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[2021] ZAGPPHC 151
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Premier FMCG (Pty) Ltd v ABC Fire Projects Proprietary Limited (4712/2021) [2021] ZAGPPHC 151 (12 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case Number: 4712/2021
Not Reportable
In the matter between:
PREMIER FMCG (PTY)
LTD
Application
And
ABC FIRE PROJECTS
PROPRIETARY LIMITED
Respondent
JUDGMENT
JANSE VAN
NIEUWENHUIZEN J
[1]
I heard this matter in the urgent
court last week and issued an order for the provisional liquidation
of the respondent. I indicated
that the reasons for the order would
follow. The reasons appear
infra
and due to the
urgency of the matter, a short summary of the facts and law will
suffice.
Reasons
[2]
The applicant prayed for the
provisional liquidation of the respondent on the basis that the
respondent is factually insolvent.
[3]
In a separate application under case
number 4709/2021, the applicant also prayed for the provisional
sequestration of the estate
of Barbara van Zyl, the sole director and
shareholder of the respondent, on the basis that she is factually
insolvent.
Facts common cause
[4]
The respondent was appointed as a
senior credit controller by the applicant on or about 1 April 2002.
Specific customer accounts
were allocated to the respondent to
manage, which management included obtaining proof of payments
(remittances) made by the customers,
allocating each
payment/remittance to that customer’s account and ensuring that
agreed discounts, rebates, returns or other
credit transactions are
accurately recorded on each customer’s account.
[5]
Naturally, the credit control duties
performed by the respondent played an important role in the
applicant’s business operations
and enabled the applicant to
have an accurate record of the liabilities of each of its customers
towards it.
[6]
The applicant alleges that the
respondent had, as a result of her position, become acquainted with
all the applicant’s internal
financial processes including the
applicant’s internal checks and balances.
[7]
One of the customer’s allocated
to the respondent was a certain Farhaad Distributors (“FD”),
which customer forms
the subject matter of the alleged fraud/theft
perpetrated by the respondent.
[8]
According to the applicant’s
accounting records, the account of FD seemed up to date. Some
suspicious behaviour of the respondent,
however, prompted the
applicant to appoint forensic investigators to investigate the
accounts managed by the respondent. The results
of the forensic
investigation were, as will appear more fully
infra,
astounding.
[9]
In conducting the investigation, an
analysis of the bank accounts of the respondent and ABC for the
period 2017 to date were compiled.
[10]
The analysis revealed the following:
10.1
during the period 2017 to date, FD
made payments to ABC’s bank account referenced either by the
customer account number allocated
by the applicant to it or by the
name of Mr Aboo Baker, the proprietor and director of FD, in an
aggregate amount of R 74 137 004,
57;
10.2
the aforesaid amount was disbursed by
the respondent by
inter
alia
paying an
amount of R 39 899 654, 57, directly into her bank account,
which amount was disbursed by the respondent.
[11]
The financial statements of ABC for
2019 reflects total equity and liabilities of R 301 519, 00 and
a nett profit of R 19 863.
Sales for the year amounted to
only R 976 286, 00.
Points
in
limine
[12]
Prior to considering the merits of
the applicant’s application it is necessary to deal with the
points
in
limine
raised
by the respondent.
First point
in
limine
[13]
The respondent alleges that the
applicant’s notice of motion is defective because it does not
reflect a date for hearing if
the matter is opposed.
[14]
The point is ill-fated. A mere
reading of the notice of motion makes short shrift of the point, to
wit:
“
TAKE
NOTICE FURTHER that
,
in the event that a notice of an intention on the part of the
respondent to oppose this application is received as aforesaid,
the
application will be made at
10h00
on
Tuesday
23 February 2021
or
as soon thereafter as counsel for the applicant may be heard.”
[15]
The point is dismissed.
Second point
in
limine
[16]
The respondent contends that a
supplementary affidavit filed by the applicant on 8 February 2021,
should be disregarded because
no basis or exceptional circumstances
for the filing of the supplementary affidavit exists.
[17]
It is trite that an applicant who
wishes to file further affidavits may only do so with permission of
the court. The supplementary
affidavit contains facts that came
to the knowledge of the applicant subsequent to the filing of the
founding affidavit.
