Resilient Rock (Pty) Ltd v Voltex (Pty) Ltd t/a Atlas Group

Voltex (Pty) Ltd t/a Atlas Group applied for the liquidation of Resilient Rock (Pty) Ltd on the basis of alleged inability to pay debts. The High Court dismissed the application, finding no proof of commercial insolvency or an undisputed debt. Voltex’s attempts to obtain leave to appeal culminated in a successful appeal to the full court, which granted a final winding-up order. However, before the full court heard the appeal, another creditor, Trencon Construction (Pty) Ltd, had already obtained a provisional winding-up order against Resilient. Despite being alerted to this and despite both parties supporting a postponement, the full court proceeded to grant a final winding-up order. Resilient appealed to the Supreme Court of Appeal, arguing that section 347(5) of the Companies Act 61 of 1973 barred the full court from granting a final winding-up order while a provisional winding-up order was already in force.

The appeal succeeded. The order of the full court granting a final winding-up order was set aside and replaced with an order dismissing Voltex’s appeal with costs, including the costs of senior counsel.

The case clarifies that section 347(5) of the Companies Act 61 of 1973 applies peremptorily to all courts, including appellate courts, and that no final winding-up order may be granted once a company is already under a provisional winding-up order. It reinforces the principle that courts must consider supervening facts where legislation mandates it and underscores the importance of avoiding multiple or competing winding-up orders.