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[2014] ZAGPJHC 363
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Absa Bank Ltd v Africa (14/01430) [2014] ZAGPJHC 363; [2015] 2 All SA 8 (GJ) (5 December 2014)
REPUBLIC
OF SOUTH AFRICA
GAUTENG
HIGH COURT, JOHANNESBURG LOCAL DIVISION
CASE
NO: 14/01430
DATE: 05 DECEMBER
2014
In
the matter between:
ABSA
BANK
LTD
................................................................................................................................
APPLICANT
And
AFRICA’S
BEST MINERALS 146
LTD
......................................................................................
RESPONDENT
AND
KENNETH
KGUGUDI SEKHUKHUNE
N.O
.....................................................
APPLICANT
(In Intervention)
And
ABSA
BANK
LTD
.............................................................................................
RESPONDENT
(In Intervention)
JUDGMENT
Vally
J
Introduction
and background facts
1.O
n
13 September 2010 the applicant, ABSA BANK LTD (ABSA) and the
respondent, AFRICAN BEST MINERALS LTD (ABM), entered into a written
loan agreement in terms of which ABSA advanced an amount of R 9 550
000 to ABM, which was to be repaid by ABM over a period of
83 months
at the rate of R170 998.42 per month. On or about 11 May 2011 an
addendum to the loan agreement was concluded by the
two parties in
terms of which an outstanding amount of R7 014 491.54 was payable
over a period of 76 months at a rate of R131 486.37
per month. One of
the terms of the loan agreement was that, should ABM fail to make any
monthly payment due, the full outstanding
amount became due and
payable. There is also the usual “
no
indulgence and full agreement
’
clause
in the agreement. ABM defaulted by failing to make payment as
required.
2.
ABSA
seeks a final order for the winding up of ABM. The application was
launched on 21 January 2014.The matter was called in Court
on 4 June
2014 but was postponed. ABM opposed the application. It delivered its
answering affidavit on or about 14 July 2014 and
ABSA replied thereto
on or about 03 September 2014. The matter was set down for hearing on
17 November 2014. In terms of the Practice
Directive of this Court
ABSA was to file its heads of argument before setting the matter down
and ABM should have filed its heads
of argument on or about 27
October 2014. On 23 October 2014 an application was received from the
honourable King Kenneth Kgagudi
Sekhukhune (King Sekhukhune) who
sought to intervene in the matter on a number of grounds. This was
not opposed by ABSA, who decided
to adopt the view that the founding
affidavit supporting the intervention application should, if the
application were granted,
be treated as a further answering affidavit
and that its own answer thereto should be treated as a further
replying affidavit.
3.
ABM
brought an application for the postponement of the hearing, which
application was supported by King Sekhukhune. The application
was
opposed by ABSA. The application for postponement was tied to the
application for leave to intervene. The deponent to the founding
affidavit in support of the application for postponement claimed that
the matter was not ripe for hearing because the intervention
application would have to be determined first, and that application
was not ripe for hearing. However, this ground was abandoned
at the
hearing as by then the papers in the intervention application were
all filed, and the intervener had acknowledged that the
matter was
ripe for hearing. The intervener was represented by the same counsel
that represented ABM. As a result of the concession
on the part of
the intervener that the matter was ripe for hearing, it was agreed
that the most convenient approach to the matter
was to hear and
determine the intervention first, followed by the postponement
application and, if necessary, the main application
last.
The
intervention application
4.
King
Sekhukhune asked for wide ranging and far-reaching relief.
[1]
The
founding affidavit supporting the application is deposed to by a Mr
Komane Canius Mampuru (Mr Mampuru), who says he is “
a
traditional and civic leader at the seat of the tribal authority
(Kgoro) of the Bapedi Nation at Mohlaletse Sekhukhune district,
Limpopo province.
”
He
is “
a
member of the Royal Council of the Bapedi Nation acting under the
auspices of Kogoshi Kenneth Kgagudi Sekhukhune
.”
King Sekhukhune filed a “
supporting
affidavit
”
wherein
he states, “
The
draft answering
(sic)
affidavit
by Komane Canius Mampuru has been read and represented to me and I
confirm, support and adopt it.
