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[2017] ZAGPPHC 914
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Standard Bank of South Africa v Zwelothando Minerals and Resources (Pty) Ltd (11490/2017) [2017] ZAGPPHC 914 (10 April 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 11490/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
10/4/2017
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA
(Registration
Number:
1962/000738/06) Applicant
and
ZWELOTHANDO
MINERALS AND RESOURCES (PTY) LTD
(Registration
Number:
2009/023158/07) Respondent
JUDGMENT
KUBUSHIJ
[1]
The applicant has launched, on an urgent basis, an application
seeking an order that the respondent be placed under final
·winding-up
in the hands of the Master of the High Court. The
application is in terms of section 344
(f)
of
the Companies Act 61 of 1973 read with section 345 (1)
(c)
thereof and item 9 (1) of schedule 5 of the
Companies Act 2008
. At the commencement of the hearing of this
application, the applicant's counsel applied for a provisional order
returnable on
24 May 2017.
[2]
It is not in dispute that in terms of agreements entered into between
the applicant and the respondent, the applicant granted
the
respondent various credit facilities. It is also not in dispute that
the respondent breached such agreements and that the full
amounts due
and owing in respect of such agreements became owing and payable. A
further settlement agreement was entered into by
the parties but was
not honoured by the respondent. At the time of launching the
application it is alleged that the amount due
and owing by the
respondent was in the region of approximately R14 million.
[3]
The respondent is opposing the application and has raised numerous
defences in its papers including lack of urgency. I deal
first with
the issue of urgency.
[4]
In paragraph 35 of its founding papers the applicant raises the
following grounds for launching the application on an urgent
basis:
"35.1 the applicant
having perfected its cession of debtors and contracts the respondent
is in no position to make payment
of any of its costs, security,
security over the vehicles, insurance or salaries and wages;
35.2 notwithstanding
numerous demands the respondent has failed to provide the applicant
with proof that the insurance policy which
it managed to obtain had
come into effect as such prescribes that the insurance will only be
in effect if the premium has been
paid and the applicant has failed
to provide proof of payment of such premium;
35.3 if a premium·has
been paid, it has not been paid from the overdraft account and it
would seem that payments from debtors
are being directed to a
different account at another institution in contravention of the
undertaking in the agreement of settlement;
35.4 two of the vehicles
of the respondent have already been stripped of parts, apparently
cannibalising them in order to keep other
vehicles on the road, the
applicant verily fears that unless this matter is heard as a matter
of urgency under the circumstances
employees may cannibalise the
vehicles further in
lieu
of
wages, may take out their frustrations on such vehicles by causing
damage to such vehicles and that the vehicles will be uninsured
and
unsecured under the circumstances;
35.5 the vehicles are
stored on an open piece of ground and there is an extreme danger of
damage being caused by the employees and/or
disgruntled creditors;
35.6 in the event of an
urgent order being granted and liquidators being appointed they may
be in a position to carry on the business
of the respondent it is
deemed to be in the interest of the respondent and its creditors and
to this end obtain such powers from
the Court. They will, however, in
doing so be able to ensure that the proceeds thereof are distributed
pro
rata and according
to law between the respondent's creditors. It is, however, essential
that this be done as soon as possible as
the respondent will not be
in possession of funds with which to carry on its own business."
[5]
When it comes to urgency, uniform
rule 6
(12)
(b)
requires the applicant, in her/his founding
affidavit to set out explicitly the circumstances on which she/he
relies to render the
matter urgent and the reason why she/he claims
that she/he cannot be afforded substantial relief at the hearing in
due course.
[6]
Urgency is a reason that may justify deviation from the times and
forms the rules prescribes. It relates to form, not substance,
and is
not a prerequisite to a claim for substantive relief.
[1]
[7]
I am inclined to agree with the argument by the respondent's counsel
that the applicant has not in its founding papers established
the
need for this application to be heard on urgency. There are no
reasons set out in its founding papers why it is necessary that
this
matter be heard now and why it cannot be afforded substantial relief
at the hearing in due course.
[8]
The submission by the respondent's counsel that the first three
reasons, stated in paragraph 35.1, 35.2 and 35.3 of the founding
affidavit, provided by the applicant for urgency, speaks to the
merits of the application and that the application can, therefore,
not be entertained on urgency, is correct, in my view. Besides, in
respect of the reason in paragraph 35.2 the respondent has in
the
meanwhile provided proof that the insurance premium has been paid.
[9]
I would accept the remaining reasons as sufficient to establish
urgency except that the reasons as stated in the founding affidavit
are unsubstantiated. For instance, the applicant's allegation that
two of its motor vehicles have already been stripped of parts,
and
cannibalised in order to keep other motor vehicles on the road, is
unsubstantiated. The evidence in support of this allegation
is only
provided for in the applicant's replying affidavit by means of a
valuation report of Pieter Havenga Valuations. It appears
that this
valuation report was compiled on 10 February 2017 and attested to on
15 February 2017, whilst the application was filed
and served on 16
February 2017. There is no explanation, either in the founding
affidavit or the replying affidavit, why the report
was not referred
to in the founding affidavit and/or attached at the time the
application was launched. I would have, therefore,
to disregard the
report as not forming part of the papers before me.
[10]
The applicant's fears that the employees may cannibalise the motor
vehicles further in
lieu
of
wages, may take out their frustrations on such motor vehicles by
causing damage to the motor vehicles and that the motor vehicles
will
be uninsured and unsecured under the circumstances is unfounded and
at best speculative. Besides, the respondent in its answering
affidavit concedes that the two motor vehicles were at some point
stripped but provides plausible reasons that the motor vehicles
were
stripped for mechanical repairs.
[11]
The uncontested evidence of the respondent in its answering affidavit
has shown that the motor vehicles are not stored on an
open piece of
ground but in a Kendel Accommodation which is fully secured and a 24
hour security mans the gate. I would have to
assume, therefore, that
there is no basis for the applicant to allege in its founding
affidavit that, there is an extreme danger
of damage being caused to
the motor vehicles by the employees and/or disgruntled creditors.
[12]
I am, as such, constrained to strike the application from the urgent
court roll for lack of urgency.
[13]
I make the following order
1.
The application is struck from the roll with
costs.
____________________
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
Counsel
for Applicant:
Adv J E Smith
Instructed
by:
Jason Michael Smith Inc
Counsel
for Respondents:
Adv T Ngcukaitobi
Instructed
by:
Ndumiso Voyi Incorporated
Date
heard:
02 March 2017
Date
of judgment:
10 April 2017
[1]
See Commissioner for the South African Revenue Service v Hawker Air
Services (Pty) Ltd [2006] SCA 55 (RSA) para 9