Lizanne Chantal Muller N.O. (1) AND MARI Haywood N.O. (2) Versus Cecil Madondo N.O. (1) AND Master OF THE HIGH Court N.O. (2)

### Preamble
1
HH 478 - 25
HCH 7766/23
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LIZANNE CHANTAL MULLER N.O. (1)

and

MARI HAYWOOD N.O. (2)

versus

CECIL MADONDO N.O. (1)

and

MASTER OF THE HIGH COURT N.O. (2)

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE, 21 July 2025 & 19 August 2025

Opposed Application

D. Tivadar, for the applicants

T. Nyamasoka, for the 1st respondent

No appearance for the 2nd respondent

DEMBURE J:

INTRODUCTION

[1]	This is a court application for an order for the removal of a Corporate Rescue Practitioner (“CRP”). The applicants approached the court seeking an order for the removal of the first respondent from the position of CRP for MCA Venture Capital (Private) Limited (under Corporate Rescue) (“MCA Venture Capital” or “the company”) and his replacement in terms of s 132 of the Insolvency Act [Chapter 6:07] (“the Act”).

[2]	The applicants seek the following relief:

“1. 	The First Respondent be and is hereby removed from being the Corporate

Rescue Practitioner [for] MCA Venture Capital (Pvt) Ltd (under Corporate

Rescue).

2. 	The Second Respondent shall immediately commence the process to procure the replacement of the First Respondent as the Corporate Rescue Practitioner for MCA Venture (Pvt) Ltd (under Corporate Rescue).

3. 	The costs of this Application shall be paid by the First Respondent de bonis propriis at the scale of Legal Practitioner and Client.”

[3]	The application was strenuously opposed by the first respondent. The second respondent, on the other hand, did not participate in these proceedings nor file a report herein.

FACTUAL BACKGROUND

[4]	The first and second applicants, Lizanne Chantal Muller and Mari Haywood, respectively, are South African nationals who are the joint liquidators of Micro Carbon Alloys (Pty) Ltd (under liquidation) (“MCA South Africa”), a company incorporated in accordance with the laws of the Republic of South Africa. It is common cause that the said company is a creditor of MCA Venture Capital (under Corporate Rescue), a company duly incorporated in accordance with the laws of Zimbabwe.  The first respondent, Cecil Madondo, a male adult, is the Corporate Rescue Practitioner (“CRP”) for MCA Venture Capital and was cited in his official capacity. The second respondent is the Master of the High Court of Zimbabwe, also cited in his official capacity.

[5]	The facts which are common cause are that on 4 March 2020, MCA Venture Capital was placed under Corporate Rescue and the first respondent was appointed its CRP in terms of the Act. At that time, MCA Venture Capital had an outstanding liability to MCA South Africa. On 20 May 2020, the second respondent convened a meeting of the creditors of MCA Venture Capital, and at that meeting, the second respondent received and accepted the creditors’ claims. MCA South Africa submitted a claim in the sum of US$3,132,307.00, which was accepted. However, the claim was later re-examined and reduced to US$2,139,220.59.

[6]	On 29 March 2022, by an order of the High Court of South Africa, MCA South Africa was placed in final liquidation and the applicants were appointed its joint-liquidators. It was also not in dispute that during the Corporate Rescue proceedings in respect of MCA Venture Capital, the first respondent drew up a Corporate Rescue Plan (“the Plan”) which was considered and approved by the creditors of the company.

[7]	Further, as part of the Plan, there was a purchaser of MCA Venture Capital’s business who had to immediately inject US$1,500,000.00, which was part of the total payable purchase price of US$2,000.000.00. The said sum of US$1,500,000.00 was injected accordingly. The applicants averred that, in terms of the Plan, the creditors would be paid 28.53% of their claims, resulting in MCA South Africa being entitled to be paid US$610,319.47.

[8]	On 16 March 2022, this court issued a consent order in terms of which the first respondent was ordered, subject to obtaining Exchange Control Approval from the Reserve Bank of Zimbabwe, to pay the dividend due to MCA South Africa into its bank account domiciled in the Republic of South Africa. The said consent order was issued following an application lodged by a South African company, Rand York Minerals (Pty) Ltd, a creditor of the MCA South Africa.

[9]	The parties further engaged each other, and on 22 March 2023, the first respondent indicated that he was proceeding with the application for Exchange Control Approval to facilitate the remittance of the dividend. The first respondent undertook to remit those funds once approval had been obtained.

[10]	On 4 April 2023, the first respondent indicated that the application for Exchange Control Approval had been lodged with Central Africa Building Society (“CABS”). On 2 May 2023, Kantor and Immerman, the then first respondent’s legal practitioners, advised the applicants’ local legal counsel that the Exchange Control Authority had requested additional information from the first respondent, including the drawdowns and amortisation schedules, which had been requested from the shareholders of the company for onward transmission to CABS. It was further stated that the information remained outstanding and that the first respondent had no control over the process. Further emails were exchanged between the legal practitioners representing the parties over the issue.

[11]	The applicants averred that at all material times the first respondent gave the impression that he would pay the dividend as soon as the approval had been obtained. It was also averred that a meeting was convened on 7 November 2023 to ascertain the cause of the delay between the first respondent and the applicants’ legal practitioners. The applicants further stated that at the meeting, the first respondent advised them that he had not processed the payment of the dividend to MCA South Africa on the basis that the information requested by the authorities was not furnished and that the funds were in the bank account held with CABS. The applicants also averred that the first respondent further advised that, on account of that failure to pay the dividend, he contemplated making a recommendation to the second respondent that the claim be rejected in its entirety and that the funds be distributed to the other creditors who had proved their claims.

[12]	On 7 November 2023, the applicants' legal practitioners proceeded to write to the second respondent stating that there was no basis for the rejection of MCA South Africa’s claim, which had been approved as insinuated by the first respondent. On the same date, they wrote to CABS, seeking that the funds held by the first respondent could be transferred to their Trust Account pending the Exchange Control Approval.

[13]	The applicants went on to allege that the first respondent had misled them into believing that he still had the funds when he no longer had them. It was pleaded that the conduct of the first respondent was unlawful and, therefore, formed the basis of this application for his removal as he acted in contravention of the terms of the approved Plan. It was also argued that his conduct was illegal as he failed to implement the terms of an approved Plan, therefore, failing to perform his duties.

[14]	The applicants also averred that there was a clear conflict of interest as the first respondent put his interests above those of the creditors. Further, that the way Mr Chiremba of MCA Venture Capital ‘controlled’ the first respondent during the meeting of 7 November 2023 gave the impression that he lacked independence. The applicants also pleaded that it was in the interests of MCA South Africa and the other creditors that the first respondent be removed from the office as CRP for MCA Venture Capital and be replaced by a suitable candidate.

