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[2020] ZALMPPHC 3
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Diesel Direct (Pty) Ltd t/a Xfuels v Excodor 37 t/a Total Vaalwater (3605/2018) [2020] ZALMPPHC 3 (28 January 2020)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NUMBER: 3605/2018
28/1/2020
In
the matter between:
DIESEL
DIRECT (PTY) LTD T/A XFUELS
APPLICANT
AND
EXCODOR
37 CC T/A TOTAL VAALWATER
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
On the 22
nd
December 2017 the applicant represented
by Mr. Barend Jacobus Strydom and the respondent represented by Mr
Delmar Nortje entered
into an alleged written acknowledgement of debt
(AOD) for the amount of R208 215-97. It was a material term of
the alleged
AOD that a minimum payment of R20 000-00 per month
was to be discussed and agreed upon on the 15
th
January
2018.
[2]
During February 2018 there was a WhatsApp communication between the
applicant and
respondent wherein the respondent promised to pay end
of February. The respondent did not pay as promised and on the 20
th
April 2018 the applicant send a notice in terms of section 345(1) (a)
of the
Companies
Act
[1]
(Old
Act). In terms of the notice, the respondent was given 21 days within
which to pay the full outstanding amount failing which
an application
for it to be liquidated will be instituted.
[3]
The respondent failed to comply with the demand, and that
resulted in the applicant
instituting an application against the
respondent seeking an order that the respondent be finally wound up
and placed in the hands
of the Master. In the alternative the
applicant is seeking an order that the respondent be provisionally
wound up. The applicant’s
application is based on the alleged
AOD and section 345(1) letter.
[4]
The respondent is opposing the applicant’s application.
The respondent has
raised a point
in limine
stating that the
application was brought in bad faith as the AOD is fatally flawed and
was attained under circumstances of undue
pressure during an unlawful
act of spoliation, and therefore did not reflect the true intentions
of the respondent. However, the
respondent did not pursue this point
in limine
and opted to argue it together with the merits of
the application.
[5]
With regard to the merits, the respondent in its answering
affidavit has stated that
there was no valid AOD that existed.
According to the respondent, Mr Nortje was pressurised to sign the
AOD and when he signed
it, he intended to bind himself in his
personal capacity for a debt of the third party. That explains why he
has inserted his identity
number and his physical address is noted as
the
domicilium
of the debtor.
[6]
The respondent in his answering affidavit has further stated
that the purported AOD
was intended to be subject to a suspensive
condition as payment was still to be discussed and agreed upon.
According to the respondent
the suspensive condition has not been
fulfilled. The respondent has also stated that the purported AOD was
not signed.
[7]
The respondent has stated that the applicant is abusing court
processes by instituting
a liquidation application instead of issuing
summons against it. According to the respondent, it is quite capable
of paying its
creditors and its assets exceed its liabilities.
[8]
It is settled law that a company is deemed to be unable to pay its
debt if a creditor to
whom the company is indebted in the sum of
money of not less than one hundred rand has served the company with a
letter demanding
payment of the amount due, and the company has for
three weeks neglected to pay the sum, or to make reasonable
arrangement to the
satisfaction of the creditor. The company will
also be deemed to be unable to pay its debts if it is proved to the
satisfaction
of the court that it is unable to pay its debts. In a
final winding-up application, the onus is on the applicant to prove
grounds
upon which it relies on. It is also trite that the onus is on
the applicant to establish a liquidated claim is sequestration
proceedings.
[9]
In the case at hand the applicant is relying on the AOD and its
section 345 letter
as the basis of alleging that the respondent is
unable to pay its debt. The circumstances under which the AOD was
allegedly signed,
was that the applicant has provided petroleum
products to the respondent for its service station at Total Vaalwater
to the value
of R208 215-97. The respondent in its answering
affidavit is not disputing that. The respondent is however raising
technical
issues alleging that the AOD is totally flawed and attained
under circumstances of undue pressure; that the purported AOD was not
signed; that the purported AOD was subject to a suspensive condition
that was not fulfilled; and that the understanding of Mr Nortje
at
the time of signing of AOD was that he intended to bind himself in
his personal capacity for a debt of a third party.
[10]
The clause of the AOD in relation to the payment of the debt state
that minimum payment of R20 000-00 per
month to be discussed and
agreed on 15
th
January 2018. What it entails is that on
15
th
January 2018 the parties will discuss and agree on a
minimum payment of R 20 000-00 per month. It was not yet certain
whether the
respondent will be required to pay R20 000.00 or more per
month. In my view this was indeed a suspensive condition. The
applicant
will only be entitled to enforce the AOD once the
suspensive condition has been complied with. The respondent dispute
that the
suspensive condition has been complied with.
[11]
In
G45
v Zandspruit Cash & Carry
[2]
Fourie
AJA said:
“
To determine
whether or not the respondent’s delictual claims are
time-barred, it is necessary to interpret the agreements
and in
particular clause 9.9 thereof. Whilst the starting point is the words
of the agreements, it has to be borne in mind, as
emphasised by Lewis
JA in
Novartis
SA (Pty) Ltd v Maphil Trading (Pty) Ltd
2016 (1) SA 518
(SCA) ([2015]
ZASCA 111)
para 27, that this court has consistently held that the
interpretative process is one of ascertaining the intention of the
parties
-this case, what they meant to achieve by incorporating
clause 9.9 in the agreements. To this end the court has to examine
all
the circumstances surrounding the conclusion of the agreements,
ie the factual matrix or context, including any relevant subsequent
conduct of the parties.”