”
Mr
Mampuru also says that he is “
an
executive member of the African Success & Entrepreneurship
Foundation (“AFSEF”), of its Forensic Constitutional
Task
Force (“FCTF”).”
The
reference to AFSEF is relevant as prayer 4.1 asks that this Court
orders that King Sekhukhune is given leave to “
represent
the companies forming part of the AFSEF model
(sic)
.
”
5.
No case
is made out in the founding affidavit of Mr Mampuru or in the
“supporting affidavit” of King Sekhukhune for
granting an
order allowing the King to represent “
the
companies forming part of the AFSEF model
”
.
In fact the full list of the companies that form part of AFSEF is not
spelt out in either affidavit. No details about these companies
are
given. These papers have not been served on those companies and no
claim is made that either Mr Mampuru or King Sekhukhune
is authorised
to act, or speak, for these companies. In these circumstances, prayer
4.1 cannot be acceded to.
6.
Prayer
4.2 is strange. The relief asked for is:
“
(d)eveloping
the principles of the common law relating to representation on the
basis that leaders and representatives of beneficiaries
for the
purpose of constitutional restitution and/or the protection of their
common fundamental constitutional rights, whether
in terms of
customary or constitutional law, may represent any corporation or
entity established to secure the intended constitutional
restitution
or protection of the beneficiaries they represent as aforesaid.
”
7.
I have
difficulty in understanding what order is being sought. At the
hearing I put this difficulty to counsel for King Sekhukhune.
He
responded by stating that the Court should order that King Sekhukhune
and the traditional leaders (who are not identified) have
the right
to represent “
any
corporation or entity established to secure the intended
constitutional restitution or protection of the beneficiaries they
represent”
in
any proceeding where they or “
the
beneficiaries
”
may
have an interest. Unfortunately, the suggestion only compounded my
difficulty. Firstly, an order of this nature would certainly
be
unintelligible. It also was not indicated, either on the papers or in
the oral submissions received, why this Court should make
an order
that is so general and all encompassing that it would allow King
Sekhukhune and all traditional leaders to represent “
any
corporation or entity established to secure the intended
constitutional restitution or protection of the beneficiaries they
represent
”
,
in any matter where these beneficiaries may have an interest, in any
Court in the land. Secondly, such a wide-ranging order is
beyond the
scope of this Court in this matter. The corporations or entities that
would have King Sekhukhune and the traditional
leaders imposed upon
them as their representatives in any proceeding where the communities
(supposedly represented by King Sekhukhune
and the traditional
leaders) have an interest have not been identified, let alone been
heard. Thirdly, assuming for the moment
that such relief is
competent, there is no link between it and the case of ABSA or the
case of ABM in this matter. Finally, no
case is made out as to why
this relief is necessary in this matter: nothing is said in the
founding affidavit or the supporting
affidavit as to why this relief
is sought, or why it is required. Hence, in my view, such an order
is, without doubt, legally incompetent.
Accordingly, I decline the
request for an order in terms of prayer 4.2 of the notice of motion.
8.
The
only relevant prayer left is prayer 2, which asks for leave to
intervene in the winding-up application and it is to that that
I now
turn.
The
intervention application
9.
King
Sekhukhune asks that he be granted leave, “
supported
(sic) by other traditional and civic leaders who file supporting
affidavits, to intervene as co-respondent(s) in the winding-up
application launched by
”
ABSA.
No supporting affidavits were filed by any other traditional and
civic leader, except for Mr Mampuru who deposed to the founding
affidavit. It is thus not clear which other traditional or civic
leader should be granted leave to intervene as co-respondents
in the
matter. In these circumstances the only applicant who could be
granted leave to intervene is King Sekhukhune. When presented
with
this dilemma his counsel elected to persist with the application on
the basis that only King Sekhukhune should be allowed
to intervene in
the application.
10.
In
order to succeed in the quest to intervene King Sekhukhune must
satisfy this Court that he, or the community he represents, has
a
direct and substantial interests in the application to wind-up ABM,
which could be prejudiced should the Court issue an order
winding-up
it up. He must satisfy this Court that the application is not brought
frivolously and that the facts or allegations
it wishes to draw the
attention of the Court to will affect the course of the judgment and
any order that follows in a material
respect. Furthermore, the direct
and substantial interest has to be an interest in the right to
challenge the winding-up application
and not just a mere financial
interest.
