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South Africa decisions
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Naude and Another v Steyn City Properties (Pty) Ltd and Another (23867/2022) [2022] ZAGPPHC 464 (22 June 2022)
The High Court refused leave to appeal in a dispute over a construction guarantee and business rescue, holding there were no reasonable prospects of success.
Alderbaran (Pty) Ltd and Another v Bouwer and Others (19992/2017) [2018] ZAWCHC 38; [2018] 3 All SA 71 (WCC); 2018 (5) SA 215 (WCC) (22 March 2018)
The court found that the first resolution to commence business rescue was procedurally defective, lacking a sworn statement and proper notice to affected persons as required by the Companies Act. The timing and conduct of the applicants indicated an abuse of the business rescue process, motivated by a desire to prevent enforcement of a valid judgment rather than genuine financial distress or prospects of rescue. The second resolution was a nullity, as business rescue initiated by the first resolution remained operative until set aside by the court. The court held that it was just and equitabl…
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Cawood N.O and Others v Swanepoel t/a Reaan Swanepoel Attorneys and Others (69041/2015) [2015] ZAGPPHC 1042 (29 September 2015)
The court held that the payment made by the Municipality to Swanepoel while Lebaka was under business rescue proceedings constituted enforcement action as contemplated by section 133(1) of the Companies Act. Execution is a process, and until payment is made to the creditor, the property or funds remain with the debtor and subject to the moratorium. Swanepoel's actions in securing payment after the commencement of business rescue were unlawful and prejudiced other creditors and stakeholders. The court found that the payment was in contravention of section 133(1) and the undertaking given to th…
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Murray N.O. and Another v Firstrand Bank Ltd t/a Wesbank (20104/2014) [2015] ZASCA 39; 2015 (3) SA 438 (SCA) (26 March 2015)
The Supreme Court of Appeal held that the cancellation of the Master Instalment Sale Agreement by Wesbank during business rescue proceedings did not constitute 'enforcement action' as contemplated by section 133(1) of the Companies Act 71 of 2008. The court reasoned that 'enforcement action' refers to the enforcement of obligations through legal proceedings in a forum, not to unilateral acts of cancellation. The court found that the liquidators' attempt to rely on section 134(1)(c) at the appeal stage was procedurally improper, as it was not raised in the pleadings before the court a quo and…
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