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[2021] ZAGPPHC 379
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Telemax (Pty) Ltd v Kievits Kroon Country Estate (Pty) Ltd (18482/2020) [2021] ZAGPPHC 379 (15 June 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 18482/2020
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between :
TELEMAX
(PTY) LTD
Applicant
(Reg No 2014/081811/07)
and
KIEVITS KROON COUNTRY
ESTATE (PTY) LTD
Respondent
(Reg No: 1996/006198/07)
JUDGMENT
Heard
on:
3 June 2021
Judgment
handed down: 15 June 2021 (by publication on
CaseLines)
VAN
ZYL AJ
Introduction
1.
This is a final winding-up application. The
Applicant is Telemax (Pty) Ltd, a company that conducts business in
what it termed the
information technology sphere, and the Respondent
is Kievits Kroon Country Estate (Pty) Ltd, an upmarket country estate
with a
luxury hotel and a wellness spa situated in Pretoria.
For the sake of convenience I distinguish between the Respondent as
the company and the actual estate where necessary.
2.
The parties were in a contractual
relationship with one another, which came to its demise during
November and December 2019 and
the Applicant now seeks the winding-up
of the Respondent on the following grounds:
2.1
That the Respondent is unable to pay its
debts in terms of section 344(f), read with section 345(1)(a) of the
Companies Act (At
61 of 1973) (“
the
1973 Companies Act
”); or
2.2
That it would be just and equitable to do
so.
3.
The notice of motion did not seek for a
provisional winding-up and the matter was argued in front of me on
the basis that the relief
sought was in the form of a final
winding-up. The relevance of this lies in the onus that the
Applicant has to discharge
in order to obtain the relief that it
seeks.
A
brief background
4.
The record comprised of the usual set of
affidavits. On the Applicant’s side, the founding affidavit was
deposed to by Llewellyn
Bailie, who described himself as the Managing
Director of the Applicant. After deposing to the founding
affidavit Bailie
resigned as a director of the Applicant and the
replying affidavit was deposed to by Ryno Mathee, a director of the
Applicant.
Bailie deposed to a confirmatory affidavit in
support of Mathee’s replying affidavit but only confirmed the
contents
thereof “
insofar as it
relates to myself
”. The
answering affidavit was deposed to by Francois Stremmelaar, the
Respondent’s general manager.
5.
There is no dispute that the Respondent
required a total overhaul of its information technology (“
IT
”)
structure at the estate. Unfortunately, neither party provided
a definition of what was meant by the term of “information
technology structure” and I could also find no definitive
treatment of the phrase. I deal with how the term should
be
interpreted further below.
6.
During March 2019, the Applicant and the
Respondent entered into an oral agreement. Counsel for both
parties approached the
matter on the basis that the parties were
largely
ad idem
regarding the terms of this oral contract. While it is so for
the greater part, it is not so in several critical respects.
7.
In
the founding affidavit, Bailie set out what he referred to as the
“
material,
express alternatively tacit further alternatively implied terms
”
of the oral contract. Van der Linde J remarked in
Niehaus
v High Meadow Grove Body Corporate
[1]
that “
an
affidavit, by a deponent who asserts that a specific term of an
agreement is
“
express,
alternatively tacit, alternatively implied”, helps naught. The
deponent is a witness who is expected to give evidence
of the
agreement and its terms
”.
A more careful analysis of the terms of the agreement is therefore
required.
8.
The first point to be made is that the
founding affidavit and the answering affidavit both contend for a
single agreement.
In reply, Mathee sought to reset the
Applicant’s sails by contending for a second oral agreement,
but this was not confirmed
by Bailie in his confirmatory affidavit
(which was limited only to matters insofar as it referred to him).
In any event,
it is trite that a party must make out its case in the
founding affidavit. It cannot do so in reply. I accordingly
proceed
on the basis that there was only one single oral agreement
which I hereinafter refer to simply as “
the
oral agreement
”.
9.
