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[2021] ZAWCHC 21
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Aerontec (Pty) Limited v South Harbour Tankfarm CC (18712/2019) [2021] ZAWCHC 21 (9 February 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Reportable
CASE
NO: 18712/2019
In
the matter between:
AERONTEC
(PTY) LIMITED
Applicant
and
SOUTH
HARBOUR TANKFARM CC
Respondent
__________________________________________________________________
Judgment:
9 February 2021
DAVIS
J
[1]
The applicant seeks the final winding up of
respondent on the grounds that it is unable to pay its debts as and
when they have fallen
due for payment in the ordinary course of its
business as contemplated in terms of s 344 (f) read with s 345 (1)
(a) alternatively
s 345 (1) (c) of the Companies Act 61 of 1973 (‘the
1973 Companies Act’) together with Item 9 and Schedule 5 of the

Companies Act 71 of 2008 (‘the 2008
Companies Act&rsquo
;).
[2]
The dispute between the parties is
relatively narrow.   While the applicant’s contention
that the respondent was
commercially insolvent is denied in the
vaguest terms by the respondent, the latter insists that it is not
factually insolvent
and that its assets exceed its liabilities.
It is not disputed that respondent is indebted to the applicant.
Respondent
seeks to resist the granting of a final order of
liquidation on the basis of the existence of an unliquidated
counterclaim sourced
in s 61 of the Consumer Protection Act 68 of
2008 (CPA) which, respondent contends, is a serious and genuine claim
and which, if
determined, would extinguish applicant’s claim
against it.  It is for this reason that respondent contends that
this
court should exercise its discretion against the granting of a
final order of liquidation, notwithstanding the provisional order

which was granted on 19 August 2020.   The provisional
order of liquidation was granted on the basis that the respondent

continued to owe applicant an amount of R 414 522, 55 together with
interest and costs, which amounts had not been paid, applicant’s

consistent demands for payment notwithstanding.
Background
[3]
Applicant is a retailer which supplied
goods to the respondent.   The circumstances under which it
supplied these goods
included recommendations and advice by the
applicant relating to the suitability and application of those goods;
in particular
in the construction of milk tankers.   According
to Mr Peter Blyth, who deposed to affidavit on behalf of the
applicant:
‘
The
applicant carries on business as a supplier and distributor of
various composite materials and technology throughout South Africa.

