Cooperative Muratori & Cementisti-CMC Di Tavena Societi Cooperative A Responsabilita Limitada (External Company Incorporated in Italy) and Others v Companies and Intellectual Properties Commission and Others (15454/ 2019) [2019] ZAGPPHC 529; 2020 (2) SA 109 (GP) (15 October 2019)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

Case Number: 15454/ 2019

15/10/2019

In the matter between:

COOPERATIVE MURATORI & CEMENTISTI-CMC

DI RAVENNA Societi Cooperative A

RESPONSABILITA LIMITADA (External Company

Incorporated in Italy)

First Applicant

LIEBENBERG, DAWID RYK VAN DER MERWE N.O.

Second Applicant

CHRISTOPHER RAYMOND REY N.O.

Third Applicant

and

COMPANIES AND INTELLECTUAL PROPERTIES

COMMISSION

First Respondent

ESOR CONSTRUCTION (PTY) LTD

Second Respondent

ABSA BANK LTD

Third Respondent

STEFCOR CONSTRUCTION (PTY) LTD

Fourth Respondent

JUDGMENT

POTTERILL J

[1] The first applicant, Cooperative Muratori & Cementisti-CMC Di Ravenna Societi Cooperative A Responsabilita Limitada (External Company Incorporated in Italy), [CMC], the second applicant, Liebenberg Dawid Ryk van der Merwe N.0 . and the third respondent, Christopher Rey N.O. [the BRP's] are applying that the court declare that CMC is validly under business rescue as contemplated in terms of s129 of the Companies Act, 71 of 2008 [the Act] pursuant to the resolution adopted by the board of directors on 17 December 2018. In the alternative an order is sought that the order issued by the Court of Ravanna (Bankruptcies Office), in Italy, dated 6 December 2018 , granting the Preventative Arrangement sought by CMC in the composition proceedings [ the Italian order] is hereby recognised and enforceable in the Republic of South Africa.

[2] Esor Construction (Pty) Ltd [Esor], ABSA Bank Limited [ABSA] and Stefcor (Pty) Limited [Stefcor] intervened and are before me as respondents. Esor and Stefcor opposed the relief sought, but Absa had instructed counsel only with a watching brief and to abide by the Court' s decision.

[3] The Companies and Intellectual Property Commission [CIPC] withdrew the processing of the CoRl 23 .1 [the business rescue proceedings of CMC] and updated the external company status to "in business' on 15 February 2019. The CIPC' s decision has not been taken on review with in its stead this declaratory sought.

The common cause facts as background to the matter

[4] CMC is a company duly incorporated in terms of the Laws of the Italian Republic, and registered in South Africa as an external company, with registration number 2004/009246/10. CMC has 30 branches worldwide and is a company which operates primarily in the construction sector. In the first half of 2018 CMC was awarded new contracts with a value of approximately 1,3 billion euros, of which 37 6,9 million euros was in Italy and 9 6 6 ,4 million euros was outside of Italy. In South Africa CMC was awarded the contract for the reconstruction of the port of Durban and work on the toll toads.

The South African process

[5] On 14 December 2018 CMC's board resolved to place CMC under voluntary business rescue in South Africa. The reasons for this decision was formulated as follows in the affidavit to the Notice of beginning of business rescue proceedings:

"The Company is involved in numerous major projects in Italy and Internationally. These include a number of major projects in South Africa one of which is the reconstruction of the port of Durban. The latter project alone has a value of approximately 255 million euros.

Based on the above, the board of directors and I are of the opinion that there is a reasonable prospect of rescuing the company with business rescue proceedings. Business rescue proceedings will, it is hoped, allow the company to reorganise its affairs so that the Company can complete its projects and remain viable."

[6] On 24 December 2018 CMC filed its CoR123.1 with all the necessary documentation attached.

[7] On 15 January 2019 the notice of the resolution and its effective date was published.

[8] On 11 January 2019 CMC appointed the BRP' s herein.

[9] The BRP' s had commenced with their duties and had inter alia published a copy of the notice of appointment to each affected person.

