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[2018] ZAGPPHC 18
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Marais aand Others v Buy Direct Website Services (Pty) Ltd (12684/2017) [2018] ZAGPPHC 18 (16 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:12684/2017
In
the matter between:
JOHANNES
JACOBUS
MARAIS
AND
18 OTHER APPLICANTS
FIRST APPLICANT
and
BUY
DIRECT WEBSITE SERVICES (PTY) LTD
RESPONDENT
JUDGMENT
RANCHOD
J:
[1]
The applicants seek an order that the respondent company be placed
under final winding-up.
[2]
The first applicant's founding affidavit is short and comprises of
six paragraphs
in which he sets out his own particulars and that of
the respondent. He says he has deposed to an extensive affidavit in
support
of the winding up application of an associate of the
respondent viz. Deltrosys (Pty) Ltd. He has attached his founding
affidavit
in that application and requests 'that it be read herein as
grounds for the winding up of [the respondent]'. He says the facts
set out in that affidavit show why the respondent in this application
should also be wound up.
[3]
The first applicant has attached 'supporting affidavits' from
eighteen other
persons and purports to act together with them as his
co-applicants. However, the affidavits do not have headnotes to
indicate
that each of them was confirming the facts deposed to by the
applicant in this matter. There was no reference to the name of the
respondent at all. In these circumstances I am of the view that their
confirmatory affidavits are to be disregarded. The effect
is that the
application stands to be determined on the basis of the first
applicant's papers only. Hence I will refer to the first
applicant
merely as 'the applicant'.
[4]
The respondent has not filed an answering affidavit. Instead, on 18
May 2017 it delivered
a notice in terms of Rule 6(5)(d)(iii) of the
Uniform Rules of Court in which it raises a number of technical
points. However,
the notice was delivered out of time without an
application for condonation for doing so. As a result, the applicant
set the matter
down for hearing on 28 May 2017 in the unopposed
motion court. The respondent then sought a postponement which was
granted and
it was ordered to pay the costs of the appearance on that
date.
[5]
The respondent's legal representatives were again alerted by
applicant's counsel,
Mr Kruger SC in his heads of argument which were
served on the respondent's attorneys on 29 August 2017 and filed at
Court on 20
September 2017 about the failure to apply for condonation
for the late filing of the Rule 6(5)(d)(iii) notice.
[6]
The respondent had also not delivered any heads of argument in the
matter. When the
matter was called in the opposed motion court on 29
January 2018, I raised this issue with Mr Naude SC who appeared for
the respondent
and asked him why I should hear the respondent in
these circumstances. No proper explanation for the failure to file
heads of argument
was forthcoming save that it was submitted that the
legal issues were clear and could be addressed without heads of
argument. I
stood the matter down for hearing the following day.
[7]
When the matter was called on 30 January 2018 Mr Naude SC handed up
short heads of argument
again without an application for condonation.
Applicant's counsel, Mr Kruger SC raised the point again. I decided
to accept the
respondent's heads and proceeded to hear the matter.
[8]
When Mr Naude addressed the court he did not deal with the fact that
no application for
condonation for the late filing of the Rule
6(5)(d)(iii) notice was made although Mr Kruger raised it in his
heads of argument
and again at the hearing of the matter before me.
[9]
In
Uitenhage Transitional Local Council v South African Revenue
Service 2004(1) SA 292 (SCA) at para [6]
it was once again
emphasized that condonation is not to be had merely for the asking.
But here it's worse. Despite being alerted
as early as 29 August 2017
to the fact that a condonation application has not been filed, the
respondent failed to do so. There
is thus nothing before me to
explain the reason for the late filing of the Rule 6(5)(d)(iii)
notice. In these circumstance,sthe
notice was not properly before me
and will not be considered.
[10]
I have then before me only the founding affidavit of the applicant.
