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[2017] ZAGPPHC 32
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Brits Vleis (Pty) Ltd v Aspigon 175 CC (32669/14) [2017] ZAGPPHC 32 (3 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER: 32669/14
DATE:
3 February 2017
Reportable:
No
Of
interest to other judges: No
Revised.
BRITS
VLEIS (PTY)
LTD Applicant
v
ASPIGON
175
CC Respondent
JUDGMENT
MABUSE
J:
[1]
This is an application by the applicant, Brits
Vleis (Pty) Ltd, for the liquidation of the respondent, Aspigon 175
CC.
[2]
The applicant is a company with limited liability
duly registered as such in terms of the provisions of the company
statutes of
this country. The respondent is a Close Corporation
registered as such in terms of the Close Corporation Statutes of this
country.
The respondent conducts business of a butchery at 265 Botha
Street, Northam, under the name and style** of Roots Bakery.
[3]
The application for the liquidation of the
respondent is brought on the basis that the applicant has
locus
standi
in that it is the creditor of the
respondent as set out in s. 346 of the Old Companies Act 63 of 1971
("the Old Companies Act")
whose application was extended to
the Close Corporations by the provisions of schedule 5 of the New
Companies Act 71 of 2008 ("the
Companies Act"
;).
[4]
The applicant contends that it has
locus
standi
to bring this application on the
following grounds that:
4.1
it is the creditor of the respondent in the sum
of R125,000.00 being in respect of a cheque dated 6 September 2013
which the respondent
had given to the applicant but which was
subsequently dishonoured by the bank on 7 September 2013. The said
amount of R125,000.00
represented part of the respondent's
indebtedness to the appellant of the total sum of R559,787.86 which
was for goods sold and
delivered by the applicant to the respondent.
The amount of R559,787.86, which included the sum of the dishonoured
cheque of R125,000.00,
was only in respect of the respondent's
account 1; in the books of account of the applicant
4.2
the respondent was indebted to the applicant in a
further amount of R226,121.65 in respect of invoice INA26303; a
further sum of
R190,646.50 in respect of invoice INA26330 and another
sum of R48,397.59 in respect of invoice number INA26384;
4.3
a
sum of R246,143.93 in respect of account 1038;
4.4
a
certain Anibe, who had introduced herself as the manager of Roots
Butchery admitted, during a telephone conversation she had with
the
representative of the applicant, that the respondent was under
tremendous financial pressure. It is quite clear from the aforegoing,
that the applicant is indeed the respondent's creditor and for that
reason the applicant would be entitled to bring the application.
[5]
During January 2014, the applicant decided to
demand payment from the respondents of its liabilities. On the
applicant's instructions
its attorneys sent a notice in terms of
section 69 of the Close Corporations Act to the respondent. The said
notice was delivered
by the sheriff of the High Court to the
respondent on 3 February 2014. It referred in particular to the
amount of the dishonoured
cheque. It stated as follows:
"ONS KLiëNT:
BRITS VLEIS (EDMS) BPK
KENNISGEWING IN
TERME VAN ARTIKEL 69 VAN DIE WET OP BESLOTE KORPORASIES
Skrywer tree hierin op
namens Brits Vleis (Edms) Bpk.
Dit is ons instruksies
dat u aan ons kliente die bedrag van R125,000.00 (EEN HONDERD VYF EN
TWINTIG DU/SEND RAND) plus rente daarop
verskuldig is ten opsigte van
'n tjek gedateer 6 September 2013 wat u aan ons klient gelewer het
vir betaling, welke tjek deur
u finansiele instelling terugverwys is
as "refer to drawer''.
U word hiermee
aangemaan in terme van die bepalings van Artikel 69 van die Wet op
Beslote Korporasies, Wet 69 van 1984, om hierdie
bedrag binne
een-en-twintig (21) dae aan ons kantore te betaal.
Sou u weier of versuim
om hierdie bedrag te betaal, of sekuriteit vir die behoorlike
namkoming van u verpligtinge te stet, sal dit
geag word dat u
insolvent is en nie in staat is om u krediteure te kan betaal nie.
Ons wens in hierdie
verband u aandag te vestig op die bepalings van Artikel 69 van die
Wet op Beslote Korporasies, Wet 69 van 1984,
wat soos volg lees:
(1)
by die toepassing van Artikel 86(C) word
'n Korporasie geag nie sy skulde kan betaal nie, indien-
(a)
'n Skuldeiser, by sessie of andersins, aan
wie die korporasie reeds opeisbare bedrag van nie minder ss R200
verskuldig is, 'n aanmaning
waarvan die korporasie aangesê word
sldus die bedrag
opeisbaar te betaal, aan
die korporasie bestel het deur dit by sy geregistreerde kantoor af te
lewer, en die korporasie vir 21 dse
dsama nsgelsst het om die bedrag
te betaal of tot die redelike bevrediging van die skuldeiser dssrvoor
sekerheid ts stel of ten
opsigte dasrvan 'n akoord aan te gaan; of
(b)
'n balj, of 'n geregsbode van die
landroshof, in sy relaas op 'n
prosesstuk
of ander bevel skrif uitgersik ingevolge vonnis of bevel van die hof
ten gunste van 'n skuldeiser van die korporasie,
verklaar dat hy
onvoldoende vervreembare goed gevind het om te voldoen aan die vonnis
of bevel, of dat die gevonde vervreembare
goed by verkope onvoldoende
was om te voldoen aan sodanige prosesstuk;
of
(c)
tot bevrediging van die hof bewys word dat
dis korporasie nie sy skulde kan betaal nie.
