Lange N.O and Others v Maartens N.O and Others (1094/2019) [2020] ZANCHC 8 (20 March 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE DIVISION, KIMBERLY)

Case No:

1094/2019

Matter Heard: 14/02/2020

Date Delivered: 20/03/2020

In the appeal of:

ISAK JACOBUS JEREMIAS LANGE N.O.

First Applicant

CAROLINA CATHARINA LANGE N.O.

Second Applicant

HEINRICH DUVENHAGE N.O.

Third Applicant

and

DAWID MAARTENS NO

First Respondent

(In his capacity as appointed Business Rescue

Practitioner of the Second Respondent)

BLAZECOL 116 CC

Second Respondent

COMPANIES AND INTELLECTUAL PROPERTIES

Third Respondent

COMMISSION

WH AUCTIONEERS PROPERTIES (PTY) LTD

Fourth Respondent

ALCHRIS BOERDERY

Fifth Respondent

ALBERT HUMAN

Sixth Respondent

FIRST NATIONAL BANK

Seventh Respondent

WESBANK LTD

Eighth Respondent

PLUSNET

Ninth Respondent

SHUTTERLOCK

Tenth Respondent

WATERGLAZE

Eleventh Respondent

EYGELAAR SERFONTEIN

Twelfth Respondent

H & W DISTRIBUTORS

Thirteenth Respondent

WH GRESSE SWEISWERKE

Fourteenth Respondent

LANGE CARR & WESSELS

Fifteenth Respondent

ROPE CONSTRUCTION

Sixteenth Respondent

BOSVELD SITRUS

Seventeenth Respondent

DIGGERSREST

Eighteenth Respondent

MAGALIES FRUIT PACKERS

Nineteenth Respondent

CLOSE-UP DEALS CC

Twentieth Respondent

HIRE-TECH

Twenty-First Respondent

SOUTH AFRICAN REVENUE SERVICES

Twenty-Second Respondent

KOMATI FRUITS

Twenty-Third Respondent

JUDGMENT

MAKOTI AJ

[1] The applicants are trustees of an inter vivos trust called Arizma Trust, IT Numbers 280/2006 (‘the Trust’). The trust holds 100% interest in a close corporation known as Blazecor 116 CC (‘Blazecor’), which is cited as the second respondent in this application. Blazecor is presently under business rescue and the business rescue practitioner appointed to oversee its affairs is the first respondent, Mr Dawid Maartens N.O (‘Maartens’).

[2] The applicants filed this application asking the court to grant them the primary order setting aside a resolution[1] that was passed by the first applicant to commence the business rescue of Blazecor. The allegation supporting this prayer is that the resolution was invalidly passed by the first applicant and therefore, it is null and void. Also, the applicants seek ancillary orders to set aside the business rescue proceedings,[2] the business rescue plan[3] and the sale by Maartens of certain land property known as Koras 412, District Gordonia, Northern Cape (‘the property’).

[3] The basis for the contention that the resolution is a nullity is that it was passed by the first applicant using his capacity as managing member of the close corporation. In his founding affidavit the first

applicant alleges that he lacked the required locus standi to pass the resolution, ostensibly because Arizma, and not him, is the member of Blazecor. If it is found that the resolution amounts to a nullity, the applicants further submitted that all the processes that were embarked upon pursuant to the commencement of business rescue must also be set aside.

[4] In addition, the applicants further contended, that if it is found that the resolution was valid, continuation of the business rescue processes was in contravention of s 132(3) of the Act and therefore invalid. They prayed, as a result, that the court should set aside business rescue on this ground. Although this ground was not raised in the applicants’ founding papers, I am prepared to consider its merits.

[5] This application was conceived from rather unusual circumstances. This is because initially the first applicant brought an urgent court interdict to prevent the sale of the property through public auction which was scheduled for 13 April 2019 (and subsequently postponed to 27 April 2019). The urgent application was opposed and an answering affidavit by Maartens was filed on 25 April 2019 questioning, inter alia, the first applicant’s locus standi. In that urgent application the first applicant did not initially question the validity or legitimacy of the resolution and the resultant business rescue proceedings. My observation is that the applicants embraced the business rescue proceedings from inception up until a dispute over the sale of the property arose.

