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[2018] ZAGPPHC 90
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Hologrpidx Properties 144 (Pty) Ltd v Duncan Yards Real Food t/a Pappas Real Rood (45726/2017) [2018] ZAGPPHC 90 (23 March 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH
AFRICA
GAUTENG
DMSION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
CASE
NO.: 45726/2017
23/3/2018
In
the matter between:
HOLOGRAPIDX
PROPERTIES 144 (PTY)
LTD
Applicant
and
DUNCAN
YARDS REAL FOOD
T/A
PAPPAS
REAL FOOD
Respondent
Date
heard: 19 February 2018
Date
delivered: 23 March 2018
JUDGMENT
STRIJDOM
AJ:
[1]
The applicant issued and served an application for the liquidation of
the respondent,
alternatively that the respondent be provisionally
wound-up with such a return date as the court might deem appropriate.
[2]
The applicant also seeks condonation for
the late delivering of the applicants replying affidavit, practice
note and heads of argument.
[3]
Having considered the merits of the
condonation application it was dismissed by this court for the
following reasons:
(3.1) The
respondent served his answering affidavit to the liquidation
application on 15 August 2017.
The applicants replying affidavit was
to be served on or before 29 August 2017. The replying affidavit was
only filed on 9 November
2017 and therefore two months out of time.
(3.2) The
applicants practice note and heads of argument were only filed on the
6th day of February
2018 approximately three months after the filing
of the replying affidavit and less than two weeks prior to the
hearing of this
application.
(3.3) There
is no proper explanation for the fact that approximately three months
lapsed since the
service of the answering affidavit to the date when
the replying affidavit was filed. There is further no indication of
any steps
taken between the 3rd of October 2017 and the 9th of
November 2017.
(3.4) There
is no proper explanation why the applicants failed to file a practice
note and the heads
of argument subsequent to the filing of the
replying affidavit.
[4]
The applicant is a private company
represented by the sole director of the company. The applicant
alleges that it is a substantial
creditor of the respondent in the
sum of R259 973.10 (two hundred and fifty nine thousand rand and
seventy three rand and ten cents)
which amount remains outstanding
despite demand.
[5]
The applicant seeks to liquate the
respondent in accordance with the provisions of section 345 (1)(b)
read with section 348 of the
Companies Act 61 of 1973 (amended by Act
71 of2008).
Background
[6]
On
12 June 2012, the applicant, represented by Karen Klasina Prinsloo as
lessor, and the respondent duly represented by Mr Louis
Minnaar as
lessee entered into a commercial lease agreement in respect of the
property situated at 1204 Prospect Street, Hatfield.
[1]
[7]
The material terms of the agreement were
inter alia, the following:
(7.1)
The amount payable in respect of rental will be R32 400 (Thirty two
thousand four hundred rand inclusive
of VAT) per month.
(7.2)
Rental shall be paid in advance on the 7th day of each month, free of
any deduction or set-off.
(7.3)
In addition to the rental invoice, a monthly statement from Protea
Metering towards the usage of electricity
will be added and a service
charge of Rl9 per month (excluding VAT) payable to the applicant.
[8]
On
the 6th April 2017 the applicants attorneys served a notice in terms
of section 345 of the Companies Act 61 of 1973 on the respondent,
whereby payment of R206 482.32 was demanded within 21 days of service
of the demand, failing which it shall be deemed that the
respondent
is unable to pay its debts if and when they fall due committing an
act of insolvency.
[2]
[9]
Despite demand the respondent has to date, failed to pay the amount
due and owing
to the applicant.
[10]
The respondent denies that it is indebted to the applicant in the
amounts alleged or at all.
[11]
It was submitted by the respondent that the applicant's application
is flawed in a number of
respects and that the application should be
dismissed with costs.
[12]
The applicant rely on section 345 (1)
(b) of the Companies Act and stated in paragraphs 5 and 10 of the
founding affidavit that
the application for liquidation is based on
the provisions of section 345 (1) (b) of the Companies Act 61 of
1973.