[15]	In his opposition to the application, the first respondent contended that there was no legal or factual basis for the relief sought. The first respondent averred that at the time of the transaction, when US$1,500,000.00 was injected into the company, the basis of the exchange rates had not yet been established and that the applicants did not seek the necessary Exchange Control Approval from the Reserve Bank of Zimbabwe (“RBZ”). He further averred that the former directors of the company failed to meet the conditions set by the Exchange Control Authorities. The application by Rand York (Pty) Ltd was unnecessary, hence the order to pay his legal costs of US$4,500.00 as there was no basis on which he could have made payment to the shareholders, as he was always aware that payment should be made to the directors of the company, since the shareholders are only entitled to dividends.

[16]	The first respondent further contended that the payment could not be effected without the approval from the Exchange Control Authorities, and once the application was made, the directors failed to provide the amortisation schedule, which was requested by the authorities. The first respondent also averred that there was no way he could have proceeded with an unlawful transaction in violation of the Exchange Control laws.

[17]	The first respondent denied that the information requested by the authorities was made available to him. The authorities did not, therefore, approve the remittance of the funds to the applicants. He averred that in as much as he met the applicants in the company of Mr Chiremba, the Finance Manager of the company, the applicants sought to mislead the court regarding what was discussed. He said that he made it clear in that meeting that the authorities had not approved the remittance of the funds, as the directors failed to provide the information required.  The first respondent also averred that another South African-based creditor of the company, known as Metquip (Pvt) Ltd, which was represented by the same law firm that represented the applicants, had their approval granted, and he proceeded to make payment to it. The said company’s application was supported by all the required documents, hence no challenges were experienced in remitting funds to it.

[18]	He also averred that the funds were eventually applied towards corporate rescue costs, such as renewal of mining claims and payment for security costs, among the company’s other business expenses, including his fees. The first respondent argued that it was necessary to meet the company's business expenses in order to keep the company viable and that the corporate rescue fees form part of the corporate rescue costs. He submitted that he could not transfer the funds to the applicants’ lawyers as he would be violating the country’s anti-money laundering laws and the court order. Further, he stated that the position he took was informed by the provisions of s 67(3) of the Act.

[19]	The first respondent further averred that he simply made recommendations to the second respondent on whether the claim by MCA South Africa should be rejected, and the power to reject the claim lies with the second respondent. Anyone aggrieved by the Master’s decision in rejecting their claim can then challenge the decision. He averred that, as it stands, the second respondent had not accepted or rejected the recommendations he made in the letter dated 10 November 2023. He argued that the applicants have, therefore, jumped the gun. It was further stated that there were pending allegations of externalisation of funds against the shareholders of the company as per the report made by Mr Chiremba to CID Commercial Crimes in Gweru. It was finally contended that this application was a gross abuse of court process, and it was prayed that it must be dismissed with costs on a legal practitioner and client scale.

[20]	In their answering affidavit, the applicants insisted that their application had merit. The applicants averred that there was no proof that the first respondent had once requested information from the directors of the company. They further stated that the first respondent did not deny that at all material times he gave the impression that he would pay the dividend as soon as the approval had been obtained. The applicants argued that his duplicity was exposed by the fact that the purported recommendation to the Master was made at a time when he had already dissipated the funds concerned. According to the applicants, his plot was then to sanitise his unlawful conduct.

[21]	It was also averred that the applicants had no knowledge of the alleged application of the funds towards corporate rescue costs. The first respondent was not permitted to divert those funds to other uses since these had been set aside for the payment of MCA South Africa’s dividend in accordance with the Plan. The applicants contended that s 67(3) of the Act, which the first respondent was seeking to rely on, does not apply to Corporate Rescue proceedings. The applicants maintained their prayer in the draft order.

[22]	A point in limine was raised by the first respondent in the heads of argument that the applicants (and the company they represent), being peregrine, had not paid security for costs. The prayer was that the matter must be stayed until such costs have been paid. However, at the hearing, Mr Nyamasoka abandoned the point in limine.

SUBMISSIONS BY THE PARTIES

APPLICANTS’ SUBMISSIONS

[23]	Mr Tivadar submitted that the second respondent had taken no steps to oppose the application. He referred the court to p 103 and submitted that there were three paragraphs of the terms of the order that the applicants sought. The first was for the removal of the CRP, the second paragraph relates to the appointment of a new practitioner and lastly, costs de bonis propriis. He also submitted that he would abide by the heads of argument filed of record. Counsel argued that the facts of this case are common cause.

[24]	Counsel argued that s 132 of the Insolvency Act lists the grounds for the removal of a practitioner, and he relied on para(s) (a), (b), (c) and (e). The grounds relied on are that there was a failure to perform duties, failure to exercise care, illegal conduct and conflict of interest. Counsel argued that these requirements were satisfied. The applicants are the liquidators, and being creditors, they are owed US$2 million. The claim was accepted. I hasten to state that the locus standi of the applicants was never in issue. It was not in dispute that they acted for MCA South Africa, a creditor of MCA Venture Capital, therefore, an affected person who can apply for removal of a CRP in terms of s 132 of the Act.

[25]	It was further argued that a Corporate Rescue Plan was accepted. Pursuant to that, all creditors would be paid 28% of their claims. The applicants would receive US$610,000.00. The first respondent had a statutory duty to implement the Plan. See s 133(1)(d)(ii). That means Mr Madondo had a duty to pay US$610,000.00 to the applicants. It was also part of the order of the High Court to make the payment. See p 69 of the record. In March 2022, by consent, the court ordered Mr Madondo to pay US$610,000.00, subject to exchange control approval. The order remains binding on Mr Madondo. Despite the Corporate Rescue Plan and the court order, the first respondent had not paid the amount.

[26]	Mr Tivadar went on to submit that a year and a half later, on 7 November 2023, a meeting took place between Mr Madondo and the applicant’s legal practitioners. In that meeting, Mr Madondo said that he would advise the Master to reject the claim so that the applicants get nothing. On 10 November 2023, Mr Madondo wrote to the Master doing exactly that. See p 98. The letter was not served on the applicants until 19 November 2023. In para (g) of the letter, the first respondent admitted to using the funds for his own use and that he would provide the final report on 30 November 2023. We are in 2025, and the report has not been submitted, and the question is, ‘Where has the money gone?’ We only know that he paid himself.

