Shiva Uranium (Pty) Limited (In Business Rescue) and Another v Tayob and Others

Shiva Uranium (Pty) Ltd was placed into voluntary business rescue under section 129 of the Companies Act 71 of 2008. After creditors successfully challenged the company-appointed practitioners under section 130(1)(b), the High Court irregularly appointed a substitute practitioner under section 130(6)(a) despite the original practitioners having resigned. Mr Murray was appointed as senior practitioner and Mr Monyela as junior practitioner. When Mr Murray later resigned, competing appointments followed: Mr Monyela and Mr Murray purported to appoint Mr Damons as replacement, while Shiva’s board appointed Messrs Tayob and Januarie. Litigation ensued over who had the authority to appoint a replacement practitioner following the resignation of a practitioner appointed under section 130(6)(a).

The second applicant’s application for leave to appeal was dismissed, with costs awarded against him in favour of the first and second respondents.

This case provides authoritative clarification on the interpretation of section 139(3) of the Companies Act, confirming that creditors who play a role in the court appointment of a practitioner under section 130(6)(a) do not acquire an ongoing power to appoint replacements. It reinforces the distinction between voluntary and compulsory business rescue and promotes certainty in the governance of business rescue proceedings.