[6] Due to the point of locus standi that was raised by Maartens, the urgent application to interdict the sale of the property was ultimately withdrawn. The strange turn of events was that the first applicant then accepted that he did not have the required locus standi and that gave him an idea to conceived this application. The first applicant states in the founding affidavit in this application that:

“8.30 The necessary result of my lack of locus standi, I was advised, is that the whole business rescue proceedings is a nullity due my clear lack of locus standi in passing the resolution, annexure “BL5”, which commenced the business rescue proceedings in January 2017.”

[7] I do not agree with the applicants’ line of contention. The fact that the urgent application was met with a technical defence of lack of locus standi does not mean that the first respondent truly lacked the capacity to pass the impugned resolution. On the same breath, the fact that he readily accepted that he lacked locus standi is not proof that he indeed lacked the capacity to see to the finality of the urgent application. That question will be revisited and answered when I deliberate the merits of the application.

[8] The importance of mentioning the urgent application is twofold, being: (1) because the applicants have contended that the changes in stance concerning locus standi by the respondents should be taken as a serious contraction by this court and should lead to a finding in their favour; and (2) that the respondents have also asked this court to use that history of the litigation to mulct the applicants with costs on punitive scale, de bonis propriis.

[9] When delivering his oral submissions, it became apparent from Mr Janse van Rensburg that the question of locus standi was central to this application. It is the substratum of the applicants’ case. From a factual matrix as contained in the founding affidavit, the applicants presented no other case other than to contend that the business rescue proceedings were fatally flawed as a consequence of the invalidly passed resolution.

[10] Only the first and second respondents (for convenience purposes ‘the respondents’) are opposing this application and have filed answering papers. They have raised three grounds of opposition, namely:

[10.1] a technical point that the applicants have failed to comply with the provisions of s133 of the Companies Act. According to the respondents, the applicants are precluded from instituting action against Blazecor while the entity is under business rescue;[4]

[10.2] that the applicants were no longer entitled, in terms of s130 of the Act, to challenge the validity of the resolution after the adoption of the business rescue plan. Accordingly, the respondents contended that the main relief that the applicants prayed for was both factually and legally untenable; and

[10.3] that the reliance of the applicants on the provisions of s132(3) for contending that the business rescue should have ended after the lapse of three months from the date of its inception, is ill-founded. The respondents specifically argued that the applicants completely misapprehended the effect of the provision.

Non-compliance with s133 of the Act

[11] The provisions of s133(1) of the Act imposes a moratorium on litigation against a company that is under business rescue. The respondents therefore called for this matter to be dismissed on the basis that the applicants had not obtained consent from Maartens, as business rescue practitioner, or the leave of court, to institute the application. That there was no compliance with s133(1) is not in dispute.

[12] The applicants disputed that s133(1) is applicable in this matter. They argued that this matter was not an action against the company in business rescue. Rather, so went their argument, this application is meant to assert the rights of the company in business rescue. I am therefore called upon to determine whether the case is an action ‘against the company’. A positive answer to the question would imply that the applicants were supposed to have asked Maartens to consent to the application, alternatively, to apply for leave of court to institute the application.

[13] In order to determine the question whether compliance with s133(1) was required, I believe that it is necessary to consider the relevant provisions, which read as follows:

“(1) During business rescue proceedings, no legal proceeding, including enforcement action, against the company, or in relation to any property belonging to the company, or lawfully in its possession, may be commenced or proceeded with in any forum except-

(a) with the written consent of the practitioner;

(b) with leave of the court and in accordance with any terms the court considers suitable;

(c) as a set-off against any claim made by the company in any legal proceedings, irrespective of whether those proceedings commenced before or after business rescue proceedings began;

(d) criminal proceedings against the company or any of its directors or officers;

(e) proceedings concerning any property or right over which the company exercises power of a trustee; or

(f) proceedings by a regulatory authority in the execution of its duties after written notification to the business rescue practitioner.”