[2]
11.
The
grounds for intervening are to stop the alleged unlawful conduct of
ABSA and to protect the interests of the communities and
AFSEF, which
together have an interest in the amount of R24 million in ABM.
12.
It is
alleged that the actions of ABSA in bringing the application to
wind-up ABM are unlawful because:
12.1.
they
are in breach of its (ABSA’s) duties “
to
communities entitled to constitutional restitution and redress, in
terms of the Financial Sector Charter
”
[3]
(the
FSC); and,
12.2.
the
firm of attorneys that previously represented ABSA in this matter was
conflicted in that it previously (i.e. before this matter
arose)
represented the communities involved in AFSEF in a dispute with First
Rand Bank Ltd and a company styled Southnet.
[4]
Hence,
that firm of attorneys acted unlawfully.
13.
On the
first claim, it is important to note that it is based on an
allegation that ABSA owes a duty to “
communities
entitled to constitutional restitution
”
(the
communities) and not to ABM. There is no claim that ABSA owed ABM any
duty. More importantly, even if ABSA owed these communities
a duty,
and assuming that ABSA was in breach of such a duty, it would then be
open to these communities to sue ABSA for its breach.
The existence
of such a duty borne, and its breach, by ABSA does not give cause to
King Sekhukhune to intervene in what is a straightforward
winding-up
application of ABM. The interest of King Sekhukhune (as the
representative of these communities) is not to be found
in the
winding-up application of ABM but is located in a different and
separate matter (assuming the communities are able to establish
a
cause of action) not related to the winding-up application. The
winding-up of ABM does not affect, let alone destroy, any cause
of
action the communities (who are allegedly owed the duty) are able to
establish against ABSA. Furthermore, whatever rights the
communities
have over ABSA do not have any bearing on the application to wind-up
ABM: those rights cannot affect the outcome of
this matter.
Thus, the communities have not established that they have any
interest in this matter which requires protection,
nor have they
established that the protection of such interest will affect the
outcome of the winding-up application.
14.
The
second reason furnished for why the application to wind-up ABM is
unlawful is that ABSA had previously employed
the
services of a firm of attorneys that represented some groups within
AFSEF, and maybe even AFSEF, in another matter. This resulted
in that
firm of attorneys being conflicted when the winding-up application
was launched. It is alleged that those attorneys had
consulted with
“
representatives
of the Bapedi Nation and communities regarding the defense of their
constitutional rights in the context of the
FSC and the commitments
the major banks, including ABSA, had made, and that they are
therefore breaching (sic) the legal professional
privilege
(sic)
that
arise in these circumstances
.”
[5]
This
allegation is not very sensible. At best for the communities on whose
behalf the intervention application is brought, it can
be read to
mean that they have been harmed by the erstwhile attorneys of ABSA,
and that they may have a legal claim against the
said attorneys.
That, however, does not make the application by ABSA to wind-up ABM
unlawful: ABSA cannot be held accountable for
the alleged harmful
conduct of its erstwhile attorneys, and ABM is not affected by the
alleged harm committed against the communities.
Hence, even this
ground of intervention fails to establish that the communities, on
whose behalf King Sekukhune brings this application,
have a direct
and substantial interest in the winding-up application. This ground
for intervention is legally unsound and no more
need be said about
it.
15.
The
other ground for intervening is that the communities and AFSEF hold
an interest of R24m in ABM. The averment in this regard
is crafted in
the following terms in the founding affidavit:
“
ABM
itself is a partner institution in AFSEF which is of key importance
to provide access to capital and to serve as a joint venture
institution to enable the communities that have partnered through
AFSEF, and especially for this purpose the Bapedi (sic), to exploit
the mineral rights that legitimately vest in them through their
heritage.
Jan
Strydom and James Mitchell, AFSEF partners, have held an interest of
AFSEF and the communities that partnered through them as
nominees in
an amount of R24 million. Kgoshi Kgolo (King Sekhukhune) holds that
interest directly.
”
[6]
16.
