' I
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
In the matter between:
12/06/2026
DATE
NICOLAS JOHANNES DE WET
MARIA CATHRINA ORIANI-AMBROSINI
and
THEODOR WILHELM VAN DEN HEEVER N.O
MUHAMMAD FAIZAL SULAIMAN N.O
CASE NO: 2429/2025
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
(In their capacity as the appointed liquidators of Tinique 0031 CC Ua Standert on
Petroleum (In Liquidation))
TINIQUE 0031 CC Ua STANDERTON PETROLEUM
(In Liquidation)
THIRD RESPONDENT
ENGEN PETROLEUM LIMITED (PTY) LTD FOURTH RESPONDENT
PITER BLIGNAUT DIEDERICKS FIFTH REPONDENT
THE MAGISTRATE, STANDERTON, MR MAPHOPHE SIXTH RESPONDENT
THE MASTER OF THE HIGH COURT,
MPUMALANGA
THE COMPANIES AND INTELLECTUAL
PROPERTY COMMISSION
SEVENTH RESPONDENT
EIGHTH RESPONDENT
Delivered: This judgment was handed down electronically by circulation to the parties'
legal representatives by email. The date and lime for hand-down is deemed to be 12
June 2026.
JUDGMENT
Phahlamohlaka J
Introduction
[1] This matter was initially brought by the applicants seeking an urgent relief
against the first and second respondents, who are the joint liquidators of Tinique 0031
CC Ua Standerton Petroleum ("Tinique"), following the commencement of liquidation
and parallel business rescue proceedings.
[2] The applicants challenge the continuation of enquiry proceedings and related
actions by the liquidators, invoking the suspension of liquidation under section 131 (6)
of the Companies Act 71 of 2008 ("the Companies Act"), and raise issues regarding
the deregistration and subsequent reinstatement of Tinique.
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Summary of the Facts
[3] Tinique, part of the Winkelhaak Bafana group, was placed under final liquidation
on 2 September 2024 following an application by Engen Petroleum Ltd.
[4] The applicants, as members and creditors of Tinique, launched a business
rescue application on 4 September 2024, which remains pending.
[5] The liquidators initiated enquiry proceedings under section 415 of the
Companies Act 61 of 1973 ("the Companies Act of 1973"), issuing subpoenas for the
applicants to attend a creditors' meeting and provide information on Tinique's affairs.
The applicants objected, arguing that section 131 (6) suspends all liquidation
proceedings, including enquiries, pending the outcome of the business rescue
application.
[6] Pursuant to the applicants' failure to attend the enquiry, warrants of arrest were
issued but suspended. The applicants then sought urgent court intervention to
suspend or set aside the enquiry, subpoenas, and warrants.
[7] During the proceedings, it emerged that Tinique had been deregistered by the
Companies and Intellectual Property Commission ("CIPC") on 7 February 2025 but
was subsequently reinstated to the register.
Issues for Determination
[8] This Court is therefore called upon to determine the following issues:
8.1 Whether section 131(6) of the Companies Act suspends all liquidation
proceedings, including enquiry proceedings under sections 415 to 418 of the
Companies Act of 1973, upon the filing of a business rescue application.
8.2 The legal effect of Tinique's deregistration and subsequent reinstatement on
the authority of the liquidators and the validity of actions taken during the period of
deregistration.
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The Legal Position
[9] Section 131 (6) of the Companies Act 71 of 2008, provides that:
"If liquidation proceedings have already been commenced by or against the company
at the time an application is made in terms of subsection (1), the application will
suspend those liquidation proceedings until-
(a) the court has adjudicated upon the application; or
(b) the business rescue proceedings end, if the court makes the order applied for."
[1 OJ Enquiry proceedings under sections 415 to 418 of the Companies Act of 1973
are part of the liquidation process and are intended to investigate the affairs of the
company for the benefit of creditors.
