Poole and Another v Rashida Industries (Pty) Ltd and Others (067770/2023) [2023] ZAGPPHC 1872 (26 October 2023)

Poole and Another v Rashida Industries (Pty) Ltd and Others (067770/2023) [2023] ZAGPPHC 1872 (26 October 2023)

The court found that the applicants, being the liquidators and major creditor, established exceptional circumstances justifying execution of the order pending appeal. The evidence demonstrated a calculated strategy by the respondents to frustrate liquidation and shield assets from creditors through abuse of business rescue proceedings and asset-stripping. The applicants would suffer irreparable harm if the order was suspended, as the creditors' interests would be prejudiced and the liquidators' statutory obligations undermined. The respondents, having orchestrated the stratagem and failed to contest the applicants' version, would not suffer irreparable harm. The intervention and...

Citation
[2023] ZAGPPHC 1872
Parties
Applicant: Poole, Angelene N.O.; Applicant: Mawela, Abel Makalene N.O.; Respondent: Rashida Industries (Pty) Ltd; Respondent: Gani, Shanna; Respondent: Ayob, Nizamudeen Noor Mohamed; Respondent: Schickerling, John Frederick N.O.; Respondent: First Rand Bank Ltd; Respondent: Fedbond Nominees (Pty) Ltd; Respondent: Sasfin Bank Ltd; Respondent: Nedbank Ltd; Respondent: The South African Revenue Service; Respondent: The Employees and Trade Unions; Respondent: The Master of the High Court, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 October 2023
Case Number
067770/2023
Procedural Posture
Urgent Application / Section 18(3) Application to Prevent Suspension of Execution Pending Petition for Leave to Appeal
Outcome
Application granted. The section 34 order is not suspended pending the petition to the Supreme Court of Appeal. Costs awarded against the second and third respondents on an attorney and client scale.
Judges
M M Dlenyai
Legal Topics
Superior Courts Act Section 18, Liquidation Proceedings, Business Rescue, Asset Stripping, Section 34 Insolvency Act, Creditors Rights
Civil Procedure Commercial and Corporate Land and Property Superior Courts Act Section 18 Liquidation Proceedings Business Rescue Asset Stripping Section 34 Insolvency Act +1 more

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Parties

Poole, Angelene N.O.

Applicant

Mawela, Abel Makalene N.O.

Applicant

Rashida Industries (Pty) Ltd

Respondent

Gani, Shanna

Respondent

Ayob, Nizamudeen Noor Mohamed

Respondent

Schickerling, John Frederick N.O.

Respondent

First Rand Bank Ltd

Respondent

Fedbond Nominees (Pty) Ltd

Respondent

Sasfin Bank Ltd

Respondent

Nedbank Ltd

Respondent

The South African Revenue Service

Respondent

The Employees and Trade Unions

Respondent

The Master of the High Court, Pretoria

Respondent

Procedural Posture

Urgent Application / Section 18(3) Application to Prevent Suspension of Execution Pending Petition for Leave to Appeal

Legal Issues

  1. 1 Whether exceptional circumstances exist to justify execution of the order pending appeal.
  2. 2 Whether the applicants will suffer irreparable harm if the order is not executed.
  3. 3 Whether the respondents will suffer irreparable harm if the order is executed.

Ratio Decidendi

The court found that the applicants, being the liquidators and major creditor, established exceptional circumstances justifying execution of the order pending appeal. The evidence demonstrated a calculated strategy by the respondents to frustrate liquidation and shield assets from creditors through abuse of business rescue proceedings and asset-stripping. The applicants would suffer irreparable harm if the order was suspended, as the creditors' interests would be prejudiced and the liquidators' statutory obligations undermined. The respondents, having orchestrated the stratagem and failed to contest the applicants' version, would not suffer irreparable harm. The intervention and...

Court Disposition

Application granted. The section 34 order is not suspended pending the petition to the Supreme Court of Appeal. Costs awarded against the second and third respondents on an attorney and client scale.

Orders

  • First Rand Bank Ltd is granted leave to intervene as a co-applicant in the section 18(3) application.
  • The application to file the supplementary affidavit by the Fifth Respondent is condoned.