The applicant’s claim against the respondent is based on the
supply of goods to the respondent.  It is clear from the
terms
and conditions of sale attached to the credit agreement which governs
the relationship between the parties, that the transactions
between
them relate to the supply of goods.
The
applicant was not involved in any manner with the design or
specification of the tankers manufactured by the respondent…
Of
this, only a fraction (R29 411.25, after taking into account the
credit note issued for the 40 units returned by the respondent
in
February 2019) relates to the Eposhield product which forms the core
of the respondent’s complaints.  The following
table
illustrates this (all amounts include VAT):
Invoices
Total
R
585, 876.77
Disputed
Eposhield
R
29, 411.25
Disputed
KTA
R
62, 020.54
Disputed
PU Foam
R
1, 253.73
Total
Undisputed Products
R
493, 191.25
Payments
received
R
155, 383.16
Total
interest charges
R
46, 058.93
Outstanding
Balance
R
476, 552.54
‘
[4]
Before De Villiers AJ it was
alleged by respondent that the Eposhield FG, which is an epoxy liner,
was rigid, cracked when flexed
and was unsuitable for the purposes
for which respondent required it.  As a result, the respondent
suffered physical damage
to its milk tankers which resulted in
economic loss.  It alleged that the harm suffered including the
loss of profits of R
778 000.00, which economic harm existed
independently and as a result of the physical damage.  After
examining this evidence,
De Villiers AJ held:
‘
The
applicant disputes that the Respondent has a counterclaim against
it.  I am not convinced that this counterclaim has any
merit
even on a prima facie basis
.’
[5]
It was accepted correctly by the parties
that a different burden of proof operates at the stage of an
application for a final liquidation
order where an applicant is
required to establish on a balance of probabilities that the grounds
for liquidation have been established.
See
Cunninghame
v First Ready Development
249
(Association Incorporated in terms of s 21) [2010] 1 All SA 473 (SCA)
at para 1.
[6]
It is for this reason that a careful
reconsideration of the factual dispute is now required.
Implications
of the contractual provisions governing the relationship between
applicant and respondent
[7]
Mr Fergus, who appeared on behalf of the
applicant, referred to two clauses in the agreement entered into
between the parties which,
in his view, were dispositive of the
present dispute.  Clause 4.4 provides:
‘
Payments
of all amounts due shall be made at such place or into such account,
free of deduction or set off, free of exchange or
other such address
as we may nominate.
’
In
addition clause 8.1 provides:
‘
All
goods and materials as supplied to and shall be accepted by the Buyer
voetstoots without warrantee express or implied against
patent or
latent defects and on the particular understanding that we do not
expressly or impliedly warrant or represent that such
goods or
material are suitable for any particular purpose.
’
[8]
Mr Fergus submitted that, pursuant to these
clauses, the respondent had agreed contractually that it was
precluded from relying
on a counterclaim as a defence to its
liability to pay amounts owing in terms of the credit facility
agreement.  In support
of this submission he referred to the
judgment of Rogers J in
Gap Merchant
Recycling CC v Goal Reach Trading
55 CC
2016 (1) SA 261 (WCC).   In similar fashion to the present
dispute, the applicant in
Gap Merchant
Recycling CC
had applied for the
provisional liquidation of the respondent.  The basis of this
application was a claim for R 668 000.00
for goods sold and
delivered.  Respondent disputed the claim and invoked the rule
that winding up proceedings are precluded
where the debt, which forms
the basis of the application, is
bona
fide
disputed on reasonable grounds.
In particular, respondent had taken the view that certain products
supplied by applicant
were ‘contaminated and/or unsuitable for
use.’   Accordingly respondent argued that it had a
claim for damages
against the applicant.  In this case the
relevant clause provided that the customer had ‘no right to
withhold payment
for any reason whatsoever and was ‘not
entitled to set off any amounts due to the Customer by the Supplier
against its indebtedness
to the Supplier.’
[9]
Rogers J carefully discussed the different
approaches to the question of a disputed counterclaim for damages as
reflected in
Ter Beek v United Resources
CC and another
1997 (3) SA 314 (C) and
Absa Bank Ltd v Erf 1252 Marine Drive
(Pty) Ltd
[2012] ZAWCHC.
Without deciding what the proper approach was to a respondent
asserting the existence of an unliquidated
claim as the basis by
which a court should not grant an order of liquidation, Rogers J
said:
‘
I
shall assume in favour of the respondent without deciding that the
application in the present case should be dismissed.
I find on
an assessment of all the affidavits that the respondent is
bona
fide
asserting on reasonable grounds that counterclaim for damages which
exceeds the amount of the applicants claim
.
’
[10]
Turning to the relevant clauses of the
contract, Rogers J noted at para 47 that the ‘
respondent
has no right to withhold payment on the basis of an alleged
counterclaim.  Naturally a counterclaim for damages
even if it
had prima facie merit would not constitute a defence as such to the
claim for payment because an illiquid claim for
damages cannot be set
off against a liquidated claim… In such a case the court in
action proceedings might nevertheless
in terms of rule 22 (4)
postpone the giving of judgment on the main claim until the
determination of the counterclaim.  However
a court would be
unlikely to adopt this course in the face of contractual provisions
such as clauses 37 and 38.’
[11]
For this reason, Rogers J concluded at para
48:
‘
It
is thus not strictly necessary to comment on the prima facie merits
of the alleged counterclaim because the counterclaim is not,
in the
light of the contract between the parties, an objectively reasonable
ground for resisting payment of the applicants claim
.’
[12]
On the basis of this judgment, Mr Fergus
contended that the contractual relationship between the parties was
dispositive of the
dispute, in that, as in
Gap
Merchant Recycling
, it could not be
concluded that the applicant’s claim had been disputed either
bona fide
or on reasonable grounds.
Rule
22 (4)
[13]
Mr Studti, on behalf of the respondent,
noted, notwithstanding
dicta
in
Gap Merchant Recycling,
that the critical question was whether Rule 22 (4) had application to
the present dispute, given the nature of the contractual
provisions
which governed the relationship between the parties.  To the
extent relevant, Rule 22 (4) provides thus:
‘
If
by person of any claim in reconvention, the defendant claims that on
the giving of judgment on such claim, the plaintiff’s
claim
will be extinguished either in whole or in part, the defendant may in
his plea refer to the fact of such claim in reconvention
and request
that judgment in respect of the clam or any portion thereof which
would be extinguished by such claim in reconvention,
be postponed
until judgment on the claim in reconvention.’
[14]
This rule was canvassed extensively in
Consol Ltd t/a Consol Glass v Twee
Jongegezellen (Pty) Ltd
2002 (2) SA 580
(C) where the question before the court was whether a clause in an
agreement relating to set off, similar to clause
4.4 in the present
dispute, justified a conclusion that the first respondent had either
waived or agreed to the exclusion of the
procedural benefits of Rule
22 (4).  The relevant clause in the contract read thus:
‘
The
purchase price shall be paid by the customer to the company without
set-off or deduction for any reason whatsoever and the customer
shall
pay all amounts to the company upon the terms notified by the company
to the customer from time to time
.’
[15]
In dealing with the question as to whether
Rule 22 (4) was applicable, Van Zyl J referred to the contractual
arrangements between
the parties and concluded at para 25:
‘
I
have certain difficulties with this submission.  Nowhere in the
set-off clause or, for that matter, elsewhere in the agreement
is any
express reference made to the provisions of Rule 22 (4).  By the
same token there is no basis on which it can be suggested
that there
was a reference thereto tacitly or by implication.  The parties
clearly did not, at the time of conclusion of the
agreement, give the
slightest consideration to such Rule or to any matter remotely
pertaining thereto or connected therewith.
There is no
indication whatever that they intended to exclude the operation of
Rule 22 (4) or to exclude any of its procedural
benefits.  It
cannot be inferred from any from any express term or terms on which
the parties achieved consensus, nor can
it be inferred from any
relevant facts or surrounding circumstances’
.
[16]
Applying this
dictum
to the present dispute, nowhere in the contract between applicant and
respondent is any express reference to be found to Rule 22
(4).
It would, given the wording of the contract, be difficult to
conclude, even tacitly or by implication, that Rule 22
(4) was
contemplated when the contract was entered into between the
parties.   For this reason, there is no basis to
suggest
that the parties intended to exclude the implications of Rule 22 (4)
or deny one of the parties any of its procedural benefits.