I read
this averment to mean that King Sekhukhune holds an interest of R24m
in ABM. However, at the hearing I was informed by counsel
for King
Sekhukhune that it means that the King is a creditor of ABM in the
amount of R24m and that the intervention is sought
not to protect the
interest of King Sekhukhune as a shareholder, but rather as that of a
creditor. I find this submission startling
for the very next averment
leaves no doubt that the leave to intervene is sought on the basis
that King Sekhukhune is a shareholder,
albeit that the shareholding
is held on behalf of others (the communities and the partners in
AFSEF). The averment reads:
“
The
investment in ABM that AFSEF and the communities that partnered
through it had committed themselves to was in part dedicated
to a
joint venture for beneficiation of the gold and to establish a
refinery at the site of the mine.
”
[7]
17.
Apart
from asserting the existence of a shareholding (or a loan, if the
oral submission is to be accepted), no further factual substratum
is
provided to show that the intervention, if allowed, is necessary and
will affect the outcome of the winding-up application.
As mentioned
above, the law is settled on this score: a party that wishes to
intervene must demonstrate an interest in the
proceeding that is not
just a mere financial interest. An application to intervene solely as
a shareholder or solely as a creditor
is insufficient. The aspirant
intervener must demonstrate that he has a legal interest to protect
and not just a financial interest
in the matter. The legal interest
must also be material enough to affect the outcome of the winding-up
application. Anything less
than that will not do.
18.
Finally
it need be said that the founding papers in the application for
intervention consist of 471 pages, made up mainly of annexures
relating to the business structure and the business dealings of the
persons involved in the AFSEF conglomeration of individuals,
associations and/or partnerships. None of it concerns the debt of ABM
with ABSA and, therefore, none of it has any real or potential
probative value in the winding-up application. To admit such evidence
would be wasteful and would result in the inefficient use
of
litigation as well as judicial resources.
19.
For all
of the aforesaid reasons, the application to intervene has to be
dismissed. As ABSA did not seek a cost order should the
application
be dismissed, it would not be appropriate to make one.
The
application for postponement
20.
As
mentioned above, ABM brought an application to postpone the hearing
which application was initially grounded in the fact that
there was
an application for leave to intervene which was not ripe for hearing
as, by the time the application for postponement
was launched,
not all the papers in the intervention application were filed.
However, this was no longer the case when the hearing
was held and as
a result this ground for the postponement fell away. Nevertheless,
ABM persisted with the application for postponement.
The application
was based on the contention that, as far as the winding-up
application was concerned, this Court was bound by a
decision of the
Supreme Court of Appeal (SCA) in
Boschpoort
Ondernemings (Pty) Ltd v Absa Bank Ltd
[8]
,
thus rendering the opposition of ABM to the winding-up application in
this Court valueless. This makes it necessary for ABM to
seek leave
from the Constitutional Court (CC) for direct access, in order to
ensure that its right to challenge the pronouncement
of the SCA
regarding winding-up applications of this nature. Hence, ABM
contended that the winding-up application should only be
heard after
the CC has pronounced on its application for direct access. It has
not yet launched an application for direct access,
but asks that this
Court postpone this matter pending “
the
filing of an application for leave for direct access
”
.
In its oral submissions ABM indicated that such an application could
be brought by 19 December 2014.
21.
The
winding up application is based on an allegation that ABM is
commercially insolvent. The application is brought in terms of
s
344(f) read with s 345 of Companies Act, 61 of 1973 (the 1973 Act).
The SCA has ruled that s 344(f) read with s 345 of the 1973
Act
allows for the winding-up of an insolvent company. In such a case the
applicant does not have to prove that there are just
and equitable
grounds for the winding up of the insolvent company. ABM wants an
opportunity to call upon the CC to allow it to
challenge this finding
without having to present its case in this Court and in the SCA.
Absent that opportunity, it claims that
justice cannot be done to its
case. This it says is so because this Court is bound by the decision
of the SCA. Accordingly, it
says that there is no purpose for it to
continue with its opposition except if it gets an opportunity to
present its case to the
CC, where it will be able to challenge the
correctness of the SCA’s decision. ABM claims that the SCA’s
decision is
wrong because it failed to impose upon an applicant for
the winding-up of an insolvent company the duty to show that,
notwithstanding
the company’s insolvency, it is just and
equitable for it to be wound up.