[18]
I am of the view that the facts
contained in the supplementary affidavit do not take the matter any
further. The respondent has,
however, responded to the contents of
the supplementary affidavit in her answering affidavit and as a
result, did not suffer any
prejudice by the filing thereof.
[19]
In the exercise of my discretion, the
supplementary affidavit is admitted into evidence.
Third point
in
limine
[20]
The respondent alleges that the
applicant’s claim underlying the application is one for damages
and as such does not fall
within the definition of a “
liquidated
claim”
as
envisaged in section 9 of the Insolvency Act, 24 of 1936 (“the
Act”).
[21]
The point pertains to the merits of
the application and will be dealt with
infra
.
Fourth point
in
limine
[22]
The respondent contends that the
allegations in the supplementary affidavit dispel any notion that she
is a debtor of the applicant.
[23]
The point, once again, pertains to
the merits of the matter and will be dealt with
infra
.
Applicant’s case
[24]
The applicant reconstructed the
account of FD and established that an amount of R 124 941 177,
90 is outstanding
on the account. From the aforesaid facts, the
applicant contends that the respondent clearly misappropriated the
money paid by
FD to the benefit of the applicant into ABC’s
account.
Respondent’s
case
[25]
The respondent explained that FD made
payments to ABC for services rendered. In support of the aforesaid,
the respondent attached
four invoices issued by ABC to FD in respect
of the services rendered to her answering affidavit. The toral amount
of the invoices
is approximately R 45 000, 00.
[26]
Having regard to the amount paid by
FD to ABC, the explanation is untenable, to say the least.
Legal principles and
discussion
[27]
The respondent does not dispute that
the applicant has complied with all the formal requirements
pertaining to the application for
liquidation. The issues in dispute
are whether the applicant has a claim against the respondent and if
so, whether the claim is
liquidated.
[28]
The sections pertaining to the
liquidation of a company in the previous Companies Act, 61 of 1973
(“the Act”), has been
retained in the present
Companies
Act, 71 of 2008
. Section 344 of the Act lists the circumstances in
which a company may be wound up and subsection (f) read with section
345(2)
provides that a company may be wound up if it is proved to the
satisfaction of the court that the company is unable to pay its
debts.
[29]
In terms of section 346(1)(b) an
application for the winding-up of a company may be brought by one or
more creditors, including
contingent or prospective creditors.
[30]
The applicant’s claim against
the respondent is based on a debt arising from theft perpetrated by
the respondent. The claim
is for the repayment of stolen monies,
which claim is recognised in our law as a liquidated claim. [See:
Kleynhans v Van der
Westhuizen N.O.
1970
(2) SA 742
AD] This dispose of the liquidity point.
[31]
Insofar as the
locus
standi
of the
applicant is concerned, the respondent does not deny that R
74 137 004, 57 was paid into its bank account by FD
referenced by the customer account number allocated by the applicant
to FD or by the name Aboo Baker, the director and proprietor
of FD.
[32]
In is manifestly clear from the
respondent’s bank statements that the payments made by FD into
the account of FD was in respect
of the debt it owes to the
applicant. Instead of paying the money to the applicant, ABC
appropriated the monies to itself and thereafter
utilised the money
for its own benefit
[33]
The respondent did not provide any
facts to dispel the applicant’s allegation that FD, after a
reconstruction of its account,
owes the applicant R 129 million.
[34]
On the face of the applicant’s
claim for repayment of the stolen R 74 137 004, 57, ABC’s
current financial
position according to its financial statements
referred to
supra
proves that it is
unable to pay its debts and is hopelessly insolvent.
[35]
In the result, the applicant has
established facts entitling it to an order for the provisional
liquidation of ABC and such order
was granted.
N. JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE
HEARD PER COVID19 DIRECTIVES:
3 March 2021
(Virtual hearing.)
DATE
DELIVERED PER COVID19 DIRECTIVES:
12
March 2021
APPEARANCES
Counsel
for the Applicant:
Advocate N.G.D. Maritz SC and
Advocate
P. Lourens
Instructed
by:
Adams
and Adams Attorneys
Counsel
for the Respondent:
Advocate A.J. Swanepoel
Instructed
by:
Jay Inc.