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[2016] ZAGPJHC 189
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Scania Finance Southern Africa (Pty) Ltd v Sheriff Johannesburg Zinandi Trading 1009 (Pty) Ltd (0017/2015) [2016] ZAGPJHC 189 (31 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENGLOCAL
DIVISION, JOHANNESBURG
Case
No: 0017/2015
DATE:
31 MAY 2016
In
the matter between:
SCANIA
FINANCE SOUTHERN AFRICA (PTY)
LTD
......................................................
Applicant
And
THE
SHERIFF
JOHANNESBURG
...........................................................................
First
Respondent
ZINANDI
TRADING 1009 (PTY)
LTD
..................................................................
Second
Respondent
J
U D G M E N T
Ismail
J:
[1]
An application was launched in this court in two parts. Part A which
was brought by way of urgency. In that application the
applicant
sought an order that the Sheriff, first respondent, be interdicted
from executing an order of a magistrate. Part
B entails an
application for the winding up of the second respondent. This matter
relates to part B
[2]
The application relating to Part A was struck of the roll for lack of
urgency. I will not deal with that portion of the application
which
was sought in the urgent court and will only confine this judgment to
the order sought in terms of Part B.
[3]
This application relates to an order which the applicant seeks
against the second respondent in the following terms:
(i) that the
second respondent be finally wound- up;
(ii) the costs of
part B of this application be costs in the liquidation;
(iii) the
applicant be granted further and or alternative relief.
[4]
The applicant avers that the second respondent has not paid its
contributions in terms of a lease agreement and is indebted
to it in
the amount of R7 919 625.10, for six buses which were leased.
[5]
The applicant avers that the second respondent filed its answering
affidavit out of time, almost a year late, and had not made
out a
case for condonation for the late filing of its answering affidavit.
To this the second respondent submitted that there was
a reasonable
explanation for the delay and that the prospects of success in its
favour were strong. In addition thereto that the
matter was in both
parties interest to be decided and determined by a Court.
[6]
Second respondent raised several points
in limine
amongst
others, that the first respondent has been joined as a party to the
application when the first respondent had no interest
in the matter
whatsoever. It also contended that the applicant failed to prove that
the second respondent was unable to pay its
debts in terms of section
344 read with section 345 (1) ( c) and (2) of the Companies
Act. Thirdly that the applicant failed
to furnish the Court with a
certificate from the Master
for
security.
[7]
As far as the formalities of service on the Master, South African
Revenue Service, employees of the second respondent and security
for
costs are concerned, the applicant had complied with those
requirements.A candidate attorney, Charl Francois Sieberhagen,
deposed to an affidavit
[1]
wherein he stated that he attended to service on the persons and
institutions mentioned, above.
[8]
The second respondent contended that the applicant failed to satisfy
the court that it is trading under such conditions that
would warrant
that it be wound up. It was submitted that the second respondent is
in a position to pay its debts and that the applicant
had not shown
anything to the contrary. It maintained that no factual or legal
basis existed for submitting that the second respondent
is in
liquidation.
[9]
The second respondent does not dispute that it owes the applicant
money, however it alleges that the amount claimed is incorrect,
without stating what it alleges the outstanding amount is. At page
182, of the paginated papers, at para 102 it sated:
“
Apart
from bringing to the court’s attention that this information
was never presented to court at the hearing of the
ex parte
application, it is further submitted that the information has
been incorrectly calculated and I dispute the level of indebtedness
as alleged.”
[10]
The applicant submitted that the second respondent failed to give any
plausible explanation for its failure to settle its indebtedness
to
the applicant. Mr Freedman, acting on behalf of the applicant,
submitted that apart from disclosing the amount which the second
respondent alleges it owed, it failed to provide a reason why that
amount was not paid. The second respondent also failed to demonstrate
by means of financial statements or management accounts that it was
able to pay its debts. It was contended by the applicants that
this
omission on the part of the second respondent led to the inescapable
inference that it was both factually and commercially
insolvent.
