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Knoop NO and Others v SAFIC (Pty) Ltd (2023/038511) [2023] ZAGPJHC 867 (3 August 2023)

80 Reportability
Insolvency Law
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Brief Summary

Insolvency — Provisional winding up — Application by provisional liquidators of Accentuate Management Services (Pty) Ltd for the provisional winding up of SAFIC (Pty) Ltd on grounds of insolvency — Respondent disputes debt of R 22 million owed to AMS, claiming it was transferred to third parties — Liquidators argue transfer not valid and respondent is factually insolvent — Court finds that the respondent has not shown on balance that the validity of the alleged transfer of the debt is disputed on bona fide and reasonable grounds — Respondent provisionally wound up and placed in the hands of the Master.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were an application for the provisional winding-up of the respondent company, brought as Part B of a broader application. The application was launched by the provisional liquidators of Accentuate Management Services (Pty) Ltd (in liquidation) (AMS), acting on behalf of AMS in its capacity as an alleged creditor of the respondent.


The parties were Kurt Robert Knoop N.O. and Margaretha Susanna Goodrich N.O. as the first and second applicants in their capacities as provisional liquidators, together with AMS (in liquidation) as the third applicant, and SAFIC (Pty) Ltd as the respondent.


Procedurally, the matter was initially brought in the urgent court, but ultimately came before the court under the Commercial Court Directives. Part A had already been determined ex parte, resulting in an order extending the liquidators’ powers to include all powers contemplated in section 386(4) of the Companies Act 61 of 1973. The respondent sought reconsideration of the Part A order, but that challenge was not pursued meaningfully at the hearing and did not affect the determination of Part B.


The general subject-matter of the dispute concerned whether the respondent should be placed in provisional liquidation on the basis that it was factually and commercially insolvent, alternatively on the basis that it was just and equitable to wind it up. The case turned primarily on whether a substantial alleged debt of approximately R22 million was still owed by the respondent to AMS, or whether it had been effectively transferred away from AMS to three individuals under a “sale of shares and claims” transaction.


2. Material Facts


AMS, the respondent, and another company (Floorworx Africa (Pty) Ltd) were historically part of a group of associated companies owned by a listed holding company, Accentuate Limited. AMS performed a finance/treasury and management services function within the group and did not otherwise trade, while the respondent and Floorworx were the principal trading entities.


It was common cause that AMS had a substantial claim against the respondent arising from a loan account that, on the version advanced in the application, had increased to approximately R22 million. This claimed indebtedness constituted the “fulcrum” of the dispute because, if the debt remained due to AMS, it supported both AMS’s standing as creditor and the allegation that the respondent was insolvent; if the debt had been validly acquired by others, the respondent contended that AMS was not a creditor and that winding-up could not be grounded on that debt.


The respondent’s defence depended on a March 2020 “Sale of Shares and Claims Agreement”, under which Eric Platt, Douglas Cutter, and Luke Quinn purportedly purchased shares in the respondent from Accentuate and also purportedly acquired the claim for repayment of the loan said to be owed by the respondent to AMS. The agreement recorded a purchase consideration of R10 million for both the shares and the “claims,” and it relied on a mechanism whereby the AMS loan was “deemed” to be reduced by the payment of that purchase price.


The court treated the following as material to assessing the alleged disposition of the debt. AMS’s 2019 financial statements reflected accumulated losses and a position where liabilities exceeded assets by roughly the same magnitude as the indebtedness concerned. The respondent’s 2019 financial statements recorded the respondent as owing AMS approximately R14 million on an unsecured loan, with auditors and directors noting uncertainty about recovery due to AMS’s going concern status. In later financial statements (including for 2020), the loan was not recorded, and elsewhere it was reflected as having been “paid,” despite it being common cause that it was not paid.


The wider context included the group’s financial distress from about 2018, the delisting of Accentuate, and the placement of Accentuate and Floorworx into voluntary business rescue in April 2022. The judgment records that the alleged transaction was part of a broader set of arrangements said to have been aimed at keeping the respondent viable while leaving AMS exposed, including the use of external finance to address bank claims selectively while AMS was left in a materially worse position.