[27]	Counsel further submitted that at p 101, Mr Madondo said that he did this in terms of s 67 of the Act. The problem is that the section does not concern corporate rescue proceedings, as it deals with liquidation proceedings. Corporate rescue is governed by PART XXIII. In any case, the claim has already been accepted and s 67 does not assist him. Mr Madondo did not comply with the Corporate Rescue Plan. The first respondent also amended the Plan by applying the funds to what was not provided for in the Plan. The first respondent paid himself. He did so without telling the applicants. The applicants do not know where the money was. Mr Madondo failed to comply with the court order. If the money is no longer there, he cannot be able to comply with the order. Section 132 is satisfied because Mr Madondo acted contrary to his duties and placed himself in conflict by taking the money to his use.

FIRST RESPONDENT’S SUBMISSIONS

[28]	 Per contra, Mr Nyamasoka submitted that by and large the summary of facts was indeed common cause and that he would largely abide by the submissions in the heads of argument, save to emphasise a few issues. Counsel argued that an application of this nature predicates in terms of s 132 of the Act a discretion of this court upon satisfaction by the applicants on a balance of probabilities. The removal of the first respondent is not taken lightly. See Knoop NNO. & Anor v Gupta (Tayob Intervening) 2021 (3) SA 88 (SCA).

[29]	Counsel submitted that all proven claims were paid, save for the applicants’. A company called Metquip (Pty) Ltd, also in the same blanket as the applicants, was paid and these facts were not disputed.  What is accepted in para 20 of the opposing affidavit is that the payment to the applicants was subject to Exchange Control Approval. The court order at p 69 is also very clear. Payment to the applicants was conditional and, therefore, suspensive. This fact was accepted by the applicants at p 8 of the founding affidavit in para 6.10. The applicants accepted that the payments were subject to Exchange Control Approval.

[30]	He further argued that the fact that all the other creditors were paid demonstrates competency, and there is no basis for the removal of the first respondent from office. What is clear is that the Exchange Control Approval has not been granted. The necessary application was made through CABS as per normal practice. CABS responded, requesting further information and engagements were done. The first respondent was not favoured with the required information. At p 92, which is Annexure Q, an email from the applicants’ attorneys with the summary minute of the meeting of 7 November 2023, in the last paragraph, the issue of the requested information was discussed. And instead, a suggestion was made to use the applicants’ legal practitioners’ account. That would be in violation of the court order.

[31]	Mr Nyamasoka also argued that the first respondent had complied not only with the Plan but the court order. He sought the relevant approval and was ready to assist the applicants. Nothing amounts to a non-compliance with the Plan or the court order. At p 69, para 1 of the court order confirms the suspensive condition and that payment would be made to an account domiciled in South Africa; otherwise, any payment would be contrary to it. There is no mention of figures. It ringfences the account for the payment, but did not tie down the source of funds. As and when Exchange Control Approval is granted, it would be an obligation on the first respondent to pay. Nothing in that order ringfences the payment of US$610,000.00. The first respondent would be executing his duties once the Exchange Control Approval has been granted.

[32]	Counsel further argued that the allegation that the first respondent had used the funds for his own use presupposes that he had no right to use the funds. In terms of s 136, he is entitled to charge a claim for his remuneration and expenses. Under subsection (5), such expenses rank as the first payment. He prioritised other creditors over himself, which showed competence. Paying such expenses pending the Exchange Control authority was not illegal conduct. The applicants have not demonstrated that there are no other funds other than US$610,000.00. The fact that it has not been paid for does not mean that it is not available.

[33]	The applicants have jumped the gun as the issues are still subject to adjudication by the second respondent. The recommendation is still pending before the Master, who can still make his decision. The applicants should have challenged the recommendation to the second respondent. Mr Nyamasoka also submitted that there was full disclosure by the first respondent that the funds had now been used to cover expenses pending Exchange Control Approval. The matter is sub judice. It cannot be reasonably said that the first respondent has failed to account for the funds. There was no unlawful conduct, and there was no conflict of interest. The court cannot interfere in uncompleted proceedings. See Muparinya v Nduna HH 232/23.

[34]	He further submitted that failure to satisfy the standards of a creditor’s expectation does not qualify to be a ground for removal where there is no expeditious resolution. That does not amount to incompetence. This application ought not to have been made, given that the payment due is conditional. It was incumbent on the applicants to ensure that the relevant information was supplied. The application should be dismissed with costs on an attorney-client scale. It is an abuse of court process and an attempt to push the first respondent to act unlawfully, contrary to the court order. Further, the costs should not be awarded from the first respondent’s pocket, given that he had been cited in his official capacity. No allegation had been made against him personally to warrant such costs.

APPLICANTS’ REPLYING SUBMISSIONS

[35]	In reply, Mr Tivadar submitted that Mr Nyamasoka could not give evidence. He argued that the first respondent in his affidavit gave his explanation that he relied on s 67. Counsel accepted that the relief is discretionary, but Mr Madondo had not been honest with the court. That the other people were paid is neither here nor there. He argued that he accepted that prior to payment, an Exchange Control Approval must be granted. However, the first respondent had deprived himself to comply with the order. He had transferred the funds for his own expenses. He asked that if the money is not there, how will he pay. The company did not have any money before. It was for Mr Madondo himself to prove that he had the money. He did not prove that he had the funds. The funds were earmarked for the applicants in accordance with the Plan. It is not true that s 136 gives preference to the expenses. A claim for costs does not disprove the Corporate Rescue Plan. It cannot defeat the Plan. Mr Madondo could not divert the funds.  The Plan governs not the CRP. If he had any difficulty with the Plan, he would approach the creditors for approval.

[36]	It was further argued that s 136(1) entitles the CRP to charge for his fees in terms of the schedule. He has not done the proper process to raise those charges. He did not produce the invoices to the court. He did not produce the account statements from CABS. The applicants’ concern was of fraud and not only incompetence. The applicants’ legal practitioners wrote to CABS as the first respondent had requested on 7 November 2023. It is not true that he was holding the funds with CABS on 7 November. He realised he could not pay because he did not have the funds. He then said he had taken the money for himself. Section 67 relates to liquidators.

[37]	Mr Tivadar also argued that the point that the matter is before the Master should have been taken as a point in limine. Section 132(2) for the removal of a practitioner applies to the court. It was the court which was being asked to remove the first respondent and not the Master. The report had not been filed as promised on 10 November 2023. The court order at p 69 did not specify the amount because the amount was common cause.

ISSUE FOR DETERMINATION

[38]	The question the court must determine is whether the applicants have established any ground(s) justifying the removal of the first respondent from office as the CRP.

