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[2026] ZAGPPHC 948
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Bahurutshe Boo Manyana Traditional Community v Marico Chrome Corporation (Pty) Ltd and Others (068596/2026) [2026] ZAGPPHC 948 (21 August 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number: 068596/2026
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE 21/08/2026
SIGNATURE
In
the matter between:
BAHURUTSHE
BOO MANYANA TRADITIONAL
COMMUNITY
Applicant/Respondent
On Appeal
and
MARICO
CHROME CORPORATION (PTY) LTD
First Respondent/Appellant
On Appeal
THEODOR
WILHELM VAN DEN HEEVER N.O.
Second Respondent/Appellant
KGASHANE
CHRISTOPHER MONYELA N.O.
Third Respondent/Appellant
OLCKERS
CHOPOLOGE KOIKANYANG N.O.
Fourth Respondent/Appellant
SAMANCOR CHROME
LIMITED
Fifth Respondent
VEREENIGING
REFRACTORIES (PTY) LTD
Sixth Respondent
COMPANIES
AND INTELLECTUAL PROPERTY
COMMISSION
Seventh Respondent
MASTER OF THE HIGH
COURT
Eight Respondent
DIRECTOR-GENERAL:
DEPARTMENT OF
MINERAL
RESOURCES
Nineth Respondent
JUDGMENT
MKHABELA J
(TEFFO J and LUKHAIMANE AJ CONCURRING)
Introduction
[1]
Does a
scheme
[1]
of arrangement
concluded between provisional liquidators and the company’s
creditors which was subsequently sanctioned by
a Court survive the
discharge of the provisional order? Despite the fact that we are
dealing with a section 18(4) appeal, the question
whether the scheme
of arrangement entitles the Receivers to continue to run a company
features prominently in this dispute.
Background
[2]
The parties are described in the previous two judgments by my brother
Millar J. For convenience, I will endorse the nomenclature by the
court a quo
of referring to the applicant as the Community,
the second to fourth respondents as Receivers and the first
respondent as Marico.
[3]
The facts are largely common cause and are aptly captured in the main
judgment of Millar J as follows: On 10 May 2016, Marico was placed
under provisional liquidation, and the Receivers were appointed
as
liquidators.
[4]
Subsequent
to Marico being placed under provisional liquidation, the Receivers
concluded a scheme of arrangement. The Receivers
were provisional
liquidators at the time, sought to obtain an order sanctioning the
scheme of arrangement in terms of section 155
of the Companies
Act
[2]
. This order was granted
by this Court on 9 June 2020.
[5]
The order
that sanctioned the scheme of arrangement is
reproduc
ed
in the main judgment of Millar J
[3]
.
It is not necessary to regurgitate it in this judgment. Suffice to
state that the scheme of arrangement was entered into between
the
concurrent creditors of Marico.
[6]
The next significant event that followed was the discharge of the
provisional
order which was granted by this very Court on 22
September 2023.
[7]
Similarly,
just like the order sanctioning the scheme of arrangement, the order
discharging the provisional order is quoted by Millar
J in his main
judgment.
[4]
For the purpose of
this judgment, it is necessary to record that the discharge of the
provisional order was silent on the question
whether the scheme of
arrangement will survive the discharge of the provisional order.
The
issue before Millar J in his main judgment
[8]
The question that arose crisply for determination before Millar J was
whether there was any role for the Receivers to run Marico beyond the
discharge of the provisional liquidation order.
[9]
Millar J phrased the question as follows:
“
Does the scheme
contemplate a role for the Receivers after the discharge of the
provisional liquidation order?”
[10]
As
reflected in Millar J’s main judgment,
[5]
the Community contended that the scheme of arrangement came to an end
and did not survive beyond the discharge of the provisional
order.
[11]
On the contrary, the Receivers submitted that the scheme of
arrangement conferred upon
them the authority to retain and control
Marico in their capacities as Receivers, notwithstanding that Marico
is no longer under
any liquidation.