[13]
Section 345 (1) (b) provides as follows:
"345
When company deemed unable to pay its debts
(1)
A company or body
corporate shall be deemed to be unable to pay its debts if
(b)
Any process issued on a judgment, decree or order of any court in
favour of a creditor of the companies returned by the Sheriff
or the
messenger with an endorsement that he has not found sufficient
disposal property found did not upon sale satisfy such process.”
[14]
There is no indication in the
application that there was at any stage any process issued on a
judgment, decree or order of any count
in favour of the applicant
against the respondent. There is also no suggestion in the founding
papers of any return of service
by the Sheriff or the messenger of
court to the effect that he has not found sufficient disposal
properties to satisfy a judgment,
decree or order.
[15]
It is also the uncontested allegation on
behalf of the respondent that he is indeed able to pay its debts and
does not fall within
the ambit of section 344 (f) of the Companies
Act.
[16]
The applicant relies on a lease agreement annexed to the papers as
annexure "C" to the founding
affidavit for the allegation
that the respondent owes the applicant money.
[17]
It was submitted by the respondent that it appears ex facie the lease
agreement that the respondent
was not a party to the agreement. The
tenant is described as Pappa's Real Food with no indication of any
registration number or
reference to the respondent. There is also no
indication that the agreement was signed by and/or on behalf of the
respondent. It
appears that the basis for applicants' claim is one
for arrear rentals for a period in 2017. The agreement stated that
the lease
period ended on the 30th April 2016. In terms of clause 2
of the lease relied on it is specifically stated that it ended on the
30
th
day of April 2016.
[18]
There is no allegation in the founding affidavit to the effect that
the respondent is in debt to the
applicant for a specific amount
within the ambit of the Companies Act. Applicant is described in the
founding affidavit as a substantial
creditor of the respondent in the
sum of R259 973.10 in paragraph 8 of the founding affidavit. A notice
in terms of section 345
of the Companies Act was served on the
respondent whereby payment of the amount of R206 482.32 was demanded.
In paragraph 2.2 of
the section 345 notice (annexure "D")
it was alleged that respondent failed to make payment of the required
amounts relating
to rental in the amount of R206 482.32 in terms of
clause 3 of the written agreement. In paragraph 3 of the notice
(annexure "D")
it is stated that applicant demand payment
from the respondent in the amount of R602 482.32. There is no
explanation for these
three different amounts that applicant demands
from the respondent.
[19]
The deponent stated in paragraph 12 of the founding affidavit that
the property was sold and registered
in the name of the new purchaser
on the 15th May 2017. He then made the following allegation:
"Due
to the change in ownership the existing lease was no longer valid due
the principles of huur gaat voor koop, which entails
that the amount
due to the applicant could not be collected by means of summons."
[20]
It is clear that because the applicant laboured under a wrong
understanding of the legal position
that the applicant proceeded to
file this application.
[21]
It was submitted by the respondent that
if the applicant on its own understanding does not have locus standi
to issue summons against
the respondent on what basis does the
applicant have locus standi to issue liquidation proceedings against
the respondent.
[22]
The issues raised by the respondent in
limine were not contested by the applicant in a replying affidavit.
Condonation for the late
filing of the replying affidavit was
dismissed.
[23]
In my view the issues raised by the
respondent in limine were valid considerations and should be upheld.
[24]
Having considered the submissions made
by counsels for the applicant and respondent in limine and having
read the papers I am of
the view that for purpose of my judgment it
is not necessary to consider the merits of this application.
[25]
In the result the application is
dismissed with costs on the scale of attorney and client including
the costs of senior counsel.
J.J.
STRIJDOM
ACTING
JUDGE GAUTENG DIVISION
OF
THE HIGH COURT OF SOUTH AFRICA
For
the plaintiff:
Adv. A Bosman SC
Instructed
by:
Jacques Classen Attorney
For
the defendant:
Ad, v J.G.
Cilliers
Instructed
by:
Rina Rheeders Attorneys
[1]
See agreement annexure "C" p 21 founding affidavit
[2]
See notice annexure "C" attached to the founding affidavit