THE APPLICABLE LAW

[39]	The law on the procedure and grounds for the removal of a CRP from office and his or her replacement at the instance of an affected person are set out in s 132 of the Act. Thus, the relevant provisions thereof read:

“132 	Removal and replacement of practitioner

(1)  	A corporate rescue practitioner may be removed only—

(a) 	by a Court order in terms of section 123; or

(b)	as provided for in this section; or

(c)	by the Master in terms of grounds set out in section 79.

(2)	Upon request of an affected person, or on its own motion, the Court may remove a corporate rescue practitioner from office on any of the following grounds—

(a)	incompetence or failure to perform the duties of a corporate rescue practitioner of the particular company;

(b)	failure to exercise the proper degree of care in the performance of the corporate rescue practitioner’s functions;

(c)	engaging in illegal acts or conduct;

(d)	if the corporate rescue practitioner no longer satisfies the requirements set out in section 131(1);

(e)	conflict of interest or lack of independence;

(f)	the corporate rescue practitioner is incapacitated and unable to perform the functions of that office, and is unlikely to regain that capacity within a reasonable time.

(3)	The company, or the creditor who nominated the corporate rescue practitioner, as the case may be, must appoint a new practitioner if a practitioner dies, resigns or is removed from office, subject to the right of an affected person to bring a fresh application in terms of section 123 (1)(b) to set aside that new appointment.”

The above section provides two ways by which a CRP may be removed from office, namely, either by the court or by the Master. The applicants approached the court for an order for the removal of the CRP and his replacement in terms of s 132.

[40]	It is trite that the court has a discretion whether or not to grant an order for the removal of a CRP even where proof of a ground for removal is established. It is also a settled principle of law that the removal of a CRP is not something to be taken or ordered lightly. These principles were enunciated in Knoop NNO & Anor v Gupta (Tayob Intervening) supra in para(s) 17-18, where the Supreme Court of South Africa held that:

“[17] The court has a discretion either to grant or to refuse an order for the removal of a BRP. The discretion is exercisable if one or more of the grounds for removal set out in s 139(2) has been established on a balance of probabilities. However, proof of a ground for removal alone does not dictate that an order for removal must follow. The power of removal is not combined with a duty to exercise that power, of the type referred to in Schwartz v Schwartz. The range of actions by BRPs that might fall within these sub-sections and the degree of seriousness and varying implications they may have for the business rescue process, is such that it cannot be said that proof of one or more of these grounds will necessitate removal, or even give rise to a presumption or inclination to order removal. Whether they do is a matter for judgment on the facts of the particular case. In that sense it involves what is loosely called a discretion, meaning only that the court must take into account a number of disparate and incommensurable features….

[18] … The power now given to the court is not novel. Under our common law the court has always had and exercised the power to remove trustees and administrators of deceased estates on the ground that their continuation in office would prejudicially affect the proper administration of the estate entrusted to them and prejudice the beneficiaries of that estate. That power extends to the removal of executors, liquidators of companies and trustees in insolvency. Cases dealing with these situations will be instructive in regard to the approach to be adopted to removing BRPs. Two general principles will be that removal is not something to be ordered lightly and that the primary reason justifying removal will be actual or potential prejudice or harm to the interests of the estate, trust or company, and those in whose interests the administration was established, such as heirs in an estate or creditors in circumstances of insolvency.” (emphasis added)

ANALYSIS AND DETERMINATION

[41]	Before I consider the grounds for the removal and apply the above principles to the facts of this matter, I must state that the law is clear that an application stands or falls on its founding affidavit. Thus, in Chironga & Anor v Minister of Justice, Legal & Parliamentary Affairs & Ors CCZ 14/20 at p 8, Hlatshwayo Jcc had this to say:

“It is trite that an application stands or falls on the averments made in the founding affidavit. See Herbstein & van Winsen the Civil Practice of the Superior Courts in South Africa 3rd ed (hereinafter ‘Herbstein &Van Winsen or the Authors’) p 80 where the authors stated that:

“The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that although sometimes it is permissible to supplement the allegations contained in that affidavit, still the main foundation of the application is the allegation of facts stated therein, because these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits any fortifying paragraphs in his replying affidavits will be struck out.”

[42]	The facts establishing the grounds for the removal must be set out or pleaded in the founding affidavit. The applicant must specify and establish by evidence the conduct of the CRP which would justify his removal. The court can only draw conclusions on whether one or more grounds are established from the established or proved facts. This legal position was again aptly set out in the case of Knoop NNO supra, where in para 19 the court said:

“The general nature of the grounds for removal is such that they cannot be established directly. They are factual conclusions or inferences drawn from other proven facts. It is necessary for the applicant for removal to specify and establish by evidence the conduct on the part of the BRP that they say justifies an order for removal. Only if there is proper proof of the primary facts can the question of drawing an inference properly arise. The drawing of inferences from the facts must be based on proven facts and not matters of speculation. As Lord Wright said in his speech in Caswell v Powell Duffryn Associated Collieries Ltd:

‘Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish … But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.’

[43]	In casu, the first ground relied upon by the applicants for the removal of the first respondent as the CRP for MCA Venture Capital is set out in para (a) of s 132(2), namely “incompetence or failure to perform the duties of a corporate rescue practitioner of the particular company.” The other further grounds were that the first respondent failed to exercise due care (under para (b); that he acted illegally or engaged in illegal acts or conduct by allegedly not complying with the approved Plan and the court order issued on 16 March 2022 (under para (c) and that of conflict of interest or lack of independence (under para (e).

[44]	A closer look at the grounds raised for the removal of the first respondent shows that they stem largely from the allegation that he failed to comply with the approved Plan and the court order issued by consent at p 69 of the record. The relevant part of the Plan thereof, in particular para 6.10.2 relating to payments to pre-commencement creditors at p 60 of the record, specifically states as follows:

“6.10.2 	Payments to pre-commencement creditors

6.10.2.1 	The payments to the pre-commencement creditors will be made in two phases.

6.10.2.2 	Disbursements will be effected from the residue remaining from the initial payment i.e after payment of all corporate rescue costs:

6.10.2.3 	The dividend payable to the creditors will be in the form of a percentage calculated from the remaining balance after payment of costs of corporate recue ('the residue'), against the total validated creditors' claims;

6.10.2.4 	The percentage derived will be applied equally on all creditors regardless of class:

6.10.2.5 	Based on the validated claim to date, each creditor is likely to receive 30% of their claim as an upfront payment.

6.10.2.6 	The balance of the purchase price being US$1 million is expected after completion of the expiration and will be disbursed to the creditors again on an equal percentage basis.

