Opposing business rescue practitioners (BRPs) of Gupta-owned Shiva Uranium are set to do battle at the Constitutional Court next month over which side was validly appointed.
Chris Monyela, whom the Supreme Court of Appeal (SCA) found was not Shiva Uranium’s validly appointed BRP, wants the apex court to overturn the SCA’s December 2020 ruling and restore him as the one in charge.
The SCA declared Mahomed Tayob and Eugene Januarie the Gupta mining company’s validly appointed BRPs, overturning an earlier North Gauteng High Court ruling that dismissed their bid to be proclaimed the firm’s legitimate BRPs.
Monyela was appointed Shiva Uranium’s BRP with Cloete Murray after state-owned finance institution the Industrial Development Corporation (IDC) objected to Louis Klopper and Kurt Knoop, who were hired Shiva Uranium’s board.
The IDC, Shiva Uranium’s largest independent creditor, successfully challenged Klopper and Knoop’s appointment, and the two later resigned, before the matter was heard in court after the parties settled for an order by consent.
They were replaced by Murray and Monyela.
However, Murray also resigned, and Juanito Damons took over from him.
At the heart of the dispute is whether Shiva Uranium’s board or the IDC were entitled to appoint Murray’s replacement.
Shiva Uranium then appointed Tayob and Januarie to replace Murray, a move Monyela successfully challenged at the Companies and Intellectual Property Commission’s Companies Tribunal.
The tribunal’s ruling triggered the current litigation, in which the Constitutional Court will hear arguments next month.
The SCA found that after Murray resigned, the right to appoint his replacement vested with Shiva Uranium’s board and not the IDC.
But Monyela disagrees. He states in his papers before the apex court that as the remaining junior BRP, he retained all his rights, powers and duties to act on Shiva Uranium’s behalf, and the SCA erred in finding he had no authority to do so.
“The appeal is not only in the interests of the company and the litigants, but also has broader interests for company law and business rescue proceedings,” Monyela said.
He has asked the Constitutional Court to declare that Tayob and Januarie were not validly appointed by Shiva Uranium’s board of directors as its BRPs.
In their answering affidavit, Tayob and Januarie accuse Monyela of presenting a new case that had not been the subject matter of the proceedings in the tribunal, high court or the SCA.
“Monyela should not be granted leave to appeal to present a new case. The new case is moreover based on allegations of fact that are wrong or, at least, would have been hotly disputed had Monyela made the new case in his answering affidavit in the high court proceedings,” argue Tayob and Januarie.
They also told the Constitutional Court that the legal argument upon which Monyela’s new case is based is clearly wrong and it enjoys no prospects of success.
Tayob and Januarie want Monyela’s application for leave to appeal to be dismissed as expeditiously as possible.
“It is important that the business rescue of the company proceed to a speedy conclusion in the interests of all affected parties,” reads their answering affidavit.