About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 576
|
|
Money Skills Property Investments v Money For Jam Investments 7 (Pty) Ltd (23085/09) [2010] ZAGPPHC 576 (4 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT PRETORIA)
CASE NO.:23085/09
DATE: 4 FEBRUARY
2010
In the matter
between
MONEY
SKILLS PROPERTY
INVESTMENT
..............................................................................
Applicant
(in
liquidation)
and
MONEY
FOR JAM INVESTMENTS 7 (PTY)
Ltd
......................................................................
Respondent
JUDGMENT
MATOJANE.
J
[1] This is an
application for an order placing the respondent under final
winding-up and that costs of the application be costs
in the
winding-up of the respondent.
[2] The applicant
made a demand in terms of section 345(l)(a)(i) of the Companies Act,
No. 61 of 1973 ("the Act") for
payment of an amount of R75
000.00 together with mora interest thereon being in respect of monies
lent and advanced by applicant
to the respondent on 13 February 2007,
which amount is said to be repayable on demand and is now due, owing
and payable.
[3] The respondent
did not pay the claimed amount, or secure or compound for it within
three weeks of receipt of the letter as required
by the Act. The
applicant relies on this neglect for its contention that the
respondent is unable to pay its debts.
[4]
The application based on s345 (l)(a) of the Act will generally fail
where there is a bona fide dispute on reasonable grounds
as to either
the existence of the debt or that payment of it is due on the basis
that winding-up proceedings are not appropriate
for the resolution of
such a dispute. See
Kalil
v Decotex and Another
1988(1)
SA 943 (AD).
[5] In its opposing
affidavit the respondent disputes that it is indebted to the
applicant and that it is unable to pay its debts.
The respondent has
the duty to show that the indebtedness is disputed on bona fide and
reasonable grounds.
[6] The respondent's
version is that an oral joint venture agreement was concluded between
the parties and a certain Blue Waves
Investments (Pty) Ltd. in terms
whereof an immoveable property (Erf 450) was sold by the owner
thereof to Blue Waves Investments
(Pty) Ltd. It was agreed that the
said property will be developed in a joint venture and that the
respondent would undertake the
work related to the development of the
said Erf 450 and that applicant will advance the purchaser of the
Erf, Blue Waves, the indebtedness
in order for the transfer costs
relating to the sale of the Erf to be paid.
[7] After
registration of Erf 450 into its name, Blue Waves would register for
VAT, claim the VAT paid in respect of the purchase
agreement and
would thereupon pay it over to the applicant. It is not clear from
the opposing affidavit, as it is correctly contended
by the
applicant, that the \/AT so reclaimed will discharge the
indebtedness.
[8] The Respondent's
version is substantiated by an affidavit by Carlo Center, who was a
financial director of the applicant at
the time the said Dral
agreement was entered into. He states that he was personally involved
in the negotiations between the various
parties to the oral agreement
and has personal knowledge of the terms thereof. He confirm the
respondent's version that the amount
of R75 000.00 was not a loan
which the applicant made to the respondent and no loan agreement was
entered into between applicant
and the respondent.
[9]
In the replying affidavit the applicant sought to rely on the
evidence of the deponent to the founding affidavit, Mr Eloff,
at the
s 417 enquiry to discredit the respondent's version deposed to in the
opposing affidavit. The record of the proceedings
in the enquiry is
admissible in so far as its contents could serve the prove that the
witness testified to that which was recorded
at the enquiry. The
record is not admissible to proof the facts obtained in the
testimony, its evidential value is the matter to
be determined by the
court. See
Cordiant
Trading CC v Daimler Chrysler Financial Services
2005
(4) SA 389
at 397 E. It seems to me to be clear that Mr. Eloff's
evidence at the s 417 equiry can only be used against him as
admissions and
not against the respondent.
Simmons
NO v Gilbert Hamer & Co Ltd
1962
(2) SA 487
at 492 accordingly, whatever admissions he made at the
enquiry are inadmissible in the present proceedings and are
disallowed.
[10] In my view, the
respondent is disputing the indebtedness on bona fide reasonable
grounds. In the result, the application is
dismissed with costs
including the reserved costs.
MATOJANE, J
JUDGE OF THE HIGH
COURT