Naude N.O. and Another v Louis Pasteur Medical Investments Ltd and Others (51476/2021) [2022] ZAGPPHC 800 (24 October 2022)

Naude N.O. and Another v Louis Pasteur Medical Investments Ltd and Others (51476/2021) [2022] ZAGPPHC 800 (24 October 2022)

Condonation for the late filing of the answering affidavit and counter-application was granted to avoid further unnecessary litigation, but LPMI was ordered to pay the costs due to lack of good cause for the delay. The court found that Gothe Attorneys did not have proper authority to act for LPMI, as the board resolutions relied upon were invalid and the board was not properly constituted. Mr Naidoo's appointment as co-business rescue practitioner was invalid, as it was not endorsed by the CIPC and the appointment process was flawed. The counter-application to remove Mr Naudé as BRP was dismissed, as only a court can remove a BRP and a temporary lapse in licensing does not constitute...

Citation
[2022] ZAGPPHC 800
Parties
Applicant: Etienne Jacques Naudé N.O.; Applicant: Louis Pasteur Hospital Holdings (Pty) Ltd; Respondent: Louis Pasteur Medical Investments Ltd; Respondent: Dr Mohamed Adam; Respondent: Abdool Sattar Akoob; Respondent: Yussuf Suliman; Respondent: Dingaan Daka; Respondent: Aboohaker Joosub Mahomed; Respondent: Kennethh Clive Marion; Respondent: Companies and Intellectual Property Commission; Respondent: Albrecht Nursing Company; Respondent: Louis Pasteur Investment Holdings; Respondent: Bouwer Cardona Inc; Respondent: B Braun Medical; Respondent: Easybuild; Respondent: Electric Centre PTA/Voltex; Respondent: Fedics (Pty) Ltd; Respondent: Home Hyper City; Respondent: Arjo Huntleigh Africa; Respondent: Imagine That Design and Print; Respondent: JAB Autoclaves and Services CC; Respondent: K Carrim Group; Respondent: Stilco Security (Pty) Ltd; Respondent: Medhold Medical (Pty) Ltd; Respondent: Medikredit; Respondent: Metro Home Centre; Respondent: New Medica; Respondent: Purple Surgical South Africa (Pty) Ltd; Respondent: SAB & T Auditors; Respondent: Sryker Osteonics (Pty) Ltd; Respondent: Surgical Innovations; Respondent: Textile World; Respondent: Topas Electronics; Respondent: Valhalla General Dealer CC; Respondent: Waltons; Respondent: Westrand Box; Respondent: South Africa Revenue Services; Respondent: Hospersa; Respondent: Denosa; Respondent: Nedbank; Respondent: Employees of Second Applicant; Respondent: The Creditors of the Second Applicant; Respondent: First Clinic Properties One (Pty) Ltd; Respondent: Conrad Van Staden NO; Respondent: Harry Kaplan; Respondent: AAG Khammisa; Respondent: Sujai Naidoo
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 October 2022
Case Number
51476/2021
Procedural Posture
Urgent Application / Judgment on Application and Counter Application
Outcome
Application for condonation granted with costs against the first respondent; application to remove Mr Naidoo as business rescue practitioner granted with costs against the first to sixth respondents and Mr Naidoo; counter-application to remove Mr Naudé as BRP dismissed with costs.
Judges
S Potterill
Legal Topics
Business Rescue Practitioner Removal, Authority of Attorneys, Condonation for Late Filing, Board Resolution Validity
Commercial and Corporate Civil Procedure Business Rescue Practitioner Removal Authority of Attorneys Condonation for Late Filing Board Resolution Validity

Case Brief

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Parties

Etienne Jacques Naudé N.O.

Applicant

Louis Pasteur Hospital Holdings (Pty) Ltd

Applicant

Louis Pasteur Medical Investments Ltd

Respondent

Dr Mohamed Adam

Respondent

Abdool Sattar Akoob

Respondent

Yussuf Suliman

Respondent

Dingaan Daka

Respondent

Aboohaker Joosub Mahomed

Respondent

Kennethh Clive Marion

Respondent

Companies and Intellectual Property Commission

Respondent

Albrecht Nursing Company

Respondent

Louis Pasteur Investment Holdings

Respondent

Bouwer Cardona Inc

Respondent

B Braun Medical

Respondent

Easybuild

Respondent

Electric Centre PTA/Voltex

Respondent

Fedics (Pty) Ltd

Respondent

Home Hyper City

Respondent

Arjo Huntleigh Africa

Respondent

Imagine That Design and Print

Respondent

JAB Autoclaves and Services CC

Respondent

K Carrim Group

Respondent

Stilco Security (Pty) Ltd

Respondent

Medhold Medical (Pty) Ltd

Respondent

Medikredit

Respondent

Metro Home Centre

Respondent

New Medica

Respondent

Purple Surgical South Africa (Pty) Ltd

Respondent

SAB & T Auditors

Respondent

Sryker Osteonics (Pty) Ltd

Respondent

Surgical Innovations

Respondent

Textile World

Respondent

Topas Electronics

Respondent

Valhalla General Dealer CC

Respondent

Waltons

Respondent

Westrand Box

Respondent

South Africa Revenue Services

Respondent

Hospersa

Respondent

Denosa

Respondent

Nedbank

Respondent

Employees of Second Applicant

Respondent

The Creditors of the Second Applicant

Respondent

First Clinic Properties One (Pty) Ltd

Respondent

Conrad Van Staden NO

Respondent

Harry Kaplan

Respondent

AAG Khammisa

Respondent

Sujai Naidoo

Respondent

Procedural Posture

Urgent Application / Judgment on Application and Counter Application

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the answering affidavit and counter-application.
  2. 2 Whether Gothe Attorneys have authority to act on behalf of LPMI.
  3. 3 Whether Mr Naidoo must be removed as co-business rescue practitioner (co-BRP).

Ratio Decidendi

Condonation for the late filing of the answering affidavit and counter-application was granted to avoid further unnecessary litigation, but LPMI was ordered to pay the costs due to lack of good cause for the delay. The court found that Gothe Attorneys did not have proper authority to act for LPMI, as the board resolutions relied upon were invalid and the board was not properly constituted. Mr Naidoo's appointment as co-business rescue practitioner was invalid, as it was not endorsed by the CIPC and the appointment process was flawed. The counter-application to remove Mr Naudé as BRP was dismissed, as only a court can remove a BRP and a temporary lapse in licensing does not constitute...

Court Disposition

Application for condonation granted with costs against the first respondent; application to remove Mr Naidoo as business rescue practitioner granted with costs against the first to sixth respondents and Mr Naidoo; counter-application to remove Mr Naudé as BRP dismissed with costs.

Orders

  • The application for condonation is granted. The first respondent is to carry the costs thereof.
  • The application to remove Mr Naidoo as business rescue practitioner is granted. The first to sixth respondents as the exco that appointed Mr Naidoo as well as Mr Naidoo are to pay the costs.