The parties are also in agreement that the
oral agreement comprised of two phases. Phase 1 was described
as “
to install a network, hosting
and connectivity, physical network (being cabling and ad hoc
components), a 3CX PBX telephone system,
connectivity and project
management for the Respondent
”.
10.
Phase 2 was in respect of what was
described by the Applicant as “hardware and software
infrastructure”.
11.
The Applicant was entitled to payment seven
days after receipt of an invoice for payment of the services,
installation and goods
sold and delivered.
12.
It is common cause that the Applicant was
paid in full for Phase 1, but defects subsequently arose in respect
of Phase 1 to the
extent that on the facts before me it is probable
that the Applicant has failed to properly perform in respect of Phase
1.
Claims arising from this malperformance by the Applicant on
Phase 1 forms part of the Respondent’s defence to the
Applicant’s
claim against the Respondent.
13.
In regard to Phase 2, the Applicant
contends that what is due and payable in respect of Phase 2 appears
from an invoice dated 21
November 2019 attached to its founding
affidavit, which was sent by Bailie to Stremmelaar on 20 November
2019 attached to an email
with the subject line “
Kievits
Kroon Countery Estate phase 2 pricing breakdown
”.
Stremmelaar queried the email on 28 November 2019 and requested
confirmation from Bailie that,
inter
alia
, the five documents attached to
Bailie’s email of 20 November 2019 were the only information
for him to consider, which Bailie
confirmed on 29 November 2019.
The five documents to which reference was made is the invoice of 21
November 2019 and what
is referred to by Bailie in the founding
affidavit as “
the four
sub-invoices
”. Bailie’s
statement is not quite correct as the four accompanying documents are
quotes, not invoices.
Nothing turns on this. I
hereinafter refer to the invoice as “
the
November invoice
” and the four
accompanying documents as “
the
November quotes
”.
14.
From
Bailie and Stremmelaar’s correspondence, there seems to have
been some confusion as to what was eventually provided by
the
applicant in terms of Phase 2. This may have been what is
commonly referred to as “scope creep”. A
handy
exposition of what “scope creep” entails appears in the
judgment of Mr Justice Edwards-Stuart sitting in the
Technology and
Construction Court in the matter of
De
Beers UK Limited (Formerly: The Diamond Trading Company Limited) v
Atos Origin It Services UK Limited
[2]
:
“
These
two different types of scope increase are sometimes referred to as
changes in breadth and changes in depth, respectively.
Changes in
breadth are, effectively by definition, true changes in scope.
[…] Changes in depth are sometimes referred
to as “scope
creep”.”
15.
Whether the changes came about due to a
lack of clarity in the initial oral agreement or due to scope creep
of either variety mentioned
above during the course of executing the
work, it does not matter. The parties are in agreement that
what was to be provided
in respect of Phase 2 appears from the
November invoice and the November quotes.
16.
The Applicant urged me to interpret
Stremmelaar’s reply on 28 November 2019 as an acceptance that
the work in respect of all
the aforementioned invoices had been
properly rendered. Such a contention is not supported by the
content of Stremmelaar’s
email, which only required
confirmation that what appears in the invoices was the only
information to consider.
17.
The November invoices lists the items
billed for under four headings, namely “Software”,
“Servers”, “PCs
& Laptops”, “Additional
1
st
”
and “Additional 2
nd
”,
all of which totals R1,889,812.27, inclusive of VAT.
18.
It
is convenient to now turn back to the phrase “information
technology structure” as used by the parties. One
standard definition of “information technology” is “
the
technology involving the development, maintenance, and use of
computer systems, software, and networks for the processing and
distribution of data
”.
[3]
Another is “
the
study or use of systems (especially computers and telecommunications)
for storing, retrieving and sending information
”
[4]
.
The Electronic Communications and Transactions Act (Act 25 of 2002
defines “
information
system
”
as:
“
a
system for generating, sending, receiving, storing, displaying or
otherwise processing data messages and includes the Internet”
19.
