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[2010] ZAGPPHC 252
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Du Plessis Van Zyl v Sublime Investments (Pty) Ltd and Others (69849/2010) [2010] ZAGPPHC 252 (17 December 2010)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
CASE
NO.: 69849/2010
DATE:
17/12/2010
In
the matter between:
JOHANNES
DU PLESSIS VAN
ZYL
....................................................
APPLICANT
And
SUBLIME
INVESTMENTS (PTY)
LTD
..................................................
I
st
RESPONDENT
MANDRE
BELEGGINGS (PTY)
LTD
..................................................
2
nd
RESPONDENT
RONBEL
108 (PTY)
LTD
....................................................................
.
3
rd
RESPONDENT
REGISTRAR
OF
COMPANIES
...........................................................
4
th
RESPONDENT
CARRIM,
S
..........................................................................................
.
5
th
RESPONDENT
JUDGMENT
WEBSTER
J
1.
The applicant, a creditor and shareholder in the first respondent
seeks an order in the following terms:
"2.
That the First Respondent is interdicted and restrained from
confirming or accepting the offer made on the immovable property
situated at Portion 96 of the farm Lytteiton 381 J.R., Deed of
Transfer T47965/94 on the day of November 2010 pending the
determination
of the application issued under case number 68859/10 by
the Applicant against the Respondents;
3.
That the First Respondent is interdicted and restrained pending the
determination of the application issued under case number
68859/10
from selling the property."
2.
Briefly summarised, the background facts are as follows:
2.1
the
applicant was placed under liquidation, at its own instance, on 10
April, 2003;
2.2
the
major, if not the sole asset it then owned was the immovable property
described in prayer 2
supra.
2.3.1
It
is common cause that there is a garage or filling station on the said
property which was, and is still leased to Engen Petroleum
(Engen).
2.3.2
In
terms of the said lease, Engen has a pre-emptive right to match any
offer received for the property, if the property is sold
during the
currency of the said lease. Engen is obliged to exercise such right
within 45 days of being notified of such offer.
If it exercises such
right a binding contract comes into existence on the same terms and
conditions as are set out in the offer
to purchase.
2.4.1
The
third respondent is the cessionary of debts allegedly owed by the
first respondent to ABSA BANK LTD which were duly ceded to
the third
respondent. There is litigation in progress regarding the "ABSA
CLAIMS" which amount to over R9 million.
2.4.2
There
is a dispute whether those debts have prescribed or not.
2.5
The
liquidator who was initially appointed on 1 July, 2004, did nothing
in execution of his statutory obligations to liquidate the
company
despite a written instruction given by the Master of the High Court
dated 1 April, 2009. In consequence of his alleged
failure to perform
his duties he was removed from office. A new liquidator was appointed
on 18 May, 2010.
2.6
The
new liquidator gave notice of his intention to sell the property by
public auction on 9 November, 2010. He proceeded to do so.
The
highest offer he received for it was
R11.2
million. This figure exceeds by far the value of R3 million placed
on the property by the applicant.
2.7
The current liquidator was not joined in his official capacity. He
opposes the granting of the order sought.
3.
It
was submitted on behalf of the applicant that the applicant having
found sufficient means to pay off all the first respondent's
creditors (the money having been paid into the applicant's Attorney's
trust account, expressly for that purpose) and there being
no other
creditors against the first respondent save perhaps for a claim by
the third respondent that was acquired by way of cession
from ABSA it
was desirable that the liquidation order should be set aside.
4.
It
was contended further that the ABSA claims having been rejected at
the meeting of creditors was no longer enforceable and,
alternatively,
that such claims had prescribed.
5.
It
was submitted on behalf of the first respondent that (i) the offer of
R11.2 million had already been communicated to Engen. That,
in terms
of the contract with Engen constituted an irrevocable offer. The
application instituted as it was before the expiry of
the period of
45 days was accordingly premature; (ii) there was no merit in the
application in terms of section 354 of the Act
to discharge the
company from liquidation as the seven years had elapsed since the
company was liquidated. Further, the offer obtained
in respect of the
property was such that the value previously placed on it by the
applicant and the former liquidator, was incomparable
with the offer
of R11.2 million. In the words of Joel Dick Pienaar, the auctioneer
who conducted the auction on 9 November, 2010,
the auction price is
"...an exceptionally good price for a service station property
at the given location", (iii) It
was submitted that any
further delay would be to the prejudice of creditors and shareholders
and further that in the applicant's
own contention the liquidator
would be held liable for any damage suffered as a consequence thereof
- such remedy was suitable
and available to the applicant were the
application to be refused.