[10] On 15 February 2019 the CIPC withdrew the business recue proceedings and provided reasons therefor as follows:

"Due to an administrative error, the CoR123.1 was processed and the necessary status change affected on the external company. In terms of the Companies Act, 71 of 2008 ("the Act") an external company cannot be placed into business rescue as envisioned under Chapter 6 of the Act.

…

Registration as an external company by CIPC does not result in the incorporation of a secondary legal entity.

The external company is therefore subject to the laws of the Jurisdiction within which it was incorporated (so called primary Jurisdiction) although minimum compliance requirements are applicable in terms of the Act.

Therefore, since Chapter 6 of the Act only refers to a company the above indicated external company legally could not have commenced business rescue proceedings, and the processing of the CoR123.1 and supporting documents is invalid. CIPC will proceed to withdraw the processing of the CoR123.1 and update the external company status to in business".

Process in Italy

[11] On 4 December 2018 CMC filed an application for admission to the procedure for an arrangement with creditors pursuant to Articles 160 and 161 of the Italian Bankruptcy Law.

[12] In that application it is averred that CMC experienced a significant reduction in its operating profits across its divisions internationally and had significant difficulty in collecting the debts owed by its clients. Furthermore six liquidation applications were pending before the Italian Court.

[13] On 6 December 2019 the Court issued the following order [as translated]:

"- Assigns the applicant company a deadline of 6O days to file the agreement with creditors proposal, the certification statement and documentation pursuant to article 16 1, sections 2 and 3 of the Bankruptcy Law, or alternatively, the possible restructuring agreement and the report prepared by the professional certifier, referred to under section one of article 182 bis of the Bankruptcy Law.

- Orders the company to submit possible authorisation requests pursuant to article 161, section 7 of the Bankruptcy Law to the Court, and on a monthly basis send a summarised report, specifying the ordinary and extraordinary management deeds performed and the payable and receivable transactions that occurred, accompanied by the bank statements for the relevant period·,

- Appoints as Judicial Commissioners:

Antonio Gaiani, with office in Bologna;

Luca Mandrioli, with office in Vignola (Modena);

Andrea Ferri, with office in Bologna;

for the purposes of performing the functions referred to in the motivation, and any additional and eventual functions that may become necessary;

- Forwards this to the Registrar for registration in the Companies' Register, and for notification to the applicant and appointed professionals."

[14] On 31 January the 2019 CMG filed a request for extension of the deadline as set out in the order of 6 December 2019.

[15] On 6 February 2019 the Court granted an extension of this sixty-day period to 120 days, expiring on 6 April 2019 .

[16] On 8 April 2019 CMG filed the request for an arrangement with creditors.

[17] On 7 or 8 May 2019 the Court of Ravenna granted the Agreement proposal but extended it to 29 May 2019 for modifications and amendments to the Agreement Proposal.

[18] On 29 May 2019 CMG filed the Agreement Proposal again.

[19] On 12 June 2019 the Court of Ravenna inter alia declared open the procedure of arrangement with creditors and ordered the convening of creditors for 13 November 2019 .

It appointed judicial commissioners and provided that the petitioner by means of bound deposit an amount as partial payment of procedure presumable expenses.

[20] On 5 June 2019 the hearing was held.

[21] On 8 July 2019 a communication was sent to creditors in terms of s171, Paragraph 2, Bankruptcy Law pursuant to the hearing.

[22] On 13 November 2019 there will be a convening of the creditors before a delegated judge where the proposal will be accepted or not.

Is an external company subject to business rescue proceedings in terms of the Act?

The relevant legislation

[23] S129 (1) of the Act reads as follows:

"(1) Subject to subsection (2)(a), the board of a company may resolve that the company voluntarily begin business rescue proceedings and place the company under supervision, if the board has reasonable grounds to believe -

(a) the company is financially distressed; and

(b) there appears to be a reasonable prospect of rescuing the company."