[12]
Having scrutinized the terms of the scheme of arrangement,
concomitant with the applicable
law and authorities, Millar J
concluded that there was no role for the Receivers in the affairs of
Marico after the provisional
order had been discharged.
[13]
Millar J found that unlike United Kingdom’s Insolvency law, in
our law the terms
Receivers and Receivership are not explicitly
defined in our Insolvency Act, nor the Companies Act.
[14]
In these circumstances, Millar J found in favour of the Community and
granted the substantive
relief to the effect that the implementation
of the scheme of arrangement in the hands of the Receivers come to an
end after the
discharge of the provisional order. The effect of the
order is that the management and control of Marico should be revested
in
its board of directors.
The
section 18(3) judgment
[15]
Pursuant to the Receivers filing their application for leave to
appeal Millar J’s
main judgment, the Community filed an
application for leave to execute pending any determination for leave
to appeal or appeal
as the case maybe.
[16]
In his section 18(3) judgment, Millar J was alive to the fact that
the Community was required
to demonstrate and prove three
requirements. Firstly, the existence of exceptional circumstances
which justify the execution of
the order pending any appeal,
secondly, proof that the Community will suffer irreparable harm, and
thirdly that the Receivers will
not suffer irreparable harm if the
order is executed notwithstanding any appeal or leave to appeal.
Exceptional
Circumstances
[17]
Millar J found that the fact that the financial statements of Marico
misstated that the
company was still in liquidation when the
provisional order was discharged constituted sufficient exceptional
circumstances on
its own ground.
[18]
Moreover,
Millar J relied on the authority of
Incubeta
Holdings (pty) Ltd
v
Ellis
[6]
to the effect that if the judgment is not put into operation pending
any appeal, the judgment in favour of the Community would
be nothing
more than the “vacuous gesture”.
[7]
Irreparable
harm to the Community
[19]
Millar J agreed with the Community that it would suffer irreparable
harm if the judgment
is not executed pending any appeal. His
reasoning in reaching this conclusion was fortified
inter alia
by the fact that the irreparable harm was caused by the continuation
of unlawful governance of Marico by the Receivers, notwithstanding
the discharge of the provisional order.
[20]
The second ground of irreparable harm that the Community asserted,
and which found favour
with Millar J was that the Receivers have
“
operated the
business of Marico since
their
discharge
as provisional liquidators for the sole benefit of
the shareholders who still have outstanding loans to the exclusion of
the Community”.
Irreparable
harm to the Receivers
[21]
In respect
of this enquiry, Millar J appreciated that the envisaged harm to the
Receivers must arise out of the implementation of
the order. He
relied on the Supreme Court of Appeal case of
Ntlemeza
v
Helen
Suzman Foundation
[8]
in this regard.
[22]
Millar J rejected the Receivers’ assertion that there would be
disruption to operations
of the company if the order in the main
judgment were to be executed. He held that the Receivers as
professionals are required
to act in good faith in facilitating the
handing over of Marico to its board of directors. Hence, there could
be no room for any
irreparable harm to the Receivers since they are
not Marico. They are service providers who are paid for the services
that they
render.
[23]
Millar J then concluded as follows in respect of irreparable harm to
the Receivers:
“
I also find that
the Receivers have failed to establish that they will suffer
irreparable harm if the order is not granted”.
The
appeal before this Court in terms of section 18(4)(ii)
[24]
It is common cause that Millar J dismissed the Receivers’
application for leave to
appeal. However, they have subsequently
applied for special leave in the Supreme Court of Appeal against the
main judgment.
[25]
The current
appeal before us is only confined solely to whether Millar J was
correct in granting the execution and implementation
of his judgment
as envisaged by section 18(3) of the Superior Courts Act.
[9]
[26]
Before us, the Receivers attacked Millar J’s execution order on
various grounds;
the view I adopt is that it is not necessary to
exhaustively deal with all these grounds. The Receiver’s
written heads of
argument do not attempt to unequivocally state the
grounds of appeal succinctly in a sequential format.
