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[2022] ZAMPMBHC 62
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Buba Attorneys Incorporated v Bongiveli Rail (3998/2021) [2022] ZAMPMBHC 62 (28 July 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 3998 / 2021
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
28 July 2022
In the matter between:
BUBA
ATTORNEYS INCORPORATED
APPLICANT
Registration
no. 2013/21822013/21824/21
And
BONGIVELI
RAIL
RESPONDENT
Registration
no. 1996/051691/23
JUDGMENT
RATSHIBVUMO J:
Delivered:
This judgment was handed down
electronically by circulation to the parties' representatives by
email. The date and time for hand-down
is deemed to be 10H00 on 28
July 2022.
[1]
The Applicant in this case seeks an order
for provisional winding up of the Respondent following its failure to
pay a debt of R80 500.00.
The application is premised on the
provisions of sections 345(1)(a)(i) and 346(1)(b) of the Companies
Act, 2008 (I suppose the
Applicant meant Act 61 of 1973). In terms of
this provision, a company or body corporate shall be deemed to be
unable to pay its
debts if a creditor, by cession or otherwise, to
whom the company is indebted in a sum not less than one hundred rand
then due
has served on the company, by leaving the same at its
registered office, a demand requiring the company to pay the sum so
due.
Furthermore, an application to the Court for the winding-up of a
company may be made by one or more of its creditors.
In
casu
, the alleged debt is for legal
services rendered by the Applicant to the Respondent. The Respondent
opposes the application in
that it disputes having received such a
service from the Applicant.
[2]
In the answering affidavit, the Respondent
raised a point
in limine
over not properly cited. Instead of Bongiveli CC, the Applicant cited
the Respondent as Bongiveli Rail CC. The Respondent claims
that since
the names cited in the Notice of Motion do not belong to it, it is
therefore not the party referred to in the application.
It argues
that the party cited in the papers does not exist. This is denied by
the Applicant who filed a replying affidavit with
a request to amend
the Notice of Motion so it can reflect the correct name of the
Respondent. This point
in limine
does not take the Respondent’s argument far as the registration
number that was cited next to the name is that of the Respondent.
Furthermore, the Notice of Motion was served at the Respondent’s
place of business. This is a clear indication that adding
the word
“Rail” to the name of the Respondent, was an error on the
part of the Applicant. The error may be indicative
of how well the
Respondent is known to the Applicant, but not a bar to have the
Notice of Motion amended. The amendment of the
Notice of Motion is
therefore allowed.
[3]
As
for the legal services rendered, the Applicant alleges that during
November 2017, the Respondent, represented by Mr. Vusimuzi
Willem
Magagula (Magagula) entered into an agreement for rendering of legal
services. To this extent, a document marked “ZB5”
was
attached which was referred to as the mandate.
[1]
However Annexure ZB5 referred to is not a mandate but a letter
titled, “Demand in terms of section 345 of the Companies Act
61
of 1973.”
[2]
The Applicant
further avers that the mandate related to legal proceedings brought
by Loudtrack
[3]
(Pty) Ltd
against XDSL Trading Proprietary Limited (in business rescue), a
company in which Magagula was a shareholder. The Applicant
claims to
have provided legal opinion and facilitated settlement negotiations
on behalf of the Respondent.
[4]
[4]
How all of a sudden, the settlement is said
to have been negotiated on behalf of the Respondent, while all along
the Applicant appears
to have been acting for Magagula is not
explained. The deponent to the affidavit on behalf of the Respondent
avers that Magagula
was not its employee and was never authorised to
enter into such an agreement on its behalf. This was also confirmed
by Magagula
in an affidavit. It is however common cause that Magagula
is one of the members of the Respondent. This however does not clear
the picture as to how the Respondent gets drawn into this while the
Applicant was dealing with Magagula all along. The absence of
a
written contract, mandate or any correspondence between the parties
regarding the alleged legal service complicates the issues
especially
when the Respondent claims to have never needed nor acquired such
services.
[5]
As
proof of the legal services rendered, the Applicant attached a two
paged document titled, “Settlement proposal regarding
XDSL 504
Trading Proprietary Limited (in business rescue).”
[5]
The contents of this letter though do not confirm the Applicant’s
version. The opening paragraph thereof says, “…we
confirm that we are acting on behalf of Mr. Willem Magagula, a
shareholder of XDSL 504 Trading Proprietary Limited (in business
rescue) …” The Respondent was not mentioned anywhere in
it. This could perhaps explain why the Applicant used wrong
names to
cite the Respondent in this application. It could be indicative of
the two having not interacted in the past. One more
hurdle for
the Applicant is that Magagula was not cited as one of the
respondents in this application.
[6]
While
it appears from the papers that the Applicant and Magagula had some
interaction, the court does not get the link between services
rendered to him and them being imputed to the Respondent. As a
result, there appears to be a dispute of fact on whether legal
services were rendered for the Respondent by the Applicant and if so,
what the terms and conditions thereof were. In
National
Director of Public Prosecution v Zuma
[6]
the Supreme Court of Appeal emphasised the Plascon-Evans rule when it
held,
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve
factual issues because they are not designed to determine
probabilities. It is well established under the
Plascon-Evans
rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant's affidavits, which have been admitted by the
respondent, together with the facts alleged by the latter,
justify
such order. It may be different if the respondent's version consists
of bald or uncreditworthy denials, raises fictitious
disputes of
fact, is palpably implausible, far-fetched or so clearly untenable
that the court is justified in rejecting them merely
on the papers.”
[7]
The dispute raised by the Respondent
in
casu
cannot be categorised as bald or
implausible denials, raised fictitious disputes of fact, or was
palpably implausible, far-fetched
or so clearly untenable that the
court was justified in rejecting it merely on the papers. The
supporting documents filed by the
Applicant do not support his case.
It is my respectful view therefore that for this reason, this
application cannot succeed.
[8]
For those reasons, I make the following
order.
The application is
dismissed with costs.
TV
RATSHIBVUMO
JUDGE OF THE HIGH
COURT
MPUMALANGA DIVISION
MBOMBELA
FOR THE
APPLICANT ADV.
T SNYDERS
INSTRUCTED
BY: BUBA
ATTORNEYS
PRETORIA
C/O: SEYMORE DU TOIT &
BASSON ATTORNEYS
MBOMBELA
FOR THE
RESPONDENT
ADV. J
DE NECKER
INSTRUCTED
BY
WDT
ATTORNEYS INC
MBOMBELA
DATE
HEARD
19 JULY 2022
JUDGMENT DELIVERED
28
JULY 2022
[1]
See p. 9 of the paginated bundle, para 9.1
[2]
See p. 24 of the paginated bundle.
[3]
Correspondence elsewhere suggests this may have been Loutrack as
opposed to Loudtrack – see p. 117 of the paginated bundle.
[4]
See p. 9 of the paginated bundle, para 9.4
[5]
See p. 114 of the paginated bundle.
[6]
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at para 26.