About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2021
>>
[2021] ZAGPJHC 543
|
|
Fluxmans Incorporated v Barata Projects CC (2021/20516) [2021] ZAGPJHC 543 (11 October 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 2021/20516
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
date
11/10/21
In
the matter between:-
FLUXMANS
INCORPORATED
APPLICANT
AND
BARATA
PROJECTS CC
RESPONDENT
Delivery:
Transmitted by
email to the parties’ legal representatives. The judgment is
deemed to have been delivered on 11 October 2021
2021.
Summary:
Application
for liquidation of the respondent. Application for postponement of
the hearing. Principles governing postponement restated.
Application
for postponement dismissed.
JUDGMENT
Molahlehi
J
[1]
This is an
application in which the applicant seeks an order placing the
respondent under winding-up in the hands of the Master
of the High
Court. The applicant contends that the respondent is indebted to it
in the sum of R63 860. 00 for professional services
rendered. It
further contends that the respondent has admitted the indebtedness
with several undertakings to pay the debt to no
avail.
[2]
This matter
was enrolled for hearing on the unopposed roll on 4 October 2021. On
that day, the respondent's Counsel appeared and
indicated that the
respondent wished to oppose the matter and thus requested that the
hearing be postponed.
[3]
The appearance
by Counsel was, it would appear, consequent the notice to oppose
filed by the respondent on 28 September 2021, which
is clearly out of
time.
[4]
On 4 October
2021, the matter stood down for hearing on 6 October 2021. In the
meantime, the respondent's attorneys of record addressed
a letter to
the applicant's attorneys of record on 5 October 2021. The essence of
the letter is that the respondent sought to have
the matter postponed
for thirty days pending payment from its clients. In paragraphs 2 and
4 of the letter, the respondent states
the following:
"2.
That the application be postponed with costs being born by Our
Client. The reason for the postponement is that the client
is
awaiting payments from its clients who have delayed in paying it.
3.
. . .
4.
Kindly note that we are not able to bring a substantial formal
application as the Director or/ Member of of Our Client is currently
out of reach and the last time we spoke to him, he was in Limpopo."
[5]
It
is trite that in considering an application for a postponement, the
court has the discretion to be exercised judicially. It is
also trite
that a postponement is not a right but an indulgence given by the
court. For this reason, in seeking a postponement,
the applicant must
furnish a full and satisfactory explanation of the circumstances that
gave rise to the need for a postponement.
And as repeatedly stated by
the authorities, postponement is not there for the taking.
[1]
[6]
As indicated
earlier, this matter was set down for hearing on 4 October 2021 but
stood down when the respondent raised the issue
of the postponement
to 6 October 2021. In my view, this provided an opportunity for the
respondent to prepare a substantive application
for the postponement.
Be that as it may, even the application from the bar does not satisfy
the requirement for a postponement.
The respondent's Counsel's
explanation that a substantive application could not be made because
the main member of the respondent
was away in Limpopo is not
satisfactory. There is no explanation as to why he could not be
contacted and arrangements made for
him to join the electronic
platform on which the hearing was conducted.
[7]
In his
application for the postponement of the matter from the bar, the
respondent's Counsel tendered cost to be occasioned by the
postponement. A tender for costs is an important factor to consider
in weighing whether a postponement should be granted. It is,
however
not a determining factor.
[8]
It is
important to note that the respondent's Counsel did not deal with the
prospects of success, which is an essential factor in
an application
for postponement. In fact, in the context of this matter, there are
no prospects of success, even on the respondent's
version.
[9]
The
essence of the above is that the respondent affirms the case made by
the applicant in its founding affidavit, and thus this
means there
are no prospects of success, as it also appears in more details
below.
[10]
For the above
reasons, the application to postpone the matter stands to fail.
[11]
I now turn to
deal with the merits of the application, which remains unopposed.
[12]
It
is trite that liquidation proceedings are instituted when a debtor
company cannot pay its debt as when the debt becomes due.
It is also
trite that the grounds for winding-up of a close corporation, as is
the case in the present matter, is the same as in
the case of a
company. The grounds for winding of a close corporation are those set
out in sections 344 and 345 of the Companies
Act.
[13]
The court may,
amongst others, grant a winding-up order when satisfied that the
closed corporation, like a company, is unable to
pay its debts.
[14]
After
exchanging correspondence relating to the debt, the applicant finally
addressed a letter of demand to the respondent, which
was delivered
by hand to the respondent's head office on 17 February 2021. The
relevant part of the letter, which was issued in
terms of section
345(1) (a) of the Companies Act 61 of 1973 read with
section 66(1)
of
the
Close Corporations Act 69 of 1984
reads as follows:
"You
are indebted to Fluxman Inc in the sum of R63, 860.25 . . . in
respect of professional services rendered to you at your
special
instance and request during May 2019 and June 2019 and disbursements
incurred in connection therewith. The full sum is
due owing and
payable together with mora interest at the rate of 7% per annum
reckoned from date of demand . . . to date of payment."
[15]
In response to
the above letter, Mpho Malahlele of the respondent addressed an email
to the applicant that acknowledged the respondent’s
indebtedness to the applicant. The letter reads as follows:
"Good
day Colin
Hope
this letter finds well and safe.
We
take note of your letter of demand and yes we are well aware of our
indebtedness to Fluxman, our Attorneys for years and we do
not want
to prejudice our long standing relationship.
Please
note payment will be done within the prescribed period from date of
receipt of the letter or before, as soon as receive payment
from our
client we will effect payment immediately.
Regards.
Mpho Malhlele."
[16]
Following the
above, the applicant addressed an email to the respondent dated 9
March 2021 and reminded respondent that the payment
which was
expected had not been received. In an email, the respondent
apologised for the failure to effect the payment and indicated
that
it was because they were still awaiting payment from their client.
[17]
It
is clear from the above that the respondent's indebtedness to the
applicant is not in dispute. It is also clear that the respondent
is
not able to pay its debt to the applicant.
[18]
The inability
of the respondent to pay its debt falls squarely within the
provisions of section 69 (1) (a) and (c) of the Close
Corporation Act
and section 344 (f) read with section 345 (1) (a) and (c) of the
Companies Act 61 of 1973.
[19]
In the
circumstances, I am satisfied that the respondent is unable to pay
its liquidated debt which is due and owing to the applicant.
Thus it
is just and equitable that the respondent deserves to be wound-up in
terms
section 68
(d)) of the
Close Corporations Act read
with section
344 (h) of the Companies Act.
Order
[20]
In the
circumstances, I make the following order:
1.
The
application to postpone the hearing is dismissed.
2.
The respondent
be placed in final liquidation;
3.
The costs of
the application be costs in the liquidation of the respondent.
E
MOLAHLEHI J
JUDGE
OF THE HIGH COURT GAUTENG DIVISION, JOHANNESBURG
Representatives:
For
the applicant: Adv KJ Van Hyssteen
Instructed
by: Fluxmans Inc.
For
the defendant:
Instructed
by: VM Mashele Attorneys
Hearing
date: 06 October 2021
Delivered:
11 October 2021
[1]
M
F v Cummins South Africa (Pty) Ltd and Others: (27028/2019) [2020]
ZAGPJHC 143 (16 April 2020.