Botes and Another v Tariomix (Pty) Ltd t/a Forever Diamond and Gold and Others (UM29/2023) [2023] ZANWHC 51 (17 April 2023)

Botes and Another v Tariomix (Pty) Ltd t/a Forever Diamond and Gold and Others (UM29/2023) [2023] ZANWHC 51 (17 April 2023)

The court found that neither the first respondent nor the intervening party had established sufficient grounds for the anticipation or rescission of the provisional liquidation order. The first respondent failed to present new facts or compelling reasons to justify anticipation, and the intervening party did not provide a reasonable explanation or bona fide defence for rescission. However, the court determined that finalisation of the matter was premature and that further information regarding the status of the first respondent was necessary. Accordingly, the curator bonis was ordered to file an affidavit within 30 days, and the rule nisi was extended.

Citation
[2023] ZANWHC 51
Parties
Applicant: Ruan Botes; Applicant: Jeandre Viljoen; Respondent: Tariomix (Pty) Ltd t/a Forever Diamond and Gold; Respondent: Financial Sector Conduct Authority; Applicant: The Commissioner for the South African Revenue Services
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
17 April 2023
Case Number
UM29/2023
Procedural Posture
Urgent Application / Order Following Urgent Application and Interlocutory Applications
Outcome
Both the anticipation and rescission applications are dismissed. The curator bonis is ordered to file an affidavit on the status of the first respondent within 30 days. The rule nisi is extended. Costs are reserved.
Judges
J T Djaje
Legal Topics
Provisional Liquidation, Anticipation of Order, Rescission Application, Curator Bonis Affidavit
Civil Procedure Commercial and Corporate Provisional Liquidation Anticipation of Order Rescission Application Curator Bonis Affidavit

Case Brief

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Parties

Ruan Botes

Applicant

Jeandre Viljoen

Applicant

Tariomix (Pty) Ltd t/a Forever Diamond and Gold

Respondent

Financial Sector Conduct Authority

Respondent

The Commissioner for the South African Revenue Services

Applicant

Procedural Posture

Urgent Application / Order Following Urgent Application and Interlocutory Applications

Legal Issues

  1. 1 Whether the first respondent has shown sufficient grounds to anticipate the provisional liquidation order of 23 February 2023.
  2. 2 Whether the intervening party, the Commissioner for SARS, has established grounds for rescission of the provisional liquidation order.
  3. 3 Whether the matter should be finalised or further affidavits should be obtained regarding the status of the first respondent.

Ratio Decidendi

The court found that neither the first respondent nor the intervening party had established sufficient grounds for the anticipation or rescission of the provisional liquidation order. The first respondent failed to present new facts or compelling reasons to justify anticipation, and the intervening party did not provide a reasonable explanation or bona fide defence for rescission. However, the court determined that finalisation of the matter was premature and that further information regarding the status of the first respondent was necessary. Accordingly, the curator bonis was ordered to file an affidavit within 30 days, and the rule nisi was extended.

Court Disposition

Both the anticipation and rescission applications are dismissed. The curator bonis is ordered to file an affidavit on the status of the first respondent within 30 days. The rule nisi is extended. Costs are reserved.

Orders

  • The application to anticipate the order of 23 February 2023 by the first respondent is dismissed.
  • The application for rescission of the order of 23 February 2023 by the intervening party is dismissed.