Land and Agricultural Development Bank of South Africa v Winsbeslis Vyf (Pty) Ltd (28604/21) [2022] ZAGPPHC 117 (16 February 2022)

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[2022] ZAGPPHC 117
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Land and Agricultural Development Bank of South Africa v Winsbeslis Vyf (Pty) Ltd (28604/21) [2022] ZAGPPHC 117 (16 February 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
DIVISION, PRETORIA)
Case
no:56025/20
In
the matter between:
THE
LAND AND AGRICULTURAL DEVELOPMENT
BANK
OF SOUTH AFRICA

Applicant
And
WINSBESLIS
VYF (PTY) LTD

Respondent
Registration
number:1999/001982/07
JUDGMENT
MAKHOBA
J
1.
The
applicant is the Land and Agricultural Development Bank of South
Africa. The respondent is a company (Winsbeslis Vyf (Pty) Ltd)
which
is involved in farming and or farming products. The applicant
concluded various loan agreements with the respondent.
2.
The
applicant seeks an order for the final winding-up of the respondent
on the basis that the respondent is unable to pay its debts
in terms
of section 344 (f) read with the provisions of section 345 (1) (a)
and 345 (1) (c), of the Companies Act 61 of 1973. The
applicant
further seeks that it be just and equitable that an order for the
final winding up of the respondent be granted as intended
in section
344 (h) of the Companies Act of 1973.
3.
The
respondent previously applied for a postponement of this liquidation
application pending the outcome of a related application
and three
other related liquidation applications in the Northern Cape Division,
for the purpose of consolidating all of the aforesaid
liquidation
application in the Northern Cape Division.
4.
This
transfer application to the Northern Cape Division is still pending
for the reason that the applicant filed a notice of intention
to
oppose and has not withdrawn its opposition or filed an answering
affidavit.
5.
The
following is common cause:
5.1
That
there are various agreements concluded between the applicant and the
respondent. Financial assistance was rendered by the applicant
to the
respondent for agricultural purposes.
5.2
That
the respondent failed to make payment in terms of the section 345
demand.
6.
Issues
in dispute:
6.1
Annexure
“LAN 1” which according to the respondent gives authority to the
applicants attorney. One of the two signatories must
be landbank’s
executive manager of legal services and the other must be a legal
advisor. Annexure “LAN 1” is a copy of an unsigned
version of a
delegation, of which the printing demonstrates that it required
signature in July 2020. The respondent therefore disputes
the
authority of the applicant’s attorney, including the status of and
compliance with the written authority relied upon in annexure
“LAN
1”.
6.2
That
the founding affidavit is not properly commissioned, rendering the
application defective.
6.3
That
the winding-up order would not be just and equitable in the
circumstances.
7.
In
my view it is clear from the founding affidavit
[1]
that the respondent owes money to the applicant as it also approached
the applicant’s attorneys to restructure its payment obligations
as
a result of its inability to make payment. Therefore, there is no
doubt that the applicant is entitled to launch the present
application.
8.
There
is no plausible explanation why the respondent failed to pay its
debts especially towards the applicant
[2]
.
Again in my view the respondent is unable to pay its debts and it has
no liquid assets or readily realisable assets to meet its
liabilities.
[3]
9.
The
attorneys for the applicant entered into negotiations with the
respondent and they relied on the authority granted to them by
the
applicant as per the letter dated 17 November 2016
[4]
.
Therefore, there is no merit in the respondent’s assertion that the
applicant’s attorneys had no authority to represent the
applicant.
10.
The
attestation clause in the founding affidavit refers to “he/she”
the pronoun. The pronoun “she” is not crossed out or deleted,
for
that reason the respondent submits that the founding affidavits is
not properly commissioned thus rendering the application defective.
In this regard the respondent relies on the decision in
Absa
Bank v Botha
[5]
.
11.
In
my view the decision in
Absa
Bank v Botha
[6]
is distinguishable to the decision in
Malan
v Minster of Police NO and Others
[7]
where the court held that reference to the pronouns “he/she” in
the attestation clause was of no consequence if it is apparent
from
the affidavit and the context that the deponent was a male, and that
it was logical to conclude that the pronoun “he” should
be read
into it.
12.
I,
agree within the remarks by the Judge in the decision
in
Malan vs Minister of Police NO and Others
[8]
that what is important in
the affidavit is the contents thereof rather than failure to delete
one of the pronouns namely “she/he”
of course it depends on the
nature of the matter.
13.
In
my view the defence of the respondent that the founding affidavit is
not properly commissioned must fail.
14.
The
other defences raised by the respondent namely:
14.1
Failure
by the applicant to annex relevant agreements.
14.2
Incorrect
rates charged.
14.3
Failure
to annex the certificate of balance/incorrectness of the certificates
of balance.
The above defences
have no merit and do not influence the outcome of the whole case.
15.
Pertaining
to whether winding up order would not be just and equitable in the
circumstances, the respondent must convince the court
that it has
liquid assets already realisable assets out of which the applicants
claim can be paid
[9]
. However,
in the matter before me the respondent failed to provide grounds that
the applicant’s debts and the respondent’s other
creditors debts
will be paid if a liquidation order is not granted, as required.
16.
The
court is satisfied that a proper case has been made out for an order
for the respondent’s provisional liquidation.
17.
I
make the following order
17.1
That
an order for the provisional winding up of the Respondent is granted
in terms of the provisions of Section 344(f) and Section
344(h) of
the Companies Act, 61 of 1973, as amended, and read with the
Companies Act, 71 of 2008
;
17.2
That a
Rule
Nisi
is
issued, calling upon all persons concerned to appear and show cause,
if any, to this Court on the
25
day of April 2022
why the Respondent should not be finally wound up.
17.3
That
the order shall be served forthwith on the Respondent at the
Respondent’s registered address and a copy of this order shall
be
published once in the Government Gazette and once in the Citizen
newspaper; and Bleed newspaper
17.4
Costs
of this application be costs in the liquidation.
D MAKHOBA
JUDGE OF THE
GAUTENG DIVISION PRETORIA
APPEARANCES:
For
the applicant:
Advocate AJ Wessels
Instructed
by:

Van Greunen
&Associates Inc.
For
the respondent:
Advocate JP Coetzee SC
Instructed
by:
Olivier Attorneys
Date
heard:
24 January 2022
Date
of Judgment:      16 February 2022
[1]
Vide Caselines 1-30 to 1-38
[2]
Kalk Bay Fisheries Ltd vs United Restaurants Ltd 1905 TH22. See also
Absa Bank Ltd vs Rheebokskloof (Pty) Ltd and Others
1993 (4) SA 436
(C) at page 440 paragraph F and Murray NO and Others vs African
Global Holdings (Pty) Ltd an Others
2020 (2) SA 93
(SCA) at
paragraph 31
[3]
Ganes and Another vs Telecom Namibia Ltd,
2004 (3) SA 615
(SCA) at
paragragh
[4]
Vide caselines 008-4
[5]
2013 (5) SA 563
(GNP) at paragraph 10
[6]
Supra
[7]
2019 (2) SACR 469
(GJ) at paragraph 43 and 44
[8]
Supra
[9]
BP Southern Africa (Pty) Ltd vs Interfrans Oil SA
(Pty) Ltd and Others
2017 (4) SA 592
(GJ) at paragraph 18 see also
Rosenbach 1962 and Co (Pty) Ltd vs Singh’s Bazaar (Pty) Ltd
1962
(4) SA 593
(D) at 597 E-F.