22.
ABM has
yet to launch an application to the CC for direct access. It asks
this Court to postpone this matter pending “
the
filing of an application for leave for direct access
”
.
In its oral submissions ABM indicated that such an application could
be brought by 19 December 2014. No explanation was furnished
as to
why ABM, if it believed that this option was best suited to its case,
had not already filed and served such an application.
After all, the
SCA judgment that ABM complains of was delivered on 28 November 2013.
This winding-up application was brought on
21 January 2014 The
answering affidavit of ABM was filed 14 July 2014.The point that ABM
wish to take the matter up directly with
the CC was not raised in the
answering affidavit. It was only raised at the hearing of this
matter, and it was raised as a basis
for the postponement
application.
23.
ABSA
submitted that the application was brought merely to delay the
proceedings. This, it says, is manifest in the manner and the
timing
of the application. I hold that there is great merit in this
submission. ABM does not give any substantive reasons why the
SCA was
wrong in
Boschpoort
.
24.
In my
view, to grant this application would only encourage litigants like
ABM to flood the CC with applications for direct access
simply
because they believe, however unreasonable that belief may be, they
would not be able to fully ventilate their case in this
Court and in
the SCA. In my view there is only one judiciary and one system of law
in this country. The judiciary is, for good
reason, organised along
hierarchical lines. Litigants must present their cases in the lowest
applicable court in the first instance
and, if they have a deserving
case, go through the various stages of the courts before they should
be able to call on the attention
of the highest court. This is the
only way the rule of law can be maintained. For the rule of law to
function effectively the highest
court should only in rare cases be
asked to sit as a court of first and final instance. The CC has
already on numerous occasions
over the last twenty years alerted
litigants to this basic principle. Identifying those authorities
would only serve to pad this
judgment with unnecessary citations.
However, one authority does stand out:
“
It
is, moreover, not ordinarily in the interests of justice for a court
to sit as a court of first and last instance, in which matters
are
decided without there being any possibility of appealing against the
decision given. Experience shows that decisions are more
likely to be
correct if more than one court has been required to consider the
issues raised. In such circumstances the losing party
has an
opportunity of challenging the reasoning on which the first judgment
is based, and of reconsidering and refining arguments
previously
raised in the light of such judgment.@
[9]
25.
Further,
it must be borne in mind that this Court has a duty to the litigants
before it, to the SCA and to the CC (should the matter
receive
either, or both, of those Courts’ attention) to sanitise the
issues before it and to articulate its reasoning for
the order(s) it
makes before the SCA, and ultimately the CC, should be engaged. This
does not mean that an application to have
a matter postponed pending
an application for direct access to the CC must automatically fail.
There may be good grounds to grant
such an application. However, to
do so it must at least be satisfied that the application for direct
access has a reasonable prospect
of succeeding. In the present case,
ABM does not even attempt to make out a case in this regard.
26.
Lastly,
should ABM lose, it can attempt to take its case to the SCA and there
is no reason why it cannot ask the SCA to reconsider
its previous
decision. Hence, its claim that its case can only be fairly
adjudicated at the CC is without merit.
27.
For
these reasons, the application for postponed was denied.
The
winding-up application
28.
It is
not disputed that:
28.1.
ABM is
indebted to ABSA pursuant to it concluding a loan agreement with ABSA
involving the amount of R9 550 000, and the amount
owing as at
19 October 2012 was R8 020 451. 38. This was the full outstanding
amount as at that date and it became due as a result
of ABM failing
to meet its instalment payments on due date;
28.2.
Despite
demand, ABM failed to pay this amount. In compliance with s 345 of
the 1973 Act ABSA, on 1 November 2012, and again on 18
July 2013,
sent ABM a letter of demand. ABM, nevertheless, failed to pay the
amount due. It did, however, make a payment in the
amount of R50
000.00 on 19 September 2013 but this was well short of the amount
due.
28.3.
ABM is
commercially insolvent.
29.
In
these circumstances the only issue before this Court is whether it
should grant a winding-up order. ABM initially opposed the
application on the grounds that ABSA had failed to comply with the
provisions of s 81(1) (c) of the Companies Act, 71 of 2008 (the
2008
Act). This was raised as a point
in
limine
.
