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[2021] ZALMPPHC 10
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Cell C Service Provider Company (Pty) Ltd v NZ Foods (Pty) Ltd (6808/2019) [2021] ZALMPPHC 10 (11 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO:6808/2019
In
the matter between:
CELL
C SERVICE PROVIDER COMPANY (PTY) LTD
APPLICANT
AND
NZ
FOODS (PTY) LTD
RESPONDENT
JUDGMENT
KGANYAGO
J
[1]
On 19
th
September 2013 the applicant and the respondent
entered into a written regional dealer distribution agreement. The
agreement was
for a period of two years. In terms of the agreement
the respondent was required to provide the applicant with bank
guarantee of
R 7.5 million and from time to time purchase products
from the applicant. The respondent had duly paid the required
guarantee and
thereafter purchased products which were delivered by
the applicant to the respondent.
[2]
According to the applicant, the respondent continued to purchase, and
the applicant
continued to deliver products after the expiry of the
initial distribution agreement, resulting in a further tacit
distribution
agreement on the same relevant material terms. The
applicant submits that over the period August 2017 to October 2017,
it sold
and delivered products to the respondent in terms of the
distribution agreement in respect of which the balance outstanding as
at 31
st
August 2018 was R79 968 487-81. The applicant
presented the bank guarantee for payment which was honoured by the
bank and the debt
was reduced to R 72 468 487-81 together with the
agreed interest at the rate of 2% above prime rate.
[3]
As per the applicant’s founding affidavit, the respondent
ceased purchasing
products from the applicant in terms of the
distribution agreement during October 2017, with the last purchased
goods being invoiced
in November 2017. The respondent’s
business was primarily managed and conducted by Mr. Muhammed Sikander
Noor Hussain the
husband of the respondent’s sole director, Ms
Nazia Carrim. Ms Carrim is a practising attorney who practise under
the name
and style Nazia Carrim Attorneys.
[4]
On 1
st
November 2017 the applicant addressed an email to
Hussain enquiring when the outstanding amount of R49 312 748-95 would
be settled.
Hussain replied per email on behalf of the respondent
stating that the outstanding amount would be settled on 7
th
November 2017, and also apologized for the delay in payment.
[5]
The respondent did not pay as promised. According to the applicant
Hussain disclosed
to the applicant during November 2017 that the
respondent could no longer continue its airtime business with the
applicant as the
respondent has utilised the funds received from its
airtime sales of the applicant’s products to fund the purchase
of immovable
property for development purposes in Polokwane and was
now cash-strapped. Hussain informed the applicant that the entities
that
are the wheels in the property development project, are related
to him and his wife Carrim who was involved in the property
development
project, would make the arrangements to settle the
outstanding indebtedness owing by the respondent to the applicant and
would
provide security for the indebtedness. Hussain invited Adrian
Lotz (deponent of founding affidavit) to visit the property
development
in Polokwane.
[6]
Mr Lotz visited the development property on 8
th
November
2017 where Hussain and Carrim showed Lotz around the property and
various documents relating to the development. Carrim
and Hussain
informed Lotz that the respondent was prepared to acknowledge its
indebtedness and provide security.
[7]
Applicant avers that on 25
th
May 2018 Nazia Carrim
Attorneys requested banking details of the applicant to give effect
to the respondent’s undertaking
to furnish security and make
payments towards settlement of the outstanding indebtedness. On 28
May 2018 the applicant informed
Nazia Carrim Attorneys that an
acknowledgment of debt must first be signed together with the
security documents. Thereafter there
were some emails exchanges
between the parties. On 21
st
June 2018 the applicant
furnished Nazia Carrim Attorneys with the draft of an acknowledgement
of debt.
[8]
The applicant and Mr Hussain discussed the outstanding indebtedness
and agreed at
the amount of R79 968 487-81 less the guarantee amount
of R7.5 million bringing the indebtedness down to R72 468 487-81. The
applicant’s
credit committee was prepared to offer the
respondent airtime commission discount of R15 million provided the
respondent made payment
of R57 468 487-00 within a reasonable period
and according to an acceptable repayment plan.
