Razzmatazz Trading Investment 19 (Pty) Ltd v Q-Civils (Pty) Ltd and Another (6115/2016) [2017] ZAFSHC 242 (7 December 2017)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 6115/2016

In the matter between:

RAZZMATAZZ TRADING INVESTMENT 19 (PTY) LTD Applicant

(2005/021122/07)

and

Q-CIVILS (PTY) LTD Respondent

CPMS CIVIL ROAD REHABILITATION 1st Intervening Party

(PTY) LTD

OMAR FORTUNE NO

HENDRIK LUDOLPH NEETHLING JOUBERT NO 2nd lntervening Party

ROEWYDA FORTUNE NO

HEARD ON: 16 NOVEMBER 2017

JUDGMENT BY: JORDAAN, ADJP

DELIVERED ON: 07 DECEMBER 2017

[1] The applicant applies for leave in terms of section 133(1)(b) of the Companies Act 71/2008 to proceed with the application against

respondent, a company in business rescue. In the same application the applicant seeks an order of liquidation against the respondent. The first intervening party, CPMS, is a company of which Mr Omar Fortune is a director and opposes the application, being an affected party in the sense of being a creditor of the respondent. The second intervening party represented by the trustees is the O+R Fortune

Trust, also being an effected party who holds all the shares in respondent and is also represented by Mr Omar Fortune in the proceedings. The second intervening party also opposes the application.

BACKGROUND

[2] During 2016 the applicant allegedly assisted respondent financially by advancing money to respondent. One such Joan in the amount of R694 693.82 was to enable respondent to commence with executing a tender contract awarded to it by SANRAL. Respondent, represented by its director, Fortune, undertook to repay the amount out of the first payments received from SANRAL. When it became known to applicant that SANRAL had paid respondent and the latter failed to repay the loan to applicant, applicant brought an application for winding up of respondent.

[3] Respondent then in November 2016 tendered payment of the aforesaid loan with interest, on condition that the winding up application

be withdrawn. That was done and the loan with interest and legal cost was paid by respondent

on approximately 9 November 2016.

[4] The remaining part of respondent's debt towards applicant, in respect of which respondent signed an acknowledgment of debt to the sum of approximately R4.8million, was to be paid at the latest on 9 December 2016.

[5] On 9 December 2016 applicant's attorneys inter alia enquired from respondent's attorneys about the repayment of the amounts to be paid in respect of the acknowledgment of debt. No response was received and applicant issued another application for winding up of the respondent on 12 December 2016.

[6] In the meantime, on 9 December 2016, the respondent resolved to place itself under business rescue and filed the necessary resolution with the commission. Respondent then, on 23 December 2016, filed a notice of opposition to the present application.

[7] On 26 January 2017 respondent successfully applied for a postponement of the application to 23 February 2017 and the matter was thereafter again postponed to 16 March 2017.

[8] On 9 March 2017 the applicant filed an amended notice of motion asking for, inter alia, setting aside the resolution of the business rescue commencement proceedings alternatively leave to proceed in terms of section 133(1)(b) of the act and for provisional liquidation.

[9] From the founding affidavit to the amended notice of motion it appears that the business rescue practitioner (BRP) on 10 February

2017 filed an application for the winding up of respondent in terms of section 141(2)(a)(ii) (the BRP application).

[10] Mr Fortune as director of respondent then purported to oppose the BRP application on behalf of respondent and filed a counter application for the removal of the BRP and substituting him with one Strauss as BRP, in terms of section 130(1)(b)(iii).

[11] In the view of the prescripts of section 130(2) Mr Fortune, the director who took the resolution placing respondent in business

rescue, would be precluded to apply for the setting aside of the appointment of the BRP unless he satisfied the court that, in taking the resolution, he acted in good faith on the basis of false or misleading information (and of course, that he is an affected person in terms of the act).

