Aviation Co-Ordination Services (Pty) Ltd v Mango Airlines SOC Limited and Others (2022/058326) [2025] ZAGPJHC 609 (17 June 2025)
Court
South Gauteng High Court, Johannesburg
Case number
2022/058326
Judge
Fisher
The High Court held that a business rescue plan could not compel cession of creditors’ claims to an investor, and declared the plan invalid and unenforceable.
Henque 3935 CC t/a PQ Clothing Outlet v Commissioner for the South African Revenue Service (846/2023) [2025] ZASCA 56 (12 May 2025)
Court
Supreme Court of Appeal
Case number
846/2023
Judges
Zondi, Dambuza, Molefe, Koen, Dolamo
The SCA held that income tax and VAT liabilities arising before business rescue are pre-commencement claims and may not be set off against later VAT refunds.
JBSA Props (Pty) Ltd and Another v Commissioner for the South African Revenue Services and Others (5009/2023P) [2025] ZAKZPHC 3; 2025 (3) SA 510 (KZP) (10 January 2025)
Court
Kwazulu-Natal High Court, Pietermaritzburg
Case number
5009/2023P
Judge
Olsen
The court held that section 154(1) of the Companies Act requires a creditor to accede to the compromise of a post-commencement debt for it to be discharged under a business rescue plan. SARS did not accede to the compromise of its post-commencement VAT claim, either by overt act or written agreement, nor did it participate in the formulation or approval of the plan. The statutory process for compromising a tax debt under the Tax Administration Act was not followed. The absence of SARS from the creditors' meeting did not amount to acquiescence or consent. Accordingly, the business rescue plan…
PS Software Contracting CC v Bright Alloys (Pty) Ltd (formerly Mogale Alloys (Pty) Ltd) (49562/2010) [2024] ZAGPPHC 513 (7 June 2024)
Court
North Gauteng High Court, Pretoria
Case number
49562/2010
Judge
Retief
The court found that the plaintiff's claim arose before the publication date of the business rescue plan and was therefore not a contingent claim as defined in the plan. The defendant's reliance on waiver and extinguishment under the business rescue plan and section 154 of the Companies Act was misplaced, as no determination had been made that a debt was owed or due and payable. The plaintiff's claim was not extinguished, waived, or rendered unenforceable by the business rescue process. The special plea was dismissed, and condonation was granted for the late filing of the plaintiff's answer.
The Supreme Court of Appeal held that the dismissal of an exception is not appealable unless the exception challenges the jurisdiction of the court. In this case, the exception raised by Cibapac did not challenge the High Court's jurisdiction but rather raised a question of law regarding the enforceability of Timelink's claim under section 154(2) of the Companies Act. The High Court retained competence to determine the matter, and any decision on the exception could be revisited at trial. The order dismissing the exception was not final or definitive of the parties' rights and did not meet th…
Van Zyl v Auto Commodities (Pty) Ltd (279/2020) [2021] ZASCA 67; [2021] 3 All SA 395 (SCA); 2021 (5) SA 171 (SCA) (3 June 2021)
Court
Supreme Court of Appeal
Case number
279/2020
Judges
Wallis, Mbha, Schippers, Phatshoane, Rogers
Section 154(2) of the Companies Act 71 of 2008 does not discharge the principal debt but merely bars enforcement against the company beyond what is provided in the business rescue plan. The accessory nature of suretyship does not automatically result in the discharge of the surety's liability unless the principal debt is extinguished. The deed of suretyship in this case contains express provisions preserving the creditor's rights against the surety, even in the event of compromise, liquidation, or business rescue. The statutory bar under section 154(2) is a defence personal to the company and…
Absa Bank Limited v Haremza (12189/2014) [2015] ZAWCHC 73 (27 May 2015)
Court
Western Cape High Court, Cape Town
Case number
12189/2014
Judge
Bozalek
The court found that the defendant's liability as surety was preserved by both the terms of the deed of suretyship and the express provisions of the business rescue plan. The suretyship agreement allowed the plaintiff to compromise or settle with the principal debtor without affecting the surety's liability. The business rescue plan specifically stated that settlement was not intended to affect any rights against third parties who had bound themselves as sureties. The defendant failed to provide any factual basis for her accounting defence, relying only on speculation. The court held that the…
Absa Bank Limited v Du Toit and Others (7311/13) [2013] ZAWCHC 194 (13 December 2013)
Court
Western Cape High Court, Cape Town
Case number
7311/13
Judge
Saldanha
The High Court dismissed ABSA’s summary judgment application, finding the defendants had raised a bona fide defence based on business rescue and suretyship issues.
