THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 35/2014

In the matter between:
PANAMO PROPERTIES (PTY) LTD
FIRST APPELLANT
LIEBENBERG DAWID RYK VAN
DER MERWE NO

SECOND APPELLANT
and
JAN HENDRIK NEL NO

FIRST RESPONDENT
CHARMAINE NEL NO

SECOND RESPONDENT
(in their capacities as trustees of the
JAN NEL TRUST IT 660/86)
THE COMPANY AND INTELLECTUAL PROPERTY
COMMISSION OF THE RSA

THIRD RESPONDENT
TREVOR PAYNE

FOURTH RESPONDENT
PINK PARROT INVESTMENTS
(PTY) LTD

FIFTH RESPONDENT
FIRSTRAND BANK LIMITED

SIXTH RESPONDENT

Neutral Citation: Panamo Properties (Pty) Ltd v Nel and Another NNO
(35/2014) 2015 ZASCA 76 (27 May 2015)
Coram:
NAVSA ADP, MAJIEDT, WALLIS and ZONDI JJA and
DAMBUZA AJA

Heard:
14 May 2015
Delivered: 27 May 2015
Summary: Business rescue proceedings – resolution by company in
terms of s 129(1) of Companies Act 71 of 2008 – non-compliance by
company with further requirements of ss 129(3) and (4) of the Act –
effect – s 129(5) of the Act – non-compliance does not automatically
result in the business rescue being terminated – such non-compliance a
ground for bringing an application to court to set aside the resolution in
terms of s 130(1)(a)(iii) of the Act – a court will only set aside such
resolution if it is otherwise just and equitable to do so in terms of s 130(5)
of the Act – the business rescue terminates in terms of s 132(2)(a)(i) of
the Act once an order setting aside the resolution has been granted.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria
(Khumalo J, sitting as court of first instance):
The appeal is upheld with costs.
Paragraphs 2 and 3 of the order of the court below are set aside and
replaced by the following:
‗The application is dismissed.‘
Paragraph 4 of the order of the court below is renumbered as
paragraph 3.
The order granted on the counter application is set aside.

JUDGMENT

Wallis JA (Navsa ADP, Majiedt and Zondi JJA and Dambuza AJA
concurring)

[1] Business rescue proceedings under the Companies Act 71 of 2008
(the Act) are intended to ‗provide for the efficient rescue and recovery of
financially distressed companies, in a manner that balances the rights and
interests of all relevant stakeholders‘.1 They contemplate the temporary
supervision of the company and its business by a business rescue
practitioner. During business rescue there is a temporary moratorium on

1 Section 7(2)(k) of the Act.

the rights of claimants against the company and its affairs are restructured
through the development of a business rescue plan aimed at it continuing
in operation on a solvent basis, or if that is unattainable, leading to a
better result for the company‘s creditors and shareholders than would
otherwise be the case.2 These commendable goals are unfortunately being
hampered because the statutory provisions governing business rescue are
not always clearly drafted. Consequently they have given rise to
confusion as to their meaning and provided ample scope for litigious
parties to exploit inconsistencies and advance technical arguments aimed
at stultifying the business rescue process or securing advantages not
contemplated by its broad purpose. This is such a case.

[2] The Jan Nel Trust (the Trust) is the sole shareholder of the first
appellant, Panamo Properties (Pty) Ltd (Panamo). Its trustees, Mr and
Mrs Nel, who are also the directors of Panamo, represent it in these
proceedings. Panamo is a property-owning company owning a large
property in Roodepoort. Mr and Mrs Nel‘s home is situated on a portion
of the property, and the balance is let to various commercial tenants. The
property was mortgaged in favour of Firstrand Bank Ltd, but Panamo fell
into arrears and judgment was taken against it for amounts totalling some
R3.3 million, plus interest and costs. The hypothecated property was
declared executable.

[3] In order to prevent a sale of the property and afford the Nels time
to resolve Panamo‘s financial problems, the Trust resolved on 19 August
2011 to place Panamo in business rescue. A little over two years later, in
September 2013, the Trust sought an order declaring that the original

2 See the definition of ‗business rescue‘ in s 128(b) of the Act.

resolution to place Panamo in business rescue had lapsed and
consequently that the entire business rescue process was a nullity. That
was after the appointment of a business rescue practitioner, (Mr van der
Merwe the second appellant); the adoption of a business rescue plan; and
the sale of the property pursuant to that plan. It is undisputed that the sole
purpose behind the application was to prevent the sale of the property and
to prolong Mr and Mrs Nel‘s occupation of their home.

