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[2022] ZAFSHC 71
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RM Beton CC v RCS Formcon (Pty) Ltd (3063/2021) [2022] ZAFSHC 71 (4 February 2022)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3063/2021
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
RM
BETON CC
Applicant
(REG:
2006[…])
And
RCS
FORMCON
(PTY)
LTD
Respondent
(REG:
2014[…])
HEARD
ON:
14 OCTOBER 2021
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This judgment was
handed down electronically by circulation to the parties'
representatives by email and by release to SAFLII. The
date and time
for hand-down is deemed to be 09H00 on 04 February 2022.
[1]
This is an
opposed application for the provisional winding up of the respondent
in terms
of
section
344
(f)
of
the Companies
Act
61 of
1973
("The
Old
Act")
and section 9
of schedule 5 of the Companies Act 71 of 2008 ("The New Act").
The
application
is
premised
on
the grounds
that the
respondent
is
unable to pay its debts
when
they
fall
due
and
it arises
from
the
respondent's
failure
to
pay
the
applicant's
account
for
goods
(ready-mix
concrete)
sold
and
delivered
to
the respondent
on 18 February in the amount of R45 084.60
.
[2]
It
is the applicant's case that the debt is not dispute. Attached to the
replying affidavit is a letter the applicant received from
the
respondent.
[1]
The letter is
dated 8 March 2021 and reads as follows:
"We
are sincerely
sorry
for the
delay in payment in the amount of (R7 935.00) SEVEN THOUSAND NINE
HUNDRED AND THIRTY FIVE RAND, due on (28
th
FEBRUARY
2021)
for
account number (R[…]). Please note that payment will be made
at the
soonest,
and want to
assure
you
that this
is
only
temporary and we will settle the account
as
soon as
possible
...while we take full responsibility on our part, we would appreciate
it, if considering the delay are caused by numerous
unforeseen
circumstances. We
also
acknowledge
that there are no discrepancies on your Monthly Statement and agree
with the amount payable ..
.
"
[3]
According
to the applicant a letter of demand as contemplated
in
section 345(1) (a) (i) of the Old Act ("the section 345 letter")
was delivered at the respondent's addresses on 6 May
2021. The debt
remains unpaid.
[2]
[4]
The applicant
contends that the respondent is unable to pay its debts when they
become due and payable it will accordingly be just
and equitable that
the respondent is provisionally wound up.
[5]
It
is trite that a company can be wound up if it fails to pay a debt of
a creditor to whom the company is indebted to in a sum of
not less
than one hundred rand within three weeks from the date of delivery of
a section 345 letter at its registered office.
[3]
The onus is on the applicant to satisfy the court on a
prima
facie
basis
that it is the creditor of the respondent.
[4]
[6]
It is not in
dispute that the applicant has delivered the ready-mix concrete and
that the invoice rendered by the applicant in that
regard was not
paid. The application is opposed on various grounds namely that: the
debt is disputed, the respondent is not insolvent
and the section 345
letter of demand is defective.
[7]
The respondent
also complains about irregularities in the applicant's replying
affidavit. It is the respondent's case that the allegations
pertaining to its admission of the debt and the inability to pay
should have been set out in the applicant's founding affidavit.
The
allegations must be struck out as the applicant is not entitled to
make out its case in a replying affidavit.
[8]
With regard to
the debt, the respondent states that the reason for non-payment is
not due to inability to pay or insolvency. The
payment has been
withheld for the reason that the applicant failed to deliver the
ready-mix concrete within the agreed time. The
late delivery delayed
the respondent's building project with the result that the respondent
suffered damages in the amount of R46
366.56. Accordingly, the
respondent is not indebted to the applicant but has a counterclaim
against the applicant for the damages
it has sustained.
[9]
According to
the respondent, the business is not insolvent the respondent is able
to pay the amount claimed by the applicant but
merely refuses to
.
Annexure "OA3"
of
the
respondent's
answering
affidavit
is
a
copy
of
the
respondent's
financial
statements for
the year ending 28 February 2021 demonstrating that the respondent is
operating a profitable business and Annexure
"OA4" is a
proof of payment of an amount equivalent to the amount claimed by the
applicant into the trust account of
the respondent's attorneys.
[10]
The respondent also takes issue with the delivery of the section 345
letter and submits that the demand is
defective in that the said
letter was transmitted by email, WhatsApp and registered post section
instead of being delivered at
the respondent's registered office
number 159 Clarkson Avenue, Estorie, in Bloemfontein as required by
section 345 (1) (a) (i).
[11]
It is also
disputed that there was no reply to the section 345 letter. The
respondent points out that a reply was forwarded to the
applicant on
3 June 2021 and in the said reply the applicant was informed about
the damages sustained by the respondent consequent
to the defective
delivery
.
[12]
The respondent states that this application is merely intended to
enforce a debt which the applicant is fully
aware that it is disputed
on bona fide grounds and having failed to comply with the peremptory
provisions of section 345 (1) (a)
(i) the applicant is not entitled
to the order it seeks. The application must be dismissed with costs
on a punitive scale.
