is not the death knell
of a claim by Vametco in due course.
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14.1. first, the matter could not be urgent until the Plan is published and the
potential infringement of rights assessed; and
14.2. secondly, a dispute mechanism in the Plan would likely afford Vametco
an alternate mechanism to assert those rights (i.e. other than the right to
vote at the s 151 Meeting).6
15. Vametco’s asserted claim arises from clause 3.1.3 of the Fourth Amendment and
Undertakings Letter dated 8 August 2024 read with the Amendment and
Restatement Deed - Production Financing Agreement dated 28 June 2024
(together “the Contract”). For present purposes
7 it suffices to recite the content
of clause 1.5.12 which defines Historic Net Trading Account Balance as:
The net aggregate amount owing by the Vanchem Entities to all of the Vametco
Entities8 in relation to the trading account(s) of the Vametco Entities which, as at 30
April 2024, consisted of:
- a net amount of R93,271,737 (the Current Historical TAB); plus
- a net amount of R71,896,964 (the Long-Term Historical TAB),
totalling R165,168,701
16. The Contract is not in dispute between the parties and, on its face, clause 1.5.12
records a debt owed by Vanchem to Vametco. Vanchem’s BRPs do not contend
that the amounts were paid or, in absolute terms, that they are not due. Instead,
they point to the reference in clause 3.1.3 of the Contract to the Vanchem PFA
6 Ibid
7 The computation in clause 3.1.3 might give rise to additional or different obligations than those recorded as the
Historic Net Trading Account Balance. It was not clear from the papers whether this is so or whether the amount
of R165,168,701 accrued in terms of clause 3.1.3, however the components of the Historic Net Trading Account
Balance are both expressly referred to in clause 3.1.3. In any event, that certainly was the basis on which the
matter was argued before me
8 The “Vametco Entities” are defined as the subsidiaries of “BVL”. Although not immediately evident from the
contract, the founding affidavit indicates that BVL is Vametco Guernsey and that the first and second applicant
are subsidiaries of it. The contrary was not contended for and so I accept that this is so
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Obligations, and assert the potential for them to constitute either a subordination
or a contingency to payment by Vanchem.
17. Mr Rood, who appeared for Vanchem, did not contend for a subordination for
reason other than clause 3.1.3 of the Contract and so, in its particular terms, it is
not a true subordination with the consequence that Vametco’s claim under the
Contract is not provable until the claims in favour of which it is subordinated are
extinguished.
9 Accordingly, even if payment of the Historic Net Trading Account
Balance is dependent upon satisfaction of the Vanchem PFA Obligations, it would
not, and does not, extinguish the Vametco’s apparent claim.10
18. Moreover, Vametco has made numerous requests of Vanchem’s BRPs to identify
precisely which of the Vanchem PFA Obligations exist, and that have not been
satisfied. No extant obligation has been identified or communicated to Vametco.
In argument, Mr Rood submitted that Vanchem’s BRPs are still investigating
Vanchem’s affairs and so the potential for the discovery of Vanchem PFA
Obligations remains a possibility. While I agree that further investigation may
unearth Vanchem PFA Obligations, I am of the view that this is irrelevant to the
present enquiry because, even if a Vanchem PFA Obligation does exist and so
defers payment, it would not preclude a claim by Vametco, or otherwise negate
its existence.
19. Accordingly, I accept that Vametco has established, at least prima facie, an
assertable claim against Vanchem. However, that conclusion is not the end of
9 See Ex parte De Villiers and Another NNO: In re Carbon Developments (Pty) Ltd (In Liquidation), 1993 (1) SA
493 (A), albeit in the context of a winding-up and not business rescue
10 It was not contended that Vametco was a conditional creditor, see Brand v Morgan Creek Boerdery (Pty) Ltd
and Others 2026 (3) SA 171 (WCC)
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the determination of Vametco’s asserted right in these proceedings, as the
parties are at odds regarding the consequence of a potential claim. The letter
from Vametco’s attorneys dated 31 March 2026 records:
Furthermore, section 145 provides that a creditor has a voting interest equal to the
value of the amount owed to it. In other words, the only enquiry is whether Vametco
is a "creditor" (which your clients cannot lawfully dispute). Once that is established,
which it has been, the Companies Act expressly provides that our client "has" a voting
interest equal to the value of its claim". It follows that Vametco, as a creditor,
automatically has a voting interest to the value of the amount it is owed,
notwithstanding that such amount may not yet be due and payable.