[4] In advancing its case the Trust relied on its failure – and hence the
failure of the Nels as the moving spirits behind both the Trust and
Panamo – to comply with various requirements prescribed by ss 129(3)
and (4) of the Act. In some instances the non-compliance lay in doing
things after the expiry of the prescribed statutory period for them to be
done. In others it consisted of straightforward non-compliance with the
statutory injunction. The argument on behalf of the Trust was that
s 129(5)(a) of the Act stipulates that the consequences of such non-
compliance are that the resolution to begin business rescue lapses and is a
nullity, and hence the entire process of business rescue in relation to
Panamo had been a fruitless exercise as the underpinning for it fell away
in October 2011. Khumalo J upheld these contentions and issued a
declaratory order that the resolution to commence business rescue had
lapsed and was a nullity, and a further order that the appointment of Mr
van der Merwe as business rescue practitioner in respect of Panamo was
void. The appeal is with her leave.

[5] In reaching that conclusion, Khumalo J expressed her frustration at
the straitjacket that she thought s 129(5)(a) imposed upon her. She quite
correctly regarded the approach of the Trust as opportunistic. She said
that the Nels had ‗strung along‘ the other parties to the business rescue

process and delayed bringing the application until, for selfish reasons,
they realised that there was no other way in which to prevent the transfer
of the property to the purchaser. Her conclusion was that the Nels ‗have
acted to the company‘s detriment with a disastrous outcome‘. I agree and
would go further to describe their conduct as a stratagem involving a
wholly undesirable exploitation of legal technicalities for their own
advantage. However, if Khumalo J‘s construction of s 129(5) is correct,
that situation was unavoidable. The issue in this appeal is whether she
was correct.

[6] The counter argument advanced by Mr van der Merwe, on his own
behalf and on behalf of Panamo, is that s 129(5)(a) does not have this
drastic effect. It must, so he contended, be read in the light of the
provisions of s 130 of the Act, which deal with the circumstances in
which a court may be asked to set aside a resolution to place a company
under business rescue. According to the argument, those provisions limit
both the time within which a resolution to place a company under
business rescue may be challenged and, if such an application is brought
timeously, the parties who may bring such an application. Lastly he
submitted that an application would only succeed if the court thought it
just and equitable to set aside the resolution and bring the business rescue
process to an end.

[7] In this case the Trust had not purported to bring an application in
terms of s 130(1). The time for bringing such an application had passed
before the Trust sought to challenge the validity of the resolution, and its
locus standi to bring such an application was doubtful. Furthermore, it
would not have been just and equitable in the light of the facts relating to
the business rescue proceedings for a court to have granted such an order

Those facts included the numerous attempts by the Nels to stultify those
proceedings and the considerable financial prejudice, both actual and
contingent, to Mr van der Merwe and potentially to creditors, that would
ensue from terminating the business rescue. Accordingly he submitted
that the application should have been dismissed.

[8] A resolution of these issues requires a consideration of the relevant
provisions of ss 129 and 130 of the Act. But first it is necessary to place
them in their proper setting in the Act. Business rescue is a process aimed
at avoiding the liquidation of a company if it is feasible to do so. There
are two routes through which a company may enter business rescue,
namely, by way of a resolution of its board of directors (s 129(1)) or by
way of a court order (s 131(1)). We are concerned with the former.

[9] Under s 129(1) the board of a company may resolve to begin
business rescue proceedings if it has reasonable grounds for believing that
the company is financially distressed3 and there appears to be a
reasonable prospect of rescuing the company. Such a resolution may not
be adopted if liquidation proceedings have been initiated against the
company.4 Once a resolution is taken it only becomes effective when it is
filed with the Companies and Intellectual Property Commission, Republic
of South Africa (CIPCSA).

3 Defined in s 128(f) in the following terms:
‗―financially distressed‖, in reference to a particular company at any particular time, means that—
(i) it appears to be reasonably unlikely that the company will be able to pay all of its debts as they
become due and payable within the immediately ensuing six months; or
(ii) it appears to be reasonably likely that the company will become insolvent within the immediately
ensuing six months;‘
4 Section 129(2)(a).