It is clear that respondent’s counterclaim, which is
unliquidated, cannot be set off against the liquidated claim of the

applicant.  By contrast, as stated in Consol ‘
set
off will come into operation only if and when judgment on the
counterclaim is given in favour of the defendant
.’
It follows therefore that the clauses referred to by applicant as
dispositive of this case do not justify such a
conclusion.
The
counterclaim
[17]
It follows that the nature of the
counterclaim now requires analysis.  In describing its
counterclaim, the respondent relies
exclusively for its cause of
action on s 61 of the Consumer Protection Act 68 of 2008 (‘CPA’).
Section
61 (1) of the CPA provides thus:
‘
Except
to the extent contemplated in subsection (4), the producer or
importer, distributor or retailer of any goods is liable for
any
harm, as described in subsection (5), caused wholly or partly as a
consequence of-
…
(b)
a product failure, defect or
hazard in any goods;
…
irrespective
of where the harm resulted from any negligence on the part of the
producer, importer, distributor or retailer, as the
case may be.
’
‘
Defect’,
as employed in s 51, is defined in s 53 (1) (a) (ii) as
follows:
‘
any
characteristic of the goods … that renders the  goods …
less useful, practicable or safe than persons
generally would be
reasonably entitled to expect in the circumstances.’
‘
Failure’
is defined in s 53 (1) (b) as follows:
‘
the
inability of the goods to perform in the intended manner or to the
intended effect
.’
[18]
In essence, respondent contends, that in
terms of s 61 (1) (b) of the CPA, it suffered harm as a result of
defects and/or failures
in three of the goods supplied by the
applicant, being the Eposhield, the KTA 313 hardener which was
applied to the two dairy road
tankers of the respondent and which
appeared to be unsuitable and had to be removed and the supply of PU
foam.  According
to the answering affidavit of Mr Bennetto ‘two
tanks built by the respondent using KTA 313 hardener / SR 12 resin
had to
be finally scrapped in September 2019 after 8 months of
repairs having been done.’  The third claim based on the
value
the PU (Polyurethane) foam product, which was applied to the
two dairy road tankers, proved unsuitable and had to be removed and