20. By contrast, the inference from correspondence sent by Vanchem’s attorneys is
that a voting interest arises only once a claim is accepted. The occurrence of a
voting interest thus requires a consideration of the provisions of the 2008 Act.
21. The apparent lack of clarity and resultant confusion in the 2008 Act is the subject
of considerable judicial lament.
11 Notably, in Panamo12 Wallis JA found:
'Business rescue proceedings under the Companies Act 71 of 2008 (the Act) are
intended to "provide for the efficient rescue and recovery of financially distressed
companies, in a manner that balances the rights and interests of all relevant
stakeholders". They contemplate the temporary supervision of the company and its
business by a business rescue practitioner. During business rescue there is a
temporary moratorium on the rights of claimants against the company and its affairs
are restructured through the development of a business rescue plan aimed at it
continuing in operation on a solvent basis or, if that is unattainable, leading to a better
result for the company's creditors and shareholders than would otherwise be the case.
These commendable goals are unfortunately being hampered because the statutory
These commendable goals are unfortunately being hampered because the statutory
provisions governing business rescue are not always clearly drafted. Consequently,
they have given rise to confusion as to their meaning and provided ample scope for
litigious parties to exploit inconsistencies and advance technical arguments aimed at
11. See Diener NO v Minister of Justice and Correctional Services and Others 2019 (4) SA 374 (CC); Southern
Sky Hotel and Leisure (Pty) Ltd t/a Hans Merensky Hotel and Spa (In Liq) and Others v Southern Sky Food
Enterprises (Pty) Ltd 2023 (4) SA 99 (SCA)
12 Panamo Properties (Pty) Ltd and Another v Nel NO and Others NNO 2015 (5) SA 63 (SCA)
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stultifying the business rescue process or securing advantages not contemplated by its
broad purpose. This is such a case.'
22. While I do not impute any of the untoward conduct apparent in Panamo to either
of the parties here, the confusion in the 2008 Act often leads to the broad
purposes of business rescue being stultified even in the bona fide and legitimate
exercise of perceived rights. This is such a case for the reasons that follow.
23. The persons permitted to attend the s 151 Meeting are expressly defined in
section 151 of the Act:
151 Meeting to determine future of company
(1) Within 10 business days after publishing a business rescue plan in terms of
section 150, the practitioner must convene and preside over a meeting of
creditors and any other holders of a voting interest, called for the purpose
of considering the plan.
24. At that meeting, the following persons are permitted to participate in terms of
section 145(2):
145 Participation by creditors
…
(2) In addition to the rights set out in subsection (1), each creditor has-
(a) the right to vote to amend, approve or reject a proposed business rescue
plan, in the manner contemplated in section 152;
25. A proposed plan will be accepted where it meets the requirement of section
152(2):
152 Consideration of business rescue plan
(1) …
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(2) In a vote called in terms of subsection (1) (e), the proposed business rescue
plan will be approved on a preliminary basis if-
(a) it was supported by the holders of more than 75% of the creditors' voting
interests that were voted; and
(b) the votes in support of the proposed plan included at least 50% of the
independent creditors' voting interests, if any, that were voted.
26. A ‘voting interest’ is defined as:
an interest as recognised, appraised and valued in terms of section 145 (4) to (6).
27. Leaving aside subsections (4)(b) to (6) – which concern the appraisal and
valuation of subordinated claims and creditors’ independence – a creditor’s
voting interest is determined in accordance with section 145(4)(a), which
provides:
(4) In respect of any decision contemplated in this Chapter that requires the
support of the holders of creditors' voting interests-
(a) a secured or unsecured creditor has a voting interest equal to the value
of the amount owed to that creditor by the company…
28. On a plain reading, these provisions envisage that:
28.1. the meeting may be attended by both creditors and holders of a voting
interest (section 151);
28.2. every creditor has the right to approve, reject or propose amendments
to a plan (section 145(2));
28.3. only the votes of creditors’ voting interests are to be reckoned in
determining a vote to adopt a proposed plan (section 152(2)(a)); and
28.4. a secured or unsecured creditor’s voting interest is equal to the value
of the amount owed to that creditor by the company (section 145(4)(a)).
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29. These provisions of the 2008 Act give rise to, at least, these paradoxes:
29.1. a creditor has an apparent automatic right to vote at the section 151
meeting, but their vote is meaningless unless they have a voting interest;
29.2. a voting interest is equal to the value of the amount owed to the creditor,
but it is not a voting interest (as defined) until it is ‘recognised’.