[10] After the resolution has been filed with CIPCSA the company is
obliged to take certain steps. They are set out in ss 129(3) and (4) of the
Act.5 It is common cause that in this case there was a degree of non-
compliance with these provisions. Thus, the statutory notice sent to
creditors of Panamo was not accompanied by a sworn statement of the
facts relevant to the grounds on which the board resolution was founded;
Mr van der Merwe was not appointed within the prescribed time period;
and, the notice of his appointment was not published to all affected
parties. These are the shortcomings on which the Nels based their
application.

[11] Before examining s 129(5), on which the court below based its
judgment, it is worth noting that s 130 expressly deals with objections to
a company resolution to begin business rescue. Its provisions relevant to
this case read as follows:
‗(1) Subject to subsection (2), at any time after the adoption of a resolution in terms of
section 129, until the adoption of a business rescue plan in terms of section 152, an
affected person may apply to a court for an order—
(a) setting aside the resolution, on the grounds that—
(i) there is no reasonable basis for believing that the company is financially
distressed;

5 These provide as follows:
‗(3)  Within five business days after a company has adopted and filed a resolution, as contemplated in
subsection (1), or such longer time as the Commission, on application by the company, may allow, the
company must—
(a) publish a notice of the resolution, and its effective date, in the prescribed manner to every affected
person, including with the notice a sworn statement of the facts relevant to the grounds on which the
board resolution was founded; and
(b) appoint a business rescue practitioner who satisfies the requirements of section 138, and who has
consented in writing to accept the appointment.
(4)  After appointing a practitioner as required by subsection (3)(b), a company must—
(a) file a notice of the appointment of a practitioner within two business days after making the
appointment; and
(b) publish a copy of the notice of appointment to each affected person within five business days after
the notice was filed.‘

(ii) there is no reasonable prospect for rescuing the company; or
(iii) the company has failed to satisfy the procedural requirements set out in
section 129;
…

(2) An affected person who, as a director of a company, voted in favour of a
resolution contemplated in section 129 may not apply to a court in terms of—
(a) subsection (1)(a) to set aside that resolution; or
(b) …
unless that person satisfies the court that the person, in supporting the resolution,
acted in good faith on the basis of information that has subsequently been found to be
false or misleading.‘

[12]   Some aspects of this section are worth highlighting. Firstly, it
provides in s 130(1) for three grounds upon which an application to set
aside the resolution may be brought. The first two are that the grounds for
passing such a resolution set out in s 129(1) are absent, and the third is
that the procedural requirements of s 129 have not been observed. In
other words, the first two bases for challenging a resolution mirror the
grounds for passing the resolution set out in s 129(1), and the third raises
the issue of non-compliance with the obligations imposed on the
company by s 129 consequent upon passing the resolution and filing it
with CIPCSA. That seems sensible. If the grounds for passing such a
resolution are not present then it is appropriate to have a mechanism for
setting it aside. If the procedural requirements to be followed once a
resolution has been passed and filed with CIPCSA are not followed, that
may indicate that there is no genuine intention to follow the process
through to a successful conclusion and it is appropriate for there to be a
mechanism to set it aside.

[13] Secondly, the time for bringing such an application is restricted.
An application to set aside the resolution may be brought at any time after
the date of adoption of the resolution but, once a business rescue plan has
been adopted, the time for challenging a resolution is past. Whatever
flaws may have been present before that time become of purely historical
importance thereafter.

[14] Thirdly, some people are excluded from the ranks of those who are
entitled to bring a challenge to a resolution and seek to have it set aside.
A director of the company who voted in favour of such a resolution is
precluded from bringing such an application, unless they can show that in
doing so they acted in good faith on information furnished to them that
was false or misleading. In other words there is no room for a director
simply to have a change of heart in the light of altered circumstances. A
director who opposed the resolution is not so restricted, whether they
bring the application as a shareholder or as a creditor. No doubt that is
why the resolution can be challenged at any time after it is first passed,
even if it has not yet been filed with CIPCSA. A dissentient director may
immediately challenge the resolution and argue that there is no reasonable
ground for believing that the company is financially distressed or, if it is,
that there is no reasonable prospect of rescuing it. In addition the section
clearly contemplates that such a director, or any other affected person,
may bring such an application on the basis that there has been non-
compliance with the procedural requirements of s 129. That fact
immediately indicates that the lapsing and nullity arising from such non-
compliance may be less than absolute.