In terms of s1:

"Company means a juristic person incorporated in terms of this Act, a domesticated company, or a juristic person that, immediately before the effective date-

(a) was registered in terms of the -

(i) Companies Act,1973 (ACT NO. 61 of 1973), other than as an external company as defined in that Act,· or

(ii) Close Corporations Act, 1984 (Act NO.6 9 of 1984), if it has subsequently been converted in terms of Schedule 2;

(b) was in existence and recognised as an ''existing company'' in terms of the Companies Act, 1973 (Act No 61 of 1973 ); or

(c) was deregistered in terms of the Companies Act, 1973 (Act No, 61 of 1973), and has subsequently been re-registered in terms of this Act."

An external company is defined as: ''a foreign company that is carrying on business, or non-profit activities, as the case may be, within the Republic, subject to section 23 (2)."

In terms of s1 a juristic person is defined as: ''includes -

"(a) a foreign company; and

(b) A trust, irrespective of whether or not it was established within or outside the Republic.

S23 of the Act reads as follows:

''Registration of external companies and registered office

(1) An external company must register with the Commission within 20 business days after it first begins to conduct business, or non-profit

activities, as the case may be, within the Republic-

(a) as an external non-profit company if, within the jurisdiction in which it was incorporated, it meets legislative or definitional requirements that are comparable to the legislative or definitional requirements of a non-profit company incorporated under this Act,· or

(b) as an external profit company, in any other case.

(2) For the purposes of subsection (1), and the definition of 'external company' as set out in section 1, a foreign company must be regarded as 'conducting business, or non-profit activities, as the case may be, within the Republic' if that foreign company -

(a) is a party to one or more employment contracts within the Republic; or

(b) subject to subsection (2A ), is engaging in a course of conduct, or has engaged in a course or pattern of activities within the Republic over a period of at least six months, such as would lead a person to reasonably conclude that the company intended to continually engage in business or non-profit activities within the Republic.

(2A) When applying subsection (2) (b), a foreign company must not be regarded as 'conducting business activities, or non-profit activities, as the case may be, within the Republic' solely on the ground that the foreign company is or has engaged in one or more of the following activities:

(a) Holding a meeting or meetings within the Republic of the shareholders or board of the foreign company, or otherwise conducting any of the company's internal affairs within the Republic;

(b) establishing or maintaining any bank or other financial accounts within the Republic;

(c) establishing or maintaining offices or agencies within the Republic for the transfer, exchange, or registration of the foreign company's own securities;

(d) creating or acquiring any debts within the Republic, or any mortgages or security interests in any property within the Republic;

(e) securing or collecting any debt, or enforcing any mortgage or security interest within the Republic; or

(f) acquiring any interest in any property within the Republic.

(3) Each company or external company must-

(a) continuously maintain at least one office in the Republic; and

(b) register the address of its office, or its principal office if it has more than one office-

(i) initially in the case of-

(aa) a company, by providing the required information on its Notice of Incorporation; or

(bb) an external company, by providing the required information when filing its registration in terms of subsection (1); and

(ii) subsequently, by filing a notice of change of registered office, together with the prescribed fee.

(4) A change contemplated in subsection (3) (b) (ii) takes effect as from the later of-

(a) the date, if any, stated in the notice; or

(b) five business days after the date on which the notice was filed.

(5) The Commission must -

(a) assign a unique registration number to each external company that has registered in accordance with subsection (1);

(b) maintain a register of external companies;

(c) enter the prescribed information concerning each external company in the register; and

(d) in the case of an external company whose name is a foreign registration number but does not indicate the name of the foreign jurisdiction in which it was incorporated, append to its name on the registry the name of that jurisdiction in a manner comparable to that required for a company under section 11 (3) (a ).

(6) If an external company has failed to register in terms of subsection (1) within three months after commencing its activities within the Republic, the Commission may issue a compliance notice to that external company requiring it to-

(a) register as required by subsection (1) within 20 business days after receiving the notice; or

(b) if it fails to register within the time allowed in paragraph (a), to cease carrying on its business or activities within the Republic".

Interpretation of s129 of the Act

[24] In Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at 603 in paragraph [18] the process of interpretation is set out as follows:

"[18] The present state of the law can be expressed as follows: Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon it coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax,· the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document ... The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document. "

[25] In addition the Act itself sets out that the Act must be interpreted to give effect to the purposes set out in section 7. Inter alia the purposes of the Act are to promote the compliance with the Bill of Rights in the application of Company law.

