South Africa Case Law

Knoop NO and Another v Vorster NO and Others (46837/2018)

Knoop NO and Another v Vorster NO and Others (46837/2018) [2019] ZAGPJHC 196 (20 June 2019)

Court

South Gauteng High Court, Johannesburg

Case number

46837/2018

Judge

Van der Linde

The court found that the default judgment was granted after the commencement of business rescue proceedings, and the statutory moratorium under section 133 of the Companies Act applied, rendering the judgment invalid. The respondents’ argument that the business rescue was an abuse of process was rejected, as the company was in financial distress and the purpose of business rescue is to protect the interests of all creditors. Non-compliance with procedural requirements did not automatically nullify the business rescue; the court must determine whether it is just and equitable to set aside the…

Source excerpt

• Business Rescue
• Default Judgment Rescission
• Statutory Moratorium
• Abuse Of Process
• Winding Up
• Financial Distress

Booysen v Jonkheer Boerewynmakery (Pty) Ltd and Another (10999/16)

Booysen v Jonkheer Boerewynmakery (Pty) Ltd and Another (10999/16) [2016] ZAWCHC 192; [2017] 1 All SA 862 (WCC); 2017 (4) SA 51 (WCC) (15 December 2016)

Court

Western Cape High Court, Cape Town

Case number

10999/16

Judge

Sher

The court held that s 133(1) of the Companies Act does not require leave to proceed to be sought in a separate, prior application in every case. Leave may be sought in the same application as the principal relief, depending on the circumstances and the interests of justice. The applicant's claim was for remuneration under a contractual incentive agreement and thus preferent under s 144(2), not a discretionary bonus. The business rescue practitioner cannot unilaterally amend an adopted business rescue plan or creditor's claim; any amendment must follow the statutory procedure and be approved b…

Source excerpt

• Business Rescue
• Statutory Moratorium
• Preferent Vs Concurrent Claims
• Implementation Of Business Rescue Plan
• Leave To Sue Under Business Rescue
• Role Of Business Rescue Practitioner

Tuna v Pioneer Foods (Pty) Limited (A5001/2015)

Tuna v Pioneer Foods (Pty) Limited (A5001/2015) [2016] ZAGPJHC 298 (18 November 2016)

Court

South Gauteng High Court, Johannesburg

Case number

A5001/2015

Judges

Van Oosten, Wepener, Mphahlele

The court held that a business rescue moratorium under s 133(1) of the Companies Act does not extend to a surety and co-principal debtor.

• Suretyship
• Business Rescue
• Statutory Moratorium
• Co Principal Debtor Liability
• Business-rescue
• Statutory-moratorium

JVJ Logistics (Pty) Ltd v Standard Bank of South Africa Ltd and Others (7076/2015)

JVJ Logistics (Pty) Ltd v Standard Bank of South Africa Ltd and Others (7076/2015) [2016] ZAKZDHC 24; [2016] 3 All SA 813 (KZD); 2016 (6) SA 448 (KZD) (22 July 2016)

Court

Kwazulu-Natal High Court, Durban

Case number

7076/2015

Judge

Olsen

The court held that section 133(1) of the Companies Act does not protect the applicant's possession of the vehicle, as the possession is unlawful in the civil sense following cancellation of the instalment sale agreement and a final court order for repossession. The moratorium applies only to property lawfully in the company's possession, not to property retained without right. The applicant's interpretation would create an imbalance between creditors and owners, contrary to the Act's purpose of balancing stakeholder interests. The business rescue plan sought to appropriate the respondent's p…

Source excerpt

• Business Rescue
• Companies Act 2008
• Creditor Rights
• Statutory Moratorium
• Interpretation Of Statutes

Business Partners Limited v Tsakiroglou and Others (17827/2014)

Business Partners Limited v Tsakiroglou and Others (17827/2014) [2015] ZAWCHC 167; 2016 (4) SA 390 (WCC) (17 September 2015)

Court

Western Cape High Court, Cape Town

Case number

17827/2014

Judge

Le Grange

The court held that section 133 of the Companies Act does not shield a surety from enforcement and confirmed final sequestration, dismissing the constitutional counter-application.

• Business Rescue Proceedings
• Suretyship Liability
• Statutory Moratorium
• Constitutional Challenge
• Final Sequestration
• Creditor Rights

Investec Bank Ltd v Bruyns (19449/11)

Investec Bank Ltd v Bruyns (19449/11) [2011] ZAWCHC 423; 2012 (5) SA 430 (WCC) (14 November 2011)

Court

Western Cape High Court, Cape Town

Case number

19449/11

Judge

Rogers AJ

Summary judgment was granted for Investec Bank against a defendant who relied on an inadequately pleaded counterclaim and business-rescue arguments as surety.

• Suretyship Liability
• Business Rescue Proceedings
• Counterclaim
• Statutory Moratorium
• Summary Judgment
• Companies Act 71 Of 2008