African Banking Corporation of Botswana Ltd v Kariba Furniture Manufacturers (Pty) Ltd and Others

The appellant bank had obtained an arbitration award against Kariba Furniture Manufacturers (Pty) Ltd (first respondent) and Mr Baldwin Nchite (third respondent) for BWP 14,966,809.20 arising from a loan agreement. On 31 January 2012, Mr and Mrs Nchite (directors and shareholders of Kariba) resolved to place Kariba under voluntary business rescue proceedings under s 129 of the Companies Act 71 of 2008, appointing Mr Jordaan (second respondent) as business rescue practitioner. Kariba had not been operating for at least five years and had no audited financial statements since 2005. At the second meeting of creditors held on 26 March 2012, the bank (holding 63% voting interest) and NWDC rejected the proposed business rescue plan. The shareholders' attorney then indicated his clients wished to make a "binding offer" under s 153(1)(b)(ii) to purchase the bank's voting interest at a value to be independently determined. The practitioner immediately ruled the offer was binding on the bank, transferred the bank's voting interest to the shareholders, and proceeded to approve the plan with the reconstituted creditors (excluding the bank). The bank launched an application to set aside the binding offer, the adoption of the business rescue plan, and the resolution to commence business rescue proceedings.

• What is the meaning of a 'binding offer' as contemplated in s 153(1)(b)(ii) of the Companies Act 71 of 2008?
• Is a 'binding offer' made under s 153(1)(b)(ii) automatically binding on the offeree without acceptance?
• Must a binding offer specify a price or must the price be readily ascertainable to constitute a valid offer to purchase?
• Whether there were reasonable prospects of successfully rescuing Kariba as required by s 130(1)(a)(ii) of the Act?
• Whether the resolution to commence business rescue and the business rescue plan should be set aside?

The appeal succeeded with costs, including costs of two counsel, to be paid by the second, third and fourth respondents jointly and severally. The court set aside paragraphs (2) and (3) of the high court order and replaced them with orders: (1) declaring the "binding offer" made on 26 March 2012 was not binding on the appellant; (2) setting aside the approval of the proposed business rescue plan; (3) setting aside the resolution of 31 January 2012 to voluntarily commence business rescue proceedings; and (4) ordering costs against the second, third and fourth respondents jointly and severally.

A 'binding offer' made in terms of s 153(1)(b)(ii) of the Companies Act 71 of 2008 is not automatically binding on the offeree. The term 'binding' means the offer cannot be withdrawn by the offeror, but acceptance by the offeree is required before both parties are bound. A valid offer to purchase under s 153(1)(b)(ii) must specify a price or the price must be readily ascertainable from the terms of the offer - an offer to pay an amount to be determined in future by an independent expert does not constitute a valid offer to purchase. For business rescue proceedings to be properly commenced under s 129, there must be reasonable grounds to believe reasonable prospects of rescuing the company exist - this requires more than mere speculation and must be based on concrete foundation including current financial information and realistic business prospects. A business rescue plan must contain accurate, complete and up-to-date information as required by s 150 to enable proper assessment of rescue prospects. Business rescue practitioners must exercise independence, objectivity and proper care in assessing company affairs and prospects, and must base their opinions on objective assessment of facts rather than information supplied solely by directors.

The court made critical observations about the drafting of the business rescue provisions in the Companies Act 71 of 2008, noting they were 'shoddily drafted' and have given rise to considerable uncertainty, with 'unclear, confusing and sometimes alarming provisions'. The court observed that business rescue practitioners must be held to a high professional and ethical standard, being officers of the court with responsibilities and duties equivalent to directors under ss 75-77. The court expressed serious concern about the conduct of the practitioner in this case, noting he failed to appreciate the seriousness of his office, acted as a representative of the company rather than independently, and showed hostility to legitimate creditor concerns. The court noted (per Leach JA) that it is 'almost inconceivable' that financial institutions would provide funding for purchase of voting interests where the value has not been determined, particularly in respect of companies in financial difficulties. The court suggested (without deciding) that proper procedure might require an offer to be accompanied by tender of payment or provision of adequate security, consistent with the common law requirement of tender 'met opene beurse en klinkende gelde' (with open purses and clinking money). The court did not find it necessary to address the constitutional challenge under s 25 regarding deprivation of property, nor the application to remove the practitioner under s 130(1)(b)(ii), though expressing concern about his conduct.

This is a landmark judgment providing authoritative interpretation of the business rescue provisions introduced by the Companies Act 71 of 2008, particularly the 'binding offer' mechanism in s 153(1)(b)(ii). The judgment clarifies that business rescue is not a mechanism to be abused by directors of insolvent dormant companies to avoid legitimate creditor claims. It establishes important principles regarding: (1) the contractual nature of 'binding offers' requiring acceptance; (2) the requirement that offers to purchase must specify or have readily ascertainable prices; (3) the standard for assessing 'reasonable prospects' of business rescue; (4) the duties of business rescue practitioners to act independently, objectively and with proper care; and (5) the need for business rescue plans to be based on current, accurate financial information and realistic prospects. The judgment has been widely followed and cited in subsequent business rescue cases. It rejected an interpretation that would have allowed minority shareholders to effectively expropriate creditor interests through the business rescue mechanism without proper safeguards.