Bosasa wants liquidators out of its companies, which it says are solvent

13 March 2019 - 15:49 By ERNEST MABUZA
Mike Hellens SC waits for the start of the inquiry into state capture in Parktown, Johannesburg on August 20 2018. He is the advocate for African Global Holdings in its application on Wednesday to reverse the liquidation of African Global Operations companies.
Mike Hellens SC waits for the start of the inquiry into state capture in Parktown, Johannesburg on August 20 2018. He is the advocate for African Global Holdings in its application on Wednesday to reverse the liquidation of African Global Operations companies.
Image: Alon Skuy

The affairs of the African Global Operations group of companies should not be under the care of the "rampant activities" of liquidators who should not have been appointed in the first place.

This submission was made in the South Gauteng High Court by African Global Holdings's counsel, Mike Hellens SC, on Wednesday.

The holding company seeks an order declaring that the special resolution taken by six directors of African Global Operations on February 12 placing the Bosasa group of companies under liquidation was void from the beginning and of no force and effect.

Hellens said the special resolution was not properly passed.

The company also seeks an order that Cloete Murray and Ralph Lutchman have no rights as provisional liquidators or liquidators in respect of the companies.

"The consequence will be that the [liquidators] should never have been appointed," Hellens told acting judge Goolam Ameer.

Hellens said the trigger for the liquidation, a special resolution by all companies under African Global Holdings, was never pulled.

"The special resolution was null and void and had no force [from the beginning]. The trigger for the liquidators' appointment was never legally pulled, hence their appointment was null and void and should be set aside," Hellens said.

Hellens said the six African Global Operations directors who met on February 12 had made a mistake when they purportedly signed for the companies to be placed under voluntary liquidation.

He said the directors of the various companies needed a solution following the closure of their bank accounts.

The banks had closed the companies' bank accounts following allegations of state capture levelled against the companies.

The closure of the companies’ bank accounts meant they would not be able to pay their employees and suppliers or to receive payment to themselves for services rendered.

Hellens said the advice received from attorney Danie Potgieter was that the only option available to the group was to voluntary liquidate the affected companies.

However, Ameer said papers before court showed that the six directors signed the documents voluntarily.

"On what basis do I now ignore this evidence and say no meeting took place?" Ameer asked. Hellens said the directors needed a solution and debated business rescue with the attorney.

Hellens said while Potgieter advised that the directors put the companies into  liquidation, there were no properly convened meetings for each of the companies, as required by the Companies Act.

However, counsel for the liquidators, Werner Luderitz SC, said the directors resolved in February that the companies must be brought under voluntary liquidation.

He said the companies were insolvent as they could not pay debts because they did not have bank accounts.

Luderitz said the directors signed the resolution and went to the masters office to lodge the resolution.

He said the directors then nominated Ralph Lutchman as liquidators.

"It was always intended that the applicants wanted the company to be placed under liquidation," Luderitz said.

Luderitz said the problem for African Global Operations was that the master of the high court appointed another liquidator, Cloete Murray, who took charge of the companies.

Luderitz said this was not what the directors intended.

"That's why we are here. This is why we are in court," Luderitz said.

Ameer reserved judgment.

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