30. While a business rescue practitioner is permitted by section 147(1)(a)(ii) to
“receive proof of claims by creditors”, the 2008 Act is silent on who must
determine them or how. There is neither a process nor procedure for claims to
be proved or determined, as there is under section 366 of the Companies Act 61
of 1973, or section 44 of the Insolvency Act 24 of 1936 (“the Insolvency Act”).
31. What then, as in this case, if a ‘creditor’ asserts a claim and a consequent right
to vote in an amount equal to its asserted claim – as they are expressly permitted
to do under sections 145(2) and (4)(a) – but the business rescue practitioner
refuses to ‘recognise’ that claim as giving rise to a ‘voting interest’?
32. In practice, and drawing from the procedure of handling claims in a winding-up,
it is generally accepted that while a meeting in terms of section 151 may be
attended by creditors with disputed claims, only creditors whose claims have
been admitted by the business rescue practitioner may vote under section 152.
This inferred position has been necessary due to the absence of a provision in
the 2008 Act akin to that in section 52 of the Insolvency Act:
52 Voting at meeting of creditors
(1) Save as in this section and in section forty-eight is otherwise provided, every
creditor of an insolvent estate shall be entitled to vote at any meeting of the
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creditors of that estate as soon as his claim against the estate has been
proved.
33. The confusion, circular provisions and notable omissions aside, the evident
legislative intention is that an early step in the rescue of a company is to empower
the appointed business rescue practitioner to ascertain creditors’ claims on a
preliminary basis. In this position of power, a business rescue practitioner is
bound by the duties imposed under the 2008 Act to act faithfully and, when
conducting the initial investigation, recognise amounts owed by the company and
confer a voting interest on the holders of legitimate claims.
34. In a perfect world, every legitimate creditor’s interest would be accurately
recognised in anticipation of a meeting to approve a proposed business rescue
plan. In that event, the process of business rescue would be driven by the
collective majority wishes of legitimate creditors – as it certainly should be.
However, the necessity for an initial assessment of submitted claims is apparent,
and was captured eloquently by Wilson J in Wescoal:
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If just any creditor could vote an interest at a s 152 meeting … there would be little to
stop speculators or asset strippers preying on business rescue proceedings, blocking
the adoption of appropriate business rescue plans, and forcing liquidations where
they could be avoided.
35. While the circumstances in Wescoal were different, the protective end of a
business rescue practitioner making a preliminary determination is infallible.
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The solution is not a perfect one, particularly in a case such as this where no
13 Wescoal Mining (Pty) Ltd and Another v Mkhombo NO and Others 2024 (2) SA 563 (GJ) at para 22
14 The decision of the High Court in Wescoal was overturned on appeal for reasons unrelated to the validity of the
portion of the judgment quoted. See Mashwayi Projects (Pty) Ltd and Others v Wescoal Mining (Pty) Ltd and
Others 2025 (3) SA 441 (SCA). The SCA’s decision is on appeal to the Constitutional Court. The matter has been
argued and judgment is awaiting
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ulterior motive or improper purpose can be attributed to Vametco or the claim it
asserts.
36. Wittingly or otherwise, the legislature seemingly envisaged and accepted that a
proposed business rescue plan might be voted in under section 152 of the 2008
Act, to the exclusion of the vote of certain creditors who may have legitimate
claims. This is evident as section 150(2)( a)(ii) of the 2008 Act mandates that a
business rescue plan contain, inter alia:
a complete list of the creditors of the company when the business rescue proceedings
began, as well as an indication as to which creditors would qualify as secured,
statutory preferent and concurrent in terms of the laws of insolvency, and an
indication of which of the creditors have proved their claims;
37. The insistence that a proposed business rescue plan include ‘a complete list of
creditors’, with an acknowledged delineation between the claims that are proved
and those that are not, cannot be construed as anything but an
acknowledgement that the circumstance that has eventuated in this case may
well arise.
38. It follows that the establishment of a right is contingent not upon a creditor ’s
assertion of a claim, but on recognition of that claim by the business rescue
practitioner after receiving proof of it . Owing to concerns held by Vamtech’s
BRPs, Vametco’s claim was rejected. As matters stand, Vametco has no voting
interest, and in turn its assertion of that right for purposes of an interdict is thus
not without difficulty.
39. Because the 2008 Act does not provide a workable means to navigate the
determination of rejected claims, and in the apparent appreciation that the claim
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asserted by Vametco is not entirely frivolous, Vamtech’s BRPs proposed a
mechanism for the claim to be determined, and in turn Vametco’s voting interest
to be established. The existence of a voting interest informs the strength of the
right asserted by Vametco in these proceedings.