6.10.2.7 	It is estimated that after the final payment each creditor will have received about 60% of their claim in full and final settlement.” (emphasis added)

The law is also clear on the duty of the CRP following the adoption of the Plan. See s 144(4) and (5), which provides as follows:

“(4) 	A corporate rescue plan that has been adopted is binding on the company, and on each of the creditors of the company and every holder of the company's securities, whether or not such a person-

(a) 	was present at the meeting; or

(b) 	voted in favour of adoption of the plan; or

(c) 	in the case of creditors, had proved their claims against the company.

(5) 	The company, under the direction of the corporate rescue practitioner, must take all necessary steps to-

(a) 	attempt to satisfy any conditions on which the corporate rescue plan is contingent; and

(b) 	implement the plan as adopted.”

See also s 133(1)(d)(ii) of the Act.

[45]	It was not in dispute that following the injection of US$1,500,000.00, the approved Plan provided for the payment of dividends on the residue to all creditors. In terms of the Plan, the payment of the dividend was to be made after the deduction of corporate rescue costs. From the provisions of s 144(4) and (5) above, as read with s 133(1)(d)(ii), there is no doubt that the first respondent was legally bound to implement the Plan approved by the Creditors. In addition to this Plan, the further obligation of the first respondent was to comply with the consent order issued on 16 March 2022 before Ndlovu J in Case No. HC 1318/22. The said order in particular, para 1 thereof stated as follows:

“1.	The Respondent shall, subject to obtaining Exchange Control Approval from the Reserve Bank of Zimbabwe, pay the dividend due to Micro Carbon Alloys (Pty) Ltd, being a foreign creditor of MCA Venture Capital (Private) Limited, into its bank account domiciled in the Republic of South Africa.” (emphasis added)

[46]	While the above court order and the Plan did not specify any amount of dividend payable to the applicants, as the joint liquidators of MCA South Africa, there was no dispute that the said dividend was valued at US$610,319.47. It was also not in dispute, as provided for in the consent order, that the said amount would be payable to MCA South Africa’s bank account domiciled in South Africa and would require Exchange Control Approval. The court order is clear that the obligation to make the payment was subject to Exchange Control Approval from the RBZ. In other words, the performance of the duty by the first respondent arising from the implementation of the Plan and the consent order was subject to the Exchange Control Approval having been sought and granted. In the absence of such approval, it is clear that the first respondent could not make any payment. The order was also specific that the payment ought to be made only to the MCA South Africa’s bank account domiciled in South Africa. I agree with Mr Nyamasoka that the payment to the applicants in terms of the court order and impliedly in terms of the Plan was conditional upon the first respondent getting Exchange Control Approval from the RBZ.

[47]	There is no dispute that the application for the Exchange Control Approval was not granted. The applicants attached emails confirming that the first respondent indeed applied for such approval through CABS. In Annexure M at p 78, there is an email from the first respondent confirming receipt of the applicant’s Standard Bank of South Africa banking details and that he would immediately apply for the Exchange Control Approval from the RBZ. The email is dated 22 March 2023. The application was later made. See p 119 of the record. It was not disputed that the application was made to CABS. A follow-up email from the first respondent’s legal practitioners, Kantor and Immerman, updating the applicants on the application for approval, was made on 2 May 2023. The email, which is Annexure N at p 79, reads:

“Subject: RE: MCA VENTURE CAPITAL (PRIVATE) LIMITED (UNDER CORPORATE RESCUE)

Dear Sir

1. 	By way of update, we are advised that the Exchange Control Authority has requested, additional information from Dr Madondo including the drawdowns and amortisation schedule which has been requested from the Shareholders for onward forwarding to CABS. This information remains outstanding.

2. 	It is unclear how long this process will take, Dr Madondo advises that he has no control over this process and is currently still awaiting the additional information request documents/information.

3. 	In respect of the amounts due to Micro Carbon Alloys, we are advised that the approved claim for MCA SA, is ZAR27,979,195.20, all large creditors were paid 28.53% of their claims.

4. 	We will advise once we have any further information.”

A reading of the above email shows that the application for Exchange Control Approval, which was required before the foreign payment could be made to the applicants, was lodged with CABS. This was not disputed. There was a further request for additional information required by the authorities, which included the “drawdowns and amortisation schedule”. See p 121 of the record. The first respondents’ legal practitioners alleged that the information had been sought from the company’s shareholders for onward transmission to CABS. The first respondent further stated in his opposing affidavit that the information was also sought from the company’s former directors. It is not in dispute that the information required was never furnished to CABS.

[48]	The parties’ emails exchanged after that date clearly show that the issue remained outstanding. While the first respondent alleged that he sought the information and it was not furnished, the applicants argued that the first respondent was not honest and that he ought to have used his powers at law to obtain the information from the company’s former directors. However, from all their email exchanges or the evidence placed before me, it is clear that the Exchange Control Approval was never granted for the payment of the dividend due to MCA South Africa. There is no dispute that on 7 November 2023, there was a meeting between the applicants’ legal practitioners and the first respondent. Following that meeting, the applicants’ legal practitioners, in their letter to CABS dated 7 November 2023, at p 96 (Annexure S), acknowledged that the information requested had not been furnished and proposed that the dividend be transferred into their trust account pending the Exchange Control Approval. They also admitted in that letter that the first respondent indeed applied for authority to remit their client’s dividend to South Africa. Part of the said letter at p 95 reads:

“Dr Madondo had applied to you to remit to our client in South Africa the amount due to our client.

We understand however that Dr Madondo has not been able to provide you with certain documentation required to complete the necessary application for exchange control authority to remit all the funds.

Our client has accordingly advised that it wishes the funds to be held by us pending approval by the exchange control authority and that we undertake the completion of the exchange control application through yourselves.” (emphasis added)

[49]	While in the above letter, the applicants conceded that there was no Exchange Control Approval for the payment to be made, the suggested solution that the payment be made into their trust account, as submitted by Mr Nyamasoka, was itself illegal. It was contrary to the consent order issued by this court on 16 March 2022 that directed the first respondent to make the payment to MCA South Africa’s bank account domiciled in South Africa. This was a foreign payment, and in terms of the order, it would only be made to an account in South Africa. The order was not varied. The first respondent was only obliged to make the payment to a South African account, subject to obtaining Exchange Control Approval. Clearly, in these circumstances, it cannot be said that the first respondent failed to perform his duty to make the payment of the dividend to the applicants. There is no incompetence or failure to perform his duties as the CRP to talk about in the circumstances.

