First Applicant ['A'] purchased a piece of land from the first respondent ['B']. The purchase price was payable in instalments over a 5 year period and a small deposit required upfront. A, did not render any payments other than the small deposit. B sued for the outstanding balance and succeeded by default. A, applied for recission of the default judgment however failed and on the same day of application failure the director of A took a resolution for implementation of a business rescue and although the resolution was filed, no notice was afforded the affected parties. When the defect was pointed out the director of A had already passed a second resolution. A, brought as application to interdict the transfer of the land that had been purchased by B at a sale in execution of the original judgment and B/purchaser countered with an application to set the resolution aside. The two issues to be determined were thus [36.1] whether the first resolution should be declared invalid and set aside, in terms of section 129(5) read with section 130(1)(a), and the resultant business rescue proceedings terminated in accordance with section 132(2)(a)(i) of the Act* and if, so - [36.2] whether a consequential order should be granted confirming the validity of the sale in execution as a necessary and appropriate order of the type envisaged in section 130 (5)(c) of the Act.

Having referred to the 2015 Panamo^ judgment - in Panamo, an issue regarding hypothecated property and deemed unable to pay its debts it was placed into business rescue by its Trust whereby a little over two years, the Trust sought an order declaring the original resolution for Business rescue lapsed. learned Judge held once it was recognised the resolution may be set aside and the business rescue terminated, if just and equitable, the scope for raising technical grounds to avoid business rescue would be markedly restricted since the purpose of business rescue s [7] was to actually provide for the efficient rescue and recovery of financially distressed companies, in a manner that balanced the rights and interests of all relevant stakeholders. In casu, there remained the question of consequential setting aside of the resolution where the learned Judge noted, notice should have been afforded the Companies and Intellectual Properties Commission including all effected parties and that the action represented non-compliance. The application was dismissed, a rule nisi cancelled and the counter-application for setting aside, upheld.

Vide Alderbaran (Pty) Ltd v Gideon Philips Bouwer (19992/2017) [22 March 2018] ZAWCHC 38; [2018] 3 All SA 71 (WCC); 2018(5) SA 215 (WCC); *Companies Act 2008 ch 6; Panamo Properties (Pty) Ltd v Nel And Another NNO 2015 ZASCA 76.