A further material feature was that Accentuate, as holding company, was said not to trade and not to hold a bank account, and that AMS’s bank account was habitually used by the group. The agreement nonetheless designated Accentuate as the payee of the purchase price.


The dispute on the papers was whether the agreement and surrounding circumstances established, on a bona fide and reasonable basis, that the debt to AMS had been transferred away and was no longer owing to AMS. The liquidators contended the purported transfer was a contrivance designed to create the impression of an assignment of the debt when, in fact, it did not occur and was invalid.


3. Legal Issues


The central legal questions were whether the respondent had shown, for purposes of provisional winding-up proceedings, that the alleged indebtedness to AMS was genuinely disputed on bona fide and reasonable grounds, and consequently whether AMS (through its liquidators) had standing as a creditor to seek winding-up.


Closely connected to this was whether the respondent was to be regarded as factually and commercially insolvent given the existence (or absence) of the R22 million debt, and whether the case warranted the exercise of the court’s winding-up jurisdiction on the grounds advanced, including the contention that it was just and equitable to wind up the respondent.


The dispute was primarily one of the application of legal principles to the facts, in particular the application of the established test governing winding-up applications where an alleged debt is disputed. It required evaluative assessment of whether the respondent’s defence to the debt was sufficiently substantiated and reasonable to prevent the grant of provisional liquidation.


4. Court’s Reasoning


The court approached the matter on the basis that the R22 million debt was central: if the debt was not shown to have been validly acquired by others, the respondent’s insolvency followed; if it was validly acquired, the respondent contended both that it was solvent and that AMS was not a creditor.


In determining whether the debt was disputed on bona fide and reasonable grounds, the court applied the principle that a winding-up order should not be granted where the indebtedness is genuinely and reasonably disputed in the sense described in the authorities cited. The judgment framed the question as whether the respondent had shown, on balance, that the validity of the alleged transfer of the debt rendered the indebtedness disputed on bona fide and reasonable grounds.


On the facts, the court scrutinised the asserted mechanism by which the debt was said to have moved from being an asset of AMS to being owned by three individuals under the “Sale of Shares and Claims Agreement.” The court emphasised that the agreement was misleading to the extent that it proceeded as though Accentuate could dispose of the debt in issue, when the debt was treated as an asset belonging to AMS. The respondent’s request that the court infer a cession of the debt to Accentuate (based on a lack of contemporaneous objection) was not accepted, particularly in light of the stance recorded in the judgment that the business rescue practitioner of Accentuate aligned with the liquidators’ view that the purported disposition was incompetent.


The court considered that even if a prior cession to Accentuate were assumed, the arrangement would involve dispossession for no value and would not meet solvency and liquidity requirements, reinforcing the conclusion that the transaction could not legitimately have removed the debt from AMS’s estate. The court also regarded the transaction as not being at arm’s length.


A key feature in the court’s reasoning was the internal incoherence in the agreement’s financial mechanics, particularly that the AMS loan was “deemed” to be reduced by the payment of the R10 million purchase price that was due to Accentuate. The court regarded this as commercially inexplicable in ordinary terms, especially because it entailed the purchase price not being directed to the seller (Accentuate) in a manner consistent with a straightforward sale, but being used to create the appearance that AMS’s claim had been reduced.


The court further considered the accounting treatment reflected in the financial statements and found it consistent with an attempt to make the loan “disappear” through creative accounting rather than through lawful repayment or lawful transfer. The fact that the loan was reflected as “paid” when it was common cause that it was not paid, and that the loan was omitted from certain financial statements, was treated as supporting the applicants’ case that no legitimate extinguishment had occurred.


Having stripped away what it described as “creative accounting” and “sleight of hand,” the court concluded that the transaction relied upon to show the transfer of the debt was patently invalid ex tunc. On that basis, the respondent had not shown that the indebtedness to AMS had been extinguished or validly transferred, and the court held that, for purposes of the provisional winding-up application, the respondent was insolvent.


5. Outcome and Relief


The court granted an order placing the respondent under provisional winding-up in the hands of the Master.


A rule nisi was issued calling upon interested parties to appear on 23 October 2023 to show cause why a final winding-up order should not be granted.


The court ordered publication of the rule nisi in the Government Gazette, the Staatskoerant, and the newspapers The Star and Die Beeld.


