Geannè Darke v Gregory John Darke and Others

The applicant and first respondent were involved in acrimonious divorce proceedings. The applicant had obtained two Rule 43 orders for interim maintenance which the first respondent failed to comply with, leading to a contempt of court finding on 27 March 2025. On 16 April 2025, the first respondent placed the fifth respondent (Disruptive Vision (Pty) Ltd) in business rescue. The fifth respondent was a solar energy infrastructure importer and distributor that had experienced significant trading losses in 2023-2024. A business rescue practitioner (BRP) was appointed on 23 April 2025. The business rescue plan contemplated selling the commercial division to the tenth respondent while winding down the residential division over six months, retaining employee employment and paying all creditors in full. Investec Bank agreed to provide post-commencement finance until 31 July 2025. The applicant, having received the business rescue plan on 13 June 2025, brought an urgent application on 21 June 2025 seeking suspension of the business rescue process and postponement of the section 151 creditors meeting scheduled for 24 June 2025. The order was granted on 24 June 2025 by Makaula J. However, the affected employees and most creditors were not served with or joined in the original application. The affected persons brought a reconsideration application under Rule 6(12)(c).

• Whether the non-joinder of affected employees and creditors in the original urgent application was fatal to the order granted
• Whether the applicant's urgent application was properly brought on an urgent basis given the delay between April and June 2025
• Whether persons with a direct and substantial interest in business rescue proceedings must be joined as parties before an order affecting their rights can be granted
• Whether the right to audi alteram partem was violated by granting the order in the absence of affected parties
• What factors must be considered in a reconsideration application under Rule 6(12)(c) of the Uniform Rules of Court

1. Non-compliance with Uniform Rules relating to forms, service and time periods condoned and the reconsideration application dealt with as urgent in terms of Rule 6(12) read with Rule 6(12)(c). 2. The Order granted by Makaula J on 24 June 2025 was reconsidered and set aside. 3. The application brought by the applicant (Geanne Darke) on 20 June 2025 was dismissed with costs on a party and party scale C. 4. Costs of the reconsideration application including costs of two counsel to be paid by the applicant on a party and party scale C.

1. In business rescue proceedings, all parties with a direct and substantial interest in the outcome must be joined and served with applications seeking orders that affect their legal rights, even in urgent applications. 2. The failure to join and serve affected parties before obtaining an order that impacts their rights materially violates the audi alteram partem principle and constitutes a fatal defect. 3. Employees whose employment will be affected by business rescue proceedings and creditors whose claims will be materially impacted have a direct and substantial interest requiring joinder - they cannot be excluded on the basis that their rights are legislatively protected or that they will be joined in subsequent proceedings. 4. Under Rule 6(12)(c), when hearing a reconsideration application, the onus remains on the original applicant to establish grounds for the relief sought and granted in the order being reconsidered. 5. A party who is aware of business rescue proceedings for a substantial period but only approaches the court on the eve of a creditors meeting without adequate explanation for delay has not established proper urgency. 6. The scheme of Rule 6(12)(c) takes as its point of departure that the applicant has obtained its order and the reconsideration is about whether it can keep its order - the rule exists to remedy an injustice if one was done when the order was granted.

The court made observations that the applicant's allegations that the business rescue was part of a conspiracy or "plan of attack" by the first respondent in collusion with the BRP, attorneys, other respondents and Investec were unfounded and not supported by the evidence. The court noted that the applicant had no direct interest whatsoever in the business rescue process as she was not a shareholder or employee of the fifth respondent, and no maintenance order had been granted against that company - her constitutional rights and claims were against the first respondent personally. The court observed that business rescue proceedings are by their very nature urgent, citing authority for this proposition. The court commented on the two-fold effect of the right to be heard: it satisfies the individual's desire to be heard before being adversely affected, and provides an opportunity for the decision-maker to acquire information pertinent to the just and proper exercise of power.

This case is significant for establishing clear principles regarding joinder requirements in business rescue proceedings under the Companies Act. It reinforces that parties with a direct and substantial interest in business rescue proceedings must be joined and served before orders affecting their rights can be granted. The judgment emphasizes the sacrosanct nature of the audi alteram partem principle even in urgent business rescue matters, and demonstrates that the right to be heard serves both to satisfy the individual's desire to be heard before being adversely affected and to provide the court with pertinent information for the just exercise of its powers. The case also illustrates the courts' approach to self-created urgency and the need for parties to act timeously when aware of business rescue proceedings. It confirms that business rescue proceedings are inherently urgent by nature, and highlights the balance courts must strike between competing interests in the context of divorce proceedings intersecting with corporate insolvency matters.