[12] Applicant in this application alleges that Mr Fortune, in his opposing affidavit in the BRP application, alleged that he was

advised by his attorney at the time that applicant intended to bring a fresh application for liquidation, which could be avoided by taking a resolution placing respondent in business rescue. Mr Fortune was opposed to such a resolution but, due to pressure being put upon him by the attorney, consented to the resolution being taken. He however stated that he did not agree that the respondent was financially distressed at the time.

[13] In his opposing affidavit Mr Fortune does not deny the aforesaid allegations but simply maintains that the applicant is not entitled to rely on Fortune's affidavit in the BRP application. (Ironically he refers to allegations contained in the papers in that application himself).

[14] In the application of the BRP the rescue practitioner in limine objected to the locus standi of Mr Fortune to act on behalf of respondent. The trial court in that matter upheld the objection but granted leave to appeal it's finding to the SCA.

[15] In view of the finding that Mr Fortune did not have locus standi to represent the respondent, three applications for leave to intervene in the BRP application were brought by respectively Mr Fortune in his personal capacity, CPMS and the O+R Fortune Trust. Those applications were granted. Pending the finalisation of the appeal against the finding of the court in that matter, the BRP application as well as the business rescue proceedings are "in limbo".

[16] Whilst the issues in the BRP application were litigated, leading up to the leave to appeal being granted, the applicant in this application sought leave to prosecute this application from the BRP who however maintained that he was not empowered to ratify or authorise the application retrospectively, necessitating an application for leave to this court.

[17] As aforesaid, the leave to proceed with the present application is sought as part of the present application in the amended notice of motion.

[18] In the meantime CPMS, in its capacity of being a creditor of respondent and the O+R Fortune Trust, as the sole shareholders of all the shares in respondent, both being affected persons, applied to intervene in this matter.

[19] It was not seriously opposed as to the intervention, but opposed as to the merits of those applications which applications in effect also opposed the present application on the merits as to liquidation . I granted both intervention applications and ordered that the costs of the applications to intervene to be costs in the main application.

[20] The intervening parties made common cause in opposing the application. Both are represented by Mr Fortune, only wearing different cloaks; for CPMS as director and for the O+R Fortune Trust as trustee. Their interventions were obviously inter alia motivated by the finding in the BRP application to the effect that Mr Fortune lacked the necessary locus standi to act on behalf of the respondent without the authority and consent of the BRP. The intervening parties both seek an order dismissing the main application.

EVIDENCE

[21] In his founding affidavit on behalf of the trust (and referred to in his affidavit on behalf of CPMS) Fortune deals with the merits and demerits of the application.

[22] He inter alia admits signing an acknowledgment or debt on 13 June 2016 in respect of an amount of R1 601 490, which the applicant proclaimed to have paid to respondent, and a further amount of R3 475 568,98 allegedly paid to Tailspin Trading 19 (Pty) Ltd (Tailspin) on behalf of respondent by applicant.

Fortune also alleges that Mr Parker, the deponent on behalf of applicant, arrived at his office and forced him cede two payment certificates due to respondent by the Mangaung Metropolitan Municipality. He signed the cessions because he was afraid that if he refused to do that he would be "in serious trouble" with Mr Parker.

[23] According to Fortune respondent was a liable and vibrant company but as a result of the

“doings” of the BRP, was destroyed from December 2016 to the date of his affidavit (being the

2 May 2017). Fortune also alleges that he was friends with Parker at the time when the acknowledgment of debt was signed.

[24] According to Fortune he later heard from Mr Kritzinger of Tailspin that the debt owed by respondent to Tailspin was never paid by applicant. He then called Parker and told him that Parker took money in respect of the payment of the ceded certificates that was not due to applicant. Accordingly, according to Fortune Parker agreed to release an amount of R580 000 back to respondent.

[25] Fortune maintains that the amount of R1.6million referred to in the acknowledgment of debt was indeed

never paid into the bank account of the respondent. In respect of the Tailspin payment Fortune asked updated accounts in respect of the debt due to Tailspin by respondent but was informed that the account was handed to the attorney Graham for collection.