[11]
The applicant seeks the final winding up of the respondent. He relies
on his allegations
against an associate company of the respondent,
viz., Deltrosys (Pty) Ltd, which has in the interim been wound up at
the instance
of another applicant.
[12]
The applicant alleges that the respondent is a participant in an
elaborate pyramid (ponzi)
scheme run by the parties running the
FinGroup of companies of which the respondent is one as well as
Deltroys (Pty) Ltd. He says
the 'minds behind the companies use the
various companies to defraud people who have invested in one company,
promising an exchange
of shares for investment when one company's
money runs out, setting up other companies and even promising to list
on the Johannesburg
Stock Exchange withoutany of the requirements for
a listing being done'.
[13]
The applicant says he first heard of the FinGroupof companies when it
started a major advertising
campaign during 2013 or 2014 to recruit
potential investors who would purchase licenses in the companies for
a minimum amount of
R50 000.00. The details are not necessary for
present purposes; suffice to say that the applicant says he was
'duped' into entering
into a 'Licence Partner Agreemen't with
Fincapital (Pty) Ltd trading as Allquotes.co.za. He duly paid an
amount of R140 000.00
to the respondent on 18 October 2014 and from
time received monthly payments (returns on investment) from it. On 20
October 2014
he received a certificate of licence signed by Rob
Weimar a director of the respondent but the name of the respondent
does not
appear on the certificate.
[14]
At the end of March or April 2015 the monthly payments into the
applicant's account stopped.
He made enquiries at the respondent's
offices and was told that FinGroup (Pty) Ltd was in the process of
purchasing a "world
first patented product' which would be sold
to Eskom for billions of Rands
[15]
Despite numerous requests and enquiries over several months he did
not receive any further profit
share payments of any kind.
[16]
In 2016 MiBiz Business Online Services (Pty) Ltd which appeared to
operate
on a similar business model as the respondent, appeared to
take over the role as representative of all companies in the FinGroup
of companies. It published a newsletter in the electronic media in
which,
inter alia,
it stated that investors were not receiving
any dividends since "the financials must be finalised and as
there are currently
no profits, there are no profit share/dividends
to be made." It also made it clear that the respondent (referred
to in the
newsletter as BuyDirect) was not in a position to make any
payments "until the market has turned". Applicant says the
status of the market was not listed as a factor that would determine
payments in terms of the agreements between the parties.
[17]
In the agreement the addressof the respondent is provided but there
is no longer any business
of any kind related to any of the FinGroup
of companies at that address. The applicant challenged the respondent
to provide proof
that it had offices from where it traded, that
annual financial statements are available for inspection or at least
books of account,
that it had employees and employmentrecords. The
respondent failed to do so.
[18]
A number of investors in the respondent, including the applicant,
caused a notice in terms
of s344(h) and s345(1) of the Companies Act
No. 61 of 1973 to be delivered to the respondent. Demand had been
made in the notices
for payment of the various amounts owing to the
investors within 21 days of receipt of the letters by the respondent,
failing which
it would be deemed that it was unable to pay its debts
and that application would be made for the liquidation of the
respondent.
It's attorney responded but, instead of confirming that
the respondent was in business he engaged in a diatribe which was
merely
a denial of the allegations contained in the notices.
[19]
The respondent has not paid the applicant. In terms of the s344 and
s345 notice the company
in my view is deemed to be unable to pay its
debts and a proper case for the winding up the respondent has been
made.
[20]
I am satisfied that the applicant has complied with all the statutory
requirements
for the granting of the order prayed.
[21]
I make the following order:
21.1
The respondent be and is here by placed under final winding up.
21.2
Costs of the application are to be costs in the winding up
application.
RANCHOD
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Applicant
: Adv. T.P Kruger
SC
Instructed
by
: Steenkamp Attorneys
Counsel
on behalf of Respondent
: Adv. J.G Naude SC
Instructed
by
: SC Vercueil Attorneys
Date
heard
: 30 January 2018
Date
delivered
: 16 February 2018