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2024
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[2024] ZAGPPHC 56
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Du Toit and Others v Maartens N.O and Others (61215/2020) [2024] ZAGPPHC 56 (26 January 2024)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
HIGH COURT DIVISION, PRETORIA
Case
no: 61215
/2020
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE:
26 JANUARY 2024
SIGNATURE
In
the matter between:
THELIZTA
DU TOIT
First Applicant
DON
JAMES DOUGLAS MCINTOSH N.O.
Second Applicant
CHARLENE
MCINTOSH N.O.
Third Applicant
RIAN
CLOETE N.O.
Fourth Applicant
(In
their capacities as the trustees of the Douggie Don Trust,
IT2864/95)
LEONIE
GEERKENS N.O.
Fifth Applicant
(In
her capacity as executrix in the estate late Marc Geerkens)
and
DAWID
MAARTENS N.O.
First
Respondent
(Cited
as BRP of Roderick Trade 9 (Pty) Ltd in business rescue)
RODERICK
TRADE 9 (PTY) LTD (in business rescue)
Second Respondent
COMPANIES
AND INTELLECTUAL PROPERTY
COMMISSION
Third Respondent
JUDGMENT
MAKHOBA,
J
[1]
The application before this court is for the final winding-up of the
second respondent.
On 7 February 2023, the second respondent
consented to a provisional winding up order. The application is
opposed by the second
respondent. The respondent is represented by Mr
Reader.
[2]
The first applicant was an
employee of the second respondent. Her claim relates to the
unpaid
remuneration for services she rendered to the second respondent.
[3]
The second, third and fourth applicants are trustees of the Dougie
Don Trust. The
trust has a claim of R8 904 978. 00 against
the second respondent.
[4]
The fifth applicant is the executrix of the estate of the late Marc
Georkens. The
estate has a claim against the second respondent in the
amount of R83 755.32. The claim is based on the court order
which
was granted on the 8 May 2020.
[5]
Mr Robert Bruce Reader is the sole director and shareholder member of
the second respondent.
The Business Rescue Practitioner (first
respondent) has filed a
notice terminating
the business rescue. The first respondent is
therefore no longer an active role player in these proceedings.
[6]
The applicants submit that the second respondent is in a state of
insolvency for the
following reasons.
6.1
The second respondent is not in a financial position to pay the
applicants who are creditors
of the second respondent.
6.2
The second respondent cannot pay its liabilities as and when they
fall due in the ordinary
course of its business.
6.3
The second respondent initiated the business rescue due to its
inability to pay its debts.
[7]
It is submitted on behalf of the applicants that concurrent creditors
are entirely
dependent upon the effectiveness of a liquidation and
steps taken by the liquidator to investigate the affairs of the
company.
[8]
On prescription it is further
submitted on behalf of the applicants that the running of
prescription was interrupted as well as delayed by the business
rescue on 15 May 2020.
[9]
The second respondent submit that the fourth applicant does have a
claim against the
second. In fact the main instigator behind the
liquidation application is Don Mcintosh who is the person that is
controlling the
trust.
[10]
The second respondent argues that the business rescue does not
interrupt prescription and that
the first applicant’s claim has
prescribed.
[11]
The fourth applicant’s claim has been paid save for costs. The
outstanding costs is in
dispute and ought to be taxed first.
[12]
The issue in this matter is whether the second respondent is able to
meet current demands on
it and can remain buoyant.
[1]
The applicants must show that the second respondent is insolvent and
liable to be wound-up.
[2]
[13]
In my view it is clear that the second respondent
is unable to pay the debts. I say this because the second
respondent
agreed to the provisional winding up.
[14]
I am persuaded to accept the views expressed by the applicant’s
counsel that the running
of prescription was delayed when the second
respondent entered into business rescue. This is in line with the
case law relied upon
by the applicants’ counsel.
[15]
Again in my view, the running of prescription was interrupted when
the second respondent consented
to granting of a provisional
winding-up against it.
[16]
In addition an attempt to settle the matter in my view also
interrupted prescription.
[17]
I am satisfied that the applicants are creditors of the second
respondent and cannot obtain payment
of their debts owed to them by
the second respondent. This court is satisfied that all the
affidavits in this matter have been
properly attested to.
[18]
I make the following order:
18.1
The application for the final winding-up of the second respondent is
granted.
18.2
Cost of this application is to be cost in the winding – up of
the second respondent.
MAKHOBA
J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
AND RESERVED JUDGMENT: 14 NOVEMBER 2023
JUDGMENT
HANDED DOWN ON: 26 JANUARY
2024
Appearances
:
For
the Applicants:
Adv
MP van der Merwe SC (instructed by) Couzyn, Hertzog & Horak
ATTORNEYS
For
the Second Respondent and Intervening Party:
Adv
U van Niekerk (instructed by) JI van Niekerk Incorporated.
[1]
Absa
Bank Ltd v Rhebokskloof (Pty) Ltd and others, 1993 (4) SA 436 (C).
[2]
Johnson
v Hirotec (Pty) Ltd,
2006 (4) SA 930
(SCA).