[11] In New/ands Surgical Clinic (Ply) Lid v Peninsula Eye Clinic (Ply) L/d, 1 the
Supreme Court of Appeal per Brand JA remarked as follows:
" ... Once 'reinstatement' in s 82 (4) is construed as indicating retrospective operation,
there is no justification for construing it to mean that retrospective operation must stop
halfway, in the sense that it pertains to revestment of the company's property only. As
appears from the court a quo's judgment (para 51) it clearly held the view that its
interpretation of s 82(4) read with s 83(4) of the Act has 'the preferred result given the
choice of meanings available'. Although the preference of outcome may be debatable,
my real problem is that I do not think the wording of the section renders the meaning
preferred by the court a quo available. As I see it, the wording of the section leaves no
room for the pragmatic approach adopted by the court a quo. The only meaning
available on that wording, as I see it, is thats 82 (4) has automatically retrospective
effect, not only in revesting the company with its property but also in validating its
corporate activities during the period of its deregistration. In short, there is no textual
basis to distinguish between revesting of property and revesting the company with the
capacity to continue operating. It follows that, in my view, the arbitration proceedings
capacity to continue operating. It follows that, in my view, the arbitration proceedings
and related court proceedings during the period of deregistration, together with the
awards and orders made in those proceedings, were automatically validated by the
reinstatement of Newlands under s 82(4) ... "
1 New/ands Surgical Clinic (Ply} Ltd v Peninsula Eye Clinic (Ply) Ltd 2015 (4) SA 34 (SCA) para
29.
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Evaluation
[12] The court must therefore consider whether the enquiry proceedings in terms of
sections 415 to 418 of the Companies Act of 1973 constitute "liquidation proceedings"
for the purposes of section 131 (6).
[13] In GCC Engineering (Ply) Ltd and Others v Lawrence Maroos and O/hers,2 the
Supreme Court of Appeal remarked as follows:
"In terms of s 131 (6) of the Act, it is liquidation proceedings, not the winding-up order,
that is suspended. What is suspended is the process of continuing with the realisation
of the assets of the company in liquidation with the aim of ultimately distributing them
to the various creditors. The winding-up order is still in place; and prior to the granting
or refusal of the business rescue application, the provisional liquidators secure the
assets of the company in liquidation for the benefit of the body of creditors."
[14] GCC Engineering is clear that what is suspended is the process of continuing
with the realisation of the assets of the company in liquidation, with the aim of
ultimately distributing them to various creditors. It was agreed on behalf of the
respondents that this was not the case. In my view, the respondents could have
presented themselves to the Magistrates' Court for the inquiry, but instead they elected
to shun the proceedings.
[15] On the deregistration issue, CIPC's retrospective reinstatement of Tinique
validates the liquidators' actions during the period of deregistration. (see New/ands
Surgical Clinic (supra))
[16] In any event, the applicants' delay in raising the deregistration point weighs
against granting the relief sought. In Director of Hospital Services v Mistry, 3 the then
Appellate Division held that:
2 GCC Engineering (Pty) Ltd and Others v Maroos and Others [2018] ZASCA 178; 2019 (2) SA 379
(SCA) para 17.
3 Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 636A.
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"It is not permissible to make out new grounds for the application in the replying
affidavit."
[17] It is therefore settled that a party to the proceedings stands and falls by his
founding papers and the facts alleged therein. The applicants' introduction of new facts
in the replying affidavit should not take their case any further than what they alleged
in the founding affidavit.
[18] I am persuaded by the respondents' submission that general and special
meetings of creditors in terms of sections 415 and 416 are administrative, not
investigatory. Formal enquiries in terms of section 417 are judicial and intended to
investigate the company's affairs, but are not suspended by a business rescue
application.
(19] In my view, the application may be characterised as an abuse of process,
brought to delay or frustrate the enquiry and to avoid scrutiny.
Costs
[20] The fourth respondent seeks a punitive costs order due to the applicants'
vexatious and abusive conduct. It is an established principle of our law that the award
of costs is in the discretion of the court.
[21] The Constitutional Court in the matter of Public Protector v South African
Reserve Bank,4 stated that:
"A punitive costs order is justified where the conduct concerned is 'extraordinary' and
worthy of the court's rebuke."
[22] In view of the fact that I have already found that the applicants are abusing the
court process, I am of the view that a punitive costs order is appropriate in the
circumstances of this case.
4 Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) para 226.
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Order
[23} Having considered the papers, arguments, and applicable law, the following
order is made:
1. The application is dismissed.
2. The applicants are ordered to pay the costs of the first and second respondents
(the liquidators) and the fourth respondent (Engen Petroleum Ltd) on the attorney and
client scale, including the costs of two counsel where so employed.
Appearances
For the Appellants:
Instructed by:
KF PHAHLAMOHLAKA
JUDGE OF THE HIGH COURT,
MPUMALANGA DIVISION, MIDDELBURG
Adv JA Klapper
Cavanagh & Richards Attorneys
For the 1st and 2nd Respondent: Adv P Van der Berg
Instructed by: Van Veijeren Inc.
For the 4th Respondent: Adv S Aucamp
Instructed by: Mathopo Moshimane Malungaphuma Inc.
Date judgment reserved: 12 February 2026
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