Irreparable harm
40. The right that Vametco seeks to protect is inextricably linked to the s 151 Meeting.
Once the s 151 Meeting is convened and voting occurs at it, the right contended
for by Vametco is lost and irreparable harm to that right (i.e. the right to vote) is
inevitable. However, the harm that may result to Vametco depends entirely on it
establishing the right for which it contends. That is, if Vametco has a voting
interest, it will be harmed irreparably by a vote that does not consider it’s view.
As a corollary, if Vametco has no voting interest, it has no right and a vote to its
exclusion does not give rise to any harm to Vametco.
41. While the latter statement is likely true of the relationship between the right and
irreparable harm aspects of an interdict in any case, it has particular
consequences in circumstances where an alternate resolution mechanism is
proposed to determine a claim that Vamtech’s BRPs contend is tenuous, and in
consequence whether the right contended for exists at all.
Alternate remedy
42. The full court in Volkar found that the neither the prospect of review nor a
challenge to the approved business rescue plan after the section 151 meeting is
an adequate remedy to a creditor that seeks to vote, but who could not as its
claim was rejected. The legal validity of that conclusion is one that will be settled
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by the Supreme Court of Appeal. I need not express a view in that regard, as this
matter can be determined on its facts – which differ in the following material
respects from the facts in Volkar’s case. In Volkar:
42.1. the proposed plan had been published and its content was known;
42.2. the alternative remedy was contained in the proposed plan; and
42.3. there was not an offer by the business rescue practitioners to have the
claim determined prior to creditors voting on the proposed plan.
43. On 14 April 2026, Vanchem’s BRPs proposed a fast-track arbitration procedure
that envisaged a determination of Vametco’s claim by a retired judge within a six
week timeframe. Upon acceptance of the proposal, Vanchem’s BRPs would
approach creditors for approval to delay the s 151 Meeting until Vametco’s claim
had been determined. Importantly, the proposal by Vanchem contained this
caveat:
Should creditors not agree to any extension, your clients remain free to re-enrol the
application and advance whatever case they may be advised to make at that stage,
pending the outcome of the arbitration process.
44. Vametco refused the proposal on the basis that it had no confidence that
Vanchem’s creditors would agree to a suspension of the s 151 Meeting and that
its position would be left at risk as a result.
45. The blunt refusal is peculiar as Vametco’s case for an interdict would likely be
strengthened once the dispute resolution process was agreed with Vanchem’s
BRPs, and a finite delay of six weeks made known to creditors and post
commencement financiers.
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46. It was precipitous for Vametco to reject the proposal outright, and certainly so
before Vanchem’s BRPs had had canvassed the wishes of creditors and
obtained a response either way. Even where no timely response was forthcoming
from creditors, an urgent approach to court on a much narrower basis could have
been factored into the timeline. As Vanchem’s BRPs had proposed the expedited
arbitration, their opposition to an interdict aimed at facilitating it would be beset
with difficulty, and they may even have supported Vametco’s application for a
temporary interdict, or certainly advised proved creditors not to oppose it.
47. While Vametco urged me to adopt the conclusion drawn by the full bench in
Volkar, even if I did, the facts of this case are such that a suitable alternate
remedy is available to Vametco in any event. Even if that remedy required some
finessing, it is one that Vametco ought to pursue.
The balance of convenience
48. At their core, the interests that must be weighed and balanced in this matter are:
48.1. on the one hand, the need and desire for business rescue to be driven
by the true body of creditors whose wishes inform the process at every
stage; and
48.2. on the other, for the process to be efficiently implemented at the hand of
the appointed business rescue practitioner(s) whose expertise guides
the process in a manner most likely to result in the company being
rescued.
49. Given the evident and stated focus of the 2008 Act on business rescue
proceedings being implemented expeditiously, a delay of untold duration is
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inimical to the scheme of business rescue as a whole, and has been accepted
as adverse to the interests of creditors, affected persons, the company itself.15 If
frivolous claims could be easily identified, they would be immediately rejected
and the process of business rescue would proceed on the strength of the wishes
of legitimate creditors. In practice this is not so easy and claims may be dressed
in a manner that lends them some degree of credence, if only on the surface.
The difficulty lies in distinguishing between the two, as business rescue should
not be, and should not be permitted to be, halted on the mere say-so of any
asserted creditor, lest undue interference or delay undermine the process
entirely.
50. Conversely, approval of a business rescue plan may have far-reaching
consequences. It is often of particular concern that the content of an approved
plan will bind creditors who were perhaps unduly excluded from exercising their
voting interest against it.
