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[2012] ZAGPJHC 41
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Standard Bank of South Africa Ltd v Ukubona Holding (Pty) Ltd (2011/37486) [2012] ZAGPJHC 41 (20 March 2012)
NOT
REPORTABLE
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE
NO:
2011/37486
DATE:20/03/2012
In the matter between:
STANDARD BANK OF SOUTH
AFRICA LIMITED
..............................
Applicant
and
UKUBONA HOLDING
(PROPRIETARY) LIMITED
...............................
Respondent
J U D G M E N T
LAMONT J:
[1] The applicant
instituted winding up proceedings against the respondent. The
applicant claimed that it was a creditor of the
respondent and that
the respondent was unable to pay its debts. In due course and on 27
October 2011 the parties reached an agreement
which was incorporated
in a draft order. Under and in terms of the draft order the
application was postponed until 6th December
2011 and the parties
agreed that:-
"the respondent's
indebtedness to the applicant in the sum of R3,497,190.94 in respect
of the respondents overdrawn Current
Account… and its Fleet
Management System Customer Agreement… to be paid in the
following manner:
3.1. the applicant is
authorised to forthwith appropriate the sum of Euros 66,640.99 from
the respondent's Customer Foreign Currency
Account with the applicant
and to transfer such sum to the aforesaid Current Account in part
satisfaction of the indebtedness;
3.2. the applicant is
authorised to forthwith appropriate the sum of USD 24,077.18 from the
respondent's Customer Foreign Currency
Account and to transfer such
sum to the aforesaid Current Account in part satisfaction of the
indebtedness;
3.3. the respondent is
to pay to the applicant the sum of R1,400,000 on or before close of
business on 30 November 2011 or such
later date if expressly agreed
to in writing between the parties:
3.4. the respondent is
to settle the balance of the indebtedness on or before the close of
business on 31st of January 2012 or
such later date if expressly
agreed to in writing between the parties.
4.in the event of any
monetary funds of any nature from whatever source entering the two
aforesaid Foreign Currency Accounts at
any stage between 30 November
2011 and 31st of January2012 the applicant is authorised without
notice to the respondent to appropriate
the said funds in
satisfaction of and limited to the balance of the payment…
6. should the
indebtedness not be paid strictly in accordance with the provisions
of paragraph 3 above the respondent's notice of
intention to oppose
the applicant's liquidation application and the respondent
irrevocably and unconditional consented to a final
order of winding
up.
[2] The respondent failed
to make the payment which fell due during November 2011. On 8
December 2011 the applicant closed the account
into which the foreign
currency would have been paid and further payments into that account
became prevented. The respondent alleges
that an amount due to it and
which was paid into the account on 31 January 2012 could not be paid
into the account as it was closed.
[3] It is common cause
between the parties that the respondent is indebted to the applicant
in the amount set out in the draft order,
it is also common cause
that the applicant allowed the respondent an opportunity to pay the
amount due, at a time when it was already
overdue. The respondent
authorised the applicant to use funds in its account in part payment
of the amounts due.
[4] It was submitted on
behalf of the respondent that the applicant had compromised the claim
which it had against the respondent
and that it was not entitled to
proceed to seek a liquidation of the respondent. It was further
submitted that:-
1. a modus by which the
payment was to be made was set out in the draft order.
2. as the applicant had
disabled itself from being able to receive payment from the account
into which the money would have been
paid so it was submitted the
applicant was not entitled to enforce a right of payment by way of
liquidation.
[5] Where parties have
arrived at a settlement of a disputed claim and the defendant has
failed to carry out such a settlement it
has been held that the
plaintiff may at his option sue either on the original claim or on
the subsequent terms of settlement. An
indulgence given at a time
when payment is overdue does not constitute a novation.