The
dictionary definition of “structure” in turn is “
the
arrangement of and relations between something complex
”
[5]
.
20.
In
light of these definitions, the phrase “information technology
structure” means the arrangement of and relations
between
computer systems, software and networks for the processing and
distribution of data. Cognisant that dictionary definitions
should serve only as a guide
[6]
,
it also accords with the parties’ understanding of what they
meant by the term “information technology structure”
and
is reflected in what the parties understood the work in respect of
Phase 1 and Phase 2 to be comprised of.
21.
The importance of understanding what the
term “information technology structure” means lies in the
fact that was being
provided was an IT system, not just certain IT
hardware.
22.
In argument I enquired from counsel for the
Applicant whether it would have been good enough for the Applicant
simply to have delivered
the items at the door of the Respondent in
discharge of the Applicant’s performance under Phase 2.
He conceded that
it would not and that something more was required.
The concession was properly made since the November invoice expressly
refers to “installation, setup & update” in respect
of “Software” and “installation” in
respect
of cable installation. Furthermore, it is evident from the
affidavits and contemporaneous documents that the parties
did not
contemplate a mere sale agreement, but something more which included
the rendering of labour and services to install the
items listed.
23.
In respect of the Software items, one of
the November quotes details what is to be provided. This
includes, by way of examples,
the general set-up and update of the
SAGE, OPERA, MICROS, ESP-SPA, PASTEL Interface, WANAMA Interface and
ESP Interface software
packages. It also provides for the
installation of point of sale, back-up license and, in respect of the
OPERA and PMS software
packages, the back-office interface
configuration and training.
24.
In respect of the so-called Additional 1
st
,
one of the November quotes reflect that a company called “Huge
Networks” would be used as the Applicant’s
subcontractor.
The quote also provides
inter
alia
for “trace and test”
and “labour”. In respect of Additional 2
nd
,
the same quote makes mention of various “network points”.
25.
What is apparent from the parties’
understanding of the oral agreement, and more particularly Phase 2
thereof, was that the
items listed in the November invoice were not
disparate items that could be provided in isolation from one another,
but rather
had to be delivered as part of the overhaul of the
Respondent’s IT structure at the estate.
26.
Stremmelaar states that Phase 1 was not
properly completed and the Applicant failed to perform in terms of
the oral agreement.
The facts support this.
27.
The parties are in agreement that during
October 2019, an independent IT expert, Jason Delport of Silver Moon
was brought in to
evaluate and assess the execution of Phase 1.
The report produced on 25 October 2019 (hereinafter referred to as
“
the Silver Moon report
”)
eventually dealt with aspects of both Phase 1 and Phase 2.
Although there was no confirmatory affidavit from Delport
confirming
the Silver Moon report, both parties relied upon the report.
28.
The Silver Moon report details a plethora
of faults, which need not be rehashed herein for reasons which are
explained below.
29.
On 31 October 2019, Bailie wrote to Delport
with a proposed plan of action (or as Bailie refers to it, a “snag
roll out plan”)
to address the faults listed in the Silver Moon
report. Bailie states that this snag roll out plan was approved
by Delport
and it included project management duties on the part of
the Applicant.
30.
Emails attached to the founding affidavit
reflect that by 4 November 2019 the plan had not yet been agreed
upon, but an email of
11 November 2019 seems to reflect that remedial
measures had begun. Bailie, however, states that the
implementation of the
roll out plan never transpired.
31.
On Thursday, 14 November 2019, Bailie wrote
to Rad Jankovic of Huge Networks. The introductory paragraph of
the email is worth
quoting in full:
Hi Rad,
As you are aware Ryno did a proper walkthrough with Eddie
Yesterday after our meeting to confirm what was still outstanding or
not
completed to Telemax standards. The results were shocking to put
it likely … The below identifies the areas on the property
where network points where meant to be installed (including the POS
points required for the new POS printers). At some point we
stopped
taking photos where the same issue were present almost at every point
i.e. loose network points- out of the supposed 33
new network points
only 30 were found & it became clear that 3 POS points were never
installed. To make matters worse, NONE
of the installed network
points were active… only the POS points where POS printers
were installed are active. I have to
ask how could our contractors
possibly missed this several times? Dial 9 is also still setup as
“Dial 9* ” I’m
attaching the photos & will
share the video clips via watsap. Please see below finds &
description:”
32.