Ss7(c) and (k) are pertinent and reads as follows:

"7 Purpose of Act

The purposes of this Act are to -

(a) …

(b) …

(c) promote innovation and investment in the South African markets;

(d) …

(e) …

(f) …

(g) …

(h) …

(i) …

(j) …

(k) provide for the efficient rescue and recovery of financially distressed companies, in a manner that balances the rights and interests of all relevant stakeholders; and ... "

[26] The language of the definition of “company" does not specifically include an external company. S129 of the Act does not expressly include an external company. As background it is relevant to note that the Old Companies Act, 197 3, under s(2)(2), had a catch-all phrase which provided that the sections of that Act shall apply to every Company, including external companies. The 2008 Act has no such catch-all section. The 2008 Act has made only specified sections of the Act applicable to external companies. The legislator would have been aware of the catch-all section, but chose to only make certain sections applicable to external companies. The background to business rescue proceedings with regards to an external company is thus that despite the old Act making provision for an external company the new Act does not; the probable interpretation is that the Legislator intentionally did not include an external company.

[27] This interpretation is fortified by the observations of Cassim[1] that there was a specific legislative intent with the 2008 Act to reduce the regulation of external companies to promote investment in the South African markets. In fact there was a paradigm shift from the 1973 Act where external companies should be treated on the same footing as South African Companies to that of the 2008 Act where over regulation of external companies should be reduced to cut the red tape to entice external companies.[2]

[28] The CIPC rejected the business rescue proceedings because an external company cannot be placed into business rescue proceedings in terms of the Act. "Registration as an external company by CIPC does not result in the incorporation of a secondary legal entity.”[3] The CIPC is the Commission with inter alia the function of registering companies and business rescue proceedings. One would thus assume that they would have the required knowledge

when to amend the status of a company. This court can this take cognisance of its opinion that the registration of an external

company does not result in incorporation of that company or juristic person within South Africa. This stance enforces the interpretation

that an external company cannot apply for business rescue proceedings.

[29] On behalf of CMC it was argued that CMC is included in the definition of company as a juristic person incorporated in terms of the Act. The argument went that a juristic person included a foreign company that conducts business in South Africa and that such a foreign company meets the definition of an external company in terms of s1 of the Act. CMC was registered in terms of s23 of the Act as an external profit company. On a plain grammatical meaning of the words in s1 a juristic person incorporated in terms of the Act includes an entity incorporated outside the Republic. The words ''incorporated in terms of the Act" in s1 can only be interpreted to include entities incorporated outside the republic, but which have been registered as a foreign company under s23 of the Act, thereby notionally ''incorporating" the foreign entity into the Act. If s1 was not interpreted in this manner then absurdities would result because despite required registration

external companies would not be obliged to comply with s24 and s26 of the Act.

[30] This argument is laboured and is rejected. CMC was registered as an external company under the 1973 Act in 2004. In terms of the transitional Arrangements , Schedule 5, Item 2, s6 of the Act:

''An external company that, immediately before the effective date [of the 2008 Act}, was registered as such in terms of the previous Act [of 1973} must be regarded as having registered on the effective date as an external company in terms of this Act."

[31] CMC is thus deemed to be an external company under the 2008 Act because it was an external Company under the 1973 Act. The definition of a company and whether it includes an external company must thus be sought in the 2008 Act. There is no definition of company under s6 of the Act and therefor the interpretation of "company" must bear the meaning assigned to it in s1.

[32] A Company is such if it falls within the following categories:

32.1 a company incorporated in terms of the provisions of this Act;

32.2 a domesticated company which is a foreign company that has transferred its registration to the republic;

32.3 juristic persons that were incorporated under legislation repealed by this Act and entities previously recognised as companies under the provisions of the 1973 Act.

[33] CMC is not a domesticated company because it has not transferred its registration. CMC is not a company incorporated in terms of this Act as it is incorporated under the Italian law.

