SG Coal (Pty) Limited v Beryl Coal (Pty) Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Wepener J
• Judgment Date: 11 September 2023
• Docket Number: 05174/2022
• Court: Gauteng Local Division, Johannesburg

Wepener J:

[1]

Inceku Mining (Pty) Limited (“Inceku”) a registered company doing business in South Africa, which has a claim against Beryl Coal for the sum of R123 000 000 for services rendered.

[2]

Beryl Coal (Pty) Limited (“Beryl Coal”) is a company registered in the Republic of South Africa and doing business in the coal mining industry.

[3]

SG Coal (Pty) Limited (“SG Coal”) is a registered Company doing business in South Africa and who instituted liquidation proceedings against Beryl Coal.

[4]

Kurt Robert Knoop N.O.(“Knoop”) is a business rescue practitioner appointed as such in the business rescue proceedings of Beryl Coal.

[5]

The Master of the High Court (“the Master”) is sited in these papers as the official with authority who can appoint liquidators.

[6]

Johannes Zacharias Human Muller N.O. (“Muller”) is a joint provisional liquidator appointed by the Master in the provisional liquidation of Beryl Coal.

[7]

Mac Moses Baloyi N.O. (“M. Baloyi”) is a joint provisional liquidator appointed by the Master in the provisional liquidation of Beryl Coal.

[8]

Jimmy Baloyi N.O. (“J. Baloyi”) is a joint provisional liquidator appointed by the Master in the provisional liquidation of Beryl Coal.

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[9]

Beryl Partners SA (Pty) Limited (“Beryl Partners”) is a company duly registered in terms of the laws of South Africa and which is a shareholder of Beryl Coal.

[10]

Reabetswe Kgoroeadira (“Kgoroeadira”) is a director of Beryl Coal.

[11]

Fortunate Ramashidiza (“Ramashidiza”) is a director of Beryl Coal.

[12]

The Companies and Intellectual Property Commission of South Africa (“the Commission”) is a body established by law. It took no part in the proceedings.

[13]

All of the aforementioned parties joined or were joined in one or other capacity in the various applications that were launched and which served before me.

[14]

Before me are several applications including an application for consolidation of two applications for the liquidation of Beryl Coal. Difficulties regarding what was before me and what was not arose when by counsel submitted draft orders after the hearing. In its covering letter, Beryl Coal refers to the letter of the Deputy Judge President only referring three case numbers for hearing to me, i.e. 038877, 022339 and 040604.

[15]

This cannot be correct as Beryl Coal itself submitted a draft order seeking the dismissal of the application to consolidate case 022339 and case 9197. At the very least, case 9197, as referred to in case 022339, was also before me.

[16]

Also, in concise heads of argument Inceku indicated that case 9197 was indeed before me. It also argued that application fully without any objection that it was not before me for determination. I consequently find that the after the fact email surprising considering all the matters that were argued before me. The email by Beryl Coal’s attorneys also states that “the application was not argued”. It does not say that the matter was not before me.

[17]

After I reserved judgment and completed the bulk of my judgment, a notice of application in case number 9197 was filed by Beryl Partners. Therein it seeks that the judgment must be stayed or reserved further “while final adjudication and

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Wepener J

determination” is made of an application to amend a document which features in the matter. All the matters that were downloaded under case number 05174 (the current proceedings) were before me and I shall deal with those matters which were argued and with the new application after it is heard.

[18]

I, consequently hold that the application to consolidate case numbers 022339 and 9197 is properly before me. In it, Inceku seeks to consolidate and application by it for the liquidation of Beryl Coal with a similar application by SG Coal.

[19]

There was also a matter launched in the Pretoria High Court (38877/2022) but which was transferred to this court and uploaded under the main case number of this matter, i.e. 005174. That matter is also before me and was argued fully.

[20]

The application (case number 040604) in which SG Coal sought to set aside the final liquidation of Beryl Coal in terms of section 354 of the Companies Act [1] served before me on all versions. However, SG Coal did not appear to move for the order and it was the intervening parties and Beryl Coal who could participate in this application. But not a word was said about it save that Inceku submitted that although the application is before me for purposes of dealing with the return day of the provisional liquidation application, the application to set aside the initial order was not. This appears to be correct and no party sought relief pursuant to section 354 of the Companies Act. Although not submitted by Beryl Coal, Beryl Partners or Knoop, the papers indicate that Beryl Partners had launched an application in terms of section 345 of the Companies Act for the setting aside of the liquidation order of Beryl Coal granted on 17 October 2022 in favour of SG Coal. I am in no position to grant this relief in the absence of submissions before me as to why a liquidation order, on the face of it issued validly in 2022, should now be set aside. The onus to prove the requirements

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set out in section 354 of the Companies Act is on the party seeking that relief. I must assume that the relief was abandoned, at least before me, and it calls for no order.

[21]

Jabula Plant Hire (Pty) Limited (“Jabula”) also instituted liquidation proceedings against Beryl Coal. During September 2021, D&R Mining (Pty) Limited (“D&R”) was granted leave to intervene in liquidation proceedings of Beryl Coal, instituted by Jabula. Both claims were settled and I need not refer to the terms of thereof, save to indicate that upon reaching the settlement agreement, the application for liquidation was postponed sine die. It is common cause that there is an amount for the payment of interest and costs outstanding at the time of this hearing.

[22]

On 26 July 2022, SG Coal instituted liquidation proceedings against Beryl Coal and on 19 October 2022 the court granted a final liquidation order. Thereafter, and in terms of section 149(2) of the Insolvency Act [2] the parties applied to court and obtained a variation of the final liquidation order to become a provisional liquidation order with a return date, which is now before me. In the time that followed, Beryl Coal also settled SG Coal’s claim. The terms of the settlement that are relevant and will be referred to below. Probably because of that settlement, SG Coal did not appear before me on the return day of the rule nisi when these matters were argued, and the order in SG Coal’s favour, should be discharged.

[23]

Inceku, who did not have knowledge of the pending liquidation applications brought by SG Coal and others, issued an application for liquidation of Beryl Coal during June 2022. This...