replaced with a denser micro balloon and resin mix.   Mr
Bennetto stated that ‘the PU … foam was recommended
by
the applicant as the filler in the corners of the tanks, where milk,
‘butter fat’ and ‘milk stone’ and
wash water
would not build up has a low density and a high air content…
Under the weight of 15 00 kilogram of milk per square
meter on the
floor of the tanks PU foam compressed and collapsed.’
[19]
It is appropriate to note at this stage
that the litigation in this application appeared to be a legal
version of a moving feast,
in subsequent to the initial papers, two
supplementary answering affidavits and two supplementary replying
affidavits were filed.
The point made by applicant concerning
the shifting case of respondent was that, other than the claim based
on the Eposhield, the
balance of the claims were never raised in the
initial papers.  I shall return presently to the implications of
this argument.
[20]
This observation by applicant is coupled
with a number of further issues raised about the manner in which the
respondent conducted
its case.  It appears that the respondent
first raised the alleged counterclaims after receipt of the
applicant’s letter
of demand in terms of s 345 (1) (a) of the
1973
Companies Act.  Prior
thereto, the issue of a counterclaim
was not raised.  Furthermore, the first time a reference to a
possible counter claim
appears is to be found in an email on 24 April
2019, in which Mr Bennetto wrote to Mr Blyth:
‘
We
would like to discuss payment arrangements to Aerontec account in the
light of the three material setbacks which we have experienced’.

At this point, he referred to the use of Eposhield, in what he
referred to as ‘the delamination / dry jointing we are now

experiencing …
’
and
‘
the
processes recommended and monitored in making the ‘in house
per- preg material (resins and imported KTA 313 hardener
.’
[21]
By 30 December 2018, respondent had
breached its obligations in terms of the agreement, by failing to
make payment of R 299 842.52,
when such payment was due owing and
payable to the applicant.  This is admitted by respondent in the
answering affidavit of
Mr Bennetto in which the following appears:
‘
I
admit that the respondent did not pay the amount of R 299 842.52 by
30 December 2018, but I do however deny that the respondent
was in
fact indebted to the applicant at that juncture for the amount
claimed.  I also deny that the respondent was in breach
of its
obligations to any extent.  I aver that the respondent was fully
within its rights to withhold payment to the applicant,
given the
counterclaims which the respondent had against the applicant which
had already arisen at the juncture.’
[22]
The sharp point of this evidence is that,
as at December 2018, there was no suggestion of a counterclaim which
the respondent might
bring against applicant.  The answering
affidavit does not provide a credible explanation about the silence
of a counter claim
as at the end of December 2018.
Indeed, the possible existence of a counterclaim was indicated for
the first time on
the record when, on 24 April 2019, an allegation
was made by the respondent that, for example, Eposhield was an
unsuitable material
for the purpose envisaged by respondent.  In
that email Mr Bennetto says: ‘
By
losing three months on our first delivery we had a “loss of
profits” of at least R 1.4 million.
’
There is no direct averment at this stage that the
applicant is liable therefore.
[23]
There can be no doubt that the case
developed around the counter claim transmogrified from these vague
assertions contained in the
email of 24 April 2019 to a full blown
reliance on
s 61
of CPA, by way of the filing of the supplementary
answering affidavits.  This chronology also needs to be
evaluated in terms
of the material evidence as it appears on the
record.  Of particular significance is an email of 8 March 2019,
in which Mr
Bennetto sent to Mr Malan Conradie, who was the
composites expert that Mr Bennetto had approached to be the technical
partner in
the project, and who was required to advise and assist him
with composite tank options for a tanker.  So much is clear from

