Daffue v Espach and Others (45341/19) [2019] ZAGPPHC 314 (22 July 2019)

Daffue v Espach and Others (45341/19) [2019] ZAGPPHC 314 (22 July 2019)

The court found that the urgency claimed by the applicant was self-created due to his delay in bringing the application for business rescue and rescission. The applicant became aware of the final liquidation order on 20 May 2019 but only served the application on 28 June 2019, without providing a sufficient explanation for the delay. The court held that, while business rescue proceedings should be conducted expeditiously, this does not entitle an applicant to act leisurely and then approach the court on an urgent basis. Furthermore, the application was fatally defective as the Master of the High Court, who has a direct and substantial interest, was not given adequate notice. The court...

Citation
[2019] ZAGPPHC 314
Parties
Applicant: Johannes Martinus Daniel Daffue; Respondent: Johan Espach; Respondent: Crocodile Cottage Properties (Pty) Ltd (in liquidation); Respondent: Crocodile River House (Pty) Ltd; Respondent: Johannes Zacharias Humman Muller N.O.; Respondent: Ana Paula de Olveira N.O.; Respondent: Companies & Intellectual Property Commission; Respondent: ABSA Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 July 2019
Case Number
45341/19
Procedural Posture
Urgent Application / Application to Place Companies Under Business Rescue or Rescind Liquidation Order; Heard in Urgent Court
Outcome
Application struck from the roll for lack of urgency and procedural defects.
Judges
E Van der Schyff
Legal Topics
Business Rescue, Company Liquidation, Urgency, Rescission of Order
Commercial and Corporate Civil Procedure Business Rescue Company Liquidation Urgency Rescission of Order

Case Brief

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Parties

Johannes Martinus Daniel Daffue

Applicant

Johan Espach

Respondent

Crocodile Cottage Properties (Pty) Ltd (in liquidation)

Respondent

Crocodile River House (Pty) Ltd

Respondent

Johannes Zacharias Humman Muller N.O.

Respondent

Ana Paula de Olveira N.O.

Respondent

Companies & Intellectual Property Commission

Respondent

ABSA Bank Limited

Respondent

Procedural Posture

Urgent Application / Application to Place Companies Under Business Rescue or Rescind Liquidation Order; Heard in Urgent Court

Legal Issues

  1. 1 Whether the application to place solvent companies under business rescue or to rescind the liquidation order is urgent.
  2. 2 Whether the applicant provided a reasonable explanation for the delay in bringing the application.
  3. 3 Whether the Master of the High Court was given adequate notice of the rescission application.

Ratio Decidendi

The court found that the urgency claimed by the applicant was self-created due to his delay in bringing the application for business rescue and rescission. The applicant became aware of the final liquidation order on 20 May 2019 but only served the application on 28 June 2019, without providing a sufficient explanation for the delay. The court held that, while business rescue proceedings should be conducted expeditiously, this does not entitle an applicant to act leisurely and then approach the court on an urgent basis. Furthermore, the application was fatally defective as the Master of the High Court, who has a direct and substantial interest, was not given adequate notice. The court...

Court Disposition

Application struck from the roll for lack of urgency and procedural defects.

Orders

  • The application is struck from the roll.
  • The applicant is to pay the costs of the application.