[34] The distinction between an external company, a foreign company and a company existed in the 1973 Act. Incorporation and registration has also always been two distinct processes. There is simply no "notional" incorporation when an external company is registered in South Africa.

[35] If CMC submits that it is a juristic person that was registered and therefor it is a company, s1(a)(i) pertinently excludes an external company as defined in the Act. Since external companies are specifically excluded from the definition of a company, an external company cannot make use of business rescue provisions contained in Chapter 6.

[36] The above interpretation is not insensible and does not attain unbusinesslike results, neither does it undermine the apparent purpose of the Act. Such interpretation does not impede the purposes of the Act as set out s7 of the Act. The argument that absurdities will result if a registered juristic person is not seen as being incorporated is rejected. Certain specified sections do extend to external Companies. The legislator thus reduced the red tape but maintained some "control' ; the duty to file an annual return, certain provisions on fundamental transactions, requirements for a special resolution by external

holding companies, the obligation to maintain at least one office in South Africa and register the address or principle office, to mention a few.

[37] There is no case-law on whether an external company can apply for business rescue in South Africa, but Meskin opinions as follows: "Since 'external companies' (the equivalent of a 'foreign company' under the 2008 Companies Act) are specifically excluded by paragraph (a)(i) of the definition of 'company', a foreign or external company (even if such company has operations in the Republic) would not be able to make use of the business rescue provisions contained in Chapter 6.”[4]

[38] This opinion is shared by Jeffrey Salant:

“The new corporate rescue procedure has the object of facilitating the rehabilitation of a company that is financially distressed. With the exception of external companies and close corporations, virtually all financially distressed companies will be able to utilise this procedure”[5]

[39] Henochsberg on the Companies Act, 2008, commentary on s129 at p458 also supports the above contentions.

"BUSINESS RESCUE AND COMPROMISE WITH CREDITORS

See s 1 sv 'company'. The business rescue provisions are therefore not applicable to close corporations nor are they applicable to external companies, since an external company is not 'a Juristic person incorporated in terms of this Act: as contemplated in that definition, but is a foreign company that merely registers with the commission in terms of s 23 (1).”[6]

On behalf of CMC it was argued that these opinions are just bold opinions, I will go so far as to say due to the definition of ''company" the opinions need not be bolstered.

[40] CMC is declared not to be validly under business rescue in terms of s129 of the Act.

Can this court recognise and enforce the foreign court order issued by the court of Ravenna in Italy.

[41] When the application was brought the only order granted by the Italian Court was that the CMC was assigned a deadline of 60 days to file the agreement with a creditor's proposal, alternatively a possible restructuring agreement, that CMC must send on a monthly basis a summarised report and three judicial commissioners were appointed. This was ordered upon ' .. considered that the eventual continuation of the business is a certain fact, even though the procedures whereby the restructuring of the total debt has not yet been clarified.”[7] When the matter was heard the proposal was filed and on 13 November 2019 at 11:00 am a creditor meeting and voting procedure would follow.

[42] A foreign judgment is not directly enforceable, but constitutes a cause of action. A foreign judgment will only be enforced in South Africa when:

"(i) the court which pronounced the judgment had jurisdiction to entertain the case according to the principles recognised by our law with reference to the jurisdiction of foreign courts (sometimes referred to as 'international jurisdiction or competence');

(ii) the judgment is final and conclusive in its effect and has not become superannuated;

(iii) the recognition and enforcement of the judgment by our Courts would not be contrary to public policy;

(iv) the judgment was not obtained by fraudulent means;

(v) the judgment does not involve the enforcement of a penal or revenue law of the foreign State; and

(vi) enforcement of the judgment is not precluded by the provisions of the Protection of Business Act 99 of 1978, as amended.”[8]

[43] CMC' s expert on Italian Bankruptcy law enlightens this court that the Italian bankruptcy laws provide that CMC' s board retains the power to administer and run its business. Furthermore the Italian bankruptcy laws provide for only an automatic stay on attachments or other precautionary measures. Judicial property mortgages enrolled 90 days prior to the registration cannot be enforced and penalties and forfeitures are not imposed. CMC' s expert opinions that the Italian order was issued in anticipation of CMC's proposed plan to inter alia restructure the debt, set out whether assets and or shares were to be sold and if financial instruments were to be offered to satisfy creditors. The plan must set out a subdivision of creditors into various classes and how these classes of creditors' debt is to be satisfied. Details of secured and unsecured creditors and how these classes' claims are to be satisfied must be reflected. CMC can thus still run its business and there is no general moratorium on legal proceedings against or for CMC.

