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[2021] ZAGPJHC 154
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ABSA Bank Limited v AA Diamonds (Pty) Limited (2019/29174) [2021] ZAGPJHC 154 (21 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2019/29174
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DATE:
21/5/2021
In
the matter between:
ABSA
BANK
LIMITED
Applicant
and
AA
DIAMONDS (PTY)
LIMITED
Respondent
JUDGMENT
ALLY
AJ
INTRODUCTION
[1]
This is an opposed application for the final winding up of the
Respondent Company
in terms of Section 345 of the Companies Act, No
61 of 1973, as amended and read with clause 9 of schedule 5 of the
Companies Act,
71 of 2005, as amended.
[2]
At the hearing of the application the issue of condonation arose
regarding the supplementary
answering affidavit of the Respondent.
[3]
I deemed it expedient to hear the condonation application as well as
the application
on the merits at the same time.
[4]
Accordingly, Applicant’s Counsel began argument on condonation
and the merits
of the application.
FACTUAL
MATRIX
[5]
The Applicant alleges that two loan agreements were entered
into between it and the Respondent.
[6]
The First being a Term Loan agreement was for the amount of
R2 000 000 -00
[two million rand] and the second agreement
related to an Overdraft facility at the Applicant bank in favour of
the Respondent.
[7]
The Applicant alleges that both the Term Loan agreement and the
overdraft facility
agreement were breached in that no payments were
forthcoming.
[8]
As a result of the breach, so it alleged, the Applicant, through its
Attorneys, notified
the Respondent about its delinquency, through a
letter of demand that payment should be made within in a certain
period.
[9]
Applicant alleges that the Respondent failed to make payments as
demanded and in terms
of Section 345 of the Companies Act, is
entitled to a liquidation order in its favour.
[10]
Insofar as the condonation application is concerned the Applicant
enjoins the Court to refuse
the application for condonation on the
basis that the Respondent has not fulfilled the requirements for a
successful application
for condonation and more fatally, has not
submitted an application for condonation in compliance with the
Uniform Rules of Court,
namely, the document purporting to be an
affidavit
[1]
, is unsigned and
therefore no application serves before the Court.
EVALUATION
AND ANALYSIS
[11]
If one has regard to the documents on Caselines regarding the
application for condonation
supra
then it is clear that
indeed, the purported application is unsigned. The effect thereof, in
my view, is that there is no valid
application for condonation before
me.
[12]
Should I be wrong in holding that there is no valid application for
condonation before me, I
am of the view that the requirements for a
successful application for condonation
[2]
have not been fulfilled. In my view a full explanation for the delay
setting out in detail the dates and times for the delay, are
absent.
The prospects of success relating to a defence to the liquidation
application, in my view, is absent and the case lodged
against the
Applicant by Respondent, forming the basis of its defence, in my view
has no bearing on the present liquidation application.
[13]
If there is no valid condonation application before this Court and
alternatively, the condonation
application is unsuccessful as
indicated above, then the Court is left with the Founding Affidavit,
Answering Affidavit and Replying
Affidavit in the liquidation
application before me.
[14]
I am satisfied on the papers before me, that in terms of Section 345
(1) (a) (i) of the Companies
Act 61 of 1973, as amended, the deeming
provision of the section has been proven in that service of the
letter of demand on the
Respondent took place and there was no
response to such letter within three weeks of service on the
Respondent.
[15]
I am also satisfied that the Respondent has admitted its indebtedness
to the Applicant through
the offer of settlement attached to Founding
Affidavit and Answering Affidavit.
[16]
Accordingly, having regard to the above, this Court is satisfied that
the Applicant has proven
its case for the final winding up of the
Respondent.
[17]
In the result an Order shall issue in terms of the Draft Order marked
X, as amended.
G.
ALLY
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The
date for
hand-down is deemed to be 24 May 2021.
Date of hearing:
10 September 2020
Date
of judgment: 21 May 2021
Appearances:
Applicant
:
Adv. T. Steyn
De
Vries Incorporated
93
Protea Place
Sandton
Bradh@devries.co.za
Respondent
:
Adv. S. Cohen
Larry
Marks Attorneys
10
Sandler Road
Fairmount
Johannesburg
info@lam.co.za
[1]
Caselines: 001 – 163 to 174
[2]
Mulaudzi v Old Mutual Life Assurance Company (South Africa)
2017 (6)
SA 90
(SCA) @ para 26