[15] These points are pertinent because the application by the Trust,
directed at setting aside the resolution, sidestepped two of these

constraints. First, it was brought after the adoption of the business rescue
plan, which would not be permissible in an application under s 130.
Second, in substance, if not form, Mr and Mrs Nel, the persons who, as
the directors of Panamo, passed the resolution to place it under business
rescue, brought the application.  They would not have been entitled to
bring an application under s 130 and it is an open question whether
s 130(2) would permit them to do so by making the Trust the applicant
rather than themselves.6 However, if they were permitted to do so, that
would clearly be contrary to the underlying purpose of s 130(2), which is
that those responsible for placing the company in business rescue should
not be entitled to challenge that decision merely because they have
changed their minds, much less because it suits their private interests to
do so. Assuming that they could nonetheless bring an application, this is
undoubtedly a factor that would have weighed heavily with a court faced
with such an application, in considering what was just and equitable
under s 130(5)(a)(ii).

[16]  The Trust argued that it was not obliged to follow the route of an
application to court under s 130(1)(a)(iii), because such a challenge was
unnecessary in the light of s 129(5)(a), which reads as follows:
‗(5) If a company fails to comply with any provision of subsection (3) or (4)—
(a) its resolution to begin business rescue proceedings and place the company under
supervision lapses and is a nullity …‘
It contended that the effect of its non-compliance with the provisions of
sub-sections (3) and (4) of s 129 was that the resolution commencing
business rescue in relation to Panamo lapsed and became a nullity,

6 The problem is not confined to trusts. If the only shareholder of a company was itself a company,
which appointed its own shareholders and directors as the directors of the subsidiary, it would seem
contrary to the purpose of s 130(2) to permit the company, represented by the same individuals, to
bring an application to set the resolution aside.

thereby bringing the business rescue proceedings to an end. This was so
irrespective of the fact that the non-compliance flowed from the Trust‘s
own failures to comply with these requirements and without any need to
invoke the provisions of s 130.

[17]  Arguments such as those raised in this case have featured in a
number of decisions of the various divisions of the High Court. The first
of these appears to be Advanced Technologies and Engineering Company
(Pty) Ltd v Aeronautique et Technologies Embarquées SAS,7 where
Fabricius J concluded that:
‗It is clear from the relevant sections contained in chapter 6 that a substantial degree
of urgency is envisaged once a company has decided to adopt the resolution
beginning rescue proceedings. The purpose of s 129(5) is very plain and blunt. There
can be no argument that substantial compliance can ever be sufficient in the given
context. If there is non-compliance with s 129(3) or (4) the relevant resolution lapses
and is a nullity. There is no other way out, and no question of any condonation or
argument pertaining to ''substantial compliance‖.‘
Although he did not say so expressly, the learned judge appears to have
been of the view that an inevitable consequence of the resolution having
lapsed would be that the business rescue process would terminate.

[18] This approach has been followed in several other cases including
the present one. It has not, however, been universally accepted. In Ex

7 Advanced Technologies and Engineering Company (Pty) Ltd v Aeronautique et Technologies
Embarquées SAS (GNP case no 72522/11). The decision was followed in Madodza (Pty) Ltd (in
business rescue) v ABSA Bank Ltd (GNP Case 38906/12), Homez Trailers and Bodies (Pty) Ltd (under
supervision) v Standard Bank of South Africa Ltd (GNP case no 35201/2013) and ABSA Bank Ltd v
Ikageng Construction (Pty) Ltd (GNP Case no 61235/2014). In Newton Global Trading (Pty) Ltd v
Corte [2014] ZAGPPHC 628 para 12 it was held that the nullity dates back to the date of the original
resolution and could not be remedied by a further resolution.

Parte Van den Steen NO,8 Rautenbach AJ held that Fabricius J was
dealing only with non-compliance with time limits in regard to the
appointment of a business rescue practitioner and not to other aspects of
sub-sections (3) and (4). He accordingly held that, where there had been
substantial compliance with those provisions, s 129(5) did not operate to
nullify the resolution. In ABSA Bank v Caine NO9 Daffue J pointed out
that Fabricius J had not given consideration to the provisions of
s 130(1)(a)(iii) and that his construction led to anomalies as between
s 129 and s 130.