[44] CMC does not pass the basic hurdle for enforcement of a judgment or order; the Italian Order granted is not final and conclusive, simply because there is no finality to the order. It is correct that one has to look predominantly to substance or the effect of the order rather than the form of the order, but the effect of the order granted is not final.[9] At the time the application was brought a decision was made that business should continue and therefore a time period was granted to submit a plan. The substance of the order is thus a time-frame to submit a plan or proposal. The extension of the time-frame, i.e. the nature and effect of the order, further enforces the argument that the order is not final. The order facilitates a process and is not a decision of res

Judicata between the parties.[10] This order is not definitive of the rights of the parties before me, nor does it dispose of a substantial portion of the relief claimed.

[45] Even if this court takes cognisance of the facts put before me by Mr Paolo Destro Cappellano as to what has happened with the process in the mean time, I cannot find that the Italian order is final and conclusive. Only in November 2019 will the first meeting of creditors occur and the Italian order is only final when there is a final judicial approval of the plan.

[46] The Italian process is not on par with South African business rescue proceedings. At one stage counsel for CMC in oral evidence was equating the Italian Order to s311 in the 73 Act, but then retracted that argument and argued that it was akin to business rescue proceedings. I could not be informed if the creditors would have to travel to Italy to partake in the procedure, but from the bar Esor's counsel informed this court that they are partaking in the process in Italy. CMC argued that there is only one legal persona, but registered in two countries. The consequence of this can lead to seemingly irreconcilable conflicts of authority and powers between two simultaneous and concurrent liquidators. It was thus argued that in cases of dual registration, a principle of demarcation in the event of a dispute between the liquidators must be developed. However, I am not confronted with two liquidations, I am confronted with two would be business rescue proceedings. Business rescue is not open to an external company in South Africa and there is accordingly no conflict with the Italian process. This does however not lead to this court having to adopt the Italian Order. A High Court does not have inherent jurisdiction to enforce another country's order unless the requirements have been fulfilled. I am not even certain if should the Italian Order be enforced it will not infringe on certain sections of the Act. Under these circumstances the Italian Order cannot be recognised and enforced.

Other issues

[47] To come to the findings on prayer 2 and 3 it was not necessary to make any finding pertaining to the locus standi of Esor and I accordingly have not done so. I have also not make any findings pertaining to the pending arbitration.

[48] Although arguable that the BRP's and CMC are not affected parties in terms of either ss 128(1)(a) and 131(1) of the Act, and thus could not have brought this application, I have chosen to address the main issues and not side step them with other issues.

The counter-application by Stefcor for liquidation of CMC

[49] Stefcor is the only party seeking liquidation of CMC. Stefcor is only seeking this counter-application if prayers 2 or 3 of CMC' s and the BRP's application is not granted. Esor expressly did not support such application.

[50] The application is based thereon that Stefcor is a creditor of CMC and CMC is indebted to Stefcor for construction work done by Stefcor for CMC. In terms of the Mokgalakwene WWTW contract CMC is indebted to Stefcor in the amount of R19 550 917.52. An amount of R1 023 874.71 is payable to Stefcor for the Mt Edgecombe contract.

[51] The application is brought in terms of s344(f) read with s345(1)(c) of the Act that CMC is commercially insolvent and unable to meet its debts. Furthermore it would be just and equitable that CMC be wound up.