The costs of the application were ordered to be costs in the winding-up.


Cases Cited


Badenhorst v Northern Construction Enterprises (Pty) Ltd 1956 (2) SA 346 (T)


Kalil v Decotex (Pty) Ltd [1987] ZASCA 156; 1988 (1) SA 943 (A)


Legislation Cited


Companies Act 61 of 1973 (section 386(4))


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the respondent failed to demonstrate, on bona fide and reasonable grounds, that the debt of approximately R22 million allegedly owing to AMS had been validly transferred to three individuals under the March 2020 “Sale of Shares and Claims Agreement.” The purported transaction was treated as invalid from the outset, with the result that the debt remained an asset of AMS for the benefit of its creditors.


On that footing, and for purposes of the provisional winding-up proceedings, the court found the respondent to be insolvent and granted a provisional winding-up order with a rule nisi and the usual publication directions, with costs to be costs in the winding-up.


LEGAL PRINCIPLES


The judgment applied the principle that winding-up proceedings are not an appropriate mechanism to enforce payment of a debt that is genuinely disputed on bona fide and reasonable grounds, and that where such a dispute exists, the court should not grant a winding-up order on the strength of the contested indebtedness. This principle was applied through the court’s assessment of whether the respondent’s asserted defence—that the debt had been acquired by others—was substantiated and reasonable on the papers.


The judgment further reflects that where the alleged extinguishment or transfer of a debt is not supported by a coherent and lawful transactional foundation, and appears instead to be an artificed arrangement (including through internal contradictions in the transaction documents and implausible payment mechanics), the court may reject the assertion that the debt has ceased to be owing, at least for purposes of determining whether provisional winding-up relief is justified.


It also illustrates that, in assessing a provisional winding-up application, the court may evaluate surrounding circumstances such as the relationship between group entities, the commercial coherence of the transaction relied upon, and the consistency (or inconsistency) of financial statements with the alleged legal effect of the transaction, insofar as these matters bear on whether the respondent has shown a bona fide and reasonable dispute of indebtedness and whether insolvency is established on the version accepted for interim relief.

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[2023] ZAGPJHC 867
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Knoop NO and Others v SAFIC (Pty) Ltd (2023/038511) [2023] ZAGPJHC 867 (3 August 2023)

REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case Number:
2023/038511
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
NOT REVISED
03/08/23
In
the matter between:
KURT
ROBERT KNOOP N.O.
First
Applicant
MARGARETHA
SUSANNA GOODRICH N.O.
Second
Applicant
As
the provisional liquidators of
ACCENTUATE
MANAGEMENT SERVICES (PTY) LTD
(IN
LIQUIDATION)
(Registration
number: 2003/005962/07)
ACCENTUATE
MANAGEMENT SERVICES (PTY) LTD
(IN
LIQUIDATION)
(Registration
number: 2003/005962/07)
Third
Applicant
And
SAFIC
(PTY) LTD
(Registration
number: 1981/010263/07)
Respondent
ORDER
[1]
The respondent is provisionally wound up and
placed in the hands of the Master.
[2]
A rule nisi is issued calling upon any interested
person to appear and show cause on the
23
rd
of October 2023
why
a final order for winding up should not be granted by this court.
[3]
The rule nisi is to be published in the Government
Gazette, the Staatskoerant and
The Star
and
Die Beeld
newspapers.
[4]
The cost of this application are costs in the
winding up.
JUDGMENT
Fisher J
Introduction
[1]
This is Part B of an application brought by the
provisional liquidators of Accentuate Management Services (Pty) Ltd
(“AMS”).
The liquidators seek the provisional winding up
of the respondent  on behalf of AMS qua creditor of the
respondent
[2]
The application was initially brought in the
urgent court. It now comes before me by way of the Commercial Court
Directives.
[3]
Part A
has already been decided
ex
parte
.
In terms thereof an order was granted for the extension of powers of
the liquidators so as to encompass all the powers contemplated
in
section 386(4) of the 1973 Companies Act.
[1]
On the basis of such extension of powers they now seek to move this
application.
[4]
The respondent sought the reconsideration of the
order under Part A, but this was not pressed with much enthusiasm by
counsel for
the respondent, Mr Daniels. This is unsurprising and
sensible as no case is made out for such reconsideration.
[5]
The application for the provisional winding up is
sought on the basis that the respondent is factually and commercially
insolvent
and on the basis that it is just and equitable that the
respondent be wound up.
The issues
[6]
A debt of R 22 million owing to AMS by the
respondent is the fulcrum on which the dispute in this case rests.
The respondent alleges
that this indebtedness to AMS was acquired by
three individuals and thus that the debt is longer owing by the
respondent to AMS.
The respondent argues that the absence of such
debt means that it is not factually insolvent, that it is trading
profitably and
that it is well able to pay its debts as an when they
arise.
[7]
This assertion strikes at the heart of the
dispute. If the debt was not acquired, the respondent is insolvent;
if it was acquired
then the respondent argues that not only is the
respondent solvent but the liquidators also lack
locus
standi
in that AMS is not a creditor of
the respondent.
[8]
The liquidators argue that the basis for the
alleged transfer of the indebtedness is not made out on the face of
the documents and
the surrounding facts and that the debt has not
been transferred as alleged. They argue that the purported sale of
shares and claims
agreement relied on for this defence is nothing
more than a contrivance designed to create the impression of the
assignment of
the debt when this has, in fact, not taken place under
the agreement.
[9]
Thus,
the question which falls squarely to be determined is whether the
respondent has shown on balance that the validity of the
alleged
transfer of the debt,
[2]
and
thus that the indebtedness is disputed on
bona
fide
and
reasonable grounds.
[3]
[10]
With this in mind, I turn to an analysis of the
facts surrounding the alleged disposition of the debt. The figures
referred to have
been rounded up or down for the sake of convenience.
The alleged
disposition of the debt
[11]
The Platt family in the form of brothers Fred and
Eric are main protagonists in the saga relating to the sale of the
debt owed to
AMS as are Messrs Douglas Cutter and Luke Quinn.
[12]
Prior to its liquidation, AMS, the respondent and
Floorworx Africa Pty (Ltd) (“Floorworx”) formed part of a
group of
associated companies which were wholly owned by Accentuate
Limited (“Accentuate”) which was listed on the
Johannesburg
Stock Exchange (JSE).
[13]
The respondent is a manufacturer and supplier of
cleaning chemicals, equipment and consumables as well as of a range
of water treatment
technology. Floorworx manufactures and distributes
a variety of flooring solutions. Thus, these entities have synergies.
[14]
Furthermore, the respondent is receiving
approximately R 49 000 per month from Floorworx in respect of
rental of shared IT/switchboard
premises. Floorworx also purchases,
on a monthly basis, chemicals, adhesives and solutions from the
