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[2012] ZAECPEHC 55
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Active Cooling v Lefutshe Electrical and Construction CC (3838/2011) [2012] ZAECPEHC 55 (10 August 2012)
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case No: 3838/2011
In the matter between:
ACTIVE COOLING
............................................................................................
Applicant
And
LEFUTSHE ELECTRICAL AND
CONSTRUCTION CC
...............................
Respondent
Coram:
Chetty, J
Heard:
2 August 2012
Delivered:
10 August 2012
Summary:
Close
corporation – Liquidation of –Defence raised –
Matter prescribed –
Prescription Act 68 of 1969
–
S 14
(1) – Interruption of prescription – Final order granted
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
[1] During December 2011, the
applicant sought an order for the provisional winding-up of the
respondent. In the founding affidavit,
the deponent,
Jan Hendrik
Strydom
(
Strydom
), the applicant’s sole member,
alleged that as at 1 March 2009 the respondent was indebted to the
applicant in the sum of
R153 408.99 in respect of services
rendered and goods supplied. It further alleged that on 31 March 2009
the respondent paid
the applicant the sum of R100 000.00 leaving
a balance of R53 408.99 which was due and payable. He adverted
to various
attempts, culminating during November 2009, made to the
respondent’s sole member, Mr
Moeketsi Duiker
(
Duiker
)
to extricate the aforesaid amount from the respondent but to no
avail.
Duiker
prevaricated on all undertakings made by him to
settle the respondent’s indebtedness which ultimately led to
the institution
of the present proceedings.
[2] The opposing affidavit filed by
the respondent was deposed to by its attorney, Mr
Marios Kyriacou
(
Kyriacou
), whence it appears that the opposition to the
relief sought is premised upon the prescription of the applicant’s
claim.
Kyriacou
furthermore contends that the respondent
neither tacitly nor expressly acknowledged its liability to the
applicant. In reply,
Strydom
states that the various
undertakings made by
Duiker
amounted to an admission of
liability and in amplification of this averment filed a supplementary
affidavit by the applicant’s
erstwhile debt collections clerk,
Ms
Robyn Coetzee (Coetzee)
, wherein she echoed the applicant’s
sentiments that at the end of 2009
Duiker
made an undertaking
to commence payments in settlement of the debt as from January 2010.
[3] The critical
question which falls for determination is whether the undertakings
made by
Duiker
constituted an
express or implied acknowledgement of liability and interrupted
prescription as contemplated by
section 14
(1) of the
Prescription
Act
1
.
Counsel for the respondent contended that the papers revealed a
factual dispute of such moment that the matter could not be
determined on the affidavits and ought to be referred for the hearing
of oral testimony. There is no merit in the submission. The
applicant’s case remains unanswered. The respondent, save for
raising a defence premised on prescription, chose not to dispute
any
of the applicant’s factual averments. There can be no doubt
that the various undertakings to effect payment in settlement
of the
debt amounts to an acknowledgement of liability and as such
interrupted the running of prescription.
[4] Although the applicant initially
sought an order for the provisional liquidation of the respondent,
the matter was fully argued
and no purpose would be served in issuing
a provisional order. The applicant has made out a case for the grant
of final relief
and in the circumstances, the following order will
issue –
A final winding-up order, with
costs, is granted
.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo the Applicant: Adv N. Mullins
instructed by Gregory Clark & Associates; 9 Buffelsfontein Road,
Mount Pleasant, Port Elizabeth;
Tel: 041-367 3489; Ref: G Clark
Obo the Respondent: Adv C. van
Rooyen instructed by Brown Braude & Vlok; 317 Cape Road, Newton
Park, Port Elizabeth.
1
Act
No, 68 of 1969