an email from Mr Conradie of 14 August 2019 to Mr Deon Perold, who
was then acting on behalf of the applicant.  In that email
Mr
Conradie says the following:
‘
I
have looked at the letter from Bennetto and believe that the
information is not a true reflection of the events.
Please
see my summary of the project.
1.
Peter
Bennetto approach me to advise and assist him with the composite tank
options for a ReturnHauler road tanker.  No payment
were offered
for design, advice, introductions and connections that I had built up
in the industry since 1992.  He did offer
a 15% share in
ReturnHauler projects that included patents in various countries as
well as a long term benefit with this project.
I did not know
Mr Bennetto’s personal financial position at the time.
2.
I
did designs based on some guidelines, dimensions and details provided
by Bennetto and Dawid Pepler from Parmalat.  My initial
design
were based on a hull (tank bottom) and deck (tank top) to be bonded
together with tank special joining flange similar to
a boat and high
up were there were low pressure and minimum change of leaking.’
[24]
This version is supported by email from Mr
Bennetto to Mr Conradie on 8 March 2019.  The following passages
are particularly
relevant:
‘
As
the “Responsible Person” in the project, I was not ever
consulted on this decision.
With
road tanker background – which you do not have – I would
have warned against weakening the tank ends.
Tank
ends are critical components.
Even
though I carry commercial responsibility of the project – I was
not consulted.
Nor
was Simera ever consulted on this design change – as the FEA
engineers.
Third
Road Test (Sun. 24 Feb)
After
the 10 days of repairs / modifications the semi was transferred to
Truck Craft.
I
did invite you to witness this third road test.
But
received no response from you on this.
And
you did not attend this road test.
Disappointing
– you have your reasons, not that I understand them.
Probably
like your reasons not to attend other road tests.
You
were responsible for the detailed composite design.
But
at no stage did you raise the alarm that his detailed design was not
being adhered to in the build
We
now sit with the embarrassment of failure, and are carrying some of
the costs of repairs/modifications.’
[25]
I shall deal now with the significance of
this correspondence within the context of an overall evaluation of
the available evidence
set out in the papers including the
supplementary affidavits.
Conclusion
[26]
While there is considerable dispute on the
papers as to the various allegations and counter allegations
concerning the counter claim,
the email exchange between Mr Conradie
and Mr Bennetto is instructive.  In particular, the email on 8
March 2019 from Mr Bennetto
to Mr Conradie and the other
correspondence, to which I have referred from Mr Conradie, makes it
clear, on the probabilities, that
the tankers had failed and then
underwent numerous weeks of expensive repair which was neither due to
the Eposhield nor the KTA
313 hardener but rather due to poor design,
deviations from the design and possible manufacturing problems.
The least
one could have expected was a version from the respondent
to significantly gainsay the implications of this correspondence.

Instead in the email of 8 March 2019 the following appears:
‘
We
faced two broad options – to abandon the project and be sued by
Parmalat for performance.
Or
work to remedy the failures.
Very
fortunately John Oehley has stood his ground on the product, and not
‘run for the hills’ as lesser people would
have done in
the circumstances.
We
of course were totally financially committed as the spreadsheet
attached indicates by the time the failures / omissions came
home to
roost.
It
is in our interest to see the product work to avoid being sued by
Parmalat.
We
also believe in the future of the product – if we can get past
the very clear omissions in manufacture.’
[27]
This brings me back to the instructive
judgment of Binns-Ward J in
Absa Bank
Ltd, supra
.  In my view,
Binns-Ward J correctly distinguished the so called Badenhorst Rule
(
Badenhorst v Northern Construction
Enterprises (Pty) Ltd
1956 (2) SA 346
(T) at 347-348) which articulates the idea that winding up is not an
appropriate procedure to be availed of by a creditor whose
claim
against a respondent is
bona fide
disputed on reasonable grounds.  However, in a case where there
is opposition to an application for a liquidation order on
the basis
of an unliquidated counterclaim, a court is entitled and indeed
justified to exercise its discretion against the granting
of a
winding up order, where it appears that there is a reasonable
possibility that a counterclaim by the debtor company will,
upon its
determination, extinguish the debt relied upon by the applicant which
forms the basis of the application for the winding
up.
See
Absa Bank, supra
at 26.
[28]
A court should follow this distinction made
by Binns-Ward J in his judgment.   The present case thus
triggers a decision
as to whether to exercise a discretion in favour
of respondent which has raised a counterclaim as a basis for an
exercise of the
court’s discretion in its favour.    But
as Binns-Ward J said at para 27:
‘
It
is for the respondent to persuade the court to exercise the
discretion in its favour by showing on the papers that its
counterclaim
is what the English judges would call a ‘genuine
and serious’ one.  This requires more of a respondent than
is
needed if its basis for opposition is the existence of a disputed
indebtedness.  If the respondent fails in this respect the
court
is unlikely to exercise the discretion in terms of
s 347
(1) of the
Companies Act in
its favour.’
[29]
In the present case the counter
claim was not raised as a defence to the demand for payment in
December 2018, which respondent concedes
was in fact due.
Thereafter, for a considerable period during 2019, as the evidence
reveals, there was a startling
lack of particularity in respect of
alleged breaches of
s 61
of the CPA.   Finally, this
provision became the central pillar of respondent’s opposition
to the application for
the winding up order.
[30]
There has, on the evidence, been
insufficient particularity provided by respondent to show that the
applicant was in any way responsible
for the alleged defects in the
Eposhield products supplied by it to respondent, including that the
product did not perform in the
manner intended by respondent.
The evidence reveals further that applicant had very little, if any,
control over the quality
of the process which was employed in the use
of the KTA 313 product.   In the email of 9 December 2018,
which Mr Bennetto
addressed to Mr Parsons, he referred to work done
by Mr John Oehley of AFF, a composite engineering firm and said:
‘
Johan
has done an extensive trial now the SR 1280 / KTA 313 resin
combination using Saertex Triax 820g Glass …  Comparative