16
51. In an effort to balance these competing interests, Vamtech’s BRPs suggested an
expedited private arbitration to determine Vametco’s claim and, in turn, establish
the existence or extent of its voting interest. Had Vametco embarked upon this
process when it was first suggested, it would be at an advanced stage by the
time the s 151 Meeting was due to take place. A proposal to creditors that the s
15 See Koen v Wedgewood Village Golf and Country Estate (Pty) Ltd 2012 (2) SA 378 (WCC) at para 10; AG
Petzetakis International Holdings Ltd v Petzetakis Africa (Pty) Ltd and Others (Marley Pipe Systems (Pty) Ltd
and Another Intervening) 2012 (5) SA 515 (GSJ) para 25; Booysen v Jonkheer Boerewynmakery (Pty) Ltd and
Another 2017 (4) SA 51 (WCC), paras 47 to 50; Mhlonipheni v Mezepoli Melrose Arch (Pty) Ltd 2020 JDR 1033
(GJ)
16 While this is a general concern often raised, it is not so in this matter for two reasons: first, because of the
express limitation of the issues and the right asserted by Vametco, and secondly, because the Plan has not yet been
published the infringement or potential infringement of any right cannot be established or even considered
20
151 Meeting be held in abeyance for whatever short period remained of the
expedited arbitration process would cause little threat to the business rescue.
52. The very purpose of the proposed arbitration process was to determine what
Vamtech’s BRPs consider a tenuous claim, and so rejected. This matter is unlike
Volkar’s case where the claim was clear and had been captured in management
accounts. Nor do cogent grounds exist to question the motives of Vamtech’s
BRPs in rejecting Vametco’s claim, as there were in Volkar. Indeed, the
suggestion by Vamtech’s BRPs that Vametco’s claim be finally determined on an
expedited basis evidences their bona fides and willingness to have the claim
determined expeditiously.
53. Because Vametco sought an interdict pending litigation to be instituted in the
ordinary course, the delay to the process of business rescue would be both
unknown and certainly in excess of six weeks. In circumstances where an
alternate mechanism was proposed to determine a contested claim in a manner
not meaningfully different from that envisaged by Vametco, just on compressed
timelines, the balance must weigh against the business rescue process being
entirely halted for an untold duration in the interests of a single asserted creditor
whose right is uncertain and who had an alternate remedy available to it.
Conclusion
54. In the circumstances, there is no reason to interdict the publication of the Plan.
Similarly, and particularly while Vanchem's BRPs are obtaining the instruction of
creditors in respect of an extension for the period to convene the s 151 Meeting,
it is undesirable to impose an interdict of unknown duration on that meeting.
21
55. I do not exclude the possibility of a further urgent application being necessary if
Vanchem's creditors do not agree to an extension for the date of the s 151
Meeting. However, once the expedited arbitration proposed by Vanchem's BRP's
is in place, a finite timeline more readily ascertainable, and the terms of the Plan
known, a court will be in a significantly improved position to balance the
competing interests in the knowledge that the strength of Vamecto's right will be
finally determined by a known date.
56. While it is not desirable for anyone to be forced to approach an urgent court on
extremely truncated timelines, or for a court to be called to make a near
immediate order, in the circumstances there is little else to be done. This
unfortunate position arises not just from Vametco’s rejection of the truncated
dispute mechanism proposed by Vanchem's BRPs, but also due to the extremely
short periods stipulated in the 2008 Act without properly catering for instances of
legitimate dispute.
57. The goal of rescuing ailing companies in a mere matter of months was and
remains undoubtably laudable. However, lived experience over the past fifteen
years has proven it unachievable. With that experience in mind, it may well be
time for the legislature to reconsider the haste with which the 2008 Act expects
the process of business rescue to be implemented and completed, and factor
reality into that expectation.
I make the following order:
1. The application is dismissed;
22
2. The applicants are to pay the costs of the first, second and third
respondents on scale C of Uniform Rule 67, including the costs of two
counsel.
____
M J COOKE
ACTING JUDGE OF THE HIGH COURT
GAUTENG, JOHANNESBURG
DATE OF HEARING 22 April 2026
DATE OF JUDGMENT 7 May 2026
APPLICANTS’ COUNSEL A E Franklin SC
C T Vetter
APPLICANTS’ ATTORNEYS Bowman Gilfillan Inc
FIRST, SECOND & THIRD
RESPONDENTS’ COUNSEL
P T Rood SC
A Vorster
FIRST, SECOND & THIRD
RESPONDENTS’ ATTORNEYS
Cox Yeats