Why the Applicant saw it fit to try and
place distance between itself and Huge Networks is not clear, since
Huge Networks was its
subcontractor and any poor performance on its
part stands as a breach by the Applicant of its contractual
obligations to the Respondent.
33.
Bailie also referred to emails exchanged
with Huge Networks on 15, 18 and 20 November 2019, all of which still
reflect that there
was outstanding work to be done.
34.
Bailie alleges in his founding affidavit
that Stremmelaar refused to allow the Applicant access to the
estate. Stremmelaar
denies this. The emails relied upon
by Bailie also does not support his version that access was refused,
nor does he point
to any email prior to rendering the invoices on 20
November 2019 which records that access was denied. The
Applicant’s
case was in any event that it was entitled to be
paid for what appears in the November 2019 invoice, which presumes
proper performance
when it was rendered.
35.
On 27 November 2019, the Applicant’s
attorneys, Hills Inc, served a notice on the Applicant in terms of
section 345 of the
1973 Companies Act. The invoice that is
attached to the demand is the invoice provided by Bailie to
Stremmelaar on 20 November
2019. As pointed out above, Bailie
only confirmed to Stremmelaar on 29 November 2019 that the invoices
rendered on 20 November
2019 were indeed what should be considered.
Hills also only contended for a single “partly written partly
oral agreement”.
36.
On 10 December 2019, Respondent, through
its attorneys MacRoberts Attorneys, responded to the 27 November 2019
demand. Both
the terms of the oral agreement, as well as that
there had been proper performance was placed in issue.
37.
Hills wrote back on 10 December 2019 and
then responded more substantially two months later, on 10 February
2020. In neither
of the letters was the challenge to the terms
of the oral agreement taken up. The letter did, however,
contend that proper
access had not been given to address “problems”
with the Respondent’s IT system, but contended that this was
not the Applicant’s doing and responsibility.
38.
It is evident that the parties’
contractual relationship thereafter came to an end, but neither party
has stated how exactly
this happened.
The
legal principles
39.
The Applicant seeks a final winding-up
order and has to discharge the onus of doing so on the balance of
probabilities.
40.
As is apparent from the analysis of the
facts there are serious disputes between the parties regarding what
the terms of the agreement
were and whether there had been proper
performance in terms of the agreement.
41.
The
Applicant, who throughout bears the onus, did not seek an order
referring these disputes for the hearing of oral evidence as
it might
have done. The well known test set out in
Plascon-Evans
[7]
is accordingly of application.
42.
The
papers are interspersed with disputed issues of fact. Final
winding-up orders may, in terms of the test, only be granted if
the
facts stated by the respondents together with the admitted facts in
the applicants' affidavits justify the orders.
[8]
In
Orestisolve
(Pty) Ltd T/A Essa Investments v NDFT Investments Holdings (Pty) Ltd
and Another
2015 (4) SA 449
(WCC),
Roger
J stated:
“
[9]
The test for a final order of liquidation is different. The applicant
must establish its case on a balance of probabilities.
Where the
facts are disputed, the court is not permitted to determine the
balance of probabilities on the affidavits but must instead
apply the
Plascon-Evans rule (Paarwater v South Sahara Investments (Pty) Ltd
[2005] 4 All SA 185
(SCA) para 4; Golden Mile Financial Solutions CC
v Amagen Development (Pty) Ltd
[2010] ZAWCHC 339
paras 8 – 10;
Budge and Others NNO v Midnight Storm Investments 256 (Pty) Ltd and
Another
2012 (2) SA 28
(GSJ) para 14).