6.
It
was submitted on behalf of the second and third respondents that (i)
the second respondent had proved a claim against the first
respondent
in the amount of R304 968.07; (ii) the third respondent had
instituted action in this court based on the ABSA claims
for R691
334.26. There was a further "ABSA claim" for R7 943 094.03
that was to be instituted. It was argued that from
enquiries made the
latter claim was apparently secured by a mortgage bond which would
quash any argument of its prescription; (iii)
the application for the
setting aside of the liquidation order would not pass muster the test
of proving "exceptional circumstances"
and further because
by no stretch of imagination could the applicant satisfy the Court,
that there was 'no dispute of fact'. In
addition, it was submitted
that the application envisaged by the applicant had to be considered
against the background of not only
the interest of the applicant but
those of the creditors and the public at large.
7.
In
an application for a temporary interdict the applicant has to
establish the following,
viz.,
(a)
a
prima
facie
right;
(b) a well-grounded apprehension of irreparable harm; (c) that the
balance of convenience favours the granting of the order;
and (d) the
absence of any other satisfactory remedy. I shall deal with these
briefly.
8.
The
applicant bases his "right" on the hope that the
application for liquidation will be set aside because the amounts
owing to the proved creditors have been secured by the payment of the
amount owing to them into his Attorney's trust account and
further
that there are no other creditors. This argument is most
unconvincing. The applicant wishes to have his cake and eat it.
In my
view the payment into his Attorney's trust account displays a lack of
good faith. If the intention is that the creditors
of the first
respondent should be paid I see no logic not to do so right away. The
applicant does not wish to do so lest he is
unsuccessful with his
section 354 application. Once the creditors have been paid he will
not be able to reclaim the money he has
paid. His intention if
unsuccessful appears to be able to instruct his Attorneys to refund
the money paid into the trust account
to himself.
9.
Secondly, the submission that the ABSA claims have prescribed
call for various assumptions to be made, the primary one being
that
none of these claims were secured by mortgage bond. It boggles the
mind that a bank would have lent a company that is trading
and owns
immovable property without taking the sensible precaution of passing
a mortgage bond over the company's sole asset, the
garage property or
any other immovable property. In my view it would be a travesty of
justice to assume in the applicant's favour
that the ABSA claims have
prescribed. Apart from these observations it would, in my view, be
totally reckless for the Court to
make any assumptions especially
that the section 354 application is likely to succeed when all the
facts are not before the Court
and more so because there is a doubt
in my mind that the facts as disclosed in this application do not
appear to make out "exceptional
circumstances" (See Ward v
Smit and Others: In re Gurr v Zambia Airways Corp Ltd 1998(3) SA 175
at 181 C-E where Scott JA
said:
n
It
follows that an applicant under the section must not only show that
there are special or exceptional circumstances which justify
the
setting aside of the winding-up order; he or she is ordinarily
required to furnish, in addition, a satisfactory explanation
for not
having opposed the granting of a final order
or
appealed against the order. Other relevant considerations would
include the delay in bringing the application and the extent
to which
the winding-up had progressed. (Compare Aubrey M Cramer Ltd v Wells
NO (supra at305H).)"
10.
The
applicant's apprehension of "irreparable harm" and the
absence of any other satisfactory remedy go in tandem in this
matter.
The property has fetched a bid that is just under four times the
applicant's valuation of the property. If the bid is accepted
the
applicant will land in a financial windfall beyond his dreams.
Further and in any event, if the order sought is not granted
and the
applicant is successful in his section 354 application after the bid
has been acted upon the applicant will still have
the right to sue
the liquidator for damages.
11.
With
regard to the balance of convenience the applicant finds himself in
the unenviable position where this application is still-borne.
This
is so because of Engen's right to exercise its right to first option.
As indicated above this application was launched within
the 45 day
"option period" available to Engen. The failure to cite and
join Engen in these proceedings is an insurmountable
obstacle that
"non-suits" the applicant.
12.
The
application is accordingly dismissed with costs.
G
WEBSTER
JUDGE
IN THE HIGH COURT