[27]
The bulk of the written submissions are directed against the merits
of Millar J’s
main judgment rather than sharply focusing on why
the execution of the order was wrongly granted. No attempt in the
Receivers’
heads is made to address whether the Community has
discharged its onus of proof by providing the jurisdictional
requirements of
section 18(3) of the Act.
[28]
Be that as it may, one can discern the following grounds that the
Receivers are relying
on to attack the execution order. Firstly, they
claim that the
Court a quo
erred in finding that the Community
has established exceptional circumstances warranting the execution of
the order. They assert
that there are no exceptional circumstances
because
inter alia,
the Community has no locus standi as it is
neither a shareholder nor a holder of a mining right.
[29]
Moreover, the Community’s case for exceptionality is squarely
predicated on the correctness
of the order.
[30]
Secondly, in respect of irreparable harm, the Receivers asserted the
same contention, namely
that the Community’s irreparable harm
is also premised on the correctness of the Court’s order.
[31]
The Receivers submitted further that the Community had failed to
demonstrate any harm,
“definitely no irreparable harm”.
The purported irreparable harm is premised on the assertion that the
Community is
a shareholder when it is not.
[32]
Thirdly, the Receivers contended that if they were to surrender the
control of the business
to the board of directors of Marico, “it
will cause major disruption in the conduct of the business”.
[33]
Fourthly, they claim Millar J was wrong in his conclusion that the
scheme had come to an
end upon the discharge of the provisional
liquidation order.
[34]
Notwithstanding that the Receivers’ written heads do not
succinctly canvass the grounds
of appeal against the execution order;
the Receivers’ notice of appeal does so and asserts that the
three jurisdictional
requirements to warrant an execution order had
not been established by the Community.
The
Community’s submission in its defence of the execution order.
[35]
The Community aligned itself with the reasoning of Millar J and
contended that it had established
all the three requirements of
section 18(3) and that the execution order is warranted. I do not
deem it necessary to burden this
judgment by repeating the alluded
three requirements since they have already been referred in the
preceding paragraphs.
The
issue before us
[36]
The crisp issue before us is whether the
Court a quo
was
correct in granting the Community the right to execute pending, the
application for special leave to the Supreme Court of Appeal
given
the fact that Millar J has already dismissed the Receivers’
application for leave to appeal his main judgment.
Evaluation
[37]
The gravamen of Millar J’s reasoning in finding that there are
exceptional circumstances
warranting the execution of his order is
that Marico was reflected as a company that was still in liquidation
when the provisional
order had already been discharged. He found that
the misstatement of the company’s current status constituted
exceptional
circumstances on this ground alone.
[38]
The Receivers had no qualms with that finding other than to state
that it was a mistake.
In the current appeal before us the Receivers
have not submitted that Millar J was wrong on this aspect.
[39]
In respect of the requirement that the Community must demonstrate
that it would suffer
irreparable harm, Millar J’s finding was
that there is no provision in our company law allowing a company that
is no longer
in liquidation to be run by Receivers. His reasons were
predicated on the premise that once a company is no longer in
liquidation,
the management and control of such company revert to its
board of directors.
[40]
Before us, the Receivers have not provided any authority statutorily
or through case law
supporting their assertion that they have
authority to run the company as Receivers. Millar J examined the
compromise and found
nothing that envisaged the authority of the
Receivers to run Marico post the discharge of the provisional
liquidation order.
[41]
In the circumstances, Millar J’s finding that the Community has
established that
it would suffer irreparable harm cannot be flouted
and remains sacrosanct on the facts before us.
[42]
On the question that the Receivers would suffer irreparable harm,
Millar J held as follows:
“
I also find that
the Receivers have failed to establish that they will suffer
irreparable harm.”
In
our respectful view, Millar J erred to the extent that he shifted the
onus of proving on a balance of probabilities that the
Receivers were
required to establish that they would suffer irreparable harm if the
execution order is granted. Section 18(3) is
unambiguous that is
incumbent on the Community to prove that the Receivers will not
suffer irreparable harm if the execution order
is granted.
