application of Van den Steen NO and Another (3624/2013), Ex parte [2013] ZAGPJHC 33; 2014 (6) SA 29 (GJ) (27 February 2013)

application of Van den Steen NO and Another (3624/2013), Ex parte [2013] ZAGPJHC 33; 2014 (6) SA 29 (GJ) (27 February 2013)

The court held that although the applicants did not strictly comply with the prescribed manner of delivering section 129 notices to all affected persons, including the note holders, substantial compliance was achieved. The note holders became aware of the business rescue proceedings within the prescribed time through alternative means, and no prejudice resulted. Section 6(9) of the Companies Act permits substantial compliance where the object of the notice provisions is met and the probability of receipt is not materially reduced. The intervening parties had a material interest and were allowed to intervene. The court found that the requirements of sections 129(3) and (4) were...

Citation
[2013] ZAGPJHC 33
Parties
Applicant: Petrus Francois Van Den Steen N.O.; Applicant: South Gold Exploration (Pty) Limited (in business rescue); Respondent: Credit Suisse Group AG; Respondent: Standard Chartered Bank
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
27 February 2013
Case Number
3624/2013
Procedural Posture
Ex Parte Application / Judgment on Intervention and Declaratory Relief
Outcome
Application for intervention granted; declaratory relief granted confirming substantial compliance with sections 129(3) and (4) of the Companies Act.
Judges
G Rautenbach
Legal Topics
Business Rescue, Companies Act Section 129, Substantial Compliance, Affected Persons Notice
Commercial and Corporate Business Rescue Companies Act Section 129 Substantial Compliance Affected Persons Notice

Case Brief

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Parties

Petrus Francois Van Den Steen N.O.

Applicant

South Gold Exploration (Pty) Limited (in business rescue)

Applicant

Credit Suisse Group AG

Respondent

Standard Chartered Bank

Respondent

Procedural Posture

Ex Parte Application / Judgment on Intervention and Declaratory Relief

Legal Issues

  1. 1 Whether the intervening parties have a material interest and may intervene in the main application.
  2. 2 Whether South Gold Exploration (Pty) Limited complied with sections 129(3) and 129(4) of the Companies Act regarding notice to affected persons.
  3. 3 Whether substantial compliance with the notice requirements under section 129 is sufficient in law.

Ratio Decidendi

The court held that although the applicants did not strictly comply with the prescribed manner of delivering section 129 notices to all affected persons, including the note holders, substantial compliance was achieved. The note holders became aware of the business rescue proceedings within the prescribed time through alternative means, and no prejudice resulted. Section 6(9) of the Companies Act permits substantial compliance where the object of the notice provisions is met and the probability of receipt is not materially reduced. The intervening parties had a material interest and were allowed to intervene. The court found that the requirements of sections 129(3) and (4) were...

Court Disposition

Application for intervention granted; declaratory relief granted confirming substantial compliance with sections 129(3) and (4) of the Companies Act.

Orders

  • The application for intervention is heard together with the main application.
  • The First and Second Intervening Parties are given leave to intervene in the main application for a declaratory order under Case No.: 3624/2013.