respondent in an amount of
approximately R 300 000.
[15]
The respondent and Floorworx also each own
valuable goodwill and intellectual property relating to their product
bases. The preservation
of these assets for those guiding the affairs
of the group is obviously important.
[16]
Eric Platt a director of the respondent, who makes
the answering affidavit, explains that AMS was used to perform a
finance/treasury
function for the group and to render management and
administrative services to the subsidiaries. It did not otherwise
trade.
[17]
Accentuate is a holding company only and also does
not trade. It does not hold a bank account. Thus, the two trading
entities in
the group were the respondent and Floorworx.
[18]
The group, as a whole, fell into financial
distress from about 2018. This distress led to a scheme which brought
about the liquidation
of AMS and to the concluding by key group
executives of the transactions which led to the alleged disposition
of the debt in issue.
[19]
As part of this scheme Accentuate was
delisted and placed in voluntary business rescue on 14 April 2022.
Floorworx was also placed
in voluntary business rescue at the time.
[20]
Fred, at this stage, held directorships in
Accentuate, Floorworx and AMS. Eric was a party to the agreement
under which the debt
was purportedly transferred out of AMS and is
the current managing director of the respondent. Quinn was also
previously a director
of Accentuate and he and Cutter are directors
of the respondent.
[21]
In the annual financial statements for the year
ended 30 June 2019, it is recorded that AMS had accumulated losses of
R 22.2 million
and that its liabilities exceeded its assets by R 22.1
million.
[22]
The respondent, at this stage, is reflected in its
financial statements as owing AMS R14 million pursuant to a loan
which was unsecured,
bore interest at a rate linked to prime and had
no fixed term of repayment. It was furthermore noted by the
respondent’s
auditors and directors in these financial
statements that there was uncertainty as to the recovery of this loan
due to the going
concern status of AMS.
[23]
The liquidators point out that in AMS’s
financial statements for the period ending June 2020, a loss of R
31.5 million was
recorded. Importantly, the loan between AMS and the
respondent was not recorded in the financial statements for this
period and
neither was the transaction under the agreement. Thus, the
loan had simply been made to seem to disappear through creative
auditing
and accounting.
[24]
Elsewhere in the later financial statements, the
loan of R 14.1 million is recorded as having been “paid”.
This is extraordinary
in that it is common cause that it was never
paid. Mr Daniels for the respondent argued that I should regard this
as a forgivable
mistake on the part of the directors and auditors.
[25]
In the financial statements of the respondent for
the period ending June 2018 a loss of R8.3 million is recorded. Its
assets exceeded
its liabilities by R 4.3 million for this period.
[26]
It seems that it was at this stage that the
respondent took the loan from AMS in the amount of R 14.1 million.
[27]
In the respondent’s financial statements
ending 2019, the net loss had increased to R10.8 million and the
total liabilities
exceeded the assets by about the same amount. Doubt
was expressed on the respondent’s ability to continue as a
going concern.
[28]
Pursuant to its delisting, Accentuate was left
with one major shareholder which owns approximately 90 % of its
shareholding, Pruta
Securities (Limited) Jersey (“Pruta”).
[29]
It is probably not unrelated to the business
dealings at issue that Pruta is established in a notorious tax haven.
There can be
little doubt that the main protagonists in this case or
at least some of them are connected in some way with Pruta.
[30]
Eric explains that the business rescue of
Floorworx and Accentuate led to FNB calling up the loan facility from
AMS. Because of
the usual cross sureties within the group this led to
claims against the other group members by FNB. Eric suggests that
this was
unexpected in that these cross sureties had been
“overlooked”. This is unlikely. It is more probable that
it was part
of the plan of isolating AMS and attempting to keep the
other members of the group viable by using the external finance from
Pruta
selectively.
[31]
Thus, part of the scheme appears to have involved
the indebtedness of FNB being settled by loan finance obtained from
Pruta. This
loan finance was applied selectively to protect the
respondent from foreclosure by FNB whilst leaving other creditors of
AMS and
thus essentially of the group at risk. Furthermore, in terms
of the scheme, the main asset of AMS, being the claim against the
respondent, was to be stripped out of AMS thus rendering AMS
hopelessly insolvent whilst the respondent was, in theory, to be free