[14] It is settled law that a person may only act against a company that is under business rescue if one or more of the circumstances mentioned above have been satisfied. This is in respect of both pending proceedings and matters which may be instituted after business rescue has started.[5] The respondents contend, therefore, that this application does not comply with the requirements of the Act and that it should be

dismissed with costs. The applicants do not deny that one may only act against a company in business rescue if the requirements of s133 have been satisfied. Their argument is that compliance with the said provisions was not required because the application is not against but for the benefit of the corporation.

[15] The general moratorium in terms of s133 is intended to provide a company that is under business rescue with a chance to resuscitate its business fortunes and without enduring the threat of what may be costly litigation.[6] In terms of Cloete Murray and Another NNO v Firstrand Bank Ltd t/a Westbank[7] the moratorium operates widely and is inclusive of any type of claim against a company that is in business rescue. The word against as used in the provision denotes, in my view, action which would be in opposition or detrimental to the company.

[16] I add that, in my view, an action that opposes resolutions or mandates given to the practitioner in the rescue plan that was approved at the meeting with creditors amounts to action against the company. I cannot understand why, if the applicants truly wanted to take action for the benefit of the company, they did not ask the practitioner to partner them or for his consent to litigate. I accept that in terms of s137 of the Act a member of an entity in business rescue is still liable for the management of its affairs. That does not mean that, in the circumstances of this case, the applicants can simply bypass the practitioner and institute action on behalf of the corporation. The excuse that this is an application for the benefit of Blazecor stands to be rejected.

[17] An interpretation that an act against the mandates issued in the business rescue plan is sensible[8] and leaves no confusion as to how to approach litigation of this nature. The court in Diener N.O. v Minister of Justice[9] embraced what was said in Panamo and made it clear that courts have to interpret the provisions of the Act in a manner that is sensible or which avoids absurdities. It said that:

“In Panamo Properties (Pty) Ltd & another v Nel & others NNO, 5 a case, like this one, concerning the interpretation of the business rescue provisions of chapter 6 of the 2008 Act, Wallis JA commenced his judgment by speaking of the commendable goals of chapter 6 being hampered ‘because the statutory provisions governing business rescue are not always clearly drafted’.6 He then proceeded to say that in these circumstances, a court ‘must consider whether there is a sensible interpretation that can be given to the relevant provisions that will avoid

anomalies’ and that this involves the application of two further principles of interpretation: endeavouring to ‘give a meaning to every word and every section in the statute’ and avoiding construing provisions as having no meaning; and reconciling sections of a statute that appear to be in conflict if that is possible.” (Emphasis added)

[18] I do not believe that s133 makes it open for the applicants to institute litigation on behalf of Blazecor, and intended to serve its interest without involving Maartens. Their action is in any case against a decision that he has taken as he was mandated by the corporation and its creditors. They seek to undo a transaction which he concluded in accordance with his mandate. In the premises, I do not agree with the applicants’ contention that the application was instituted in the furtherance of the interests of Blazecor. This application was not to serve any persons’ interests but theirs.

[19] I find that the applicants ought to have asked for Maartens’s consent to institute this application. Alternatively, they should have asked the court to grant them leave to litigate against Blazecor.

Consideration of the merits

[20] In case I am wrong in finding that the applicants were required to comply with the provisions of s 133(1) of the Act, I considered it prudent to deliberate the merits of the application.

[21] The parties were ad idem that Blazecor was and still is in financial distress. That financial disposition is the main reason why the first applicant passed the impugned resolution to place the corporation under business rescue. When doing so, the first respondent was ostensibly acting in his capacity as the sole member of the corporation and therefore sitting in the position akin to that of a director of a company.

[22] The current financial position of Blazecor is one of the important considerations for the determining the question whether the business rescue should be set aside, and, if so, what would be the natural consequences of the order. This question is raised because the respondents have contended that if an order ending business rescue was to be granted, the court should then place Blazecor in liquidation. The applicants have given no compelling answer to this issue.

[23] Evidence before me suggests that the first applicant was nominated by the trustees of Arizma to hold membership in Blazecor. He held the membership as a representative of the trust inter vivos. He was the sole member of the close corporation. Section 29(1A) of the Close Corporations Act[10] (‘the CC Act’) has created a dispensation in terms of which the first applicant as a trustee of an inter vivos trust could hold membership in a close corporation. Before the introduction of this provision, the CC Act had rendered it impossible

for a trustee of an inter vivos trust to hold membership (in that capacity) in a close corporation.