[19] The observation by Daffue J is undoubtedly correct. It finds an
echo in the following passage from Henochsberg, where the author
identified the very type of problem that has arisen in the present case:10
‗The practical consequences of the resolution that ―lapses and is a nullity‖ are
uncertain … From the wording of the section it would appear that the resolution
lapses and becomes a nullity automatically, without any intervention from outside
parties. From a practical perspective this could create a number of problems,
especially if this has been done intentionally by the company in order to gain the
protection of Chapter 6 for a brief period of time, only to exit the procedure due to the
resolution lapsing and becoming a nullity at a later date. This could also have
unintended consequences where non-compliance with the notice and publication
requirements have been minor and unintentional … It is not clear whether non-
compliance in such circumstances means that the business rescue process lapses and

8 Ex Parte Van den Steen NO (Credit Suisse Group AG Intervening) 2014 (6) SA 29 (GJ). Also MAN
Financial Services SA (Pty) Ltd v Blouwater Boerdery CC (GNP case no 72522/2012).
9 ABSA Bank Ltd v Caine NO, In Re: Absa Bank Ltd v Caine NO [2014] ZAFSHC 46 paras 24 to 26.
To similar effect was Vincemus Investments (Pty) Ltd v Louhen Carriers CC 2013 JDR 0881 (GNP),
when the proceedings were adjourned, but on the adjourned date the approach in Advanced
Technologies was followed. See Vincemus Investments (Pty) Ltd v Louhen Carriers CC (GNP case no
16550/2013 dated 5 November 2013).
10 Piet Delport and Quintus Vorster (authors) with other contributors Henochsberg on the Companies
Act 71 of 2008 (looseleaf, Issue 9) at 461.

becomes a nullity, even if the business rescue plan has already been adopted and is in
the process of being implemented.‘
As regards the relationship between s 129(5)(a) and s 130(1)(a)(iii) the
author comments11 that: ‗It is difficult to align the apparent automatic
lapsing of a business rescue resolution under the provisions of s 129(5)
with this provision [ie with s 130(1)(a)(iii)]‘.

[20]  The approach of Fabricius J appears to leave no room for the
operation of s 130(1)(a)(iii). There is no point in bringing an application
to set aside a resolution on the grounds of non-compliance with the
procedural requirements of s 129 if that resolution has already lapsed and
been rendered a nullity and the process of business rescue has, as a result,
come to an end. In order to address this problem counsel submitted that
s 129(5)(a) deals with non-compliance with the requirements of ss 129(3)
and (4), while s 130(1)(a)(iii) operates in respect of non-compliance with
other procedural requirements in s 129.

[21] I do not accept this argument for the simple reason that I do not
think that the expression ‗procedural requirements‘ in s 130(1)(a)(iii)
extends to any matter beyond the steps set out in ss 129(3) and (4). The
phrase ‗procedural requirements‘ must refer to obligations of an
administrative or procedural nature imposed upon the company. The steps
that have to be taken under ss 129(3) and (4) fall naturally in this
category. But counsel submitted that it extended to the need in terms of
s 129(1) for a resolution of the board of the company to commence
business rescue as well as to the filing of the resolution with CIPCSA in

11 Henochsberg, supra, at 462(4).

terms of s 129(2) that is a prerequisite for the resolution to take effect and
business rescue to commence.

[22] Counsel derived support for the first submission from D H
Brothers,12 where a resolution to commence business rescue was passed
without the board of directors being properly constituted. The court said
that this amounted to a failure to comply with the procedural
requirements of s 129(1) of the Act. In my view that was incorrect. The
consequence of the board not having been properly constituted, (which
was not what occurred in the present case), would be that the resolution
was not a resolution of the board of directors. As such it was a nullity and
ineffective for the purpose of commencing business rescue proceedings.
Equally, in the absence of such a resolution, there was nothing to set
aside in terms of s 130(1)(a)(iii). The court in D H Brothers could and
should have made a declaration to that effect, but in doing so it would not
have been acting in terms of s 130(1)(a)(iii).