[50]	The foreign payment to MCA South Africa was clearly subject to an event beyond the first respondent’s control. In the absence of the additional information required, which was in any case common cause, it cannot be said that the first respondent failed in his statutory duty to implement the Plan and pay the dividend to the applicants. It was not disputed that another South African creditor of MCA Venture Capital, Metquip (Pty) Ltd, was paid following the grant of the Exchange Control Approval. It was also common cause that the first respondent sought the Exchange Control Approval for the remittance to the applicants. The applicants in their counsel’s letter of 7 November 2023 acknowledged that he indeed made the application, and additional information was requested but not furnished. Accordingly, in the circumstances, the first respondent could not entirely be blamed for the absence of the Exchange Control Approval. It was clear that he was not supplied with the additional information requested by the authorities to authorise the payment, and the applicants did not provide any positive assistance either. There was, therefore, no breach of the court order.

[51]	Incompetence in the first ground connotes a lack of the necessary skills to perform his duties. The word “incompetence” was extensively explained in Muyaka v BAK Logistics (Pvt) Ltd SC 39/17 at p 8, (although in the context of employment law, but its meaning would equally apply in this case), where Uchena Ja said:

“The literal meanings of the two words can be useful in establishing a distinction between them.  Incompetence is defined as “the lack of skill or ability to do a job or a task as it should be done."  … (see the Oxford Advanced Learner’s Dictionary, International Student’s ed pp 760…).

An incompetent employee lacks the knowledge of what to do and how to do it …”

As para (a) of s 132(2) provides, there should be incompetence or failure to perform the duties as a CRP of the particular company. In Knoop NNO supra, para 20, the court further explained this ground as follows:

“The first ground relied on in this case was incompetence or a failure to perform the duties of a BRP of the particular company. Reliance on this ground required evidence of specific instances of incompetence, or failure to perform the BRPs duties, in relation to the company under business rescue. Incompetence suggests that the BRP lacked the necessary skills to perform their duties. It may be established by proof that the BRP is ‘of inadequate ability or fitness; lacking the requisite capacity or qualifications’. That is a reasonably high bar. Merely moderate ability does not amount to incompetence. Nor does the failure to meet the standards that the affected party would like to see achieved, whether that relates to the time taken to complete the business rescue process, or the prices at which assets are sold, or the manner in which the BRP approaches their task. The alleged incompetence must relate directly to the performance of the task of a BRP. An inability to perform the role of BRP properly in relation to the circumstances of the particular company must be demonstrated.”

[52]	From the evidence placed before me, there is nothing for me to conclude that the first respondent was incompetent, nor can it be said that there was a failure by the first respondent to perform his duties as the CRP. The first respondent’s obligation to pay was subject to the Exchange Control Approval, which he indeed sought but was not granted. He could not pay the applicant in terms of the Plan in the absence of approval by the RBZ. The payment was conditional. I, therefore, do not agree with Mr Tivadar that the first respondent failed to do his duty in this regard or to comply with the Plan and the court order. The first respondent’s hands were tied in the absence of the Exchange Control Approval.

[53]	It was not disputed that all the other creditors were paid, including another South African creditor, Metquip, except the applicants. This shows the first respondent’s competence and that he duly performed his duties as the CRP. The implementation of the Plan with respect to payment of creditors implied that the Exchange Control authority would be granted. The court further made the obligation of the first respondent conditional or subject to the Exchange Control Approval. To the extent that the application for such authority was lodged and further information was requested, which the first respondent could not obtain from the company, it cannot be concluded that the first respondent was incompetent or failed to perform his duties as the CRP. That hurdle could not be overcome by the first respondent alone without the cooperation of the former directors and the applicants. It was incumbent upon the applicants, as the creditors, to also assist the first respondent in having the additional information furnished.

[54]	Furthermore, para 6.10.2.2 of the Plan at p 60 of the record permitted the CRP to deduct corporate rescue costs before paying out any dividend. In para 20.3 of the first respondent’s opposing affidavit, he stated that the funds were eventually applied towards corporate rescue costs such as the renewal of mining claims and payment of security costs, among other business expenses. The first respondent further said that his remuneration and expenses were also paid from the funds. There is no doubt that the CRP’s fees constitute part of the corporate rescue costs. In terms of s 136(5) the CRP’s remuneration and expenses have a priority ranking to creditors’ claims. Given the circumstances that all creditors had been paid except the applicants due to the absence of approval from the RBZ, it cannot be accepted that the first respondent failed to perform his duties as the CRP.

[55]	The Plan itself, in para 6.10.2.2 as read with para 6.10.2.3, allowed the first respondent to make deductions for corporate rescue costs. Such costs were, therefore, permissible payments from the injected funds in terms of the Plan. Employment of the funds towards corporate rescue costs in the interim period, also after Exchange Control Approval was not granted, therefore, cannot constitute an illegality or a failure to perform his duties as the CRP.

[56]	In any case, in general, the first respondent accounts primarily to the company’s creditors and other relevant stakeholders, including employees and the court. He is also accountable to the Master in certain matters, particularly regarding the distribution of assets. That accounting process had not run its course when the court was called upon to intervene to remove the CRP. The applicants’ letter to the Master on 7 November 2023 and that of the first respondent on 10 November 2023 show the existence of a dispute. That dispute is under the purview of the Master, and he is yet to make a decision thereto. The issues before the Master are not issues the court should be called upon to determine in this application. The issues of whether the CRP’s fees were properly charged, and whether he should submit an account for the use of the injected funds were not pleaded for the court to consider them. It is trite that the court determines only the issues placed before it by the parties through pleadings. To do otherwise would be to exceed its mandate. Thus, Uchena Ja in Nzara & Ors v Kashumba & Ors SC 18/18, held that:

“There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence led.

The function of a court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own.”

The purpose of pleadings was fully explained in Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd SC 24/18 at pp 10-13.

The Master must be allowed to deal with the above-stated matters first, as he supervises the first respondent. I agree with Mr Nyamasoka that the applicants jumped the gun by rushing to seek the CRP’s removal before those issues could be dealt with by the Master.

[57]	The difficulties faced by the first respondent in remitting the funds to the applicants are all clear for anyone to see. That MCA South Africa was the only creditor left out due to the absence of Exchange Control Approval was not disputed. Whether the claim should eventually be rejected outright due to the legal impediment arising from the foreign exchange approval is for the Master to decide. The applicants cannot ask the court to supervise the first respondent under the guise of an application for his removal. The first ground was, therefore, not established.