[9]
On 23
rd
September 2018 Hussain reverted to the applicant
stating that he had made changes to the proposed acknowledgment of
debt and also
wanted to discuss the main part of the guarantee. In
the acknowledgement of debt draft, Hussain had changed the
indebtedness to
R57 486 487-00.
[10]
On 25
th
September 2018 Hussain phoned the applicant
informing the applicant that at that stage the respondent no longer
wishes to offer
security, but only to formally acknowledge the
indebtedness with an undertaking to repay the indebtedness. Further
discussions
took place between the applicant, Hussain and Nazia
Carrim Attorneys in relation to the finalisation of the
acknowledgement of
debt. On 12
th
November 2018 the
applicant furnished Hussain and Nazia Carrim Attorneys with an
amended version of the acknowledgement of debt
without any security
or any repayment plan. The revised acknowledgement of debt
provided for an acknowledgment of indebtedness
of R72 468 487-00
after deducting the guarantee amount of R 7.5 million from the
original outstanding balance of R79 968 487-00.
[11]
Nazia Carrim Attorneys enquired from the applicant whether the amount
of R72 468 487-00 should
not be adjusted to R57 486 487-00. The
applicant informed Nazia Carrim Attorneys that the discount was only
offered in the event
the outstanding indebtedness was settled within
a reasonable period, and as the respondent could not at that stage
commit to a
repayment plan or provide security, it would not expect
the discount to be furnished upfront. On 15
th
November
2018, Nazia Carrim Attorneys wrote a letter to the applicant
disputing the respondent’s indebtedness to the applicant.
[12]
On 25 March 2019 the applicant’s attorneys wrote a letter to
the respondent demanding payment
and further notifying the respondent
of termination of the extent that the agreement may have remained
extant. On 2
nd
April 2019 Nazia Carrim Attorneys responded
to the respondent’s letter still disputing the respondent’s
indebtedness
to the applicant. The applicant submits that in a final
attempt to amicably resolve the matter, it invited the respondent for
settlement
discussion during July 2019 and August 2019. The
discussion did not yield any fruits. That led to the applicant
launching an application
for the final winding-up, alternatively
provisional winding up of the respondent of the basis of the alleged
inability to pay its
debts.
[13]
The respondent in its answering affidavit has stated that during
September 2013 it concluded
a regional dealer distribution agreement.
In terms of the agreement, the respondent was appointed on a
non-exclusive basis to sell
and distribute the applicant’s
cellular products. The account number assigned to that agreement by
the applicant was NZF001.
[14]
The respondent further stated that during December 215 it concluded a
separate oral agreement
with the applicant represented by Mr Lotz. In
terms of the separate oral agreement, the applicant had appointed the
respondent
to perform wholesale distribution function. The account
number assigned to that agreement by the applicant was NZF003 for
airtime
sales, and NZF004 for sales related to starter pack. That Mr
Lotz was impressed with the sales achieved by the respondent, and
expressly informed the respondent that if it succeeded in achieving a
sale target of at least R350 million, it will be regarded
as a
so-called super dealer and would be entitled to remuneration equal to
12% of the turnover achieved by it.
[15]
The respondent avers that the applicant’s alleged claim relates
to account number NZF003
and NZF004, and that these accounts have got
nothing to do with the distribution agreement referred by the
applicant in its founding
affidavit. It is therefore the respondent’s
contention that the founding affidavit does not disclose a valid
cause of action
establishing the applicant’s alleged status as
a creditor.
[16]
The respondent further avers that it has settled the debts owing to
the applicant in respect
of account numbers NZF003 and NZF004.
According to the respondent the statements related to account number
NZF003 and NZF004 reflect
transactions that took place between 13
th
August 2017 and 31
st
March 2018. The respondent submits
that during that period it had made ten payments to the applicant
amounting to R87, 7 million
which payments are not reflected on the
applicant’s statements. It is therefore the respondent’s
contention that the
applicant’s founding affidavit refers to an
incorrect cause of action and that the respondent is not indebted to
the applicant
in respect of the distribution agreement.