[23] The passing of a resolution to commence business rescue cannot
readily be described as a procedural requirement. It is merely the
substantive means by which the company may take that step. The board is
under no obligation at all to take such a resolution, although, if it is
financially distressed, it may be obliged to inform shareholders and
creditors of the reasons for not doing so (s 129(7)). It cannot then be
described as a ‗requirement‘, much less a procedural requirement. The
other suggestion by counsel, that filing the resolution with CIPCSA is a
procedural requirement non-compliance with which may support an
application in terms of s 130(1)(a)(iii), suffers from a similar flaw. If the

12 DH Brothers Industries (Pty) Ltd v Gribnitz NO 2014 (1) SA 103 (KZP) para 16.

board passes a resolution, but it is not filed with CIPCSA, then business
rescue does not commence and the resolution is ineffective for any
purpose. No point would be served in setting it aside.

[24] There are no other procedural requirements in s 129 in relation to
which a circumscribed s 130(1)(a)(iii) could operate and none were
suggested to us. The obvious and sensible meaning of the expression
‗procedural requirements‘ in s 130(1)(a)(iii) is that it refers to the
procedural requirements in ss 129(3) and (4). But, if the resolution lapses
and becomes a nullity in consequence of such non-compliance, and this
brings an end to the business rescue process, as has been held in the High
Court judgments mentioned above, no purpose would be served by a
provision that empowered a court to set it aside.

[25]  The language of s 129(5)(a) at first reading may suggest that there
is an absolute and immediate nullity of the resolution if there is non-
compliance with the requirements of ss 129(3) and (4). How then is a
court to deal with the anomaly that such a reading appears to create? In
my view the problem falls to be solved by having regard to certain basic
principles of statutory interpretation.

[26] In Endumeni13 I ventured to summarise the current approach to
statutory interpretation in the following way:
‗Interpretation is the process of attributing meaning to the words used in a document,
be it legislation, some other statutory instrument, or contract, having regard to the
context provided by reading the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its coming into existence.

13 Natal Joint Municipal Pension Fund v Endumeni Municipality [2013] ZASCA 13; 2012 (4) SA 593
(SCA); [2012] 2All SA 262 9SCA0 para [18].

Whatever the nature of the document, consideration must be given to the language
used in the light of the ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed and the material known
to those responsible for its production. Where more than one meaning is possible each
possibility must be weighed in the light of all these factors. The process is objective,
not subjective. A sensible meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against, the temptation to substitute what they regard as
reasonable, sensible or businesslike for the words actually used. To do so in regard to
a statute or statutory instrument is to cross the divide between interpretation and
legislation; in a contractual context it is to make a contract for the parties other than
the one they in fact made. The ―inevitable point of departure is the language of the
provision itself‖, read in context and having regard to the purpose of the provision and
the background to the preparation and production of the document.‘

[27] When a problem such as the present one arises the court must
consider whether there is a sensible interpretation that can be given to the
relevant provisions that will avoid anomalies. In doing so certain well-
established principles of construction apply. The first is that the court will
endeavour to give a meaning to every word and every section in the
statute and not lightly construe any provision as having no practical
effect.14 The second and most relevant for present purposes is that if the
provisions of the statute that appear to conflict with one another are
capable of being reconciled then they should be reconciled.15 Is it then
possible to reconcile s 129(5)(a) and s 130(1)(a)(iii)? In my view it is
possible without doing damage to the language used by the legislature.

14 Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 at 436;
Commissioner for Inland Revenue v Shell Southern Africa Pension Fund 1984 (1) SA 672 (A)
at 678C - F
15 Minister of Interior v Estate Roos 1956 (2) SA 266 (A) at 271B-C; Amalgamated Packaging
Industries Ltd v Hutt 1975 (4) SA 943 (A) at 949H.

[28] It is helpful to start with what the Act says about the termination of
business rescue proceedings. The relevant provision for present purposes
is s 132(2)(a)(i), which provides that business rescue proceedings end
when the court sets aside the resolution that commenced those
proceedings. In other words, when a court grants an order in terms of
s 130(5)(a) of the Act, the effect of that order is not merely to set the
resolution aside, but to terminate the business rescue proceedings. A
fortiori it follows that until that has occurred, even if the business rescue
resolution has lapsed and become a nullity in terms of s 129(5)(a), the
business rescue commenced by that resolution has not terminated.16
Business rescue will only be terminated when the court sets the resolution
aside. The assumption underpinning the various high court judgments to
the effect that the lapsing of the resolution terminates the business rescue
process is inconsistent with the specific provisions of the Act. None of
those judgments referred to s 132(2)(a)(i).

