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[1] This judgment addresses two related applications. To avoid confusion the parties are referred to by their names.
[2] The first application is by Absa to wind New City Group (Pty) Ltd (Newcity) which application is now at the stage of the return day of a provisional winding up order, issued on 13 June 2012. Newcity opposes the confirmation of the provisional winding up order. The second application is by Chaim Cohen (Cohen), the sole shareholder and director of Newcity, for an order to begin business rescue proceedings of Newcity, pursuant to Section 131(1) of the Companies Act 71 of 2008 (Companies Act, 2008). Absa opposes the application for an order to begin business rescue proceedings.
[3] Two other parties, Quantum Property Group Ltd (QPG) and A Million Up 105 (Pty) Ltd (AMU) who claim to be affected parties, notwithstanding no notice having been given to them as contemplated by Section 131(1) of the Companies Act, 2008 also were represented in the hearing. Whether or not they were entitled to participate was addressed by me in their favour, at the hearing on 13 June 2012. Mr Brett, for Newcity and for Cohen, in this hearing, contended these ‘affected parties’ had a legitimate interest only in the business rescue application. Whether this, in the present context, is a distinction without a difference need not be resolved. (Cf: Cape Point Vineyards (Pty) Ltd v Pinnacle Point Group & Another ( Advantage Projects Managers (Pty) Ltd Intervening) 2011 (5) SA 600 (WCC) at [21]. Also see: Henochberg’s commentary on Section 347 of the Companies Act 1973, Vol I at p729 on the common law position about intervention in liquidation proceedings). The affected parties filed no papers.
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