Makhopa and Others v Master of the High Court Polokwane and Others (6791/2021) [2021] ZALMPPHC 71 (19 October 2021)

Makhopa and Others v Master of the High Court Polokwane and Others (6791/2021) [2021] ZALMPPHC 71 (19 October 2021)

The court found that the first creditors meeting was unlawfully convened while business rescue proceedings were still pending, in contravention of section 131(6) of the Companies Act. As a result, all decisions made at that meeting, including the rejection of the applicants' claims and the appointment of final liquidators, were irregular and unlawful. The applicants were deprived of their statutory rights to prove claims, participate in the appointment of liquidators, and interrogate other creditors. The requirements for interim relief were satisfied: the applicants established a prima facie right, demonstrated irreparable harm, showed that the balance of convenience favoured them, and...

Citation
[2021] ZALMPPHC 71
Parties
Applicant: Matsharoga Lordwick Makhopa; Applicant: Penny Geoffrey Khosa; Applicant: Welma Adelainde Ubisi; Applicant: Ngwanabjala Jacobeth Lentsoane; Applicant: Elizma Desire Jo-Anne van der Westhuizen; Applicant: Refiloe Matalji; Applicant: John Frederick Hume; Applicant: Mantsibi Game Ranch (Pty) Ltd; Respondent: Master of the High Court Polokwane; Respondent: Maryna Estelle Symes N.O.; Respondent: Johannes Zacharias Human Muller N.O.; Respondent: Puleng Felicity Bodibe N.O.; Respondent: Mustufa Mohamed N.O.; Respondent: Sumaiya Abdool Gafaar Kammissa; Respondent: Lindiwe Florence Kaaba; Respondent: Nurjehan Abdool Gafaar Omar; Respondent: MT Seleke; Respondent: Newinvest 56 (Pty) Ltd; Respondent: Southern Sky Commercial Properties; Respondent: Shamira Rinderknecht; Respondent: Southern Sky Developments (Pty) Ltd; Respondent: Southern Sky Residential Properties; Respondent: Southern Sky Estate (Pty) Ltd; Respondent: Southern Sky Wildlife; Respondent: Southern Sky Hotel & Leisure (Pty) Ltd (in liquidation)
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
19 October 2021
Case Number
6791/2021
Procedural Posture
Urgent Application / Interlocutory Interdict Pending Review (part A)
Outcome
Interim interdict granted in favour of the applicants pending finalisation of the review (Part B).
Judges
E M Makgoba
Legal Topics
Interim Interdict, Company Liquidation, Creditors Meeting Irregularity, Proof of Claims, Business Rescue Suspension, Appointment of Liquidators
Civil Procedure Commercial and Corporate Interim Interdict Company Liquidation Creditors Meeting Irregularity Proof of Claims Business Rescue Suspension Appointment of Liquidators

Case Brief

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Parties

Matsharoga Lordwick Makhopa

Applicant

Penny Geoffrey Khosa

Applicant

Welma Adelainde Ubisi

Applicant

Ngwanabjala Jacobeth Lentsoane

Applicant

Elizma Desire Jo-Anne van der Westhuizen

Applicant

Refiloe Matalji

Applicant

John Frederick Hume

Applicant

Mantsibi Game Ranch (Pty) Ltd

Applicant

Master of the High Court Polokwane

Respondent

Maryna Estelle Symes N.O.

Respondent

Johannes Zacharias Human Muller N.O.

Respondent

Puleng Felicity Bodibe N.O.

Respondent

Mustufa Mohamed N.O.

Respondent

Sumaiya Abdool Gafaar Kammissa

Respondent

Lindiwe Florence Kaaba

Respondent

Nurjehan Abdool Gafaar Omar

Respondent

MT Seleke

Respondent

Newinvest 56 (Pty) Ltd

Respondent

Southern Sky Commercial Properties

Respondent

Shamira Rinderknecht

Respondent

Southern Sky Developments (Pty) Ltd

Respondent

Southern Sky Residential Properties

Respondent

Southern Sky Estate (Pty) Ltd

Respondent

Southern Sky Wildlife

Respondent

Southern Sky Hotel & Leisure (Pty) Ltd (in liquidation)

Respondent

Procedural Posture

Urgent Application / Interlocutory Interdict Pending Review (part A)

Legal Issues

  1. 1 Whether the application is urgent and should be heard as such.
  2. 2 Whether the applicants have established a prima facie right to interim relief pending review.
  3. 3 Whether the first creditors meeting was lawfully convened while business rescue proceedings were pending.

Ratio Decidendi

The court found that the first creditors meeting was unlawfully convened while business rescue proceedings were still pending, in contravention of section 131(6) of the Companies Act. As a result, all decisions made at that meeting, including the rejection of the applicants' claims and the appointment of final liquidators, were irregular and unlawful. The applicants were deprived of their statutory rights to prove claims, participate in the appointment of liquidators, and interrogate other creditors. The requirements for interim relief were satisfied: the applicants established a prima facie right, demonstrated irreparable harm, showed that the balance of convenience favoured them, and...

Court Disposition

Interim interdict granted in favour of the applicants pending finalisation of the review (Part B).

Orders

  • Pending finalisation of Part B, the first and ninth respondents are interdicted and restrained from issuing a certificate of final appointment and appointing the sixth, seventh, and eighth respondents as joint liquidators of Southern Sky Hotel and Leisure (Pty) Ltd (in liquidation).
  • Pending finalisation of Part B, the status quo regarding the appointment and powers of the provisional liquidators shall remain in full force and effect; the provisional liquidators shall continue with their normal functions and duties.