[17]
The respondent conceded that it had previously admitted to its
obligation to make payment to
applicant, and that it did so in error
without having properly considered the statements issued by the
applicant. The respondent
avers that the distribution agreement was
for a fixed period of two years, and that it did not provide for an
automatic extension.
It is the respondent’s contention that the
distribution agreement has therefore lapsed during September 2015.
[18]
The respondent submits that the products that were sold and delivered
by the applicant to it
during the period August 2017 to October 2017
were unrelated to the distribution agreement, but were sales that
took place in terms
of the wholesale agreement, whereby the
respondent sold Cell C airtime and starter packs to resellers.
[19]
The respondent denies that it had ceased all its trading operations,
but that it had explained
to Mr Lotz that it had invested in two
property development ventures, and that these ventures promises to be
very profitable. The
respondent denies that it had told Mr Lotz that
the respondent was involved in property development, and that monies
owed to the
applicant have been invested in any of their property
development project. The respondent avers that it had simply provided
loan
finance to Nazaru Construction (Pty) Ltd and NZR Property
Investments (Pty) Ltd to enable these companies to develop immovable
properties. It is the respondent’s contention that the loans
are payable to it and therefore constitute assets.
[20]
The respondent denies that it is insolvent. The respondent submits
that the dispute concerning
the correct cause of action and the
amounts allegedly owed to the applicant cannot be resolved in motion
proceedings.
[21]
The applicant in its
replying affidavit denies the existence of the alleged oral wholesale
agreement allegedly concluded between
it and the respondent. The
applicant submit that the respondent was aware that throughout their
business dealings from 2013, the
respondent’s dealings with the
applicant in terms of the distribution agreement were reflected in
three separate accounts
which accounts reflected different products.
That account number NZF001 related to starter packs, account number
NZF003 related
to airtime vouchers, and account number NZF004 related
to pin less airtime sales. Applicant avers that account number NZF002
does
not exist. Mr Lotz who deposed the applicant’s founding
affidavit and replying affidavit submitted that he is the Executive
Head: Operational Finance of the applicant, and as the executive
head, he did not have, and never had the authority to conclude
a
distribution agreement with any person, let alone a wholesale
agreement.
[22]
The applicant admitted receiving the ten payments as stated by the
respondent totalling to R87
million. It is the applicant contention
that the respondent was aware that the statement which the applicant
has rendered to the
respondent contained details of open invoices
which have not been settled by way of payment, and that once a
payment is received,
it is allocated to a particular invoice, which
invoice is then no longer reflected on the statement. The applicant
submits that
of the R87,7 million received from the respondent, R87,
5 million was allocated to account number NZF003 and R200 000-00
allocated
to account number NZF004.
[23]
The applicant is seeking a final winding up order alternatively a
provisional winding up order
against the respondent. It is trite that
when a final winding up order is sought the onus rest on the
applicant to show on a balance
of probabilities that the debt is not
bona fide
disputed on reasonable grounds. For a provisional
winding up order, the applicant only need to show
prima facie
that it is the creditor of the respondent.
[24]
The respondent dispute being indebted to the applicant.
In
Kalil
v Decotex (Pty) Ltd and Another
[1]
Corbett JA said:
“
In
regard to locus standi as a creditor, it has been held, following
certain English authority that an application for liquidation
should
not be resorted to in order to enforce a claim which is bona fide
disputed by the company.
Consequently, where the
respondent shows on a balance of probability that its indebtedness to
the applicant is disputed on bona
fide and reasonable grounds, the
Court will refuse the winding-up order. The onus on the respondent is
not to show that it is not
indebted to the applicant: it is merely to
show that the indebtedness is disputed on bona fide and reasonable
grounds.”