[24] It has to be emphasised that it was only in that capacity that the first applicant was able to hold membership in Blazecor, being a representative nominated by the other trustees of the trust inter vivos. He could not have held that membership position as a trustee of an inter vivos trust other than as provided for in s29(1A) of the CC Act. Furthermore, s29(1A)(b) of the CC Act stipulates that a person holding membership as a trustee of a trust inter vivos shall personally enjoy all the rights and obligations of a member between himself and the close corporation. A suggestion that the trust is the holder of interest in the close corporation simply cannot be correct.[11]

[25] I can find no reason why the first applicant as a person holding membership in Blazecor, as trustee of an inter vivos trust, could not have lawfully passed the resolution that led to the close corporation being placed under business rescue. He is the only person who was charged with the management of the affairs of the close corporation. A suggestion that he acted solely in his managerial or personal capacity is unfathomable and legally untenable. No one else could have validly taken the decision. The co-trustees had no active role to play. This is because the CC Act specifically provides that a person holding interest for the benefit of a trust inter vivos is to be personally liable for the rights and obligations of the close corporation.[12] Also, the applicants cannot ignore the fact that the first applicant singularly held the entire members’ interest in Blazecor, making him the only person who had the capacity to take the decision place the close corporation under business rescue.

[26] The reasoning that was put forward by the applicants as to why this court should find that the resolution which commenced business rescue is a nullity is in my view incongruent with the provisions of the CC Act, and, as a result, cannot be acceded to. Such contention stands to fail. The member’s interest in the close corporation was as a matter of both fact and law held by the first applicant, and he held it in his capacity as a nominated representative of the trust inter vivos.[13] His relationship with his co-trustees in Arizma bears no relevance with respect to the decisions taken on behalf of Blazecor. It is relevant that s29(1A)(c) further provides that a close corporation is not:

“…obliged to observe or have any obligation in respect of any provision of or affecting the trust or any agreement between the trust and the member concerned of the corporation;”

[27] In my view the statutory provision quoted above signifies that the relationship between the member representing the trust inter vivos and his fellow trustees is of no legal consequence in so far as the administration of the affairs of the close corporation is concerned.

What is important is that only[14] a member of a close corporation has fiduciary responsibilities to perform his duties and functions in the best interest of the

corporation concerned. None of the applicants, as trustees, except for the first applicant, had any fiduciary responsibilities towards Blazecor.

[28] There is another consideration of importance in this matter. This relates to an issue that was raised by Mr van den Bogerts, on behalf of the first and second respondents, that the applicants were precluded and could no longer challenge the validity of the resolution as the meeting of creditors had already taken place and the business rescue plan already adopted. He relied on the authority from the case of Panamo Properties (Pty) Ltd and Another v Nel and Others NNO[15] where it was held that:

“[13] Secondly, the time for bringing such an application is restricted. An application to set aside the resolution may be brought at any time after the date of adoption of the resolution, once a business rescue plan has been adopted, the time for challenging a resolution is past. Whatever, flaws may have been present before that time become that time become of purely historical importance thereafter.”

(Emphasis Added)

[29] The applicants did not present any persuasive counter argument for this submission. Mr Janse van Rensburg conceded that he had no legal authority to quote in order to rebut this submission. He however persisted with his submissions that the court should still find in the applicants’ favour. The SCA authority binds this court and leads me to a conclusion that the time period for challenging the validity of the resolution that began the business rescue of Blazecor

has long passed. On this ground too, the application to set aside the impugned resolution has to fail.

[30] The applicants’ second ground for challenging the present business rescue was that the proceedings should have come to an end within a period of three months. They argued that in terms of s132(3) of the Act the only way in which business rescue could continue beyond the period of three months is if there was an extension that was granted by a court. It is common cause that a period of three months has long passed since business rescue proceedings started. It is further common cause that there is no court order extending Blazecor’s business rescue.

