Ergomode (Pty) Ltd v Jordaan NO and Others

Sakhile Contract Mining (Pty) Ltd, the third respondent, was placed under business rescue in October 2020. It operated a coal washing plant situated on property leased from the appellant, Ergomode (Pty) Ltd. At commencement of business rescue, Sakhile owed Ergomode more than R18 million in arrear rental. The business rescue practitioners (BRPs) reduced Ergomode’s claim and determined it to be a non‑independent creditor. A business rescue plan proposing the sale, relocation and refurbishment of the plant was adopted by the majority of creditors. Ergomode sought to set aside the adoption of the business rescue plan, challenge extensions granted for its publication, review the determination of its creditor status, and obtain leave to perfect its landlord’s tacit hypothec over the plant notwithstanding the statutory moratorium under s 133 of the Companies Act.

The appeal was dismissed with costs, including the costs of two counsel.

The judgment clarifies procedural flexibility in business rescue, confirms a purposive and liberal interpretation of s 150(5), reinforces the strict operation of statutory time limits under s 145(6), and affirms that the s 133 moratorium bars post‑commencement steps to perfect security without leave. It strengthens certainty and speed in business rescue proceedings.