[25]
The respondent must dispute the debt on substantial grounds, and
further the disputed grounds
be in good faith, genuine and honest. In
Porterstraat
69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd
[2]
Davis J said:
“
In terms of the
so-called Badenhorst rule (
Badenhorst v Northern Construction
Enterprises (Pty) Ltd
1956 (2) SA 598
(T) at 347H-348C
) the onus
rest on upon the respondent to show the existence of a
bona fide
dispute on reasonable grounds. Professor Blackman in ‘Companies’
in Joubert (ed). The Law of South Africa volume 14
part 3 at para 113
summarises the position thus:
‘
debt is not
bona fide disputed simply because the respondent company says that it
is disputed. A dispute must not only be bona fide
or genuine but must
be on good, reasonable or substantial grounds. The expression
“genuine dispute” connotes a plausible
contention
requiring some sort of consideration as serious question to be
tried.” It is not sufficient for the company merely
to
establish that there is a serious question to be tried as to whether
the dispute over the debt is genuine in that the debt is
disputed on
the basis that an honestly held belief that it is not payable, and is
not disputed, merely for the purpose of delay
or obstruction.
“Genuine” in this context does not mean fabricated for
the purpose of the proceedings or just thought
up or brought forward
without genuine belief: there can be no genuine dispute if there are
no substantial grounds for disputing
the debt.’
[26]
It is not in dispute that from September 2013 up to October 2017 the
applicant and the respondent
were involved in business deals wherein
the respondent was purchasing from the applicant on a revolving
credit and paid at a later
stage. The respondent ceased purchasing
the applicant’s products during October 2017. The applicant’s
statements in
relation to the respondent‘s two accounts which
appears as NZF003 and NZF004 dated 31
st
August 2018 shows
that for the period starting from August 2017 up until the respondent
ceased purchasing the applicant’s
products, the purchases made
by the respondent from the applicant over that period amounted to R79
305 752-73 and R777 572-56 respectively.
[27]
As at 1
st
November 2017, R49 312 748-95 was due and
payable. The respondent undertook to settle that amount on 7
th
November 2017. The respondent did not settle that amount as promised
and what followed were settlement negotiations which lasted
until
November 2018. At some stage the respondent was prepared to
acknowledge its indebtedness to the applicant, provide a plan
of
repayment of the indebtedness and also provide security.
[28]
The applicant at some stage prepared an acknowledgment of debt with
its own figures and presented
it to the respondent for signature and
the respondent altered those figures and returned it back to the
applicant without signing
it. In the end the applicant and the
respondent agreed that the outstanding indebtedness amounted to R79
968 487-81 less the guarantee
which has been called in for payment in
the sum R7.5 million, leaving a total balance of R72 468 487-81. From
that amount the applicant’s
credit committee offered the
respondent airtime commission discount of R15 million provided the
respondent made payment of R57
468 487-00 within a reasonable period
and according to an acceptable repayment plan.
[29]
However that did not resolve that problem, as the respondent made an
about turn and was no longer
prepared to offer any security but only
to acknowledge the indebtedness. The applicant agreed to the
respondent’s demand
but reverted back to the original debt of
R72 468 487-00 as the respondent was not prepared to offer any
security. However, the
respondent wanted the outstanding amount on
the acknowledgement of debt to be R57 468 487-00 of which the
applicant informed the
respondent that it will only be applicable if
the respondent pays within a reasonable period and according to an
acceptable repayment
plan. That is when the negotiations collapsed,
and the respondent through its attorney Nazia Carrim Attorneys
notified the applicant
that it disputes the respondent’s
indebtedness to the applicant. No grounds of the dispute of the
indebtedness were given
in that letter of notification to the
applicant.
[30]
The question is whether the manner in which the respondent had
disputed the applicant’s
indebtedness was on substantial
grounds, in good faith, genuine and honest. Throughout the
negotiations which took place over a
period of twelve months, the
indebtedness and amount due to the applicant was never an issue. The
main issue was about the respondent
providing security or committing
to a repayment plan. The discount of R15 million was depended upon
the respondent signing an acknowledgment
of debt, an acceptable
repayment plan and acceptable security. However, the respondent was
not prepared to commit to all of these,
but yet wanted to be offered
the discount amount of R15 million.