[58]	While Mr Tivadar submitted that the application was also being made on the ground of failure to exercise care, I did not find any evidence that established that ground. In terms of s 132(2)(b), the other ground for the removal of the CRP is “failure to exercise the proper degree of care in the performance of the corporate rescue practitioner’s functions.” As alluded to above, an application stands or falls on the averments made in the founding affidavit. The application is disposed of on the basis of the founding affidavit. See Ahmed v Docking Station Safaris Private t/a CC Sales SC 70/18. A case is not made in the submissions, either written or oral. It is trite that heads of argument are not pleadings. See Van Brooker v Mudhanda & Anor & Pierce v Mudhanda & Anor SC 5/18.

[59]	The facts necessary for the court to make an assessment of whether the ground under s 132(2)(b) was established were not pleaded. The factual conclusion that the first respondent failed to exercise due care can only be made from the proved facts. This ground requires proof of negligence. It is trite that negligence must be specially pleaded. The particulars thereof must have been pleaded in the founding affidavit. In Knoop NNO in para 22, the court further held:

“A failure to exercise a proper degree of care in the performance of their functions will in most instances require proof of negligence. It is difficult to see how that could be shown by way of general allegations without reference to specific instances of negligence. While proof of harm to the company, whether in the implementation of an approved business plan or from the perspective of its future operations after business rescue is terminated, may not be a prerequisite to proof of a failure to exercise a proper degree of care, in the absence of harm it may be difficult for a court to conclude that the BRP has not exercised a proper degree of care. At the very least the potential for harm to have been caused by the actions of the BRP must be considered even if that harm was averted or did not materialise.”

[60]	In casu, the applicants did not plead a case for negligence or facts necessary for the ground under para (b) of s 132(2). It was only in oral submissions that Mr Tivadar highlighted that this was the other ground relied upon by the applicants. The harm or potential harm to the company arising from the conduct of the CRP must also be shown under this ground, as confirmed in the Knoop case. I did not hear of any conduct alleged against the first respondent which would constitute negligence or a failure to exercise a proper degree of care in the performance of his functions. As already held above, the CRP applied for the Exchange Control Approval in line with his duties both in terms of statute and the consent order. The non-payment of the dividend to applicants was clearly due to the fact that such approval was not granted. He did not fail to supply any information within his personal knowledge. Given the consent order, which made the obligation to pay subject to Exchange Control Approval, it cannot be concluded that he failed to act in a manner reasonably expected of a reasonable CRP in the circumstances. This ground, not having been properly pleaded and established, must also fail.

[61]	It was also argued that the first respondent had acted illegally by not paying the dividend to the applicants and covering the corporate rescue costs with the funds. The ground relied upon is set out under s 132(2)(c). While it is accepted that, in terms of s 144(4) and (5) as read with s 133(1)(d)(ii), the CRP must implement the approved Plan, it was not shown that the first respondent acted illegally in the circumstances. The implementation of the Plan was subject to the CRP being entitled to pay for corporate rescue costs as the first charge under para 6.10.2.2 as read with para 6.10.2.3 of the Plan. It was also not denied that the payment of dividend to MCA South Africa was conditional or subject to the first respondent obtaining Exchange Control Approval from the RBZ.

[62]	The court order of 16 March 2022 also applies in the same context, and the order was very clear that the obligation was conditional upon there being approval by the RBZ. The performance of the legal duty to make the payment was subject to a suspensive condition. The evidence shows that the first respondent applied for the Exchange Control Approval through CABS. Additional information was requested and was relayed to the applicants, but was not made available to the first respondent by the previous directors or management of the company or the applicants. The payment was not approved. In these circumstances, it cannot be said that the first respondent acted illegally or that he performed an illegality.

[63]	The first respondent did not convert the funds to his own use at all, as the Plan itself permitted him to utilise some funds towards corporate rescue costs. Such costs as I have highlighted above include his fees. Given the circumstances where the dividend could not be paid without Exchange Control Approval, the CRP, as permitted by the Plan, was entitled to apply funds towards corporate rescue costs. See para(s) 6.10.2.2 and 6.10.2.3 at p. 60. The suggested transfer to a local trust account of the applicants’ legal practitioners would be illegal as it would contravene the consent order. It is trite that a court order has the force of law and remains binding on the parties unless and until it is set aside or varied. See Chiwenga v Chiwenga SC 2/14, where the court aptly said:

“The law is clear that an extant order of this Court must be obeyed or given effect to unless it has been varied or set aside by this Court and not even by consent can parties vary or depart therefrom.  See CFU v Muriro & Ors 2000 (1) ZLR at p 405 (S).”

[64]	The first respondent could only make the payment to the applicants once the Exchange Control Approval had been given. It had not been granted, hence he did not breach any of his legal obligations. Accordingly, the first respondent cannot be expected to perform an illegal act. I agree that s 67 does not apply to Corporate Rescue proceedings as it applies to liquidation. However, I do not agree that the first respondent’s conduct was illegal or that he failed to act lawfully in the circumstances. The payment of the dividend could only be made subject to the approval of the exchange control authorities. There was no breach of the Plan and the consent order at all. The issue that the first respondent had to account for the use of the funds and report thereon was not before me. The applicants can still properly pursue the same before the Master, as it is under his purview.

[65]	The last ground relied upon by the applicants is that provided in s 132(2)(e), that is, “conflict of interest or lack of independence”. What this ground entails was fully explained in the Knoop NNO case, from para 23, as follows:

“[23] Lastly, a conflict of interest or a lack of independence are also reasons for the removal of a BRP. There is little difficulty with the notion of a conflict of interest, a concept that has over many years received the attention of our courts. The classic statement of the principle is in the judgment of Innes CJ in Robinson v Randfontein Estates:

‘Where one man stands to another in a position of confidence involving a duty to protect the interests of that other, he is not allowed to make a secret profit at the other's expense or place himself in a position where his interests conflict with his duty.’

Examples of the principle in action are provided by cases such as Barnett v Estate Beattie and Grobbelaar v Grobbelaar, which involved the removal of executors who had claims against the estate that were disputed. In the latter case Van Blerk JA said:

‘It is clear that a substantial conflict arises between the personal interests of the respondent and those of the estate, in consequence of which a situation is created where the respondent's position as executor is rendered intolerable. He finds himself in the impossible position that on the one hand, as a creditor of the estate, he must fight for his claim, and on the other hand, in his capacity as executor of the estate, he must defend against the same claim. In this role he would be compelled to choose sides. He cannot remain neutral or impartial.’ (My translation.).

In Van Niekerk v Van Niekerk the conflict arose because the executrix and sole heir to the estate had a substantial interest in excluding or diminishing the claim by the widow to half the estate or substantial maintenance and acted accordingly.