[10] The difference in
approach to factual disputes at the provisional and final stages
appears to me to have implications for the
Badenhorst rule. If there
are genuine disputes of fact regarding the existence of the
applicant's claim at the final stage, the
applicant will fail on
ordinary principles unless it can persuade the court to refer the
matter to oral evidence. The court cannot,
at the final stage, cast
an onus on the respondent of proving that the debt is bona fide
disputed on reasonable grounds merely
because the balance of
probabilities on the affidavits favours the applicant. At the final
stage, therefore, the Badenhorst rule
is likely to find its main
field of operation where the applicant, faced with a genuine dispute
of fact, seeks a referral to oral
evidence. The court might refuse
the referral on the basis that the debt is bona fide disputed on
reasonable grounds and should
thus not be determined in liquidation
proceedings. (In the present case neither side requested a referral
to oral evidence.)”
43.
I next turn to an analysis of the facts.
Analysis
44.
The Applicant elected to ask for a final
winding-up and elected also not to ask that the factual disputes be
referred to oral evidence.
45.
Accordingly, applying the principles set
out above, it is apparent that the oral agreement was a single one
and the fact that there
were two phases of delivery does not
bifurcate the Applicant’s obligation to render performance in
full.
46.
The
Applicant bears the onus of alleging and proving the terms of the
oral agreement, even if it involves proof of a negative.
[9]
47.
The
oral agreement is clearly not a sale agreement, but rather a contract
to perform a piece of work (called a
location
conduction operis
).
Such a contract has three basic elements, namely, the work to be
performed, the remuneration payable and the time for performance.
[10]
48.
It
is for the Applicant to prove that everything was done that had to be
done in terms of the oral agreement.
[11]
Unless otherwise agreed, the contractor (in this case the Applicant)
may not demand payment until it has completed the work.
[12]
This legal principle was not properly appreciated by the parties
until raised in argument by the court.
[13]
49.
On
the probabilities the Applicant had not yet performed the work it
contracted for when demand was made on 27 November 2019.
Furthermore, on the facts in this matter the work contracted for
under the oral agreement has to date not been performed in full.
That does not mean that the Applicant cannot recover payment, even if
its performance was incomplete or defective. The Applicant
is
not entitled, however, to recover the contract sum.
[14]
It can do so, depending on the circumstances, either by way of a
reduced contract price or by way of an enrichment claim,
but that is
for another court to determine on another day.
50.
The
Respondent has particularised the defects in the Applicant’s
performance.
[15]
While
there is a dispute as to the value of the defects, this is in my view
not material to raising a defence at this stage
to a claim by the
Applicant for payment. Much time was spent on this in argument,
but this was because the parties approached
the defects complained
about, particularly under Phase 1 of the oral agreement, as somehow
separate from what happened in Phase
2 in respect of which the
Applicant claimed. They also approached the Phase 2 defects as
though a valuation is required.
In terms of the law on a
contract for the performance of a piece of work, disputing
performance and itemising the defects complained
of is a defence to
the entire claim and it remains for the contractor (i.e. the
Applicant) to then either prove that proper performance
was rendered
or what the reduced value would be.
51.
Unless
the Respondent wants to claim consequential damages from the alleged
breach of contract by the Applicant, it need not raise
a counterclaim
as a defence to the Applicant’s claim as currently formulated.
A denial that there has been proper performance
suffices and the
probabilities in the present matter favour the Respondent.
Accordingly, the situation where I need to consider
the matter on the
basis of a counterclaim by the company against an established
creditor and then exercise my discretion in that
context
[16]
,
does not arise.
52.
The Applicant claims for the full value of
the oral agreement (i.e. the full price for both Phase 1 (in respect
of which it has
already been paid) and Phase 2). On the facts
before me, the Applicant has not performed properly on either of the
Phases
and its claim for full payment accordingly does not fall due
for payment.
53.
Until the Applicant has proven on a balance
of probabilities that it has performed properly, it is at best a
contingent creditor
of the Respondent.
54.