[31]
When the respondent’s attorneys wrote a letter to the applicant
notifying the applicant
that the respondent is disputing its
indebtedness to the applicant, the negotiations have not yet
collapsed. Since the negotiations
were ongoing for more than a year,
one would have expected the respondent to give the applicant full
details of their dispute of
the indebtedness to enable the applicant
to consider them.
[32]
The respondent’s
letter of the 15
th
November 2018
disputing the respondent indebtedness to the applicant read as
follows:
“
RE:
NZ Foods/Cell C
1.
With reference to our
e-mail correspondence you are clearly aware that the amount due is
being disputed. Our client has previously
presented his calculations
and figures as to the discount he was entitled to, but yet not
allocated/ provided to him.
2.
The amount due to my
client is at least R 36 633 501-50.
3.
Once above is being
acknowledged and properly incorporated in any document to be signed,
including an AOD, it will be presented
to our client for signature.
4.
We already had a
consultation with a senior counsel in Pretoria, he requested several
documents from ourselves and once obtained
and supplied to him, he
will be in a position to further advise us.
5.
We trust you find the
above in order.”
[33]
The letter of the 15
th
November 2018 is a contradiction of
the e-mail of the 12
th
November 2018 from the same
attorney. The e-mail of the 12
th
November 2018 from Nazia
Carrim attorneys to the applicant read as follows:
“
I have received
your email. I will go through it and revert to you at soonest.
As per your request I am sure we
will be able to finalize and sign by
Friday. However, I have just skimmed through it and notices that the
AOD amount stipulates
R72 468 487-00. Should this amount not be
adjusted to R57 468 487-00 as per your email dated 19/09/2018.
Furthermore, in anticipation
to your AOD I have consulted and the
advice given to me is that Black Phoenix has in no way benefited from
NZ Foods and Black Phoenix
is indebted to the National Empowerment
Fund and as per terms of the agreement it’s not allowed to sign
surety for any other
debt prior to the National Empowerment Fund
being paid in full. Also note that this will be a breach of the
franchise agreement
with Shell because the land is owned by Shell.
Black Phoenix only leases the land. Please note that this will not
disadvantage
Cell C in any way because all the monies have been
invested in Nazaru Construction and NZR Properties. Also please
confirm with
Adrian regarding the repayment proposal sent to him by
Muhammed on the 23
rd
September 2018 and please include
this in the AOD.”
[34]
The email of the 12
th
November 2018 is a willingness to
have the matter finally resolved by Friday. The email acknowledges
indebtedness. If indeed previous
calculations and figures were
presented to the applicant, that would have been raised in the email
of the 12
th
November 2018 as the respondent wanted to
finalize and sign the acknowledgment of debt by Friday. In reply to
the respondent’s
email, the applicant was not amenable to the
respondent’s request and the applicant gave the respondent’s
an ultimatum
to sign all the requested documents by Friday the 16
th
November 2018, and further that the respondent should consider the
ultimatum as the deadline for an amicable solution. In my view,
the
respondent’s letter of the 15
th
November 2018 was in
anticipation of a looming legal action by the applicant, and there
was no honesty in it.
[35]
On 28
th
March 2019 the respondent was served with a letter
of demand. The respondent’s attorney in reply to the letter of
demand
informed the applicant’s attorneys that there was a
dispute regarding the amount owed to the applicant right from the
beginning
of the matter and also attached its letter dated 16
th
November 2018. This cannot be true as from the correspondence
exchanged by the applicant and the respondent during the twelve
months’ negotiations, the indebtedness and the amount due was
never an issue. The issue was about the security and payment
plan,
and that is confirmed by the email from the respondent’s
attorney dated 12
th
November 2018 wherein she informed the
applicant that in terms of the agreement between Black Phoenix and
the National Empowerment
Fund, Black Phoenix was not allowed to sign
surety for any other debt prior to the National Empowerment Fund
being paid in full.