(2)
by die vasstelling van die doeleindes vir sub
Artiksl (1) of 'nkorporasie sy
skulds nie
kan betaal nie, neem die hof ook die voorwaardelike en vetwagle
verpligtinge van die korporasie in aanmerking.”
[6]
Although the respondent did not respond to the
said notice in terms of s 69 several payments commencing on 10
January 2014 up to
6 March 2014 were made by the respondent to the
applicant towards the liquidation of the respondent's debt. After
taking all the
payments made by the respondent to the applicant into
account, the total amount still due and payable by the respondent to
the
applicant was, so it was contended by the applicant, as at 6
March 2014, a sum of R662,681.79. After a period of 21 days referred
in the s 69 notice had come and gone, the applicant instructed its
attorneys to launch this application. It is accordingly contended
by
the applicant that on the basis of the aforegoing, the respondent may
be deemed to be insolvent by reason of the respondents'
failure to
respond to the s 69 notice within 21 days of the date of delivery of
the said notice and considering that the cheque
the respondent had
paid the applicant with was dishonoured by the bank.
[7]
The application is opposed by the respondent. The
affidavit of one, Gabriel de Sousa ("de Sousa"), a member
of the respondent
is used to oppose the application. He states that
all facts in this affidavit and all the dealing between the applicant
and the
respondent fell within his personal knowledge. He states
furthermore and specifically that he was at all relevant times
responsible
for and involved in all orders that were placed by the
respondent with the applicant, invoices that were submitted by the
applicant
to the respondent and to all the payments that the
respondent made to the applicant.
[8]
According to his testimony the respondent
conducted business as a butchery in Northam since 2011. The majority
of the respondent's
customers were mineworkers employed at the mines
around Northam. During the years 2013 and 2014 and due to the strikes
at the mines
the respondent suffered a dip in its monthly turnover.
The turnover dipped from R3.5 million per month to R1.4 million per
month.
Despite all these challenges the respondent continued to trade
whilst others around it folded. In the period of two months after
the
strikes had ceased, the respondent's business picked up. There were
improvements in its turnover. The turnover picked up to
R2 million
per month. The respondent admitted that because of the factors
mentioned above it fell into arrears with the payments
of its
creditors. De Sousa contends that despite all such challenges the
respondent continued to trade and to make regular payments
to its
creditors of any overdue amounts.
[9]
With regard to these overdue amounts, the
respondent's total creditors were R2.2 million, the bulk of which
about 95%, were rendered
in less than 3 days and were not due and
payable. It was contended again, on behalf of the respondent, that it
has assets in excess
of R9 million consisting, among others, of
refrigerators, generators, forklifts and automated guard system. On
the basis of the
aforementioned it is denied by the respondent that
it is unable to pay its debts.
[10]
The respondent admits that the applicant is its
creditor. The respondent admits furthermore that a cheque for the sum
of R125,000.00
that It had given to the applicant as payment of its
debts was dishonoured. On the contrary the respondent states that the
applicant
has failed to disclose that subsequent to the dishonour of
the cheque, payment was made to the applicant by the respondent on 13
September 2013 in the sum of R135,000.00. In addition, it is
contended on behalf of the respondent, that the applicant has failed
to disclose to the Court that in September 2013 several other
payments were made by the respondent to the applicant with the result
that as at 26 September 2013 the respondent was not indebted to the
applicant at all. On the basis of the aforegoing, the respondent
contends that the amount of the dishonoured cheque, being the debt
upon which the applicant relies to liquidate the respondent,
was
therefore extinguished long before the applicant brought the
application in April 2014 for the liquidation of the respondent.
[11]
The applicant pleaded that Annexure "RA1"
attached to the replying affidavit, being the latest account
statement of the
respondent, showed that the respondent was still
indebted to the applicant; that the payment of R135,000.00 on 13
September 2013
did not extinguish the respondent's indebtedness to
the applicant and that even after the said payment, the said sum of
R135,000.00
the respondent still owed the applicant the sum of
R286,405.75. The applicant admitted in its replying affidavit that
the sum of
R125,000.00 as per the dishonoured cheque dated 6
September 2013 was indeed settled. It added though that the
respondent was, even
after settling the amount of R125,000.00 still
indebted.