The Respondent was therefore fully entitled
to refuse to make payment. The Applicant can therefore also not
in the circumstances
rely on the provisions of clause 345(1)(a) of
the 1973 Companies Act to prove that the Respondent is insolvent.
55.
In regard to whether I should, on the basis
of the Applicant being a contingent creditor, nonetheless allow a
winding-up of the
Applicant, the parties agreed that I have a
discretion. In this regard the following:
55.1
I
was urged by counsel for the Respondent to consider that the
Applicant’s claim may eventually be dismissed by the
liquidator.
This is not a relevant argument. It is the
Applicant’s prerogative to institute the liquidation
proceedings, even though
it might not be able to successfully prove a
claim before the liquidator.
[17]
55.2
But
even if one were to assume that the section 345(1)(a) notice can be
relied upon, Rogers J stated the following in
Orestisolve
supra
[18]
:
“
Another
circumstance which, in my view, would favour an exercise of the
court's discretion against winding-up is where, despite
the deemed
inability to pay debts created by s 345(1)(a), the evidence shows
that the company is not in fact commercially insolvent.
It may also
be relevant in this regard that the company's failure to pay is
attributable to a genuine dispute concerning the claim,
even if the
court in the event considers the grounds of dispute are ill-founded.”
55.3
The Applicant has failed to actually prove
that the Respondent is commercially insolvent. Instead, it
relied upon innuendo
based on the Respondent’s failure to
provide either its annual financial statements or put up security for
the claim.
While the Respondent can be criticised for taking a
lackadaisical approach to responding to this aspect (i.e. by
not providing
a statement from its auditors), mere speculation does
not suffice to prove a fact.
55.4
Stremmelaar states in his affidavit that
the Respondent is acknowledged to be one of the top ten getaways in
Gauteng, that it has
one of the leading health spas in the country,
that the estate has outstanding conferencing facilities, that the
Respondent has
received awards and accolades, that the Respondent is
a brand name in South Africa and is renowned as one of the most
exclusive
leisure and conferencing facilities in Africa. The
Applicant applied to have the paragraphs in which these statements
appear
struck-out on the basis that they are irrelevant. The
evidence is clearly relevant and Stremmelaar, in his capacity as the
general manger, is able to attest to these facts. The
striking-out application accordingly fails.
55.5
Besides
seeking to strike out these statements of Stremmelaar, the Applicant
did not seek to provide facts countering what Stremmelaar
said.
Even if it were commercially insolvent, on those facts the Respondent
is a business in whose favour a court would exercise
its discretion
given what has been said of its business, it’s evident assets
and what must be a not insignificant number
of employees dependent
upon the Respondent for their livelihoods.
[19]
The just and equitable
ground
56.
The highlight of the Applicant’s case
in regard to just and equitable is the allegation that the Respondent
is currently trading
in insolvent circumstances “
that
are submitted to be reckless and negligent, which not only needs to
be stopped, but also needs to be investigated
”.
57.
Smit
JP said in that
Katsapas
v Norvalspont Investments (Pty) Ltd
[20]
at
406F - H that in circumstances where a minor creditor applies for the
winding-up of a company a winding-up will only be
ordered if the
applicant can show that due to the mismanagement the company it will
rapidly be reduced to a condition of insolvency
so as to prejudice
the creditors' prospects of being paid. The Applicant falls
squarely in the position of a minor creditor
and the above
dictum
applies to it.
58.
The Applicant has not in any way
substantiated the statement that the Respondent is trading recklessly
and negligently in insolvent
circumstances, nor have any facts
been put before me to show any mismanagement of the Respondent and
its financial affairs.
The mere statement of what should be a
conclusion on the facts, does not suffice.
59.
In contrast stands Stremmelaar’s
statements referred to above, which paints a picture of a company
being managed as a successful
business.
60.
In the premise the reliance on just and
equitable ground also cannot succeed.
61.
In the circumstances the application for a
final winding-up order must fail.
Order:
62.
In the premises I make the following order:
62.1
The Applicant’s application is
dismissed.