Fortune further alleges that on 11 April 2017 he was informed by Graham that the information he needs is in possession of the respondent's attorney Mr H Peyper who, with Mr Fortune, according to Graham, did a full reconciliation of the Tailspin account.

[26] As to the acknowledgment of debt signed by Fortune on behalf of the respondent in an amount of R694 693,82 on the 20 June 2016 it is alleged that it was repaid in full on the 9th of November 2016.

[27] According to Fortune the present application is a combined attempt to destroy respondent who, according to Fortune, became a financial threat to other entities. He alleges that the business rescue process was also part of "a devious plan" to destroy respondent.

[28] On behalf of CPMS Fortune alleges that he agreed on behalf of CPMS to a notarial bond being registered in respect of the acknowledgement of debt signed on 20 June 2016 in the amount of R694 693.82. He denies ever signing a power of attorney for a notarial bond in respect of the other acknowledgment of debt or in respect of any other debts. He denies that CPMS ever authorised him to sign a power of attorney in that regard. He invited the applicant to produce such resolution.

[29] In answer to those allegations the applicant annexed inter a/ia the powers of attorney to register notarial bonds, a resolution for registration of a notarial bond by CPMS and respondent and also

annexes a copy of the notarial bond where the figures of the secured debt is reflected in bold as R5 777 175,28. All the annexed documents including the bond was signed by Fortune and initialled on each page.

In answer to the annexed documents Fortune only maintains that he never intended the notarial bond to be for the larger amount.

[30] The applicant, in answer to the opposing application by the Trust, maintains that Fortune himself alleges that the respondent has been destroyed, that the respondent in actual fact did not do business since January 2017 and the deponent on behalf of the applicant also alleges that respondent has no employees in his employ anymore and that all loose assets of the respondent have been disposed of.

[31] Applicant also annexed an affidavit Mr H Du Tait, former finance director of respondent, in which Du Tait confirms that respondent is indeed indebted to applicant in the amount of R2 895 768,93. As to the amount of R1 610 490 referred to in the first acknowledgment of debt the applicant alleges that it represented a loan of R1.2million plus interest thereon. The amount of R1.2million was allegedly

transferred to Fortune's own bank account on 29 April 2016 at the request of Fortune himself. Proof of such payment is annexed to the papers.

[32] The applicant also annexes an affidavit of Mr JA Kritzinger the sole director of Tailspin in which it is confirmed that the respondent's debt to Tailspin was extinguished in total. (It may be noted that a document annexed by CPMS to its application representing the position of respondent as at 31 January 2017 does not reflect Tailspin as a creditor.)

[33] According to the deponent of applicant, the payments in regard to the balance was done by Peyper attorneys and is reflected in annexures G and H to the affidavit on behalf of applicant.

[34] During January 2017 Fortune drafted a report to the BRP in which he mentions that the claim of applicant amounts to R3, 5million.

[35] In the application by the Fortune Trust for intervention and opposition the trust did not file a replying affidavit to the

opposing affidavits thereto.

[36] The business rescue practitioner filed a notice of non opposition to the relief claimed by the applicant except the relief originally sought in paragraph 3 of the amended notice of motion, which pertained to setting aside of the resolution to commence business rescue proceedings. That prayer was abandonded by the applicant with the result that the BRP does not oppose the remainder of the relief.

