Thamae and Others v Roering NO and Others (46072/2013) [2017] ZAGPJHC 389; 2017 (2) SA 328 (ECG) (23 November 2017)

Thamae and Others v Roering NO and Others (46072/2013) [2017] ZAGPJHC 389; 2017 (2) SA 328 (ECG) (23 November 2017)

The applicants failed to establish locus standi as they did not provide proof of employment by the company, nor did they allege representation by a trade union. The definition of 'affected person' in section 128(1)(a) of the Companies Act is clear and does not include community members unless they meet the statutory criteria. The application was procedurally defective, with late and inadmissible affidavits, failure to serve affected parties, and reliance on hearsay. The business rescue plan was superficial and unsupported by evidence. The court refused to admit the further replying affidavit and denied the request for postponement. The application was dismissed with costs.

Citation
[2017] ZAGPJHC 389
Parties
Applicant: Thamae, Skake Johannes and 45 Others; Respondent: Roering, Leigh William N.O.; Respondent: Monyela, Kgashane Christopher N.O.; Respondent: Mohosh, Gregory Keletso N.O.; Respondent: Pema, Jayant Daji N.O.; Respondent: Master of the High Court, Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 November 2017
Case Number
46072/2013
Procedural Posture
Urgent Application / Application to Discharge Provisional Liquidation and Place Company in Business Rescue
Outcome
Application dismissed with costs.
Judges
DP de Villiers
Legal Topics
Business Rescue, Locus Standi, Admissibility of Affidavits, Company Liquidation
Civil Procedure Commercial and Corporate Business Rescue Locus Standi Admissibility of Affidavits Company Liquidation

Case Brief

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Parties

Thamae, Skake Johannes and 45 Others

Applicant

Roering, Leigh William N.O.

Respondent

Monyela, Kgashane Christopher N.O.

Respondent

Mohosh, Gregory Keletso N.O.

Respondent

Pema, Jayant Daji N.O.

Respondent

Master of the High Court, Johannesburg

Respondent

Procedural Posture

Urgent Application / Application to Discharge Provisional Liquidation and Place Company in Business Rescue

Legal Issues

  1. 1 Whether the applicants have locus standi to bring the application for business rescue.
  2. 2 Whether the further replying affidavit served on 8 November 2017 should be admitted into evidence.
  3. 3 Whether the application for business rescue meets statutory requirements under the Companies Act 71 of 2008.

Ratio Decidendi

The applicants failed to establish locus standi as they did not provide proof of employment by the company, nor did they allege representation by a trade union. The definition of 'affected person' in section 128(1)(a) of the Companies Act is clear and does not include community members unless they meet the statutory criteria. The application was procedurally defective, with late and inadmissible affidavits, failure to serve affected parties, and reliance on hearsay. The business rescue plan was superficial and unsupported by evidence. The court refused to admit the further replying affidavit and denied the request for postponement. The application was dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The request to admit into evidence a further replying affidavit served on 8 November 2017 is denied.
  • The request for a postponement is refused.