Safari Thatching Lowveld CC v Misty Mountain Trading 2 (Pty) Ltd (Jeroldi Intervening, Brink Intervening) (52115/2015) [2015] ZAGPPHC 832; 2016 (3) SA 209 (GP) (11 December 2015)

Safari Thatching Lowveld CC v Misty Mountain Trading 2 (Pty) Ltd (Jeroldi Intervening, Brink Intervening) (52115/2015) [2015] ZAGPPHC 832; 2016 (3) SA 209 (GP) (11 December 2015)

The court found that the Respondent was both factually and commercially insolvent, with numerous unpaid creditors and an unresolved deadlock between directors and shareholders. The Applicant had met all formal requirements for winding-up. Although a second business rescue application had been launched, no evidence was presented to show a reasonable prospect of rescue or that business rescue would be more beneficial to creditors than liquidation. The court held that, in circumstances where legal proceedings had already commenced prior to the business rescue application, it is legally competent for the Applicant to request leave to proceed with the winding-up application during those...

Citation
[2015] ZAGPPHC 832
Parties
Applicant: Safari Thatching Lowveld CC; Respondent: Misty Mountain Trading 2 (Pty) Ltd; Intervening Party: Bruno Jeroldi; Intervening Party: Johan Charl Brink
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 December 2015
Case Number
52115/2015
Procedural Posture
Winding Up Application / Final Order
Outcome
Final order granted: Respondent placed under liquidation in the hands of the Master of the High Court, Pretoria.
Judges
N Davis
Legal Topics
Winding Up of Company, Business Rescue Proceedings, Deadlock Between Directors, Creditor Claims, Companies Act Section 131, Companies Act Section 133
Commercial and Corporate Civil Procedure Winding Up of Company Business Rescue Proceedings Deadlock Between Directors Creditor Claims Companies Act Section 131 Companies Act Section 133

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 11 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

Safari Thatching Lowveld CC

Applicant

Misty Mountain Trading 2 (Pty) Ltd

Respondent

Bruno Jeroldi

Intervening Party

Johan Charl Brink

Intervening Party

Procedural Posture

Winding Up Application / Final Order

Legal Issues

  1. 1 Whether the Respondent is factually and commercially insolvent and should be wound up.
  2. 2 Whether the moratorium imposed by the commencement of business rescue proceedings suspends the winding-up application.
  3. 3 Whether leave of the court is required to proceed with already commenced legal proceedings during business rescue.

Ratio Decidendi

The court found that the Respondent was both factually and commercially insolvent, with numerous unpaid creditors and an unresolved deadlock between directors and shareholders. The Applicant had met all formal requirements for winding-up. Although a second business rescue application had been launched, no evidence was presented to show a reasonable prospect of rescue or that business rescue would be more beneficial to creditors than liquidation. The court held that, in circumstances where legal proceedings had already commenced prior to the business rescue application, it is legally competent for the Applicant to request leave to proceed with the winding-up application during those...

Court Disposition

Final order granted: Respondent placed under liquidation in the hands of the Master of the High Court, Pretoria.

Orders

  • The Respondent is placed under liquidation in the hands of the Master of the High Court, Pretoria.
  • The First Intervening Creditor is ordered to pay the costs occasioned in the winding-up application by his reliance on his application to commence business rescue proceedings in case no. 79657/2015.