THE LOCUS STANDI OF MR FORTUNE ON BEHALF OF RESPONDENT

[37] As aforesaid, in the BRP application the court held that Fortune lack the necessary locus standi to represent and act on behalf of the company without the assistance and consent of the BRP. I am bound by that decision unless convinced that it is clearly wrong. Mr Greyling did not advance any argument to that effect but chose to rely on the allegations contained in the initial application for a postponement where Mr Fortune deposed to the founding affidavit, supported by an affidavit of the rescue practitioner. In that application for a postponement the only material relief claimed was the postponement of this application until the 23 February 2017. In the founding affidavit annexed to the notice of motion in the application for postponement Mr Fortune alleged 111 am duly authorised to bring this application and also to depose to this affidavit on behalf of the respondent". He then in the same affidavit refers to the fact that it was resolved to commence business rescue and that the BRP was appointed, resulting in the moratorium created by section 133(1) of the act. He also in that affidavit alleges that respondent already instructed an advocate to draft the necessary opposing affidavit to the application for liquidation by this applicant, which, according to Fortune, could not be finalised since the BRP was still investigating the matter in order to supply the advocate with the necessary information.

[38] In the same affidavit Fortune alludes to the fact that, if the BRP concludes that there are no

reasonable prospects to rescue respondent, the BRP will have to apply for respondent's liquidation in terms of section 141 of the act himself. As aforesaid a supporting affidavit by the rescue practitioner was annexed confirming Mr Fortune's affidavit "insofar as it relates to me".

[39] On the aforesaid basis Mr Greyling argues that the business rescue practitioner authorised Fortune to act on behalf of the respondent, the rescue practitioner authorised the preparation of opposing affidavits in opposition to the application and it is not said or alleged that the authorisation granted at that stage has been withdrawn.

[40] The argument aforesaid is fallacious; at the stage when the application for postponement was brought the business rescue practitioner was still investigating the affairs of the respondent. The business rescue proceedings resulted in a moratorium on which the business rescue practitioner was entitled to rely. The business rescue practitioner was not in the position to form an

informed decision as to the prospects of respondent to be successfully rescued at that time. The necessity of a postponement was self-evident. Fortune was only authorised to bring the application for a postponement. It does not state that he was authorised to oppose the application on behalf of the respondent but only states that the respondent instructed an advocate to draft the opposing affidavit, pending information to be obtained from the investigation of the BRP. Following upon his investigation, the BRP resolved to apply for liquidation since the respondent had no prospects to be successfully rescued in his opinion. The BRP not only applied for liquidation himself but filed a notice in terms of Rule 6(5)(d)(iii) raising a point of law in opposition to prayer three of the amended notice of motion in which notice he explicitly stated that he does not oppose the remainder of the relief sought. The relief in prayer three was abandoned by the applicant as aforesaid.

[41] The inference sought, to the effect that the authorisation the BRP for the application for a postponement at that stage amounted to a continued authority to act and oppose the application on behalf of respondent is untenable and in direct conflict with the attitude of the BRP; he himself applied for liquidation of the respondent thereafter and explicitly indicated that he was not opposing the amended application for liquidation in this matter.

[42] I therefore hold that Mr Fortune is not representing respondent by virtue of any authorisation given by the business rescue

practitioner. This finding is however only technical in result and have no material effect on the application. As stated Mr Fortune also represents the intervening parties and deals with the merits of the application in those capacities, wherein he relies on all that he might have raised and relied on on behalf of the respondent itself.

LEAVE TO PROCEED IN TERMS OF SECTION 133(1)(b)

[43] On behalf of the intervening parties it was argued that leave cannot be granted ex post facto as part of the application, where it is clear that the application was brought after the start of business rescue and without leave being initially sought from the business rescue practitioner or the court before issuing of the application. In support of that submission Mr Greyling on behalf of the intervening parties relies on the judgment in Elias Mechanicos Building and Civil Engineering Contractors (Pty) Ltd v Stedone Developments (Pty) Ltd and Others 2015 (4) SA 485 (KZD) which obviously supports the argument.

[44] Applicant in countering the aforesaid argument relies on the dicta contained in Safari Thatching Lowveld CC v Misty Mountain Trading Two (Pty) Ltd 2016 (3) SA 209 (GP) and the judgment of Booysen v Jonkheer Boerewynmakery (Pty) Ltd and Another 2017 (4) SA 51 (WCC). The Safari Thatching decision is, however, distinguishable from the Elias decision in that the Safari matter dealt with the position where proceedings were commenced prior to the commencement of business rescue and leave then sought to proceed. The Booysen decision supports the applicants argument and is in direct conflict with the Elias decision.