See: Bacon v SA Railways
and Harbours
1925 CPD 261
at p 264;
Kraamer v Ferreira
1917
E.D.L. 29
;
Antonie en Andere v
Koekoe
1966 (2) SA 610
(T);
Voet 46.2.6;
Chapman v Fynney’s
Executors
9 N.L.R. 243
;
Estate Liebenberg v
Standard Bank of South Africa Ltd
1927 AD 502
at p 523;
Jackson v Hirschberg
1933 CPD 76
at pp 83-4;
Optima Fertilizers
(Pty) Ltd v Turner
1968 (4) SA 29
(D) at p 34.
[6] Assuming that there
was a novation the settlement agreement would have the same effect as
res judicata. It follows that an action
on the original cause of
action is excluded unless the settlement agreement expressly or by
necessary implication permits a party
in the event of the other party
having breached the terms of the agreement to return to the original
cause of action.
See: Van Zyl v Niemann
1964 (4) SA 661
(A) at 669
[7] In the matter of
Standard Bank of South Africa Ltd v Essop
1997 (4) SA 569
(D and CLD)
it was held that a consent to a sequestration order constituted an
illegal agreement and that consequently the applicant
having settled
a sequestration application it was not entitled to prosecute the
sequestration. The applicant in that matter was
relying upon the
rights conferred upon it under and in terms of the illegal agreement
to enforce its rights to obtain a sequestration
order. It was this
exercise of rights that met with the disapproval of the Court. In the
present matter it is apparent from the
terms of the order that the
applicant retained the right to proceed with the liquidation
application on the basis it claimed and
independently of the
settlement agreement. The only effect that the settlement agreement
had upon the rights of the applicant to
proceed with the winding up
was that if the indulgence in which the applicant had allowed the
respondent of making payment was
met then the applicant would not
proceed with the winding up. The applicant did not compromise the
amount due to it; it allowed
the respondent an opportunity to make
payment; the application was postponed to a future date to enable the
applicant to proceed
with the application on the original causa if
payment was not made.
[8] It is common cause
that the payment was not made, hence the applicant proceeded with the
application. The agreement incorporated
in the draft order in my view
reserves the right of the applicant if it wished to proceed with the
liquidation to continue to do
so. The question decided in Essop’s
case supra concerning whether or not the consent to the liquidation
order was legal or
illegal is irrelevant to the present proceedings.
I accordingly find that the application was not compromised and that
the applicant
is entitled to proceed to enforce its rights.
[9] The respondent
submitted that the applicant holds substantial security for its claim
and that it should be compelled to rely
upon such security rather
than to wind up the respondent. There is no evidence that the
security is readily realisable or that
the cost of realisation of the
security is disproportionate to the cost of the winding up
proceedings. It appears to me that the
applicant is entitled as a
creditor to enforce its rights to obtain execution by way of winding
up proceedings.
[10] The respondent
submitted that the applicant was acting in bad faith in that it had
disabled itself from receiving monies which
were due to it by closing
the foreign exchange account. I need not decide this issue as
independently of the amounts which were
due to the applicant in terms
of the right of appropriation from the foreign exchange account, the
balance due on 31st of January
2012 was not paid.
[11] I also for the same
reason need not decide whether or not Eskom in fact paid any amount
to the account, or the applicant had
put in place arrangements for
any amounts which were paid to the account to be forwarded to a fresh
account
[12] The respondent is
unable to pay its debts. It accepted that it was unable to pay the
debt at the time it conditionally consented
to the winding up order.
Its inability to pay is further evidenced by the fact that it has
failed to do so.
[13] In my view the
applicant is entitled to a final winding up order.
[14] I make the following
order:
The respondent is
finally wound up.
LAMONT J
JUDGE OF THE SOUTH
GAUTENG HIGH COURT
JOHANNESBUERG
Counsel for
Applicant : I Miltz SC
Attorneys for
Applicant : JMS INC Attorneys
Counsel for
Respondent : A. Pullinger
Attorneys for
Respondent : Matthew Kerr-Phillips
Date of hearing : 7
March 2012
Date of judgment : 20
March 2012