[31] For proper ventilation of this issue it is wise to reflect on the provisions of sections 132(2) and (3). Subsection (2) deals with instances where business rescue comes to an end. The entire body of the provision of s132 deals with the duration of business rescue, and subsection (2) in particular provides that business rescue ends when: (a) the resolution that started rescue is set aside by a court or when business rescue is converted into liquidation; (b) the practitioner has notified the Commission of termination of rescue; and (c) the rescue plan has been proposed but rejected and no person has acted to extend rescue or, if the plan was adopted when the practitioner has filed a notice of substantial implementation of the

plan.

[32] No mention is made to the effect that business rescue must end at the expiry of a period of three months, that is, if a court has not extended it. I do not believe that the legislature intended that business rescue will end at the expiry of three months from the date of its commencement. There is no ambiguity about this, that is, as to what the legislation intended to bring business rescue to an end. In Coopers & Lybrand & others v Bryant[16] Joubert JA drew a distinction between background and surrounding circumstances, and held that only where there is an ambiguity in the language, should a court look to surrounding circumstances.

[33] What the applicants sought to rely on is a provision in ss(3) which states that if business rescue has not ended within a period of three months, ‘or such longer period as the court, on application by the practitioner, may allow, the practitioner must:

(a) prepare a report on the progress of the business rescue proceedings, and update it at the end of each subsequent month until the end of those proceedings; and

(b) deliver the report and each update on the prescribed manner to each affected person, and to the-

(i) court, if the proceedings have been subject of a court order; or

(ii) Commission, in any other case.

[34] There is no authority to the proposition that business rescue must cease after three months if it has not been extended by the court. Mr Janse van Rensburg, the applicants’ counsel, conceded that no such authority existed, but implored this court to interpret the provision as implying that business rescue proceedings end after three months when there has been no extension. I do not agree with this interpretation, which is based on unwarranted creativity as opposed to relying on settled principles.

[35] The first difficulty with the applicants’ proposition is that construction of the provision is intended to impose additional duties or functions on business rescue.[17] The trigger for the business practitioner’s additional responsibilities or functions is undeniably the continuation of business rescue processes beyond the initial period of three months. The provision prescribes what the business rescue practitioner must

do in the event that the proceedings extend beyond the initial period of three months. In my view, ss(3) is more of a permissive provision than one that restricts continuation of business rescue. In Kubyana v Standard Bank of South Africa Ltd[18] the court acknowledged the use (importance) of a permissive text of legislation, stating that:

“Although subsection (1)(a) is framed in permissive language (“the credit provider may”), subsection (1)(b) is expressed in peremptory terms: legal proceedings for the enforcement

of a credit agreement “may not commence” until the section 129 notice has been provided to the consumer. …”

(Emphasis added)

[36] The second challenge for the applicants’ proposition is that it loses sight of the fact that the fundamental principle of interpretation denotes that words in statute or written document must be construed in their proper context.[19] It should be recalled what the Constitutional Court said in the case of Bato Star Finishing (Pty) Ltd v Minister of Environment Affairs and Other,[20] where it remarked that:

“It is no doubt true that it is a primary rule of statutory construction that words in a statute must be given their ordinary grammatical meaning. But it is also a well-known rule of construction that words in a statute should be construed in the light of their context.”

[37] To construe s132(3) within its context means, in my view, that the provision must be read with the provisions of ss(2) which specifically caters for circumstances under which business rescue terminates. Also, it has to be said that if the legislature had intended that business rescue shall lapse after a period of three months, it would have said so. The legislature had carefully considered the circumstances under which business rescue terminates. Those are the specific circumstances as contained in ss(2). Other than the listed instances, there is no express provision to the effect that business rescue ends in three months.

[38] In Shoprite Checkers (Pty) Ltd v Berryplum and Others[21] the court rejected a contention that business rescue terminates when the practitioner had failed to publish a business rescue plan within the stipulated time limits. The result should be the same in this matter because I do not see how, if the legislature had intended business rescue to end within three months, subject to possibility of an extension, it does not expressly provide so. The absence of an express provision in this regard is a strong indicator that business rescue may lawfully be continued with after the lapse of the initial three months’ period.

