Henria Belgeggings CC v Changing Tides 17 (Pty) Ltd N.O (5412/2008;43912/2016) [2022] ZAGPPHC 378 (1 June 2022)

Henria Belgeggings CC v Changing Tides 17 (Pty) Ltd N.O (5412/2008;43912/2016) [2022] ZAGPPHC 378 (1 June 2022)

The court found that the grounds advanced by Henria Beleggings CC for rescission—fraud, lack of authority, common mistake, and iustus error—were not established. The cession from Banner to Granite was known and pleaded, and Granite lawfully demanded payment from Henria and the SAHL Trust. Henria, represented by attorneys and counsel, acquiesced in the settlement order and attempted to perform under it for over two years. There was no operative or reasonable mistake, and no fraud or lack of authority was proven. The business rescue proceedings were found to be a sham, instituted solely to delay execution and not for any bona fide attempt to rescue the company, which had no business,...

Citation
[2022] ZAGPPHC 378
Parties
Applicant: Henria Belgeggings CC; Respondent: Changing Tides 17 (Pty) Ltd N.O.; Applicant: Changing Tides 17 (Pty) Ltd; Respondent: Companies & Intellectual Property Commission of South Africa; Respondent: Henria Beleggings BK; Respondent: Andries Gerrit Hendrik Du Preez; Respondent: Andrea Wynbergen; Respondent: Anatasia Whynbergen; Respondent: Willem Christoffel Esterhuizen N.O; Respondent: Minister of Trade & Industry N.O; Respondent: Minister of Finance N.O; Respondent: Registrar of Deeds, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 June 2022
Case Number
5412/2008;43912/2016
Procedural Posture
Civil Application / Judgment on Rescission and Business Rescue/winding Up
Outcome
Rescission application dismissed; business rescue resolution set aside; Henria Beleggings CC placed in final liquidation.
Judges
Davis
Legal Topics
Business Rescue Proceedings, Rescission of Judgment, Final Liquidation, Abuse of Process, Creditor Rights
Commercial and Corporate Civil Procedure Business Rescue Proceedings Rescission of Judgment Final Liquidation Abuse of Process Creditor Rights

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Parties

Henria Belgeggings CC

Applicant

Changing Tides 17 (Pty) Ltd N.O.

Respondent

Changing Tides 17 (Pty) Ltd

Applicant

Companies & Intellectual Property Commission of South Africa

Respondent

Henria Beleggings BK

Respondent

Andries Gerrit Hendrik Du Preez

Respondent

Andrea Wynbergen

Respondent

Anatasia Whynbergen

Respondent

Willem Christoffel Esterhuizen N.O

Respondent

Minister of Trade & Industry N.O

Respondent

Minister of Finance N.O

Respondent

Registrar of Deeds, Pretoria

Respondent

Procedural Posture

Civil Application / Judgment on Rescission and Business Rescue/winding Up

Legal Issues

  1. 1 Whether the rescission application in case no 5412/2008 should be granted.
  2. 2 Whether the resolution placing Henria Beleggings CC in business rescue should be set aside.
  3. 3 Whether Henria Beleggings CC should be placed in final liquidation.

Ratio Decidendi

The court found that the grounds advanced by Henria Beleggings CC for rescission—fraud, lack of authority, common mistake, and iustus error—were not established. The cession from Banner to Granite was known and pleaded, and Granite lawfully demanded payment from Henria and the SAHL Trust. Henria, represented by attorneys and counsel, acquiesced in the settlement order and attempted to perform under it for over two years. There was no operative or reasonable mistake, and no fraud or lack of authority was proven. The business rescue proceedings were found to be a sham, instituted solely to delay execution and not for any bona fide attempt to rescue the company, which had no business,...

Court Disposition

Rescission application dismissed; business rescue resolution set aside; Henria Beleggings CC placed in final liquidation.

Orders

  • The rescission application in case no 5412/2018 is dismissed with costs.
  • The resolution placing Henria Beleggings CC in business rescue is set aside.