of this debt.
[32]
The scheme was purportedly orchestrated through
the terms of the Sale of Shares and Claims agreement entered during
March 2020 (“the
agreement”). In terms of the agreement,
Eric Platt, Cutter and Quinn purchased from Accentuate the shares of
the respondent
from Accentuate and purportedly the claim for the
repayment to AMS of the loan of the respondent.
[33]
In terms of the agreement, the loan owing
respondent had by this been increased to R 22 million. This claim for
R22 million, which
was an asset belonging to AMS, was purportedly
sold to the three purchasers. Accordingly, in theory, the loan no
longer fell to
be paid by the respondent to AMS but was payable to
the three purchasers. The purchase consideration for both the claim
and the
shares of the respondent was R 10 million.
[34]
The clear aim of the scheme which emerges from the
agreement was to acquire control over the business of the respondent
including
its goodwill and intellectual property on the basis that it
was rendered debt free.
[35]
The sale claims were defined to mean all the
claims of Accentuate against the respondent and the AMS loan.
[36]
In relation to the devising of the scheme, it is
alleged on behalf of the respondent by Eric Platt that, when the
group fell into
distress, the directors sought restructuring advice
from Stephen Roper. It seems that an attempt is made by Eric to place
the orchestration
of the scheme at the door of Roper.
[37]
It was decided by the directors in the group to
appoint Roper as Business Rescue Practitioner (“BRP”) of
Floorworx and
Accentuate once these entities were in business rescue.
It seems that there was initially cooperation between the directors
and
Roper.
[38]
The success of the scheme, on the face of the
agreement depended on the cooperation of Roper as BRP of Accentuate
and Floorworx.
[39]
The relationship between Roper and these directors
has, however, soured. In February 2023 Pruta launched an application
to remove
Roper.
[40]
Eric attempts in the answering affidavit to create
the impression that the Platts, Quinn and Cutter are at arm’s
length from
Pruta. As I have said, this is unlikely.
[41]
The BRP is thus no longer cooperative. He is
represented by the same attorneys who represents the liquidators.
Thus, there is a
concerted approach afoot; the BRP of Accentuate qua
purported seller of the claim and the liquidators of AMS adopt the
same stance
– being that the purported disposition of the claim
of AMS against the respondent is part of an unlawful scheme to
dispossess
AMS of its asset and is void
ab
initio
.
[42]
The agreement is called a “Sale of Shares
and Claims Agreement”. This is misleading as to the sale of the
claims. It
assumes that the debt in issue was Accentuate’s to
dispose of. However, it was not.
[43]
I was asked by Mr Daniels to presume a cession of
the debt to Accentuate on the basis that there was no objection made
on behalf
of AMS to the transaction at the time. This is a stretch.
As I have said, the BRP of Accenture accepts the fact that the sale
was
incompetent and that there was no cession of the claim.
[44]
In any event, such a cession would be a blatant
dispossession for no value on any version and the transaction
certainly would not
pass a solvency and liquidity test.
[45]
It can be safely assumed, at this stage, that the
sale by Accentuate of the shares to Eric Platt, Quinn and Cutter is
prima facie
not
at arm’s length.
[46]
The following peculiarities which are inherent in
the text of the agreement reveal the illegality of the transaction.
The AMS loan
was “deemed” to be reduced by the payment of
the purchase price of R10 million which was, in fact, due to
Accentuate.
Such a contortion is inexplicable in normal commercial
terms. Why would the purchase price for the shares and claims not go
to
the seller (Accentuate) but rather to the entity whose claim has
been purchased from the seller?
[47]
Thus, at least for the purposes of this
provisional application, there is no feasible basis on which this
loan has been made to
disappear.
[48]
Once it is accepted that this “disappearing”
loan could not actually legitimately have disappeared, it follows
that
the loan, in fact, remains an asset for the benefit of the
creditors of AMS.
[49]
There has been an attempt made to disguise the
disposition as being acquired for value on the basis of the payment
of the purchase
price under the sale of shares and claims into the
bank account of AMS. It is, however, common cause that Accentuate had
no bank
account and that the AMS account was habitually used by the
group. In terms of the agreement Accentuate is the payee and the
payment
was to it and not AMS.
Conclusion
[50]
Shorn of all the creative accounting and the leaps
of logic and sleight of hand that the scheme requires, the
transaction is patently
invalid
ex tunc
.
[51]
Thus, to my mind, the indebtedness of the
respondent has not been shown to have been extinguished. I, thus,
find that, for the purposes
of this part of the application, the
respondent is insolvent.
Order
[52]
I thus order as follows:
[1]
The respondent is provisionally wound up and
placed in the hands of the Master.
[2]
A
rule nisi
is issued calling upon any interested person to
appear and show cause on the 23
rd
of October 2023 why a final order for winding up
should not be granted by this court.
[3]
The
rule nisi
is to be published in the Government Gazette, the
Staatskoerant and
The Star
and
Die Beeld
newspapers.
[4]
The cost of this application are costs in the
winding up
D FISHER
JUDGE OF THE HIGH
COURT
JOHANNESBURG
Heard:
20 July 2023
Delivered:
03 August 2023
APPEARANCES:
For the applicants:
Adv. J E Smit
Adv. L Van Rhyn van
Tonder
Instructed by:
Smit Sewgoolam
Incorporated
For the respondent:
Adv. A J Daniels SC
Adv. E Larney
Instructed by:
Fullard Mayer Morrison
Incorporated
[1]
61 of
1973.
[2]
Badenhorst
v Northern Construction Enterprises (Pty) Ltd
1956
(2) SA 346 (T).
[3]
Kalil
v Decotex (Pty) Ltd
[1987]
ZASCA 156
;
1988 (1) SA 943
(A).

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