[52] CMC averred that it only indebted to Stefcor on the Mogalakwena contract in the amount of R1 933 20 7. 9 O, but in terms of the contract that amount is not yet due and payable. In terms of clause 16.8 CMC only has to pay Stefcor when it has received payment from Mogalakwena Municipality. CMC has not received any payment from the Municipality. Pertaining to the Mount Edgecombe Contract CMC denies that it owns any money to Stefcor and with only a bald allegation by Stefcor CMC cannot answer to this averred claim. CMC further avers that it has sufficient cash and readily realisable assets to make payment to Stefcor. It has not made payment because of legal advice that CMC is under business rescue alternatively will do payment, if this Court so orders, in terms of the Italian Order.

[53] Stefcor in the reply had to admit that it is a contingent creditor of CMC pertaining to the Mogalakwena contract. In reply the bold averment of monies owing on the Mount Edgecombe contract is set out for the first time in detail. It is trite that an applicant cannot make out its case in the reply.

[54] The application of Stefcor is unconvincing; the debt owing is only substantiated in the replying affidavit and then it is still debatable whether the debt is owing, or due and payable. I am unconvinced that it would be just and equitable for me to grant the liquidation of CMC at this stage. Although not crucial, but a factor to consider, is that the other creditors do not support this application. CMC has indicated that it would appeal this matter if prayers 2 and 3 are dismissed due to both issues being of sufficient novelty and public interest and importance to justify granting leave to appeal upon CMC's application being dismissed. If liquidation is granted in the meantime and any appeal is upheld then the business rescue proceedings or adherence with the Italian order would be severely inhibited because an appeal would not suspend the liquidation proceedings.

[55] I am satisfied that the application for liquidation is to be postponed sine die with Stefcor permitted to on the same papers, supplemented if so wished, set down the liquidation application when, if any, appeal

proceedings, have been finalised or when it is deemed appropriate to do so.

[56] On behalf of CMC it was argued although CMC did not oppose Esor's intervention, the fact that Esor does not have locus standi renders Esor liable to carry the costs. I made no finding on the locus standi as it was not necessary. I certainly found their arguments helpful and they were a party before me. I see no reason to disqualify Esor from costs.

[57] I accordingly make the following order:

57.1 The application is dismissed with costs.

57.2 The counter-application is postponed sine die. No order as to costs.

S. POTTERILL

JUDGE OF THE HIGH COURT

CASE NO:

15454/19

HEARD ON: 26 August 2019

FOR THE 1st to 3rd APPLICANTS: ADV. J.J. BREIT SC

ADV.D.MAHON

INSTRUCTED BY:

Terry Mahon Attorneys

FOR THE 2nd RESPONDENT: ADV. A.C. RUSSEL

INSTRUCTED BY:

Tiefenthaler Attorneys Inc.

FOR THE 3rd RESPONDENT : ADV. B. MKHIZE

INSTRUCTED BY:

ENS Africa- Inc

FOR THE 4TH RESPONDENT: ADV. J. MINNAAR

INSTRUCTED BY:

Alice Swanepoel Attorneys

DATE OF JUDGMENT:

15 October 2019

[1] Contemporary Company Law 2 ed 2012 at p97

[2] F Cassim The Companies Act: An Overview of a few of its core provisions 2010 SA Mere U 157 at 164

[3] FA16

[4] Meskin Insolvency Law par 18.3.3

[5] Jeffrey Salant Business rescue operations and the new Companies Act, De Rebus, August 2009 (accessed electronically)

[6] The Law of South Africa (LAWSA) - 275 Definitions

[7] FA9

[8] Jones v Krok [1994] ZASCA 177; 1995 (1) SA 677 (A) at 685A-E; Society of Lloyd ' s v Price: Society of Lloyd's v Lee 2006 (5) SA 393 (SCA); Richman v Ben-Tovi 2007 (2) SA 283

[9] South African Motor Industry Employers' Association v South African Bank of Athens Ltd 1980 (3) SA 91 (A); Trope and Others v South African Reserve Bank 1993 (3) SA 264 (A)

[10] Willis Faber Enthoven {Pty) Ltd v Receiver of Revenue and Another [1991] ZASCA 163; 1992 (4) SA 202 (A) at 214D-G; Yarona Health Care Network (Pty) Ltd v Medshield Medical Scheme 2018 (1) SA 513 (SCA)