[24] The requirement that the BRP be independent is likewise well-established in related contexts such as the appointment of liquidators, where the general rule is that the liquidator should be independent of the company in liquidation. That has been held to disqualify from appointment as liquidators shareholders, directors, creditors and the attorney acting for the company. Once appointed they are required to be independent and to carry out their duties without partiality. Independence requires that they do not have a relationship, direct or indirect with the company, its management or any person concerned in its affairs that may place them in a position of conflict of interest, or prevent them from exercising an independent judgment on the affairs under their control. Whilst in a voluntary business rescue the BRP owes their appointment to the directors of the company, they must not allow themselves to be dictated to by the directors or shareholders or any third party. They must at all times exercise an independent judgment taking into account the potentially conflicting interests of different affected parties.

[25] An extreme case of the absence of independence on the part of the BRP came before this court in African Bank of Botswana v Kariba Furniture.

…

[28] There are three passages appearing in para 35 and paras 37 and 38 of the judgment of Dambuza JA that are relevant. They read as follows:

'[35] … However, the conduct of the practitioner in this case raises serious concerns. This is because of the responsibility he had, as a business practitioner under the Act, which he does not seem to have appreciated. A business rescue practitioner must be held to a high professional and ethical standard. In addition to the powers and duties specifically conferred on business rescue practitioners by ch 6, they are also officers of the court (s 140(3)(a)) and have the responsibilities, duties and liabilities of a director as set out in ss 75 – 77 (s 140(3)(b)).  It was the duty of the practitioner in this case to conduct a careful assessment of Kariba's affairs and to prepare a plan that adequately reflected the prospects of Kariba's rescue. Against this standard, and the standard expected of the practitioner as an attorney, the attitude displayed by the practitioner, in regard to serious concerns expressed by the bank regarding what it considered to be the shortcomings in Kariba's affairs and the rescue plan, is disturbing.

[37] … He ignored, and was even hostile to, inquiries by the bank's representatives when such inquiries related to aspects which were the core of his function as a business rescue practitioner. The impression gained by the bank's representatives that he acted as a representative of Kariba, rather than as an independent practitioner, was justified. The apparent lack of appreciation, by the practitioner, of the seriousness of the office he held is unacceptable.

[38] In addition the practitioner was expected to act objectively and impartially in the conduct of the business rescue proceedings. So too, when it came to the institution of legal proceedings, was an objective and impartial attitude to be expected. This was lacking in the extreme.’ (Footnotes omitted.)” (emphasis added)

[66]	In this case, the applicants submitted that the first respondent was conflicted in that he paid himself before paying the creditors. As I have stated above, para 6.10.2.2 as read with 6.10.2.3 of the Plan, permitted him to pay for the company’s corporate rescue costs first. The payment of the corporate rescue costs did not amount to the CRP applying the funds to his own use. Such costs are further explained in para 20.3 and 20.4 of the opposing affidavit. They also included the CRP’s own fees. They remain legitimate expenses which, in terms of the Plan, could be payable as the first charge on the funds injected by the investor. The business expenses, including for the renewal of mining licences, were also not shown to be personal costs or payments constituting prioritisation of personal interests at the expense of the interests of the creditors or the company. They remain payments in the best interests of the company and ultimately in the interests of the company’s creditors as well. The revival of the company itself depends on such company meeting its expenses to continue as a going concern.  In my view, there is no conflict of interest in this regard.

[67]	The first respondent is, of course, required to be independent as enunciated in Knoop NNO. He is required to carry out his duties impartially and to be independent and not to have any relationship with the company or anyone in its management that would place him in a position of conflict of interest. There was nothing to prove this ground. There was no evidence that the first respondent placed himself in any position of conflict of interest. In para 17.3 of the founding affidavit, the applicants alleged that he paid himself funds that were due to a creditor. I have already found that the payment was only conditional upon approval from an exchange control authority in terms of the court order. That approval was not granted. The Plan also allowed the CRP to pay corporate rescue costs with the injected funds as the first charge. There is no conflict of interest where he exercised his powers in terms of the Plan to pay the corporate rescue costs.

[68]	Further, in the same para 17.2, the applicants further stated that:

“Further, the manner in which Mr Chiremba of MCA Venture controlled the first respondent during the meeting of 7 November 2023 gave the impression that the first respondent was not independent.”

These averments are clearly vague and do not highlight in what manner the first respondent was controlled as alleged. In other words, it is not clear how he was controlled or in what way he was controlled. It is not sufficiently clear to constitute a valid basis for making a conclusion that the first respondent is not independent. It is also trite that bald and unsubstantiated allegations cannot establish a party’s purported position. See Dube v Murehwa SC 68/21 at p10. See also ZIMASCO (Pvt) Ltd v Tsvangirai & Ors SC 12/20 at p 12, where Guvava Ja held that:

“It is trite that “he who alleges must prove”. The maxim was applied in the cases of Circle Tracking v Mahachi SC 4/07 and Goliath v Member of the Executive Council for Health, Eastern Cape 2015 (2) SA 97 (SCA). In the absence of such evidence, the court as the adjudicating authority cannot make its determination. I share the sentiments expressed in Delta Beverages (Pvt) Ltd v Murandu SC 38/15, where it was stated that:

“I take the time to point out that parties are expected to argue their cases so as to persuade the court to see the merit, if any, in the arguments advanced for them. They are not expected to make bald, unsubstantiated averments and leave it to the court to make of them what it can.”

I am not satisfied that the first respondent has been shown to lack independence or have any conflict of interest warranting his removal from office.

DISPOSITION

[69]	The grounds for the removal of the CRP relied upon by the applicants are completely unsustainable in light of the facts and evidence before me. The applicants failed to establish any ground warranting the removal of the first respondent as the CRP for MCA Venture Capital. As established in the Knoop case, the court does not order the removal of a CRP lightly. It was also not established that there would be actual or potential prejudice or harm to the interests of the company and those in whose interests the company was placed under corporate rescue, such as the creditors, if the CRP remains in office. The application is clearly without merit. It must accordingly be dismissed.

[70]	As regards costs, there is no reason to depart from the general principle that costs shall follow the cause. I did not find any special circumstances warranting an order for punitive costs against the applicants. While I find the applicants to have failed to fully and properly consider the import of the approved Plan, in particular para 6.10.2 thereof and para 1 of the consent order of 16 March 2022, I do not consider the application to be an abuse of court process.

[71]	In the result, it is ordered as follows:

“The application be and is hereby dismissed with costs”.

DEMBURE J: ……………………………………………

Gill, Godlonton & Gerrans, applicants’ legal practitioners

Danziger & Partners, 1st respondent’s legal practitioners