Later on during the proceedings, ABM abandoned this as a point
in
limiine
,
but relied on the substance thereof by contending that it is,
nevertheless, a requirement for a an applicant bringing an
application
to wind-up a company to show that it is “
just
and equitable
”
for the
company to be wound-up. ABM claims ABSA has not shown this.
30.
The
application is brought in terms of s 344(f) read with s 345 of the
1973 Act. Section 344(f) provides that a company may be wound-up
if
it “
is
unable to pay its debts in terms of s 345
”
.
Section 345 is a deeming provision. In terms of this provision a
company is deemed unable to pay its debts if a debt exceeding
R100.00
is due, the creditor has served a demand for payment and the company
has for three weeks thereafter failed to meet the
demand. There is no
debate that ABSA has shown this to be the case. Thus, ABSA argues
that there is no need for it to show that
it is “
just
and equitable
”
for ABM
to be wound-up.
31.
The
2008 Act has repealed most, but not all, of the 1973 Act. It is those
provisions in the 1973 Act that have survived the 2008
Act that ABSA
relies upon. In terms of item 9 of Schedule 5 of the 2008 Act, the
1973 Act remains applicable to winding-up and
liquidation of
companies. Item 9 reads:
“
Continued
application of previous Act to winding up and liquidation
(1)
Despite
the repeal of the previous Act, until the determined in terms of
sub-item (4), chapter 14 of this Act continues to apply
with respect
to the winding-up and liquidation of companies under this Act, as if
that Act had not been repealed subject to sub-items
(2) and (3).
(2)
Despite
sub-item (1), sections 343, 344, 346 and 348 to 353 do not apply to
the winding-up of a solvent company, except to the extent
necessary
to give full effect to the provisions of part G of chapter 2.
”
32.
Sub-item
(2) unequivocally states that sections 343, 344, 346 and 348 to 353
are not applicable to the winding-up of “
solvent
”
companies.
It makes no reference to insolvent companies. The clear implication
is that the said sections still apply to insolvent
companies.
Insolvent companies are those that are unable to pay their debts when
due. In the present case, ABM is alleged to be
insolvent, albeit
commercially insolvent. A company whose assets are not liquid enough
for it to meet its financial obligations
during its ordinary business
is regarded as being commercially insolvent.
[10]
A
company may be said to be commercially insolvent even if it is
factually solvent.
[11]
For
purposes of a winding-up application the distinction between
commercial and factual solvency can, at times, be blurred.
33.
The
only defence put up by ABM is, that despite its financial woes, it
would be unjust and inequitable for it to be wound-up. It
concedes
that the provisions of section 344(f) read with section 345 of the
1973 Act do not require ABSA to show that it is “
just
and equitable
”
for
it to be wound-up, but argues that this requirement should be
introduced by this Court by developing the common law to this
end.
Should this Court agree with ABM then, without doubt, the winding-up
application should fail, as ABSA has not made out any
case to the
effect that it is “
just
and equitable
”
to
wind-up ABM. It was suggested that this should be done in order to
bring the provisions of s 344(f) read with s 345 of the 1973
Act in
line with the provision of s 81(1)(c) of the 2008 Act. Section
81(1)(c) of the 2008 Act allows for the winding-up of a “
solvent
”
company
if “
it
is otherwise just and equitable for the company to be wound-up
”
.
It is immediately noticeable that this provision applies to solvent
companies only. Hence, even the 2008 Act does not require
that it be
shown that it is “
just
and equitable
”
to
wind-up an insolvent company. In fact, as far as an insolvent company
is concerned it has left the law as enunciated in the 1973
Act
unchanged. Moreover, it has, in terms of item 9 of Schedule 5, done
so explicitly.
[12]
To
follow the course suggested by ABM would, if followed, result in this
Court amending the legislation. That, without doubt, falls
outside
the remit of this Court.
34.
