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[2018] ZAGPJHC 656
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Mondo Meccano Civil Contractors CC v Daniels and Simpson Properties CC (22343/2018; 22344/2018) [2018] ZAGPJHC 656 (13 December 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 22343/2018
22344/2018
In
the matter between:
MONDO
MECCANO CIVIL CONTRACTORS cc APPLICANT
AND
DANIELS
AND SIMPSON PROPERTIES cc RESPONDENT
JUDGMENT
TWALA
J
[1]
This is an opposed application wherein the applicant sought an order
for the final winding up of the respondent who is indebted
to the
applicant in the sum of R1 282 419.11 excluding interest to
be calculated at the rate of 26.6 % per annum.
[2]
The applicant has brought two and almost similar applications for the
winding up of the respondent and its surety, Jevic Property
Holdings
(Pty) Ltd, under case number 22344/2018. In this judgment, I am
called upon to deal with both cases as they are identical
and
interrelated.
[3]
This case served before me on the 3
rd
of December s2018 when counsel for the respondents applied for the
matter to stand down for 3 days since the respondents were attempting
to pay their outstanding debt to the applicant. The applicant did not
object to the postponement - hence I granted the application
for the
postponement of the matter for 3 days to the 6
th
of December 2018.
[4]
It is not in dispute that the respondents signed an acknowledgement
of debt and the suretyship in favour of applicant
in the sum of
R2 440 419.11 and failed to perform in terms of these agreements. It
is further not in dispute that the applicant
issued a letter of
demand, as contemplated by section 345 of the Companies Act, on
the 2
nd
May 2018
demanding payment of the sum of R1 451 646.71 and the
respondents failed to meet that demand. This galvanised
the applicant
to launch this application for the winding of the respondents. It is
common cause that on the 5
th
of December 2018 the respondent paid a sum of R1 457 050.80
into the account of the applicant in settlement of the claim
of the
applicant.
[5]
It is contended by counsel for the applicant that, if the applicant
were to accept this payment, it would be exposing itself
to be sued
by a liquidator who may be appointed in the next 6 months to
liquidate the respondent. It will be presumed that the
respondent has
preferred the applicant above other creditors, unless the respondents
establish that it made the payment in the
normal course of its
business. The respondents, so the argument goes, owe Nedbank a
substantial sum of money and since it is unable
to pay the applicant
as one of its contractors, it is clear that it is unable to pay some
of its other contractors.
[6]
Counsel for the respondents contended that there is no underlying
debt between the applicant and the respondents since payment
of the
debt has been made. It therefore goes without saying that the
applicant does not have locu standi to launch these proceedings
against the respondents for the debt has been extinguished. There is
no evidence, so it is contended, before the court to show
that the
respondent preferred one creditor above the other. Therefore the
transaction cannot be said to be voidable. The
applicant should
institute a separate inquiry if it were to require the information as
to the source of the funds of the respondents.
[7]
I am respectfully in agreement with counsel for the respondents that,
since the underlying debt between the parties has been
paid, there
applicant lacks locu standi to launch an application for the winding
up of the respondents under the prescripts of
section 345 of the
Companies Act.
[8]
In
Badenhorst v Northern Construction
Enterprises (Pty) Limited
1956 (2) SA 346
(T)
which decision has been quoted with approval in a number of cases
including the Constitutional Court in
Trinity
Asset Management (Pty) Limited v Grindstone Investment 132 (Pty)
Limited CCT 248/16 (5 September 2017)
, it was
stated as follows:
“
If an
applicant’s claim is bona fide disputed by the respondent on
reasonable grounds, an application for a sequestration
or winding-up
order cannot succeed”
[9]
I am acutely alive to the fact that the applicant disputes that the
debt has been settled in full due to the calculation of
interest and
costs. However, counsel for the respondents contended that the
respondents paid the outstanding amount including interest.
In my
view, there is a dispute between the parties with regard to the
amount owing. I am of the considered view therefore
that the
respondents have raised a bona fide defence on reasonable grounds
against the further claim of the applicant and therefore,
the winding
up application falls to be dismissed.
[10]
I find myself in agreement with counsel for the respondents that, to
determine whether the disposition was not made with the
dominant
intention to prefer one creditor above another requires a separate
enquiry from the proceedings before this Court. Whether
the
liabilities of the respondents at the time the disposition is made
exceed its assets does not raise the presumption that the
debtor’s
dominant intention in making the disposition was to prefer the
applicant above other creditors.
[11]
Counsel for the respondents tendered costs for the application as per
the acknowledgement of debt entered into between the
parties.
However, counsel conceded that the Magistrate Court does not have
jurisdiction to wind up a company except for close corporations.
Counsel for the respondents therefore submitted that the costs for
the application against the respondent be on a magistrate court
scale
and against the surety be on the High Court scale.
[12]
I am unable to agree with this contention. Counsel for the applicant
correctly submitted that it would have been difficult
to run both
matters in separate courts. I am in agreement that the applicant
would not have come to court had the respondents met
their
obligations. It is not for the respondents now to start putting blame
on the applicant for coming to court for redress.
[13]
In the circumstances, I make the following order:
I.
The application for the winding up of the
respondents is dismissed;
II.
The respondents are to pay the costs of the
application, jointly and severally the one paying the other to be
absolved, including
costs for the postponement on the 3
rd
of December 2018 on the scale as between attorney and client.
_________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 6 December 2018
Date
of Judgment: 13 December 2018
For
the Applicant: Adv. D. Goodenough
Instructed
by: Milemans Attorneys
TEL:
011 895 9000
For
the Respondents: Adv. R. Blumenthal
Instructed
by: Shultz Mmuoe Inc
TEL:
011 484 0945