[43]
The Receivers have not criticised Millar J’s error as alluded
above. Nothing turns
on the error since the cumulative reasoning of
Millar J concomitant with the undisputed facts unequivocally points
to a conclusion
that there is no irreparable harm to the Receivers
whatsoever.
[44]
The purported harm that the Receivers postulated pertains to Marico
and not the Receivers
in their personal capacities. The thesis that
the Receivers seek to advance on behalf of the company is that the
scheme of arrangement
can only be implemented by them. This argument
is specious; it adopts a pessimistic view on how the board will run
the company
if its management is revested to it.
[45]
The board
members have a fiduciary duty not to run the company recklessly and
any aggrieved creditor is not without a remedy if
the board were to
breach its fiduciary duties.
[10]
Section 424 of the Companies Act allows a Court to hold
directors, managers or any other individuals personally and
unlimitedly
liable for a company’s debts if they knowingly took
part in carrying on the business recklessly or with intent to defraud
creditors.
[11]
[46]
It is worth reiterating that the conclusion that the Community has
established that the
Receivers will not suffer any irreparable harm
if the execution is granted cannot be disturbed and is borne by the
facts.
[47]
For all these reasons the appeal is susceptible for a dismissal. What
is left is the issue
of costs. The Community as applicants in the
section 18(3) application and respondents in the current appeal have
been successful,
there is accordingly no reason why the Community
should not be granted costs.
[48]
Order
1.
The appeal in terms of section 18(4)(ii) to this Court sitting
as the
next highest Court is dismissed with costs on scale B.
2.
The second to fourth respondents/Appellants in this matter are
ordered to pay the costs of the appeal jointly and severally, the one
paying the other to be absolved.
MKHABELA J
JUDGE OF THE HIGH
COURT
PRETORIA
I AGREE
LUKHAIMANE AJ
ACTING JUDGE OF THE
HIGH COURT
PRETORIA
I AGREE
AND IT IS SO ORDERED
TEFFO J
JUDGE OF THE HIGH
COURT
PRETORIA
For the 1
st
to 4
th
Appellants:
Adv Theron SC
Instructed by:
De Vries Inc.
For the Respondent:
Adv Minne
Adv Makoanyana
Instructed by:
Thomson Wilksons
Inc.
Date of Hearing:
23 July 2026
Date
of the judgment:
21
August 2026
[1]
Schemes of arrangement are provided for in section 311 of Companies
Act. The section provides as follows:
“
311
compromise and arrangements between the company, its members and
creditors (1) Where any compromise or arrangement is proposed
between a company and its creditors or any class of them or between
a company and its members or any class of them, the Court
may, on
the application of the company or any creditor or member of the
company or, in the case of a company being wound up,
of the
liquidator, or if the company is subject to a judicial management
order, of the judicial manager, order a meeting of the
creditors or
class of creditors, or of the members of the company or class of
members (as the case may be), to be summoned in
such manner as the
Court may direct”.
[2]
71 of 2008.
[3]
At para 5 of Millar J’s main judgment.
[4]
Above n 3.
[5]
Millar J’s judgment dated 28 May 2026.
[6]
Incubeta
Holdings (pty) Ltd
v
Ellis
2014 (3) SA 189
(GJ) at paras 27-28.
[7]
At para 18 of the Millar J’s section 18(3) judgment.
[8]
Ntlemeza
v
Helen
Suzman Foundation
2017
(5) SA 402
(SCA) at para 28.
[9]
Act 10 of 2013.
[10]
Philotex(
Pty) Ltd and Another v Snyman and Others
[1997] ZASCA 92
;
1998
(2) SA 138
SCA at para142 C-J.
[11]
Section
424 of the Companies Act 61 of 1973. Though the 1973 Act was largely
replaced, section 424 remains active specifically
during company
liquidation and winding up.