In
Boschpoort
,
the SCA has reiterated that there are good grounds to wind-up a
commercially insolvent company. It expressed the reasons in this
way:
“
That
a company’s commercial insolvency is a ground that will justify
an order for its liquidation has been a reality of law
which has
served us well through the passage of time. The reasons are not hard
to find: the valuation of assets, other than cash,
is a notoriously
elastic and often highly subjective one; the liquidity of assets is
often more viscous than recalcitrant debtors
would have a court
believe; more often than not, creditors do not have knowledge of the
assets of a company that owes them money
– and cannot be
expected to have; and courts are more comfortable with readily
determinable and objective tests such as whether
a company is able to
meet its current liabilities than with abstruse economic exercises as
to the valuation of a company’s
assets. Were the test for
solvency in liquidation proceedings to be whether assets exceed
liabilities, this would undermine there
being a predictable and
therefore effective legal environment for the adjudication of the
liquidation of companies: one of the
purposes of the new Act, set out
in s7
(l)
thereof.”
[13]
35.
In the
present case, ABSA has, without doubt, made out a case for the relief
it seeks in the winding-up application. It is entitled
to an order in
this regard.
The
order
36.
The
following orders are made:
1.
The
intervention application is dismissed.
2.
The
application for the matter to be postponed is dismissed.
3.
The
respondent is placed under final liquidation in the hands of the
Master of the High Court.
4.
The
costs of the application shall be costs in the liquidation.
Vally J
Judge
of the Gauteng High Court
December
2014
Appearances:
For
the Applicant : Adv R Strydom SC
Instructed
by : Cliff Decker Hofmeyr Attorneys
For
the Respondent : Adv H.J.S Meyer
Instructed
by : Pule Inc
For
the Intervener : Adv H.J.S Meyer
Instructed
by : De Jager du Plessis & Associates
Date
of hearing : 18 - 20 November 2014
Date
of judgment : 5 December 2014
[1]
The material aspects of the relief sought reads:
“
1.
...
2. Granting leave
to the Applicant, supported (sic) by other traditional and civic
leaders who file supporting affidavits, to
intervene as
co-respondent(s) in the winding-up application launched by the
Respondent (ABSA);
3. ...
4. Granting further
and/or alternative relief to the Applicant, and, without derogating
from the generality of this prayer, specifically:
4.1. Granting leave
to the Applicant to represent the companies forming part of the
AFSEF model as referred to in the Founding
affidavit as contemplated
in terms of
section 165
of the
Companies Act, 2008
;
4.2.
Developing the principles of the common law relating to
representation on the basis that the leaders and representatives
of
beneficiaries for the purpose of constitutional restitution and/or
the protection of their common fundamental constitutional
rights,
whether in terms of customary or constitutional law, may represent
any corporation or entity established to secure the
intended
constitutional restitution or protection of the beneficiaries they
represent as aforesaid.”
[2]
Minister
of Local Government and Land Tenure and Another v Sizwe Development
and Others: In Re: Sizwe Development v Flagstaff
Municipality
1991
(1) SA 677
(Tk GD) at 678H-679C. See also:
Registrar
of Banks v Regal Treasury Private Bank Ltd (under curatorship) and
Another (Regal Treasury Bank Holdings Ltd Intervening)
2004
(3) SA 560
(W) at 573E-F.
[3]
Intervention
application, Founding Affidavit, para 5, p 7
[4]
Intervention
application, Founding Affidavit, para 6, p 7
[5]
Intervention
application, Founding Affidavit, para 13, p 9
[6]
Intervention
application, Founding Affidavit, paras 23.37 - 23.38, p 17
[7]
Intervention
application, Founding Affidavit, paras 23.39, pp 17 - 18
[8]
2014
(2) SA 518
(SCA)
[9]
Bruce
and Another v Fleecytex Johannesburg CC and Others
1998
(2) SA 1143
(CC) at [8].
[10]
Absa
Bank Ltd v Rhebokskloof (Pty) Ltd
1993
(4) SA 436
(C) at 440F-H
[11]
F
actual
solvency refers to a situation where the assets of the company
exceed its current, as well as long-term, liabilities.
[12]
In
which case it is not even necessary to consider the applicability of
the maxim
unius
est alterius exclusio
,
which, of course, has to be guardedly engaged, see
Administrator,
Transvaal, and Others v Zenzile and Others
1991
(1) SA 21
(A) at 37F - H
[13]
Note
above at [17]