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South Africa decisions
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Standard Bank of South Africa Limited v RA Govender Close Corporation and Others (7128/22) [2023] ZAKZPHC 104 (29 March 2023)
The court held that business rescue ended when the plan was rejected on 19 May 2022, set aside later practitioner actions, and granted provisional winding-up.
South African Airways (SOC) Limited (In Business Rescue) and Others v National Union of Metalworkers of South Africa obo Members and Others (JA32/2020) [2020] ZALAC 34; [2020] 8 BLLR 756 (LAC); (2020) 41 ILJ 2113 (LAC); 2021 (2) SA 260 (LAC) (9 July 2020)
The Labour Appeal Court held that section 136(1)(b) of the Companies Act requires retrenchments to be contemplated in a business rescue plan before the retrenchment process may commence. The Court found that the language of the section, read in context and in light of the statutory purpose of business rescue, clearly establishes a precondition that retrenchments must be rooted in the business rescue plan. The Court rejected the argument that the Labour Court lacked jurisdiction, finding that section 189A(13) of the Labour Relations Act empowers the Labour Court to supervise procedural fairnes…
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South African Airways (SOC) Limited (In Business Rescue) and Others v National Union of Metalworkers of South Africa obo Members and Others (J424/20) [2020] ZALCJHB 95 (25 May 2020)
The Labour Court granted leave to appeal in a dispute about whether a business rescue practitioner may issue a section 189(3) retrenchment notice before a business plan.
Richter v Absa Bank Limited (20181/2014) [2015] ZASCA 100; 2015 (5) SA 57 (SCA) (1 June 2015)
The Supreme Court of Appeal held that business rescue may be sought after a final liquidation order, because liquidation proceedings continue until winding up is complete.
Taboo Trading 232 (Pty) Ltd v Pro Wreck Scrap Metal CC; Joubert v Pro Wreck Scrap Metal CC (6366/2013; 7159/2013) [2013] ZAKZPHC 40; 2013 (6) SA 141 (KZP) (10 July 2013)
The court held that the business rescue application did not suspend the liquidation proceedings because it failed to comply with the statutory requirements of service on the Commission and notification of affected persons as required by s 131(2) of the Companies Act. The application was procedurally and substantively flawed, lacking urgency and failing to demonstrate a reasonable prospect of rescuing the close corporation. The court found that Taboo Trading had established its claim as a creditor and that Pro Wreck Scrap Metal CC was unable to pay its debts, satisfying the requirements for pr…
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Absa Bank Limited v Summer Lodge (Pty) Ltd (63188/2012 , 63189/2012, 63190/2012) [2013] ZAGPPHC 544 (23 May 2013)
The court held that the meaning of 'liquidation proceedings' in section 131(6) of the Companies Act 71 of 2008 is confined to the actual process of winding-up a company following the granting of a winding-up order by the court. The legal proceedings taken by a creditor to obtain such an order are excluded from the definition. The court relied on the grammatical meaning of 'liquidation' and 'proceedings', relevant statutory provisions, and case law, concluding that only after a winding-up order is granted do liquidation proceedings commence. Therefore, the launching of business rescue applicat…
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