Motsotsoana v RAD Mining and Energy (Proprietary) Limited and Others (16437/20) [2020] ZAGPPHC 638 (19 November 2020)
The court found that the applicant failed to establish locus standi, as he did not file a replying affidavit addressing the issue raised by the respondents. The application lacked bona fides, evidenced by the absence of heads of argument, indexing, and pagination, and the fact that the first respondent had not...
Source-derived case information.
- Citation
- [2020] ZAGPPHC 638
- Parties
- Applicant: David Tebatso Motsotsoana; Respondent: RAD Mining and Energy (Proprietary) Limited; Respondent: The Companies and Intellectual Property Commission ("CIPC"); Respondent: Maralco Business Advisors CC trading as Maralco Plant Services; Respondent: All affected parties as defined in section 128 of the Companies Act 71 of 2008
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 16437/20
- Procedural Posture
- Business Rescue Application / Judgment on Application for Business Rescue
- Outcome
- Application dismissed with costs on the attorney and client scale.
- Judges
- Fabricius
- Legal Topics
- Business Rescue, Locus Standi, Liquidation Proceedings
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Tebatso Motsotsoana
Applicant
RAD Mining and Energy (Proprietary) Limited
Respondent
The Companies and Intellectual Property Commission ("CIPC")
Respondent
Maralco Business Advisors CC trading as Maralco Plant Services
Respondent
All affected parties as defined in section 128 of the Companies Act 71 of 2008
Respondent
Procedural Posture
Business Rescue Application / Judgment on Application for Business Rescue
Legal Issues
- 1 Whether the applicant has locus standi to bring the business rescue application.
- 2 Whether the application for business rescue is bona fide or merely intended to frustrate liquidation proceedings.
- 3 Whether there is any business to rescue in the first respondent.
Ratio Decidendi
The court found that the applicant failed to establish locus standi, as he did not file a replying affidavit addressing the issue raised by the respondents. The application lacked bona fides, evidenced by the absence of heads of argument, indexing, and pagination, and the fact that the first respondent had not traded since February 2020. The business rescue proceedings had not progressed since March 2020, and there was no business to rescue. The application was deemed to be an abuse of process intended to frustrate the liquidation proceedings. Accordingly, the application was dismissed with costs on an attorney and client scale.
Court Disposition
Application dismissed with costs on the attorney and client scale.
Orders
- The application is dismissed with costs on the scale as between attorney and client.
Full Case Text
Judgment text and source record
49 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHERS JUDGES: NO
(3) REVISED.
CASE NO: 16437/20
In the matter between:
DAVID TEBATSO MOTSOTSOANA
Applicant
and
RAD MINING AND ENERGY (PROPRIETARY) LIMITED
(Registration Number: 2013/025984/07) First Respondent
THE COMPANIES AND INTELLECTUAL
PROPERTY COMMISSION ("CIPC")
Second Respondent
MARALCO BUSINESS ADVISORS CC
TRADING AS MARALCO PLANT SERVICES
Third Respondent
ALL AFFECTED PARTIES AS DEFINED IN
SECTION 128 OF THE COMPANIES ACT 71 OF 2008
Fourth Respondent
JUDGMENT
__
FABRICIUS J
[1] In an undated Notice of Motion applicant seeks an order that first respondent be placed under business rescue proceedings in terms of the provisions of s 131 (4)(a) of the Companies Act 72 of 2008. The Founding Affidavit is dated 5 March 2020. Fourth respondent filed a notice of abide.
[2] First respondent was provisionally wound-up by an order of the Middelburg High Court on 4 February 2020 with a return-date on 9 March 2020.
[3] On 9 March 2020 first respondent served an Answering Affidavit on third respondent indicating the present business rescue application was in the process of being initiated. The rule nisi was accordingly extended. The said liquidation application remains in limbo, as it was put by third respondents’ counsel.
[4] Applicant alleges now that he is a 100% share holder of third respondent. Third respondent denied that. There is a dispute as to the true identity of the applicant raised in the answering affidavit.
[5] Third respondent states that there is no business to rescue and that there are no employees in the employ of first respondent.
[6] The present application was merely designed to frustrate the final determination of the liquidation application.
[7] For present purposes, and in addition to the above the following is noted:
7.1 The business rescue proceedings have not progressed since March 2020;
7.2 Applicant has filed no replying affidavit dealing with at least his locus standi which was placed in issue;
7.3 Applicant filed no heads of argument nor were the papers indexed and paginated.
7.4 First Respondent has not been trading since at least 19 February 2020.
[8] In light of the above the present application cannot be said to be bona fide.
[9] The following order is therefore made:
The application is dismissed with costs on the scale as between attorney and client.
H FABRICIUS
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Electronically submitted therefore unsigned
Delivered: This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 19 November 2020.
DATE OF HEARING: NO ORAL HEARING (The judgment was reserved on 16 November 2020)
DATE OF JUDGMENT: 19 NOVEMBER 2020
FOR THE APPLICANT:
McCABE ATTORNEYS
FOR THE THIRD RESPONDENT:
DONN E BRUWER ATTORNEY