[39] A view was expressed by the Pietermaritzburg High Court in the case of Resource Washing (Pty) Ltd v Zululand Coal Reclaimers Proprietary Limited and Others[22] that a business rescue practitioner must apply for an extension of business rescue if the process has not been finalised within a period of three months. Even so, that expression does not help the applicants’ case to halt business rescue proceedings. However, that court also noted that there is no indication as to the consequences if the business rescue practitioner does not apply for an extension. In my view, it was never intended by the legislature that business rescue is to end after three months if no extension was applied for and granted by the court.

[40] It is not in dispute that business rescue must be conducted with the necessary expedition. This is so because, once a company is in business rescue, the rights of third parties and creditors are materially affected because they are unable to enforce their rights against the company.[23] Although it is correct that business rescue proceedings have to take place within strict time lines as set out in legislation, it is not correct to interpret the provisions of s132(3) in the manner proposed by the applicants. This is so because the entire basis for having business rescue is to ensure that those companies that can be rescued, be resuscitated in order to allow them to contribute meaningfully to the country’s economy.[24] An interpretation that may lead to an end of business rescue of a company that is in distress, without taking the provisions of s132(2) into account, is not practical and will lead to an absurdity.

[41] The respondents have confirmed that the business rescue practitioner has complied with his obligations by filing reports as he is required to do in terms of s132(3) of the Act. This was not put in dispute by the applicants, except to suggest that, because there was no extension granted by the court, business rescue must by law be terminated. There is no merit in the applicants’ proposed interpretation of s132(3).

[42] Having found that there is no merit to the applicants’ proposed interpretation, I turn focus to the ground which they raised in that the business rescue practitioner is conducting business in contravention of the terms of the business rescue plan.

[43] A critical analysis of the established facts of this matter is also needed. In the first place, it is common cause that business rescue of Blazecor began on 20 January 2017 and, secondly, the business rescue plan was adopted or approved at a meeting attended by the first applicant and the creditors of Blazecor on 17 April 2017. If the applicants’ reasoning is to be accepted, it would mean that the business rescue practitioner was left with three (3) days to implement and bring to finality the rescue proceedings.

[44] On the papers filed with the registrar of this court and during oral argument, the applicants raised two further issues, that: (i) the business rescue processes are taking way too long and they ought to have been finalised; (ii) the sale of the corporation’s immovable property by way of auction contravened the provisions of the plan.

[45] To suggest that business rescue is taking longer than was initially envisaged is not correct. That contention does not accord with what the member(s) and creditors of the corporation envisaged when they adopted the business rescue plan. In terms of the provisions of the business rescue plan, it was foreseen that the processes may last up to four years, if not longer. This is so because the business rescue plan provides in one of its paragraphs that the business rescue practitioner was authorised:

“14.6 … to make payments to the creditors, as set out in the Projected Cash Flow Statements for the next 4 (four) years, attached hereto as annexure “D”;” (Emphasis added)

[46] The provision above is not capable of any interpretation other than to suggest that those who adopted the plan had it in their minds that the processes were going to take a period of approximately four years.[25] That much is clear from the ordinary grammatical meaning to the text of the paragraph. In the result, the applicants’ contention based on length of time must fail.

[47] Turning to the opposition of business rescue based on the sale of the corporation’s property by way of public auction, the applicants argued that that mode of sale contravened the provisions of the business rescue plan. This contention was predicated on two grounds. Firstly, that the price for which the property was sold was lower than what was determined in the plan. Secondly, the applicants contended that the practitioner ought to have considered an offer that was already on the table, which offer came from another of the applicants’ linked companies or entities.

[48] Information at my disposal is that the property was sold on 27 April 2019 for an amount of R4,100,000 (Four Million and One Hundred Thousand Rand) exclusive of VAT. The total inclusive price amounted to R4,715,000 (Four Million Seven Hundred and Fifteen Thousand Rand). When VAT is factored, the property was sold for R4,715,000. The business rescue plan mandated the practitioner as follows:

“14.8 The BRP be authorised, if any assets are not sold within 6 (six) months after the adoption of this plan, to instruct an auctioneer to sell the remaining assets by way of a public auction.”