[12]
Even though there is a suspensive condition in relation to monthly
payments of R20 000.00 per month, it
is not clear from the papers
whether on the 15
th
January 2018 or any subsequent date, the parties have discussed and
agreed on minimum monthly payments by the respondent. However,
this
uncertainty has been cleared by the WhatsApp communication between
the applicant and respondent. On the 7
th
February 2018 at 9h17 the applicant has sent a WhatsApp message to
the respondent enquiring about payment. The respondent responded
to
that message at 9h50 stating that they have talked and that payment
will be made the end of February. The conduct of the parties
after
the 15
th
January 2018 shows that the suspensive condition has been complied
with, and the agreement was that the respondent will start paying
the
end of February 2018. The applicant was therefore entitled to enforce
the AOD due to non-compliance of its terms by the respondent.
[13]
There respondent does not dispute that it has failed to effect
payment as per the terms of the AOD. That
resulted in the applicant
sending a section 345 notice to the respondent. The respondent still
did not comply with the notice.
In
Body
Corporate of Fish Eagle v Group Twelve Investment
[3]
Malan J said:
“
Section 345 (1)
and 344(f) of the Companies Act intended that an unconditional
payment must be made by a company in order to avoid
liquidation…”
[14]
By
demanding payment, the applicant was informing the respondent that
the debt has become due and payable. The respondent was given
21 days
to settle the whole outstanding amount. The outstanding amount was
more than one hundred rand. The respondent was given
three weeks
within which to settle the debt. The respondent has failed to
unconditionally settle the debt or to make reasonable
payment
arrangements to the satisfactory of the applicant. After the lapse of
three weeks the respondent was therefore deemed to
be unable to pay
its debts.
[15]
The
respondent in its answering affidavit has raised issues that might
seem to raise a dispute of fact. In
Kalil
v Decotex (Pty) Ltd and Another
[4]
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 applicant 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. “
[16]
Since the respondent has been deemed unable to pay its debts for its
failure to comply with the
applicant’s section 345 notice, for
it to avoid liquidation, it has to show on a balance of probability
that its indebtedness
to the applicant is disputed on
bona
fide
and reasonable grounds. The respondent has denied being
indebted to the applicant and has also stated that it is quite
capable of
paying its creditors and that its assets exceed its
liabilities. The respondent has further stated that the applicant
should have
proceeded by way of action against it instead of motion
proceedings. What the respondent is basically saying is that there is
a
material dispute of fact which will not be resolved on the papers
as they stand.
[17]
In
National
Director of Public Prosecutions v Zuma
[5]
Harms DJ said:
“
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. “
[18]
The respondent has merely made a bare denial of the applicant’s
debt despite being a signatory
to the AOD. The respondent has just
made a bald statement that it is capable of paying its creditors and
that its assets exceed
its liabilities without substantiating that
contention. With these bare denials and bald statement it becomes
difficult for the
court to find that the respondent has satisfied the
test of establishing a real, genuine and
bona fide
dispute of
fact. I therefore, cannot find in favour of the respondent that a
real, genuine and
bona fide
dispute of fact exist.
[19]
The first part of the AOD reads as follows:
“
I, D Nortje
Identity number:
700115205081(Married In/Out of community of property) Or in my
capacity as duly authorised representative of Total
Vaalwater CC/ PTY
LTD Registration number: 12/2013/0516) (Herein called the Debtor)
acknowledge the debtor to
be truly and lawfully indebted to Diesel Direct Pty Ltd Registration
number: 2015/362176/07 t/a X-Fuels
(herein called the creditor) for
the sum of R 208 215-97 being in respect of supply of petroleum
products.”
[20]
On the space where the debtor was supposed to sign, Mr Nortje did not
sign. However, Mr Nortje
has initialled each and every page including
the last page where the debtor did not sign and has also put his full
names on the
space provided for on the last page. The respondent has
issues with these defects and submit that the AOD was therefore not
proper
and that Mr Nortje was under the impression that he was
personally acknowledging the debt due by the respondent.
[21]
In my view, the respondent is opportunistic with its contention. The
AOD identifies the debtor
as Total Vaalwater and also state its
registration. Therefore, failure by the applicant to delete “married
IN/OUT of community
of property” was a minor omission which is
not that material. Also, failure by Mr Nortje to sign where the
debtor was supposed
to sign will not on its own invalidate the AOD
since he had put his full names and also initiated the very same
page. Further,
his promise in the WhatsApp message of the 7
th
February to pay the by the end of February shows that he had no
qualms with the AOD and considered the respondent bound by it.
When
Mr Nortje was concluding the AOD, he did so in a representative
capacity of Total Vaalwater which is the respondent.
[22]
The amount on the AOD is easily identified and the respondent does
not dispute that it is the
amount that led to the conclusion of the
AOD on the 22
nd
December 2017. The court is therefore
satisfied that the applicant has established a liquidated claim
against the respondent. The
respondent has failed on a balance of
probabilities that its indebtedness to the applicant is disputed on
bona fide
and reasonable grounds.
[23]
In the result I make the following order:
23.1. The respondent
Excodor 37 CC T/A Total Vaalwater is finally wound-up
and placed in the hands
of the Master.
23.2. The
costs of the application are to be costs in the winding-up.
MF. KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR
APPLICANT : ADV JP MORTON
INSTRUCTED BY
:
THOMAS GROBLER ATTORNEYS
COUNSEL FOR
RESPONDENT : MR RHEEDER
INSTRUCTED BY
: MURPHY KWAPE MARITZ ATTORNEYS
DATE OF HEARING
: 04 DECEMBER 2019
DATE OF JUDGEMENT
: 28 January 2020
[1]
Act 61 0f 1973
[2]
2017 (2) SA 24
(SCA) at para 12
[3]
2003 (5) SA 414
(W) at 427A
[4]
1988 (1) SA 943
(A) at para 980 B-C
[5]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at para 26