[45] The Elias decision was informed by the literal interpretation of the wording of section 133(1)(b), read in context of the purpose of the moratorium granted to a business rescue practitioner. It was held that the "commencing of proceedings" contemplated leave to be sought separately and initially before commencing proceedings against a company already under business rescue, whilst" leave to proceed" contemplates proceedings legally commenced and instituted before a business rescue commenced and then halted

because of the commencement thereof. The Safari Thatchers decision obviously dealt with the last mentioned scenario.

[46] In the Booysen decision the court held that;

(1) The right of access to courts is fundamental and any statutory restriction to that right should be restrictively interpreted. (Paragraph 44)

(2) Business rescue proceedings must be conducted with the maximum possible expedition. (Paragraph 47)

(3) The moratorium created by section 133 is intended to serve as a procedural limitation on a litigant's right of action and not a bar in itself. It does not invalidate or nullify such proceedings if they were brought without prior consent being obtained. (Paragraph 51)

(4) A one-size-fits-all approach should not be followed. What will be required and regarded as sufficient will depend on the circumstances of each particular matter informing the courts discretion, which discretion should be exercised judicially, on the basis of convenience and fairness in the interest of justice. (Paragraph 54)

(5) In appropriate circumstances an application for leave to commence or proceed with legal process may be brought and dealt with as part of the prosecution of the main relief.

[47] In Chetty t/a as Nationwide Electrical v Hart and Another NNO 2015 (6) SA 424 (SCA) the purpose and effect of the moratorium created by section 133(1) of the act was authoritatively discussed and explained. It was inter alia held that;

(a) non-compliance with section 133(1) is not to be visited with the sanction of nullity (paragraph 40) and,

(b) the moratorium created a personal defence afforded to a company under business rescue and may be relied on by the practitioner for protection or may be waived by him. (Paragraph 43)

[48] The dicta in the Chetty decision, to my mind, strengthens the approach adopted in the Booysen judgment and also obviously formed an important basis for that decision. To my mind that approach is practical and in the interest of expedience in deserving matters.

[49] Once it is accepted that the business rescue practitioner may waive the protection afforded by the moratorium, there is much to be said in favour of the argument on behalf of the applicant that, if proceedings are instituted or proceeded with against the company in business rescue and the rescue practitioner does not rely on or seek the protection afforded by the moratorium in terms of section 133(1)(a), leave to proceed in terms of section 133(1)(b) becomes redundant and unnecessary.

[50] However, the language of section 133(1) clearly stipulates that the written consent of the practitioner is required failing

which leave has to be obtained from the court. Those requirements leads to legal certainty and avoids disputes as to the effect of a mere failure by the practitioner to raise the defence of non­ compliance. At least, a practitioner’s waiver should be in the form of written consent, failing which leave has to be obtained in terms of section 133(1)(b).

[51] In view of the aforesaid, the issuing of the application after business rescue proceedings commenced, does not render the application a nullity. Leave to proceed may still be sought in terms of section 133(1)(b) and in deserving circumstances, as part of the main application.

[52] In the present matter the following factors should be considered in exercising my discretion whether leave should be granted;

(1) The application was initiated by the applicant without knowledge of the commencement of business rescue proceedings.

(2) The practitioner resolved that the respondent cannot reasonably be rescued and applied for liquidation himself.

(3) The resolution to commence business rescue was taken as a ploy to avert the liquidation application, according to Mr Fortune.

(4) It is and was open to applicant to seek leave to intervene in the BRP application for liquidation instead of proceeding with a separate application.

(5) Business rescue is aimed at a temporary respite, balancing the interest of the company and other stakeholders, including creditors.

(6) Business rescue is to be proceeded with and finalised with expediency so as to not unreasonably limit or delay the rights of creditors to enforce their rights against the company.

