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[2016] ZAGPPHC 292
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Lifehouse Investments 17 (Pty) Ltd v DCL Interiors CC (17991/2015) [2016] ZAGPPHC 292 (11 March 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE GAUTENG DIVISION OF THE HIGH COURT,
PRETORIA
CASE
NO: 17991/2015
DATE:
11 MARCH 2016
In the matter
between:
LIFEHOUSE
INVESTMENTS 17 (PTY)
LTD
..............................................................
Applicant
And
DCL
INTERIORS
CC
..............................................................................................
Respondent
JUDGMENT
J
W LOUW, J
[1]
The applicant applies for the winding up of the respondent in
terms of s 344(f) of the Companies Act 61 of 1973 read with
s 69
of
the
Close Corporations Act 69 of 1984
on the ground that the
respondent is unable to pay its debts. The applicant relies for its
locus standi
to bring the
application on the fact that it is a creditor of the respondent. The
respondent disputes that it is indebted to the
applicant.
[2]
The applicant is the registered owner of the immovable
property situate at 242 Premier Street, Waterkloof, Pretoria. On 27
July
2014, the applicant and the respondent concluded a written
agreement in terms whereof the applicant sold the property to the
respondent
for a purchase price of R3,3 million. In terms of an
addendum to the agreement concluded on 6 August 2014, it was agreed
that the
respondent would take occupation of the property on 1
September 2014 at an occupational rent of R25 00&.00 per month,
payable
monthly in advance, pending registration of transfer of the
property into the name of the respondent. In terms of the sale
agreement,
the property was sold voetstoots.
[3]
The applicant alleges that the respondent breached the sale
agreement by failing to provide bank guarantees for the full purchase
price by the stipulated date, by failing to pay the transfer costs or
sign the transfer documentation as required by the agreement
and by
failing to pay the agreed occupational rent.
[4]
On 16 January 2015, the applicant's attorneys addressed a
letter to the respondent in terms of
s 69
of the
Close Corporations
Act. The
letter was served by the sheriff on the respondent on 19
January 2015 at its registered address. The letter demanded that the
respondent
remedy its breaches of the agreement, including a demand
that the respondent pay the arrear occupational rental of R25 000.00
which
had become due on 1 January 2105. The respondent failed to
comply with the demand and by the time when the applicant's replying
affidavit was filed, the respondent was in arrear with the payment of
occupational rent in the amount of R175 000.00. The respondent
vacated the property on 8 August 2015.
[5]
For the allegation that it is a creditor of the respondent,
and therefore has
locus standi
to apply for the winding-up of the respondent, the applicant relies
on the respondent's failure to pay the agreed occupational
rent.
[6]
The respondent does not dispute that it failed to pay the
occupational rent as alleged in the applicant's founding affidavit,
but
alleges that the applicant itself breached the agreement and that
the respondent, as a result, elected to cancel the agreement.
The
alleged breaches were that the applicant did not place the respondent
in possession of building plans for the patio on the
property, that
there was no borehole which the estate agent had said was there, that
the applicant failed to provide the respondent
with a certificate of
electrical compliance, that run-off rain water had been directed into
the sewerage system, that gutters were
beyond repair, that the
perimeter wall was affected by tree roots and that the electrical
system was in a bad state. The respondent
therefore contended that it
was not obliged to comply with any of its obligations in terms of the
agreement until the applicant
had rectified the alleged breaches.
[7]
The applicant dealt with the alleged breaches in its replying
affidavit and denied that it had committed any breach of the
agreement.
It was, however, submitted by Adv. Bergenthuin SC, who
appeared for the applicant, that the obligations of the applicant
which
had allegedly been breached by the applicant were not
reciprocal to the respondent's obligation to pay the agreed
occupational
rent. He submitted that the only obligation of the
applicant which was reciprocal to the respondent's obligation to pay
the occupational
rent was to give the respondent occupation of the
property. It was common cause that this had been done.
[8]
Reference
was made in this regard to the judgment of the SCA in
Grand
Mines (Pty) Ltd v Giddey NO
[1]
where the following was said in regard to the principle of
reciprocity, also referred to as the
exceptio
non adimpleti contractus
,
at 965F-H:
"The
mere non-performance of an obligation would not per se permit of the
exceptio; it is only justified where the obligation
is reciprocal to
the performance required from the other party. The exceptio therefore
presupposes the existence of mutual obligations
which are intended to
be performed reciprocally, the one being the intended exchange for
the other.
Furthermore,
for the exceptio
to
succeed the plaintiff’s performance must have fallen due prior
to or
simultaneously
with that demanded from the defendant.
.................
Whether
or not
obligations
in terms of a contract satisfy these requirements and are reciprocal
in the above sense (being the strict sense in which
the word is used
in this judgment) is ultimately a matter of interpretation."
[9]
Reference
was also made to the decision of the SCA in
MAN
Truck & Bus (SA) (Pty) Ltd v Dorbyl Ltd t/a Dorbyl Transport
Products and BUSAF
[2]
where
the following was said at 233G-I:
"'But
reciprocity of debt in law does not exist merely because the
obligations which are claimed to be reciprocal arise from
the same
contract and each party is indebted in some way to the other
.
A
far closer, and more immediate
correlation
than that is required.
....................
The
overriding consideration is the
intention
of the parties; and the question whether the performance of
respective obligations was reciprocal
,
depends
upon the intention of the parties as evident from the terms of their
agreement seen in conjunction with the relevant background
circumstances."
