Cooper NO and Another v Knoop NO and Others (38630/2019) [2019] ZAGPJHC 552 (28 January 2019)

Cooper NO and Another v Knoop NO and Others (38630/2019) [2019] ZAGPJHC 552 (28 January 2019)

The court found that all affected persons under the business rescue plan have a direct and substantial interest in the relief sought by the applicants and intervening parties. The plan, adopted in terms of the Companies Act, binds all creditors and affected persons, and any order setting aside the plan or requiring repayment of amounts received would materially affect their rights. The applicants failed to properly identify and join all affected persons, rendering the application fatally defective for non-joinder. The point in limine raised by the sixth respondent was upheld, and all applications were dismissed with costs.

Citation
[2019] ZAGPJHC 552
Parties
Applicant: Chavonnes Badenhorst St Clair Cooper N.O.; Applicant: Thea Christina Lourens N.O.; Respondent: Kurt Robert Knoop N.O.; Respondent: Johan Louis Klopper N.O.; Respondent: Juanito Martin Damons N.O.; Respondent: Kgashane Christopher Monyela N.O.; Respondent: Koornfontein Mines (Pty) Limited (in business rescue); Respondent: Black Royalty Minerals (Pty) Limited; Respondent: The Orchard Consortium; Respondent: Eskom Holdings SOC Limited; Respondent: Lurco Group South Africa (Pty) Limited; Respondent: All affected parties to Koornfontein Mines (Pty) Limited (in business rescue) as per Annexure A to the Notice of Motion
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 January 2019
Case Number
38630/2019
Procedural Posture
Urgent Application / Application for Final Winding Up Order and Related Declaratory/interdictory Relief
Outcome
All applications are dismissed with costs, including costs consequent upon the employment of two counsel.
Judges
E Matojane
Legal Topics
Business Rescue, Non Joinder, Companies Act Section 128, Creditor Rights, Winding Up, Affected Persons
Commercial and Corporate Civil Procedure Business Rescue Non Joinder Companies Act Section 128 Creditor Rights Winding Up Affected Persons

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Parties

Chavonnes Badenhorst St Clair Cooper N.O.

Applicant

Thea Christina Lourens N.O.

Applicant

Kurt Robert Knoop N.O.

Respondent

Johan Louis Klopper N.O.

Respondent

Juanito Martin Damons N.O.

Respondent

Kgashane Christopher Monyela N.O.

Respondent

Koornfontein Mines (Pty) Limited (in business rescue)

Respondent

Black Royalty Minerals (Pty) Limited

Respondent

The Orchard Consortium

Respondent

Eskom Holdings SOC Limited

Respondent

Lurco Group South Africa (Pty) Limited

Respondent

All affected parties to Koornfontein Mines (Pty) Limited (in business rescue) as per Annexure A to the Notice of Motion

Respondent

Procedural Posture

Urgent Application / Application for Final Winding Up Order and Related Declaratory/interdictory Relief

Legal Issues

  1. 1 Whether the application for the winding up of Koornfontein Mines (Pty) Limited (in business rescue) can succeed in the absence of joinder of all affected persons.
  2. 2 Whether Eskom Holdings SOC Limited had a voting interest in relation to the business rescue plan.
  3. 3 Whether the adoption of the business rescue plan on 18 October 2019 was valid.

Ratio Decidendi

The court found that all affected persons under the business rescue plan have a direct and substantial interest in the relief sought by the applicants and intervening parties. The plan, adopted in terms of the Companies Act, binds all creditors and affected persons, and any order setting aside the plan or requiring repayment of amounts received would materially affect their rights. The applicants failed to properly identify and join all affected persons, rendering the application fatally defective for non-joinder. The point in limine raised by the sixth respondent was upheld, and all applications were dismissed with costs.

Court Disposition

All applications are dismissed with costs, including costs consequent upon the employment of two counsel.

Orders

  • All applications are dismissed with costs, including the costs of two counsel.