LSO Consulting Engineers (Pty) Ltd and Another v Ndyamara and Others (56620/2021) [2022] ZAGPPHC 168 (23 March 2022)

LSO Consulting Engineers (Pty) Ltd and Another v Ndyamara and Others (56620/2021) [2022] ZAGPPHC 168 (23 March 2022)

The court found that the threshold for granting leave to appeal under section 17 of the Superior Courts Act is high and requires a measure of certainty that another court would reach a different conclusion. The arguments advanced by the respondents regarding section 133(1)(b) of the Companies Act and the permissibility of amending an adopted business rescue plan were fully canvassed and rejected. The court held that the proceedings did not constitute enforcement action or claims against the company, and sufficient grounds existed for the exercise of discretion. The absence of statutory procedures for amending a finally adopted business rescue plan is conspicuous, and the scheme of the Act...

Citation
[2022] ZAGPPHC 168
Parties
Applicant: LSO Consulting Engineering (Pty) Ltd; Applicant: Phatwe Consulting Engineers CC; Respondent: Aviwe Ntandazo Ndyamara; Respondent: Umso Construction (Pty) Ltd; Respondent: The Companies and Intellectual Property Commissioner; Respondent: All Other Creditors in the Business Rescue as reflected in Annexure “B1”
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 March 2022
Case Number
56620/2021
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal Under Rule 49
Outcome
Application for leave to appeal dismissed.
Judges
AC Basson
Legal Topics
Business Rescue, Leave to Appeal, Amendment of Business Rescue Plan, Companies Act Section 133, Creditors Rights
Commercial and Corporate Civil Procedure Business Rescue Leave to Appeal Amendment of Business Rescue Plan Companies Act Section 133 Creditors Rights

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 3 Authorities cited 7 Party arguments 2
Sign in to unlock

Parties

LSO Consulting Engineering (Pty) Ltd

Applicant

Phatwe Consulting Engineers CC

Applicant

Aviwe Ntandazo Ndyamara

Respondent

Umso Construction (Pty) Ltd

Respondent

The Companies and Intellectual Property Commissioner

Respondent

All Other Creditors in the Business Rescue as reflected in Annexure “B1”

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal Under Rule 49

Legal Issues

  1. 1 Whether leave to appeal should be granted to the Supreme Court of Appeal under section 17 of the Superior Courts Act.
  2. 2 Whether the court correctly exercised its discretion under section 133(1)(b) of the Companies Act to permit proceedings against a company in business rescue.
  3. 3 Whether amendments to an adopted business rescue plan are permissible under the Companies Act.

Ratio Decidendi

The court found that the threshold for granting leave to appeal under section 17 of the Superior Courts Act is high and requires a measure of certainty that another court would reach a different conclusion. The arguments advanced by the respondents regarding section 133(1)(b) of the Companies Act and the permissibility of amending an adopted business rescue plan were fully canvassed and rejected. The court held that the proceedings did not constitute enforcement action or claims against the company, and sufficient grounds existed for the exercise of discretion. The absence of statutory procedures for amending a finally adopted business rescue plan is conspicuous, and the scheme of the Act...

Court Disposition

Application for leave to appeal dismissed.

Orders

  • The application for leave to appeal is dismissed.
  • The second applicant in the application for leave to appeal is ordered to pay the costs.