Panamo Properties (Pty) Ltd v Nel NO (35/2014) 2015 ZASCA 76 (27 May 2015) per Wallis JA (Navsa ADP, Majiedt and Zondi JJA and Dambuza AJA concurring)
In upholding the appeal the Supreme Court of Appeal interpreted and applied s 129(1) of Companies Act 71 of 2008 and the non-compliance by the company with the further requirements of ss 129(3) and (4) and the effect of s 129(5). It was decided that non-compliance does not automatically result in the business rescue being terminated. Non-compliance is a ground for applying to court to set aside the resolution in terms of s 130(1)(a)(iii). But such resolution will only be set aside if it is otherwise just and equitable to do so in terms of s 130(5) and the business rescue terminates in terms of s 132(2)(a)(i) once an order setting aside the resolution has been granted.
[27] When a problem such as the present one arises the court must consider whether there is a sensible interpretation that can be given to the relevant provisions that will avoid anomalies. In doing so certain well-established principles of construction apply. The first is that the court will endeavour to give a meaning to every word and every section in the statute and not lightly construe any provision as having no practical effect.[1] The second and most relevant for present purposes is that if the provisions of the statute that appear to conflict with one another are capable of being reconciled then they should be reconciled.[2] Is it then possible to reconcile s 129(5)(a) and s 130(1)(a)(iii)? In my view it is possible without doing damage to the language used by the legislature.
[1] Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 at 436; Commissioner for Inland Revenue v Shell Southern Africa Pension Fund 1984 (1) SA 672 (A) at 678C – F
[2] Minister of Interior v Estate Roos 1956 (2) SA 266 (A) at 271B-C; Amalgamated Packaging Industries Ltd v Hutt 1975 (4) SA 943 (A) at 949H.