(7) The BRP application has been delayed by the pending appeal against the ruling as to Mr Fortune's locus standi to oppose on behalf of the company, which appeal will most probably not be finalised in the near future.

(8) As a result of the delay, respondent remains in business rescue since December 2016 and will remain as such for an indeterminable period.

(9) The practitioner does not oppose the application.

(10) The practitioner's lack of consent to proceed with the application was based on his (mistaken) view that he was not empowered to consent to an application 11retrospectively".

[53] The sequence of events which led to the inordinate delay in finalising the BRP application for liquidation renders it unfeasible

for applicant to seek intervention in that application instead of proceeding with this application.

[54] In view of the above factors I am convinced that leave should be granted to the applicant to proceed with this application.

THE APPLICATION FOR LIQUIDATION

[55] As aforesaid the applicant relies on an acknowledgment of debts signed by Fortune on behalf of the respondent. The total amount of the debt was in access of R5million. The alleged outstanding balance at the time the amended notice of motion was filed amounted to± R2.9million.

[56] The application is opposed by the intervening parties represented by Mr Fortune on the basis of disputing the indebtedness in total.

[57] The alleged indebtedness stems from two transactions, the first being an amount of R1,2 million advanced to respondent by the applicant, plus interest thereon. Mr Fortune disputes that transaction and maintains that “the amount of R1 601 490.00 was never paid into the bank account of second respondent” (second respondent being the respondent herein).

[58] In answer to that the applicant alleged that Mr Fortune requested that the advance to respondent be paid into Fortune's private bank account in the amount of R1, 2million. Proof of such payment is annexed showing that the amount was paid by applicant into Fortune's bank account on 29 April 2016. The balance of R401 490.00 represented interest and therefore not paid to respondent or Fortune but owed by them.

[59] The allegations on behalf of the applicant as to the aforesaid was contained in the affidavit in opposition to the trust's application to intervene and opposing this application. No replying affidavit was filed on behalf of the trust. The allegations by the applicant therefore has to be accepted.

[60] Ironically, Mr Fortune's allegation that the amount of R1 601 490 was never paid into the account of respondent is therefore factually correct but calculatedly misleading and false.

[61] As to the Tailspin amount Mr Fortune allege that he, after signing the acknowledgment of debt, established that the indebtedness of respondent towards Tailspin, which applicant undertook to extinguish and which represents the second part of the amounts referred to into the acknowledgement of debt, was never paid by applicant and was not due to applicant.

[62] In answer to that, applicant alleged in it's affidavit in response to the application by the trust, that the indebtedness of respondent towards Tailspin was indeed extinguished by applicant. In support of that an affidavit by the sole director of Tailspin, Mr Kritzinger, was annexed confirming that the debt was extinguished in its entirety. Again, no replying affidavit to those allegations was filed. Moreover, in the intervening application of CPMS, Fortuner annexed a statement of assets and liabilities of the respondent as at 31 January 2017, which document does not list Tailspin as a creditor. Even worse, a document dated 30 January 2017 submitted by Fortune to the business rescue practitioner titled "The evaluation of the affairs of respondent" was annexed to applicant's affidavit opposing the trust's intervention. In that document Fortune dealt with various aspects such as cash flow, potential income from contracts, debtors and creditors et cetera. He refers to general creditors as being in the amount of approximately R6 million and states that the amount owed to the applicant amounts to R3,35 million. Again, that was not answered to by the trust in reply.

[63] There are other aspects in regard to which Mr Fortune appears to be untruthful;

(1) He alleges that the deponent on behalf of the applicant approached him in his office and forced him under duress to cede two payment certificates owed to respondent by the municipality to the applicant.

He was allegedly afraid that, if he does not comply, he would be in serious trouble with Mr Parker whom he previously regarded as a personal friend. What he does not mention is;

(a) Why he had reason to be afraid of Mr Parker and more importantly,

(b) the fact that the cessions were inter alia discussed at the offices of his attorney where it was agreed that the payment of the certificates will be made to the attorney Mr Peyper who would then effect payment to applicant, which indeed happened and of which proof was annexed to the applicants affidavit opposing the trust's application.