From the email of the 12
th
November
2018, except for requesting a discount of R15 million, there is no
dispute about the respondent’s indebtedness to
the applicant
and amount due.
[36]
Despite having issued a letter of demand against the respondent, the
applicant in a final attempt
to amicably resolve the matter, during
July 2019 and August 2019 invited the respondent to settlement
negotiations. The meeting
did take place and was face to face. This
was an opportune moment for the respondent to give the applicant full
details of the
grounds upon which their dispute to the applicant’s
debt was based, but failed to do so. According to the respondent when
they attended that meeting, they have already obtained legal advice
and its letters requesting documents and information from the
applicant remained unanswered. It is the respondent’s
contention that the matter remained unresolved since Mr Lotz did not
have the outstanding information and documents available at the
meeting. It does not seem that at that meeting the respondent had
raised the issue that they have paid R87,7 million which was not
taken into consideration by the applicant. It looks like at that
meeting, the respondent was seeking documents in preparation of the
looming legal action against it by the applicant.
[37]
The first time the respondent gave its grounds for disputing the
applicant’s indebtedness
was in its answering affidavit. In the
answering affidavit the respondent conceded that it had previously
admitted to an obligation
to make payment to the applicant, and that
it did so, in error without properly considering the statements
issued by the applicant.
The respondent avers that the applicant
statements refer to the period August 2017 to November 2017, and did
not reflect the payments
totalling R87,7 million made by the
respondent. The respondent further submitted that during the period
1
st
November 2017 to 12
th
November 2018 it was
under the incorrect impression that the applicant was claiming
payments related to the period prior to August
2017, and that it did
not check to determine how the applicant calculated its claims.
[38]
The applicant in its replying affidavit conceded receiving the
payments from the respondent totalling
R87,7 million and avers that
the respondent was aware that the statements which it was rendering
to the respondent contained details
of open invoices. Open invoices
are invoices which have not been settled by way of payment, and that
once a payment is received,
it is allocated to a particular invoice
which invoice is then no longer reflected on the statement. According
to the applicant
R87,5 million was applied towards account number
NZF003 and R 200 000-00 towards account number NZF004. The applicant
in its replying
affidavit had also attached a reconciliation sent to
the respondent in which the respondent committed to settle the debt
of R49 312 748-95
by the 7
th
November 2017. The
applicant further submits that the amount of R87,7 million was made
between 3
rd
August and 10
th
October 2017 before
the applicant demanded payment of R49 312 748-95 which was then due
and payable.
[39]
The applicant has given a breakdown of how the R87.7 million was
applied to the respondent’s
account, and the reconciliation of
the amount which the respondent had committed to pay by the 7
th
November 2017, and which is attached to the applicant’s
replying affidavit, might seem as if the applicant was building its
case in the replying affidavit. However, that was elucidated by the
respondent’s grounds for denial which was only brought
to light
for the first time in the answering affidavit despite the settlement
negotiations having taken place for over a period
of twelve months.
The applicant’s in the email at the 1
st
November
2017 refers to an attached reconciliation. This email that had
attached the reconciliation, is the one which the respondent
had
committed to pay R49 312 748-95 by 7
th
November 2017. From
the reconciliation, it shows that as at September 2017 the amount due
for August was R23 633 512-87, in October
2017 the amount due for
September 2017 was R25 679 236-08. And as at November 2017 the amount
due for October 2017 was R31 176
411-06. If one adds the amounts due
for August 2017 and September 2017 it gives you R49 312 748-95 and
that is the amount which
the respondent had committed itself to pay
by the 7
th
November 2017.