In
ABSA Bank Ltd v Rhhebokskoof (Pty) Ltd
and Others
1993
(4) SA 436
( C) at 440 F-I where the court stated:
“
The
concept of commercial insolvency as a ground for winding up a company
is eminently practical and commercially sensible. The
primary
question which a Court IS called upon to answer in deciding whether
or not a company carrying on business should be wound
up as
commercially insolvent is whether or not it has liquid assets or
readily realizable assets available to meet its liabilities
as they
fall due to be met in the ordinary course of business and thereafter
to be in a position to carry on normal trading- in
other words, can
the company meet current demands on it and remain buoyant? It matters
not that thecompany’s assets fairly
valued, far exceeds its
liabilities: once the Court finds that it cannot do this, it
follows
that it is entitled to, and should hold that the company is unable to
pay its debts within the
meaning of s 345 (1) ( c) as
read with s 344 (f) of the Companies Act 61 of 1973 and is
accordingly liable to be wound up..”
see
also:
Service and Trade Suppliers (Pty) Ltd v Dasco & Sons (
Pty) Ltd
1962
(3) SA 424
(T) at 429.
[11]
In this regard the applicant avers that the logical inference to be
drawn is that the second respondent is commercially insolvent.
It
relied on the judgments of
Boschpoort
Ondernemings (Pty) Ltd v ABSA Bank Ltd.
[2]
and
Rosenbach & Co (Pty) Ltd v Singh Bazaars (Pty) Ltd
[3]
for
holding this view.
[12]
During argument before me I posed a question to second respondent’s
counsel, to the effect why did the second respondent
not pay the
amount it alleges it owed, alternatively pay the amount of R137 778.
86 which the applicant claims is due to
it into a trust account
pending the determination of the amount due, or even provide security
for the alleged amount owing. To
this end there was no reasonable
explanation tendered.
[13]
Mr Ford submitted that the issue is
lis pendens
as the same
reasons were provided in the magistrates court when magistrate Banks
ordered the return of the buses to the second
respondent. He expanded
on the submission that the applicant appealed magistrates Banks
order, however they failed to proceed with
the appeal and therefore
the appeal has lapsed. The issue before the Magistrate related to the
buses beingreturned whereas this
application deals with the question
of whether the second respondent is able to pay its debts in terms of
the Companies Act
[14]
Mr Freedman submitted that the second respondent is clearly
commercially insolvent as it had not paid two months instalments
in
respect of the six lease agreements and in addition thereto it owed
Standard Bank monies for another bus in terms of an agreement
with
that bank
He
pointed out that any creditor who is owed monies may launch an
application against the second respondent if it did not pay its
indebtedness to the creditor. Furthermore, the second respondent
could
have
provided a simple income and expenditure account of its business
which would have indicated that it was not commercially insolvent,
however Mr Mansingh gave some obscure explanation that it owns a
filing station which sells 300 000 liters of petrol per month.
The
filling station in any event is not owned by the second respondent.
[15]
During his address Mr Freedman addressed the court on the points that
were raised
in limine
relating to the NCA , the formalities
relating to service for winding up, such as service on the Master,
employees of the second
respondent and security for costs. Mr Ford
advised that he was not
persisting
with those points, as there was due compliance with the formalities.
[16]
In its heads of argument, the second respondent, avered that the main
creditors confirmed that it settled its debts on time.
This with the
utmost respect is not a suitable defence which would sustain an
application to fail and be dismissed. The court is
after all called
upon to examine the
facts
of the case before it and would not be swayed by the opinion of a
creditor which is ‘favoured’ by a debtor above
others.
[17]
The argument that the first respondent ought not to have been joined
in this application , once again has no merit, as part
B, of the
papers merely seeks a winding up of the second respondent. The first
respondent was merely cited as an original party
to the papers. No
order was sought against the first respondent.
[18]
Having heard the arguments presented by both parties I am of the
considered view that it would be just and equitable to make
the
following
order:
1.
That the second respondent be finally wound up;
2.
The costs of this application be costs in the liquidation.
Ismail J
Dated:
31 / 5 / 2016
APPEARANCES:
For
the Applicant : Adv Freedman instructed by
Senekal
SImmonds Inc, Attorneys Bedfordview
For
the second Respondent: Adv Ford instructed by Amiraj Bachoo Attorneys
91
Harry Road, Robertsham, Johannesburg
Date
of hearing: 10 May 2016
Date
of judgment: 31May 2016
[1]
p
ages
275-277
[2]
2014
(1) SA 528
(SCA);
[2014] 1 All SA 507
(SCA) at para [17], [18]
and [28].
[3]
1962
(4) SA 593
(D)