(2) Fortune denies ever signing a power of attorney on behalf of CPMS or respondent to effect the registration of a notarial bond over immovable for the amount of R5 777 175,28 and maintains that he only signed such power of attorney for an amount of R694 693,82. He invited applicant to produce the relevant power of attorney and resolutions authorising the registration of a notarial bond for the higher amount. Such resolutions by respondent and CPMS as well as the power of attorneys were annexed to the applicant's affidavit opposing the CPMS application

to intervene. A copy of the notarial bond initialled on each page by Mr Fortune was also annexed. The bond explicitly refers to both acknowledgment of debts and specifies the amount to which it pertains in bold figures as being the amount of RS 777 179,28, which amount appears in bold twice on page 3 thereof.

(3) Mr Fortune maintains that the deponent of the applicant, Mr Parker,

devised a "devious plan" to get control of respondent. Also that it now appears to him that there are several parties working together to destroy the respondent because it became a financial threat to them. He however does not relate to any facts to substantiate these allegations. To top this line of defence Mr Fortune even goes as far as stating that the business rescue process was part of the "devious plan" to destroy respondent. I have already shown that the business rescue was commenced by a resolution taken by Mr Fortune himself in an attempted ploy to aver liquidation.

[64] In view of the above I am convinced that the claim of the applicant is not disputed on any bona fide grounds. It however remains to be decided whether a provisional order of liquidation should be granted or not.

[65] In this regard it is telling that the business rescue practitioner deems it necessary that respondent be liquidated. He does not oppose this application. Fortune himself stated that the respondent was destroyed by "the doings" of the practitioner in the period from December 2016 till date of his affidavit being the 2 May 2017. In opposition to the intervening application of the trust the applicant states that the respondent conducted no business since January 2017, has no employees left and all the loose assets, equipment and tools were disposed of. This has not been replied to and has to be accepted.

[66] In the meantime, respondent remains in business rescue and will remain as such for the foreseeable future until the appeal in the application of the business rescue practitioner and, after that, the application itself is finalised. That brings about the state of affairs which precludes creditors from enforcing their claims due to the moratorium, for an indeterminable period of time.

[67] If respondent has been destroyed by the second of May 2017, so much more there appears to be no prospects of resurrecting it know, less so after the time it would take to finalise the application of the business rescue practitioner.

[68] In view of the above I am convinced that the respondent is unable to pay its debts and no reasonable possibility exist for respondent to be rescued and be able to pay its debts. In the circumstances it is just an equitable that the respondent be liquidated.

[69] In the result the following orders are granted;

1. Leave in terms of section 133(1)(b) of Act 71/2008 is granted to applicant to proceed with its application for the liquidation of respondent in case number 6115/2016.

2. A provisional order of liquidation of the respondent Q-Civils (Pty) Ltd with registration number 2006/005875/07 is granted.

3. A rule nisi is issued returnable on 15 February 2018 calling upon the respondent and all interested parties to advance reasons, if any, on the aforesaid date at 09H30, why a final order of liquidation of respondent shall not issue.

4. A copy of this order shall be published in the Volksblad and Government Gazette.

5. A copy of this order shall be served upon;

5.1 the business rescue practitioner of respondent;

5.2 any registered union acting on behalf of employees of respondent;

5.3 any employees of respondent not represented by a registered union, and

5.4 the South African Revenue Services.

6. The costs of this application, excluding the costs occasioned by the opposition thereto, shall be costs in the liquidation.

_________________________

AF JORDAAN, ADJP

On behalf of applicant: Adv. S Grabler

Instructed by:

Graham Attorneys

Bloemfontein

On behalf of respondent: Adv P du P Greyling

Instructed by:

Marius Van Zyl Inc