test done … yielded slightly better results on the AFF prepreg
so we have no cause to not use the KTA 313’
.
[31]
In summary, the evidence on the papers is
indicative of a conclusion that the overall difficulties encountered
by respondent in
the manufacturing of tankers was structural in
nature, stemmed from design and/or manufacturing defects, a point
which had been
made clearly by Mr Parsons, applicant’s director
to Mr Bennetto in February 2019 as follows:
‘
Thank
you for inviting me to the meeting today reviewing the structural
issues with the tanker.  I’m confident that the
tanker can
be repaired.  One of the key advantages of composite products
over metals, is they can typically always be repaired
by bonding on
more material , but typically at the expense of additional weight and
thickness.
I’m
concerned though that the build seems to have deviated from design in
many areas, which could produce further nasty surprises
in service
.’
(my emphasis)
[32]
As noted in
Tiador
126 CC v Rock Construction CC (Earthworks Drilling and Exploration CC
and Jeff Drill and Blast (Pty) Ltd
Intervening Parties) 2015 JDR 0234 WCC), the key question in the
determination of an exercise of a courts discretion is how genuine
is
the counterclaim.   The answer must emerge from the papers,
for as was stated in
Tiador
:
‘
In
a case where a provisional order was granted and the Court rejected
the respondent’s version because of a lack of particularity
and
the respondent arrived at court to oppose the final order on the same
papers as at 3 September 2014, a newly developed counterclaim
which
emerges thereafter needs to be carefully scrutinised with forensic
precision.
’
[33]
In the present dispute, the counterclaim
was considered by De Villiers AJ to possess insufficient weight to
resist the granting
of an order of provisional liquidation.
Subsequent thereto, the respondent sought to amplify its arguments in
justification of
its counterclaim.  The problem was that much of
the amplification should, if it was to reach the standard of a
counterclaim
which justified the exercise of a court’s
discretion in its favour, have added significantly to the case which
had have been
raised in the initial papers.  This was not done.
By contrast, the need for amplification was replaced by a repackaging

of the initial case.   Any amplification, to the extent
viable, was met by evidence which cast severe doubt on any merits

which the counterclaim may have possessed.  In addition, the
entire basis of the counterclaim was not raised until, at the
very
least, 5 April 2019, more than three months after respondent had
clearly breached its obligations in terms of the relevant
agreement
by failing to make payment of R 299 842.52.   Equally
significantly, no plausible explanation was given for
the contents of
the email of 8 March 2019 which Mr Bennetto sent to Mr Conradie and
which gainsaid much of respondent’s case
that structural
decision issues were not the cause of any loss which it may have
suffered.
[34]
In summary, there is no evidence to gainsay
applicant’s argument that the respondent is commercially
insolvent and has been
unable to pay the amount due to the
applicant.  That amount is undisputed.   There is no
plausible basis to exercise
a discretion and stay a grant of a final
order.   It must therefore follow that the respondent is
found to have been
unable to pay its debts as and when they fall due
for payment in the ordinary course of business as envisaged in
s 344
(f) read with s 345 (1)(c) of the 1973
Companies Act.
[35
]
In the result, the respondent is placed
under final liquidation in the hands of the Master of the High Court
Cape Town.   The
costs of the application shall be costs in
the liquidation.
DAVIS J
CORAM

:
DAVIS J
JUDGMENT
BY

:
DAVIS J
FOR THE
APPLICANT

:
ADV S FERGUS
INSTRUCTED
BY
:
ENS INC
FOR
THE RESPONDENT

:
ADV B STUDTI
INSTRUCTED
BY

:
NIXON & COLLINS ATTORNEYS
DATE
OF HEARINGS

:
25 NOVEMBER 2021
DATE
OF JUDGMENT

:
09 FEBRUARY 2021