Mashwayi Projects (Pty) Ltd and Others v Wescoal (Pty) Ltd and Others (1157/2023) [2025] ZASCA 5; [2025] 2 All SA 57 (SCA); 2025 (3) SA 441 (SCA) (29 January 2025)

Parties

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg

Legal Issues

1. 1 Whether post-commencement creditors are entitled to vote on a business rescue plan under Chapter 6 of the Companies Act 71 of 2008.
2. 2 Whether the business rescue plan presented at the creditors meeting on 28 July 2023 was validly adopted in accordance with section 152 of the Act.
3. 3 Whether the statutory threshold of 75% of creditors' voting interests was achieved when tallying votes, including post-commencement creditors.

Ratio Decidendi

The Supreme Court of Appeal held that the Companies Act 71 of 2008 does not exclude post-commencement creditors from voting on a business rescue plan. The Act's language, context, and purpose support a unitary interpretation of 'creditor' that includes both pre- and post-commencement creditors. The absence of express limitation and the requirement to balance stakeholder interests under section 7(k) of the Act mean that all creditors are entitled to vote. The court rejected reliance on foreign law and policy considerations, emphasizing that statutory interpretation must be based on the text and context of South African law. Factually, the court found that errors in tallying votes meant the...

Court Disposition

Appeal upheld. The business rescue plan was not validly adopted; the high court's orders are set aside and replaced with dismissal of the applications and counter-applications. Costs awarded to appellants, including costs of two counsel.

Orders

• The appeals of the first, second, and third appellants are upheld with costs, including the costs of two counsel.
• The order of the court a quo is set aside and replaced with dismissal of the first and second applicants' application with costs, including costs of two counsel.