[29] Once it is appreciated that the fact that non-compliance with the
procedural requirements of s 129(3) and (4) might cause the resolution to
lapse and become a nullity, but does not terminate the business rescue,
the legislative scheme of these sections becomes clear. The company may
initiate business rescue by way of a resolution of its board of directors
that is filed with CIPCSA. The resolution, and the process of business
rescue that it commenced, may be challenged at any time after the
resolution was passed and before a business rescue plan is adopted on the
grounds that the preconditions for the passing of such resolution are not

16 The distinction between the resolution having lapsed and the business rescue proceedings having
ended appears to be recognised in s 129(6), although that section may itself give rise to some practical
difficulties that do not arise here and can be left for another occasion.

present.17 If there is non-compliance with the procedures to be followed
once business rescue commences, the resolution lapses and becomes a
nullity and is liable to be set aside under s 130(1)(a)(iii). In all cases the
court must be approached for the resolution to be set aside and business
rescue to terminate. That avoids the absurdity that would otherwise arise
of trivial non-compliance with a time period, eg the appointment of the
business rescue practitioner one day late as a result of the failure by
CIPCSA to licence the practitioner timeously in terms of s 138(2) of the
Act, bringing about the termination of the business rescue, but genuine
issues of whether the company is in financial distress or capable of being
rescued having to be determined by the court. There is no rational reason
for such a distinction.

[30] The reason for wanting consistency, in all instances where the
question of setting aside a resolution to commence business rescue arises,
is apparent from s 130(5)(a) of the Act. That section deals with the
circumstances in which the court may set aside a resolution and reads as
follows:
‗(5)  When considering an application in terms of subsection (1) (a) to set aside the
company‘s resolution, the court may—
(a)
set aside the resolution—
(i)
on any grounds set out in subsection (1); or
(ii)
if, having regard to all of the evidence, the court considers that it is otherwise
just and equitable to do so.‘

[31] It has been suggested that the effect of the inclusion of sub-para (ii)
in this section is to introduce a fourth ground for setting aside a resolution

17 The language of ss 130(1)(a)(i) and (ii) suggests that the time when the preconditions are not present
is when the application is brought, but I refrain from deciding that point as it is unnecessary to do so.

to commence business rescue in addition to those set out in s 130(1)(a).18
I do not think that is correct. This appears to me to be yet another case in
a long line, commencing with Barlin,19 in which the legislation uses the
disjunctive word ‗or‘, where the provisions are to be read conjunctively
and the word ‗and‘ would have been more appropriate.20 Where to give
the word ‗or‘ a disjunctive meaning would lead to inconsistency between
the two subsections it is appropriate to read it conjunctively as if it were
‗and‘. This has the effect of reconciling s 130(1)(a) and s 130(5)(a) and
limiting the grounds upon which an application to set aside a resolution
can be brought, whilst conferring on the court in all instances a discretion,
to be exercised on the grounds of justice and equity in the light of all the
evidence, as to whether the resolution should be set aside.

[32] Insofar as it may be suggested that the use of the word ‗otherwise‘
in s 130(5)(a)(ii) points in favour of this furnishing a separate substantive
ground for setting aside the resolution I do not agree. In my view the
word is used in this context to convey that, over and above establishing
one or more of the grounds set out in s 130(1)(a), the court needs to be
satisfied that in the light of all the facts it is just and equitable to set the
resolution aside and terminate the business rescue. It is not being used in
contradistinction to the statutory grounds, but as additional thereto. This
is consistent with the meaning ‗with regard to other points‘ given in the
Oxford English Dictionary.21

18 DH Brothers Industries (Pty) Ltd v Gribnitz NO supra para 18.
19 Barlin v Licencing Court for the Cape 1924 AD 472 at 478.
20 Ngcobo v Salimba CC; Ngcobo v Van Rensburg 1999 (2) SA 1057 (SCA) para 11; SATAWU v
Garvas 2013 (1) SA 83 (CC) para 143; S v Sengama 2013 (2) SACR 377 (SCA).
21 OED 2nd ed, (1989) Vol X at 985, sv ‗otherwise‘ (meaning 3).