[49] The property is listed as one of the immovable assets of Blazecor at an estimated market value of R5,700,000 (Five Million and Seven Hundred Thousand Rand). Clause 14.2 of the business rescue plan authorised the practitioner to dispose of the property by selling it for an amount not less than R4,675,000 (Four Million, Six Hundred and Seventy Five Thousand Rand), inclusive of VAT. The sale amount exceeds the minimum price, inclusive of VAT, determined in the business rescue plan. There can be no question that the sale and the price were not in the best interest of creditors. Any suggestion to that effect is simply an embellishment.

[50] Before the property was sold in auction, a close corporation in which the applicants hold interest, Lange van Rooyen Boerdery CC (‘the Boerdery’) had offered to purchase it. The offer was accepted by the business rescue practitioner. However, the Boerdery could not raise the required finance to buy the property. When it became apparent to the business rescue practitioner that the company was not in a position to purchase the property, having failed to raise the required finance, he instructed an auctioneer to sell the

property by public auction. It is that decision which aggrieved the applicants and from then on, employed means of ensuring that the property was not disposed of.

[51] It is quite strange and rather opportunistic for the applicants, who were at all material times aware and participating in the business rescue proceedings could come to court and claim that the processes should be stopped because they have become unlawful. It seems to me that the only reason why they have adopted this stance is because they were not able to acquire the property and they did not want the practitioner to sell it to any other person. I do not agree with the submissions of Mr Janse van Rensburg that the applicants were not au fait with business rescue processes and relied on the practitioner to guide them through the processes. Amongst them, the third applicant is a practicing attorney. I therefore agree with sentiment that the applicants simply wanted to continue holding on to the property.

[52] In the premises, the application is dismissed with costs. The applicants are ordered to pay the costs of this application on a punitive scale as between attorney and client.

MAKOTI, MZ

ACTING JUDGE

NORTHERN CAPE HIGH COURT

KIMBERLEY

Representation:

For Applicant: Adv Janse van Rensburg

For Respondent: Adv van den Bogerts

[1] Resolution dated 16 January 2017.

[2] The proceedings started on 20 January 2017.

[3] The plan was adopted on 17 April 2017.

[4] Act No. 71 of 2008.

[5] African Banking Corporation of Botswana v Kariba Furniture Manufacturers (Pty) Ltd and Others 2015 (5) SA 195 (SCA).

[6] Business Partners Limited v Tsakiraglou and Others 2016 (4) SA 390 (WCC) par [20].

[7] 2015 (3) SA 438 (SCA) par [34].

[8] Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18.

[9] (926/2016) [2017] ZASCA 180 (1 December 2017).

[10] Act No. 69 of 1984 (as amended).

[11] The South African Bank of Athens Limited v Salvadora Properties Ninety Nine CC 2010 JDR 0542 (GSJ) par [15].

[12] S 29(1A)(b).

[13] Ibid.

[14] Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18.

[15] 2015 (5) SA 63 (SCA).

[16] [1995] ZASCA 64; 1995 (3) SA 761 (A) at 768A-E.

[17] See, Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC) par [11] and [45].

[18] Kubyana v Standard Bank of South Africa Ltd 2014 (3) SA 56 (CC).

[19] Bato Star Finishing (Pty) Ltd v Minister of Environment Affairs and Other 2004 (4) SA 490 (CC).

[20] Ibid, par [89].

[21] Unreported judgement: (47327/2014) [2015] ZAGPPH 255 (11 March 2015).

[22] Unreported judgement:

[23] Koen v Wedgewood Village Golf and Country Estate 2012 (2) 378 (WCC) par [10].

[24] DH Brothers Industries (Pty) Ltd v Gribnitz NO and Others 2014 (1) SA 103 (KZP) paras [17] and [18].

[25] Novartis v Maphil 2016 (1) SA 518 (SCA) para [28] were it was held that: “… A court must examine all the facts - the context - in order to determine what the parties intended. And it must do that whether or not the words of the contract are ambiguous or lack clarity. Words without context mean nothing.” [Emphasis added]