62.2
The Applicant is to pay the costs of the
application on the party and party scale.
DIRK
R. VAN ZYL
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearances:
For
the Applicant:
Adv Johan Prinsloo
Instructed
by:
Hills Inc
For
the Respondent:
Adv M.P van der Merwe SC
Instructed
by:
MacRobert Incorporated
[1]
Niehaus
v High Meadow Grove Body Corporate
2020 (5) SA 197
(GJ) at
paragraph [3].
[2]
De
Beers UK Limited (Formerly: The Diamond Trading Company Limited) v
Atos Origin It Services UK Limited
2010 EWHC 3276
(TCC) at paragraph
239.
[3]
“
information
technology”, Merriam-Webster.com, 2021,
https://www.merriam-webster.com (6 June 2021).
[4]
“
information
technology”, Concise Oxford English Dictionary, 12
th
Edition.
[5]
“
structure”,
Concise Oxford English Dictionary, 12
th
Edition.
[6]
De Beers Industrial
Diamond Division (Pty) Ltd v Ishizuka
1980 (2) SA 191
(T) at
196E.
[7]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A),
at 634E – 635C.
[8]
Paarwater
v South Sahara Inv (Pty) Ltd
[2005] 4 All SA 185
(SCA) paragraphs
[3] and [4]; Budge NNO v Midnight Storm Inv 256 (Pty) Ltd
2012
(2) SA 28
(GSJ) at paragraph [14].
[9]
Kriegler v Minitzer
[1949] 4 All SA 498
(A).
[10]
Amler’s
Precedent of Pleadings
,
7
th
Edition, page 268.
[11]
Martin Harris & Seuns OVS (Edms)
Bpk v Qwa Qwa Regeringsdiens; Qwa Qwa Regeringsdiens v Martin
Harris
& Seuns OVS (Edms) Bpk 2000 (3) SA 339 (SCA).
[12]
BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk
1979 (1)
SA 391
(A) at 418; Dalinga Beleggings (Pty) Ltd v Antina (Pty)
Ltd
1979 (2) SA 56
(A) at 60.
[13]
Be that as it may, see: Trinity Asset
Management (Pty) Ltd v Grindstone Inv 132 (Pty) Ltd
2018 (1) SA
94
(CC) at paragraph [92].
[14]
Amler’s
Precedent of Pleadings
,
7
th
Edition, page 267.
[15]
Badenhorst v Prinsloo
1967 (1) SA 212
(O) at 215.
[16]
Companies
Part 3: Volume 4(3) - Second Edition, Winding-Up By The Court In
Terms Of The Companies Act 61 Of 1973, §85.
[17]
Absa Bank Ltd v Hammerle Group
2015
(5) SA 215
(SCA) at paragraph [16].
[18]
Orestisolve (Pty) Ltd t/a Essa Inv v
NDFT Inv Holdings (Pty) Ltd
2015 (4) SA 449
(WCC) at paragraph
[21].
[19]
Orestisolve
supra
at paragraph [17]: “
Although
the ex debito justitiae maxim has been repeated in recent cases,
there are other decisions holding that the legislative
policies
underlying the new Act require the discretion to be viewed more
broadly in favour of saving ailing companies (see Absa
Bank Ltd v
Newcity Group (Pty) Ltd and Other Cases
[2013] 3 All SA 146
(GSJ)
paras 29 – 33; Dippenaar NO and Others v Business Venture
Investments No 134 (Pty) Ltd
[2014] 2 All SA 162
(WCC) paras 45 –
46). Where there are competing applications for liquidation and
business rescue, the policy considerations
underlying the business
rescue procedure must inevitably derogate from the traditional
approach. The two cases just mentioned
extended this approach to
circumstances where, although there were not competing business
rescue applications, there was evidence
that the companies could be
saved by transactions of which particulars were furnished.
”
[20]
Katsapas v Norvalspont Investments
(Pty) Ltd
1969 (4) SA 403
(O) at 406F – H.