[33] So construed the different sections are not only harmonious but
also sensible and practical in their application. Under s 129 the company
initiates the business rescue process and takes the procedural steps that
must be followed. Under s 130 an affected person, excluding, save in
special circumstances, a director who voted in favour of the resolution,
may, during the period from the date of the resolution until the date of
acceptance of a business rescue plan, apply to set the resolution aside
either on substantive or procedural grounds. Such an application is made
to court and the applicant must not only establish the statutory grounds,
but also satisfy the court that it is just and equitable that the resolution be
set aside. If the court grants such an order that brings the business rescue
to an end.

[34] One further point in favour of this approach is that it largely
precludes litigants, whether shareholders and directors of the company or
creditors, from exploiting technical issues in order to subvert the business
rescue process or turn it to their own advantage. Once it is recognised that
the resolution may be set aside and the business rescue terminated if that
is just and equitable, the scope for raising technical grounds to avoid
business rescue will be markedly restricted even if it does not vanish
altogether. That result is consistent with the injunction in s 5 of the Act
that its provisions be interpreted in such a manner as to give effect to the
purposes set out in s 7, one of which, as I said at the outset, is to provide
for the efficient rescue and recovery of financially distressed companies
in a manner that balances the rights and interests of all relevant
stakeholders.

[35] For those reasons I am of the opinion that the high court erred in its
approach and should have dismissed the application. Accordingly the
following order is made:
The appeal is upheld with costs.
Paragraphs 2 and 3 of the order of the court below are set aside and
replaced by the following:
‗The application is dismissed.‘
Paragraph 4 of the order of the court below is renumbered as
paragraph 3.
The order granted on the counter application is set aside.

M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellants:
B M Gilbert
Instructed
by:
Hogan-Lovells
South
Africa
incorporated as Routledge Modise Inc, Sandton.
Lovius Block, Bloemfontein

For respondent:
J Vorster
Instructed by: Magda Kets Inc, Pretoria;
Du Plooy Attorneys, Bloemfontein.
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
27 May 2015
Status:
Immediate
Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.
Panamo Properties (Pty ) ltd v Nel and another NNO

The Supreme Court of Appeal has today handed down a judgment
in which it clarifies certain controversial provisions of the Companies Act
71 of 2008 (the Act) dealing with business rescue proceedings. In a
number of cases heard in the various divisions of the high court it has
been held that where a company is placed in business rescue pursuant to a
resolution of its board of directors, but thereafter fails to comply with the
procedural requirements in s 129 of the Act, the effect is to cause the
business rescue proceedings to terminate. The reason for this was said to
flow from the provisions of s 129(5) of the Act, which provide that such
non-compliance with procedural formality results in the resolution
placing the company under business rescue lapsing and becoming a
nullity.

Panamo Property’s sole shareholder was a trust the trustees of
which were Mr and Mrs Nel. They were also the directors of the
company who took the resolution to commence business rescue. That was
intended to avoid the company’s property being sold pursuant to a
judgment against it by a financial institution. The Nels co-operated with
the process of business rescue as they hoped to find alternative sources of

finance to discharge the company’s debt. A business rescue plan was duly
approved, but no further funds were forthcoming and the business rescue
practitioner sold the property in accordance with the business rescue plan.
When it was about to be transferred to the purchaser the present
proceedings were brought by the trust. It alleged that it had not complied
with the procedural requirements laid down in s 129 of the Act and as a
result the entire business rescue process was a nullity. That argument had
been upheld in the high court.

The SCA pointed out in a unanimous judgment that the termination
of business rescue proceedings is specifically dealt with in s 132(2) of the
Act. That provision does not say that the lapsing of the initiating
resolution will cause the business rescue to terminate. Instead it says in
s 132(2)(a)(i) that business rescue is terminated when the court sets the
initiating resolution aside. This focuses on the provisions of s 130 of the
Act, which provide for an affected party to apply to court for the
initiating resolution to be set aside in certain circumstances, including
non-compliance with the procedural requirements of s 129. In addition
the court will only grant an order setting aside the initiating resolution if
it is satisfied on a consideration of all the circumstances that it is just and
equitable to do so.

The court pointed out that this approach to the construction of the
relevant sections would prevent business rescue proceedings from being
stultified by creditors or those who stand behind the company, in the form
of its shareholders and directors, on the basis of technical arguments that
undercut the basic purpose of business rescue.