[10]
On a proper interpretation of the agreement of sale, it could
not have been the intention of the parties that the respondent's
obligation
to pay the agreed occupational rent was reciprocal to the
applicant's obligations (in so far as they can be said to be
obligations
arising from the sale agreement) which the respondent
alleges were breached by the applicant. I agree with the applicant's
submission
that the only obligation of the applicant which was
reciprocal to the respondent's obligation to pay the occupational
rent was
the obligation to provide the respondent with the occupation
of the property.
[11]
I find, therefore, that the applicant is a creditor of the
respondent for the amount outstanding in respect of the agreed
occupational
rent and that the applicant therefore has the necessary
locus standi
to apply for a
winding-up order.
[12]
In terms of
s 69(l)(a)
of the
Close Corporations Act, a
corporation is deemed to be unable to pay its debts if a creditor to
whom the corporation is indebted in a sum of not less than
R200 which
is due, has served on the corporation, by delivering at its
registered address, a demand requiring the corporation to
pay the sum
so due, and the corporation has for 21 days thereafter neglected to
pay the sum. It is common cause that such demand
has been served on
the respondent at its registered address and that it has failed to
pay the amount of the occupational rent then
due.
[13]
The respondent is accordingly deemed to be unable to pay its
debts. In an attempt to rebut the presumption, the respondent has
attached
a copy of an
"account
balance enquiry
" from its bank to its answering affidavit
which was deposed to on 4 May 2015. The document shows a credit
balance of R118
568.74 as at 20 April 2015. If anything, the document
confirms that the respondent is unable to pay the amount owing to the
applicant
in respect of the occupational rent. No other evidence,
such as its financial statements or proof of income, was placed
before
the court by the respondent in order to rebut the presumption.
[14]
It was submitted by Adv. Greeff, who appeared on behalf of the
respondent, that the applicant was not entitled to bring an
application
for the winding up of the respondent as it was bound by
clause 9.1 of the sale agreement which provides that, in the event of
the
respondent committing any breach of the agreement, the applicant
shall be obliged to give the respondent written notice to remedy
such
breach within seven days and, in the event of the respondent failing
to do so, the applicant shall have the right to either
cancel the
sale, sue for specific performance or cancel the agreement and retain
the deposit paid by the respondent as
rouwkoop.
[15]
In my view there is no merit in the submission. The applicant
has a statutory right as a creditor of the respondent to apply for
the winding up of the respondent if the respondent is unable to pay
its debts. The premise of the argument appears to be that the
applicant has, by concluding the sale agreement, waived that right.
The agreement contains no such waiver.
[16]
A number of what was called points
in
limine
were raised by the respondent in its answering
affidavit. I deal only with those which were argued by Adv. Greeff.
The first is
that the respondent has a damages claim against the
applicant In respect of the alleged breaches by the applicant in
respect of
which there are factual disputes* that the applicant
should therefore have sued the respondent for damages and that the
matter
should go to trial. I have found that it is not necessary to
resolve those disputes in view thereof that the respondent's
obligation
to pay the occupational rent is not reciprocal to the
obligations of the applicant which the respondent alleges have been
breached.
[17]
The next point was that the respondent has a counter claim
against the applicant for amounts of money which it has spent on the
property. All that is said in this regard by the respondent in its
answering affidavit is that it has expended a great deal of money
on
the property and that it is formulating its claim for damages against
the applicant. No attempt was made to quantify the alleged
claim.
Such an unspecified and unliquidated counter claim cannot be an
answer to a liquidation application where the applicant's
claim is
undisputed.
[18]
The last point raised was that the application was not served
on the respondent's employees. The applicant stated in its founding
affidavit that, to the best of its knowledge, the respondent did not
have any employees. The respondent stated in its answering
affidavit
that its employees are
"inter
alia"
Mr. Mokoena, Mr. Sam Moji and Mr. Ezekiel Moima,
two of whom are paid in cash. The respondent did not provide any
address where
the application should have been served on these
employees. The applicant stated in its replying affidavit that it
could not reasonably
have been aware of any employee of the
respondent, but that a copy of the complete application would be
served on those employees
at the respondent's registered address by
the sheriff. This was then done. Although the point regardiung
service of the application
on the respondent's employees was raised
by Mr. Greeff during argument, he did not argue it with any
enthusiasm. No other address
where the application could and should
have been served on the employees was proffered during argument. The
only other address
to be found in the papers is on a letter which the
respondent directed to the applicant's attorney and which is attached
to the
respondent's answering affidavit. The address which appears in
the letterhead, which is presumably the respondent's place of
business,
is 42 Colinton Road, Blairgowrie, Johannesburg.
[19]
In the result, I find that the application must succeed. I
accordingly grant the following order:
[a]
The respondent is hereby placed under provisional winding up.
[b]
A
rule
nisi
is hereby issued
calling upon anyone to appear and show cause on 18 April 2016 why the
respondent should not be placed under final
winding-up order.
[c]
The order shall forthwith be published once in each of the
Government Gazette and the Citizen newspaper and be served upon the
respondent
at its registered adctfess.
[d]
A
copy of the application and of this order must be served on the
respondent's employees at 42 Colinton Road, Blairgowrie,
Johannesburg.
Counsel
for applicant: Adv. J G Bergenthuin SC
Instructed
by: Van der Merwe du Toit Inc, Pretoria
Counsel
for respondent: Adv. J J Greeff
Instructed
by: Jay Inc, Pretoria
[1]
1999 (1)SA 960 (SCA)
[2]
2004 (5) SA 226
(SCA)