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2023
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[2023] ZAFSHC 125
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Jenn Training and Consultancy (Pty) Ltd v Ad Ladem (Pty) Ltd t/a Kids Campus (2724/2022) [2023] ZAFSHC 125 (14 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2724/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
JENN
TRAINING & CONSULTANCY (PTY)LTD
Applicant
And
AD
LADEM (PTY) LTD t/a KIDS CAMPUS
Respondent
JUDGMENT
BY:
C
REINDERS, J
HEARD
ON:
17
NOVEMBER 2022
DELIVERED
ON:
14
APRIL 2023
[1]
This is an opposed application wherein the applicant seeks an order
that the respondent’s estate be
placed under provisional
liquidation in the hands of the Master of the High Court.
[2]
The applicant avers that during 2019 it entered into an agreement
with the respondent in terms whereof the
respondent borrowed an
amount of R 2 000 000-00 from applicant. The
respondent, so the applicant avers, breached
the agreement by failing
to make any payment and/or at least the first payment. This caused
the applicant to serve a notice in
terms of section 345 of the
Companies Act
[1]
.
[3]
The respondent failed to react to the notice and obviously failed to
effect any payment. The applicant therefore
relies on the provisions
of sec 345(1)(a) of the Act in that the respondent is deemed to be
unable to pay its debts.
[4]
The respondent filed an opposing affidavit. Therein the director of
the respondent states that she does not
intend to offer a seriatim
response to the founding affidavit as she opines that the applicant
does not have
locus standi
to prosecute the liquidation and
secondly denying the deponent to the applicant’s affidavit to
have been properly authorised
to institute the proceedings. In the
affidavit much is said about the “vagueness” of the
annexed loan agreement, however
it appears to be common cause that
the respondent did borrow the R 2 million, received the amount and
has failed to make any payments.
It is not suggested when the
respondent recons the amount is due and payable and/or what the
respondents view is how the loan should
be repaid. It is stated in
the affidavit that the respondent is not insolvent but that the
deponent does not intend to elaborate
on the allegation.
[5]
At this stage of the proceedings the applicant merely needs to show
its entitlement to the order prima facie.
It must show therefore the
balance of probabilities to be in its favour.
[2]
[6]
In as far as there are disputes on the papers a distinction is to be
drawn between disputes in respect of
respondent’s liability to
the applicant and other disputes. In respect of disputes regarding
respondent’s indebtedness,
the test is whether it appeared on
the papers that the applicant’s claim is disputed by respondent
on reasonable and bona
fide grounds and in respect of other disputes
whether the balance of probabilities favours the applicant’s
version.
[7]
Recently in
Atlantic
Oil Atlantic Oil Inland (PTY) Ltd v Datnis Trading (PTY) Ltd
[3]
Snellenburg summarised the
consequences of a respondent’s failure to rebut the statutory
presumption that it unable to pay
its debts as follows:
[18] In
Boschpoort
Ondernemings (Pty) Ltd v Absa Bank Ltd
the Supreme Court of
Appeal authoritatively held that the deeming provisions concerning
the inability to pay its debts, contained
in section 345 of the old
Companies Act may be used to establish the insolvency of a company.
The Court held that a commercially
insolvent company may be wound up
in accordance with chapter 14 of the old Companies Act, as is
provided for in subitem 9(1) of
schedule 5 of the new Companies Act
and that factual solvency in itself is not a bar to an application to
wind up a company in
terms of the old Companies Act on the ground
that it is commercially insolvent. “That a company's commercial
insolvency is
a ground that will justify an order for its liquidation
has been a reality of law which has served us well through the
passage
of time.” Factual solvency will however always be a
factor in deciding whether a company is unable to pay its debts.”
[8]
Snellenburg AJ concluded that “(e)ven if the respondent was
factually solvent, a fact that the respondent
did not establish, the
same would not be a bar to the liquidation of the respondent on the
basis that it is commercially insolvent.”
[4]
[9]
I am not convinced that any of the grounds raised by the respondent
is sufficient to decline a provisional
order of liquidation. To aver
that the deponent has not been properly authorised fails to convince
me. It is the attorney who should
be properly authorised and where
such authority is disputed it should be dealt with in terms of Rule 7
of the Uniform Rules of
Court.
[5]
[10]
Accordingly I am satisfied in all the circumstances that the
applicant has made out a case for the provisional winding up of
the
respondent.
[11]
Wherefore I make the following order:
1.
The Respondent Company is hereby placed under PROVISIONAL LIQUIDATION
in
the hands of the Master of the High Court.
2.
A Provisional Order is hereby issue calling upon all interested
parties
to show cause, if any, to the Court on the
1st
day of
June
2023
at
09h30
why a FINAL ORDER OF LIQUIDATION
should not be granted against Respondent Company.
3.
Service of this rule, and a copy of the Notice of Motion and
annexures
must be effected on the Respondent Company at its
registered Office, or its principal place of business within the
court's jurisdiction.
4.
This order must, without delay, be published in DIE VOLKSBLAD and THE
GOVERNMENT
GAZETTE.
5.
A copy of the winding-up order must be served on -
5.1 Every
registered trade union that as far as the Sheriff can reasonably
ascertain, represents any of the employees
of the Respondent Company.
5.2 The
employees of the Respondent Company by affixing a copy of the
application and provisional order on any notice
board to which the
employees have access inside the Respondent Company's premises or if
there is no access to the premises by the
employees, by affixing a
copy to the front gate or front door of the premises from which the
Respondent Company conducted any business.
5.3
The South African Revenue Services.
6.
The sheriff must ascertain whether the employees of the respondent
are represented by a Trade Union and
whether there is a notice board
on the premises to which the employees have access.
C REINDERS, J
On
behalf of applicant:
Adv
HJ van der Merwe
Instructed
by: Marius
van Zyl Inc.
BLOEMFONTEIN
On
behalf of respondent: Adv
S Grobler SC
Instructed
by:
Kramer
Weihmann & Joubert
BLOEMFONTEIN
[1]
Companies Act 61 of 1973(commonly referred to as “the old
Companies Act”.
[2]
Kalil v Decotex (Pty) Ltd and another
1988 (1) SA 943(A)
at 979.
[3]
(3460/2021) [2022] ZAFSHC 126.
[4]
At paragraph [19].
[5]
Unlawful Occupiers, School Site v City of Johannesburg
2005 (4) SA
199
(SCA).