South Africa Case Law

Member of the Executive Council: Northern Cape Department of Agriculture, Environmental Affairs, Rural Development and Land Reform v Bester N.O and Others (1793/2022)

Member of the Executive Council: Northern Cape Department of Agriculture, Environmental Affairs, Rural Development and Land Reform v Bester N.O and Others (1793/2022) [2024] ZANCHC 92 (15 April 2024)

Court

Northern Cape High Court, Kimberley

Case number

1793/2022

Judge

Williams

The Department failed to establish on a balance of probabilities that Bester was incompetent or failed to perform his duties as business rescue practitioner under section 139(2)(a) and (b) of the Companies Act. The complaints regarding additional tea supply agreements, prejudicial commercial terms, unaffordable loans, and failure to report were either unsubstantiated, based on hearsay, or adequately explained by Bester. The amended business rescue plan was validly adopted by unanimous creditor vote, as permitted by the plan itself. The failure to report to court and misunderstanding of contra…

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• Business Rescue
• Removal Of Business Rescue Practitioner
• Companies Act
• Costs Order
• Delinquent Director
• Post Commencement Finance

Tegeta Exploration and Resources (Pty) Ltd and Others v Knoop and Others (035371/2023)

Tegeta Exploration and Resources (Pty) Ltd and Others v Knoop and Others (035371/2023) [2023] ZAGPPHC 1920; 2024 (3) SA 181 (GP) (20 November 2023)

Court

North Gauteng High Court, Pretoria

Case number

035371/2023

Judge

Phooko AJ

The court held that the authority of Van der Merwe and Van der Merwe Attorneys to represent the Second, Fifth, and Sixth Applicants in the removal application was established, as the appointment and removal of business rescue practitioners is a governance function retained by directors and not subject to the authority of BRPs. The Companies Act and relevant case law distinguish between management (under BRP control) and governance (retained by directors). Directors do not require BRP approval to appoint attorneys for governance-related litigation, such as applications for BRP removal. However…

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• Business Rescue
• Director Powers
• Authority To Institute Proceedings
• Removal Of Business Rescue Practitioner
• Companies Act Section 139
• Corporate Governance

Baba and Another v Janse van Rensburg N.O and Others (2594/2021 ; 22342/2019)

Baba and Another v Janse van Rensburg N.O and Others (2594/2021 ; 22342/2019) [2021] ZAWCHC 288 (17 June 2021)

Court

Western Cape High Court, Cape Town

Case number

2594/2021 ; 22342/2019

Judge

Nel

The court found that the applicants failed to establish any irregularity or legal defect in the conduct of the meetings of creditors and shareholders held on 18 December 2020. The voting interests of Firstrand Bank Limited were correctly calculated in accordance with the Companies Act, and the practitioners' refusal to include intercompany and contingent claims in voting was justified. The practitioners acted in good faith, disclosed all material information, and provided the applicants with opportunities to propose amendments, which were duly considered and voted upon. No breach of fiduciary…

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• Business Rescue
• Creditors Voting Interest
• Commercial Insolvency
• Fiduciary Duties Of Practitioners
• Removal Of Business Rescue Practitioner
• Liquidation Proceedings

Gupta v Knoop N.O and Others (84095/2018)

Gupta v Knoop N.O and Others (84095/2018) [2019] ZAGPPHC 960; 2020 (4) SA 218 (GP) (13 December 2019)

Court

North Gauteng High Court, Pretoria

Case number

84095/2018

Judges

A.P. Ledwaba, N. Janse van Niewenhuizen, M.L. Senyatsi

The High Court removed two business rescue practitioners for both companies, finding lack of good faith, independence, and timely progress in the rescue process.

• Business Rescue
• Removal Of Business Rescue Practitioner
• Conflict Of Interest
• Shareholder Rights
• Affected Person Standing
• Business-rescue

Lazenby v Lazenby Vervoer VV and Others (M328/2014)

Lazenby v Lazenby Vervoer VV and Others (M328/2014) [2014] ZANWHC 41 (4 September 2014)

Court

North West High Court, Mafikeng

Case number

M328/2014

Judge

GUTTA

The court held that section 131(1) of the Companies Act clearly excludes the right of an affected person to apply to court for business rescue proceedings where the company has already adopted a resolution under section 129. In this case, the applicant and his wife, as the only members of the company, had already resolved to commence business rescue proceedings, and a practitioner was appointed. The business rescue proceedings were subsequently terminated, and the company was provisionally wound up. The applicant's remedy, if any, lies in reviewing the business rescue practitioner's decision…

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• Business Rescue
• Companies Act 71 Of 2008
• Statutory Interpretation
• Removal Of Business Rescue Practitioner

Absa Bank Limited v Naude N.O and Another (66088/2012, 66087/2012)

Absa Bank Limited v Naude N.O and Another (66088/2012, 66087/2012) [2014] ZAGPPHC 181 (24 January 2014)

Court

North Gauteng High Court, Pretoria

Case number

66088/2012

Judge

Ismail

High Court dismissed Absa’s challenge to a business rescue plan and related counter-application, finding procedural non-joinder and moratorium defects fatal.

• Business Rescue
• Creditor Voting Rights
• Cross Suretyship
• Non Joinder
• Moratorium Under Companies Act
• Removal Of Business Rescue Practitioner