[12]
THE LAW
The
application for the liquidation of the respondent is based on the
amount of the dishonoured cheque of R125,000.00. This is evident
from
the evidence of the applicant as contained in both paragraphs 5 and 6
of the applicant's founding affidavit. In paragraph
5 of the founding
affidavit the applicant states that:
"Die Applikant is
'n skuldeiser van die Respondent in die bedrag van R125,000.00 soos
blyk uit aanhangsel ‘BV3' synde
'n afskrif van 'n tjek wat ten
gunste van die Respondent getrek is op die Bank van Athene. gedateer
is 6 September 2013. Die betrokke
tjek is op 6 September 2013
aangebied by die applikant se bank, Mnre Standard Bank, en is die
tjek soos blyk uit aanhangsel ‘BV3'
onteer en terug gestuur as
onbetaald. Die bankier van die Applikant het hulle stempel verwys na
trekker (refer to drawer) op die
betrokke staat aangebring."
Paragraph
6 states as follows:
"Hierdie
R125,000.00 verteenwoordig deel van die verskuldlgheid van die
Respondent aan die Applikant en heg ek hierby 'n uittreksel
uit die
Grootboek van die applikant as aanhangsel BG4' waaruit die
verskuldigde bedrag soos op die 11de Januarie 2014, die bedrag
van
R559,787.86 blyk."
[13]
That the applicant relied on the said amount of
R125,000.00 is made even clearer by the notice in terms of s 69 of
the Close Corporations
Act. No singular demand or notice was made in
respect of another amount. The applicant would have failed to comply
with the provisions
of s 69 of the Close Corporations Act in respect
of any amount other than the R125,000.00 of the dishonoured cheque.
Section
69 prescribes that the creditor must in the notice
demand a payment "for the sum so due".
[14]
The respondent admits that it paid the applicant
by means of a cheque for the sum of R125,000.00; that the said cheque
was dishonoured
but contends that the amounts of the said cheque was
made good by the respondent paying the sum total of R135,000.00. This
payment
has been admitted by the applicant.
[15]
Since January 2014 to 29 September 2014 the
respondent made a total payment of R446,550.00. These payments
resulted in the debt
being reduced to R347,981.00 As far as it
concerns the respondents, the said payments clearly showed that it
was not correct as
alleged by the applicant, that the respondent was
unable to pay its debts. No other demand in terms of s 69 of the
Close Corporations
Act was made.
[16]
Furthermore, the respondent disputes the
correctness of the applicant's records. Where the applicant had
stated that the respondent
had paid R20,050.00, on 24 January 2014,
the respondent pointed out that it was not correct and that the
correct amount that it
paid was R240,050.00. Secondly, the
respondent, furthermore, pointed out that an amount of R11,800.00
that the respondent had paid
on 30 January 2014 was not reflected in
the list of payments the applicant admitted that the respondent had
made. On this basis
it was claimed by the respondent, firstly, that
the applicant's reconciliation was faulty, and secondly, that it did
not reflect
the payments made after March 2014.
[17]
In particular, the respondent states that the
debt of R125,000.00 as per cheque dated 6 September 2013 was paid and
the respondent's
entire debt to the applicant was extinguished on 20
September 2013, long before the applicant sent to the respondent a
notice in
terms of s 69 of the Close Corporations Act. Despite
the fact that the said amount had been paid, the applicant persisted
with not only the s 69 notice but also with the application to
liquidate the respondent. The applicant continued to supply the
respondent with meat until January 2014. The respondent denies that
it is insolvent and also that it is unable to pay its debts.
Quite
clearly there is a dispute of facts relating to whether or not the
respondent has made payments to the applicant and
whether those
payments settled its debts to the applicant. In my view, the
respondent has raised a
bona fide
dispute.
On the principle set out in Kalil v Oecotex (Pty) Ltd and Another
1988(1) SA 943 AD at page 980 where the Court stated
that:
"Consequently, where the respondent shows
on a balance of probabilities that its indebtedness to the
applicant is disputed
on bona fide and reasonable grounds, the Court
will refuse a 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:
Iam of the view that the application
for the liquidation of the respondent in the face of such disputes
cannot succeed.
[18]
The applicant admitted that as at 28 October 2015
the respondent was still indebted to it in the sum of R48,005.25. The
respondent
admitted being indebted to the applicant in the sum of
R794,531.79; that it made payments to the applicant between January
2014
to September 2014 in the amount of R446,550.00 that there was at
one stage the outstanding balance of R347,981.79. It is clear that
as
at 28 October 2014 the outstanding amount was R48,005,25. The
importance of this evidence lies in the fact that despite the
fact
that the applicant stopped furnishing the respondent with meat, the
respondent, somehow, managed to continue conducting its
business, and
more importantly to make payments of its debts. The mere fact that
from the huge amount of R794,531.79 as at January
2014 to the
outstanding balance of R48,005.28 as at October 2014 is indicative of
the ability of the respondent to pay its debts.
I am therefore
satisfied that the respondent's evidence shows that it is able to pay
its debts. On the facts before the Court,
the application for the
liquidation of the respondent cannot succeed.
[19]
Accordingly, I make the following order:
1.
The application for the liquidation of the
respondent is hereby dismissed with costs.
________________________
P.
M. MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the applicant:
Adv. Z Schoeman
Instructed
by:
Strydom Bredenkamp Inc
Counsel
for the first respondent:
Adv. D Meyer
Instructed
by:
Gemeke
&
Potgieter
Date
Heard:
23 August 2016
Date
of Judgment:
3 February 2017