[40]
The last payment of R87,7 million was a payment R9 000 000-00 made by
the respondent on 10
th
October 2017. The reconciliation sent to the respondent on 1
st
November 2017 refers to specific amounts that were due and for which
period. On the 1
st
November 2017 when the respondent made commitment to pay R49 312
748-95 it was aware for which period as by then it had already
paid
R87,7 million. This was a revolving credit and there was nothing
wrong with the applicant having applied that amount of R87,7
million
to the prior outstanding invoices. The first payment of the R87,7
million was on the 3
rd
August 2017 and was for R7,5million. Logic will
tell that since this was a revolving credit and not cash on delivery,
that payment would be for products delivered prior to August 2017
since clause 3.3 of the regional dealer distribution agreement
state
that payment of all amounts due shall be effected within 30 days from
date of issue of the statement by the applicant. The
respondent tries
to create an impression that after the expiry of the first written
agreement there was another oral agreement
which was entered into.
During the twelve months’ negotiations, the issue of the new
agreement with the new terms and conditions
was never brought into
the picture. In my view, the respondent is opportunistic. The facts
before me shows that after the initial
contract had expired, the
respondent continued doing business with the applicant on the same
terms and conditions that prevailed
before the expiry of the initial
contract. In
Golden
Fried Chicken (Pty) Ltd v Sira Fast Food CC and Others
[3]
the
court held that after termination of the initial agreement and prior
to the notice of 25
th
August 1999, the parties had conducted themselves in a manner that
gives rise to the inescapable inference that both desired the
revival
of their former contractual relationship on the same terms as existed
before. It was further held that taken together,
those facts
established a tacit relocation of a franchise agreement between the
appellant and respondent.
[41]
The Golden Fried Chicken case is not distinguished from the present
case. After the expiry of
the initial agreement between the applicant
and the respondent, the parties have tacitly revived the initial
contract and their
relationship was therefore on the same terms and
conditions that existed before.
[42]
Taking into consideration the evidence and arguments presented in
this matter, the court is satisfied
that the applicant has shown on a
balance of probabilities that the respondent is not
bona fide
disputing its indebtedness to the applicant on reasonable grounds.
The dispute raised by the respondent is not genuine, not in
good
faith and
bona fide
. The dispute raised by the respondent was
in anticipation of the looming litigation against it which was
intended to create material
disputes of facts which did not exist.
The purpose for that was to delay the applicant’s claim.
[43]
Throughout the negotiations which took place for over twelve months
it was clear that the respondent
was unable to pay the applicant’s
debts and that it was no longer trading. That is confirmed by the
email of the respondent’s
attorneys dated 12
th
November 2018 wherein she informed the applicant that all the monies
of the respondent have been invested with Nazaru Contruction
and NZR
Properties,
[44]
The amount of R57 486 487-00 was conditional. Since the respondent
was not prepared to accept
the applicant’s conditions, the
applicant was justified in reverting to the initial acknowledgment of
indebtedness of R72
468 487-00 without a discount. The court is
therefore satisfied that the applicant had established that the
respondent is indebted
to it in the amount of R 72 468 487-00. I have
already found that the respondent had failed to show that the
applicant’s
indebtedness is being disputed on
bona fide
and reasonable grounds. Therefore, this court has no discretion but
to place the respondent in liquidation.
[45]
In the results I make the following order:
(a) The respondent NZ
Foods (Pty) Ltd is placed under a final winding-up order in the hands
of the Master.
(b) The costs of the
application are to be costs in the winding-up of the respondent.
KGANYAGO
J
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
APPEARENCES:
COUNSEL
FOR APPLICANT
:
B.M GILBERT WITH R PETERSON
BRIEFED
BY
:
KNOWLES HUSAIN LINDSAY INC
COUNSEL
FOR RESPONDENT
:
ADV. F. VAN WYK
BRIEFED
BY
:
NAZIA CARRIM ATTORNEYS
DATE
HEARD
:
20 JANUARY 2021
DATE
DELIVERED
:
11
th
MARCH 2021
[1]
1988
(1) SA 943
(A)
[2]
2000 (4) SA 598
(C) at 606 at B-D
[3]
2002
(1) SA 822
(SCA)