[13]
Before turning to the issue to be considered in this application I
deem it necessary to first address the
respondent's application to
strike out.
[14]
I'm not in agreement with the respondent's contention that the
applicant has attempted to make out its case
in the replying
affidavit. The allegations that the debt is not in dispute are
alluded to in the applicant's founding affidavit.
See paragraph 20.
In the replying affidavit the applicant merely attached the letter in
which
the
respondent
acknowledges
the debt and
that it is due and this was in
response
to the respondent's denial of the fact that the debt is not in
dispute. It cannot be said that there has been a variation
in the
case that the respondent had answered to. I see no prejudice and it
has also not been argued that the respondent is prejudiced
thereby. I
accordingly hold that the evidence is admissible the application to
strike out this evidence is dismissed.
[15]
The
respondent's refusal to pay the applicant's account is not based on
legitimate or
bona
fide
grounds.
The allegation that the respondent is entitled to refuse to pay based
on a prospective counterclaim against the applicant
is militated by
the respondent's own confirmation of the liability to pay the debt
together with an admission that it is unable
to pay the debt at the
time it was due. See Annexure
"
RA3"
.
[16]
It is also
important to note that as at the time of the hearing no counterclaim
or action had been instituted against the applicant.
I conclude that
these allegations do not constitute a real, genuine and
bona
fide
dispute
of the applicant's claim but a bogus defence aimed at delaying the
applicant's claim. I'm persuaded that the respondent
is indebted to
the applicant as alleged.
[17]
The
applicant is not required to plead and even prove that the respondent
is insolvent. The actual solvency of the respondent is
only relevant
when the court considers whether to apply its discretion in favour of
or against the granting of the winding up order.
[5]
[18]
I now turn to
consider whether the applicant's section 345 letter has been properly
"delivered" to trigger the deeming
provisions of section
345 (1).
[19]
On the facts
germane to this matter it is not in dispute that on 6 May 2021 the
applicant transmitted the section 345 letter to
the respondent
through three different modes of transmission, namely, via email,
registered post and WhatsApp.
[20]
The respondent
does not accept that the delivery of the section 345 letter by email,
registered post or WhatsApp is in accordance
with the provisions of
section 345 (1)(a)(i). According to the respondent the letter should
have been delivered at its registered
address namely: 159 Clarkson
Avenue, Estorie, Bloemfontein.
[21]
On
the available evidence
[6]
the
Sheriff's attempt to serve the section 345 letter at the respondent's
aforesaid registered address was unsuccessful. The Sheriff
was
informed by the occupants of the premises that the respondent is
unknown at the said address.
[22]
On the
respondent's version it has received the section 345 letter of demand
and has also replied.
In that
regard, I'm inclined to agree with the conclusions in
Green
v Amalgamated
Brokers
CC
(
7806/2011
)
[
2012
]
ZAKZPHC 44 at
paragraph 12 that what is important is that the respondent has
received the notice. The result is that I determine
this issue in
favour of the applicant. The statutory letter of demand was properly
delivered on the respondent.
[23]
The respondent's reliance on the financial statements and payment of
the amount owed to the applicant into
the trust account of its
attorneys as proof of its solvency is impeached by its own admission
of the inability to pay the extant
debt. It is also quite peculiar
that the financial statements which purports to prove the
respondent's ability to pay the debt
relate to the same period
(February 2021) in which the applicant admitted its inability to pay
the debt.
[24]
It is for
these reasons above that I'm not inclined to exercise my discretion
in favour of the respondent. I'm satisfied that the
applicant has
succeeded in making out the case for the order it seeks in the notice
of motion.
[25]
I accordingly
make the following order:
(1)
A provisional
winding up order returnable at
9h30
on
03 March
2022
is
granted as prayed for in the notice of motion dated
06
Jul
y
2021
(Prayer 1- 7).
NS
DANISO, J
APPEARANCES:
Counsel
for the Applicant:
Adv.
FF Jacobs
Instructed
by:
Noordmans
Inc.
BLOEMFONTEIN
Counsel
on behalf of Respondents:
Adv.
J Els
Instructed
by:
Kramer
Weihmann Inc.
BLOEMFONTEIN
[1]
Annexure
"RA3".
[2]
Annexure
"IM3"
of
the founding affidavit
is
a
copy
of
the letter
of
demand
and
Annexures
"IM4"
to
"IM7"
are
copies of proof of service of the letter of demand by email,
WhatsApp (an instant messaging App) and registered post
respectively.
[3]
s344
(f) and 345 (1) (a) and (c) of the
Old
Act.
[4]
Orestisolve
(Pty) Ltd t/a
Essa
Investments v NDFT Investments Holdings (Pty) Ltd & Another
2015
(4) SA 449
(WCC) paragraph 7-8.
[5]
Standard
Bank of South Africa LTD v R-BAY Logistics CC
2013 (2) SA 295
(KZD)
at para 27, Scania Finance Southern
Africa
(PTY)
LTD
v Thomi-Gee
Road
Carriers CC and
Another
2013
(2) SA 439
(FB)
at
para
12.
[6]
Page
32 of the founding affidavit is a copy of the Sheriff's return of
non-service.