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[2015] ZAGPPHC 387
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Van Niekerk v New Century Homes (Pty) Ltd (50307/2014) [2015] ZAGPPHC 387 (9 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case
number: 50307/2014
Date:
9 June 2015
PAUL
CRONJE VAN
NIEKERK APPLICANT
And
NEW
CENTURY HOMES (PTY)
LTD RESPONDENT
JUDGMENT
PRETORIUS
J,
[1]
This
is an opposed application for the liquidation of the respondent.
The applicant’s claim is based on an acknowledgement
of debt
entered into with the respondent on 8 December 2011.
[2]
According
to the acknowledgement of debt the respondent admitted to be indebted
to the applicant in the amount of R5 200 000.00
(five
million two hundred thousand rand). The respondent agreed to
repay the amount in eleven instalments of R50 000.00
starting on
1 December 2011, eleven instalments of R200 000.00 starting on 1
November 2012 and a final instalment of R2 450 000.00
on 30
October 2013. A covering mortgage bond was provided as security
and the director signed surety. The agreement
constituted the
whole of the agreement between the parties and no waiver of any terms
and conditions of the agreement would be
binding unless expressed in
writing and signed by both parties.
[3]
The
respondent paid ten of the eleven instalments of R50 000.00
between 7 September 2011 and 28 September 2012. The eleventh
instalment was paid much later. Three of the eleven instalments
of R200 000.00 were paid between 16 November 2012 and
15 January
2013. The eight further instalments were never paid. The
final instalment of R2 450 000.00 was
never paid.
[4]
Due
to several demands from the applicant a further R250 000.00 was
paid in instalments of R50 000.00 on 30 April 2013,
12 June
2013, 18 August 2013 and 30 September 2013. The outstanding
balance is thus R4 221 475.58 with interest
to be added.
[5]
The
respondent has paid no further instalments and do not dispute the
amount still outstanding.
[6]
The
respondent’s defence is that Noelene Enterprises (Pty) Ltd had
taken over the debt of the amount of R2 500 000.00
as
Noelene Enterprises had entered into two loan agreements for the
amount of R5 000 000 and R2 500 000 respectively
on 28 May 2008. This is three years prior to the agreement of
debt was signed between the applicant and respondent.
[7]
According
to the respondent the respondent was coerced into entering into the
acknowledgement of debt in a fraudulent manner by
the applicant’s
attorney. It is clear that the respondent was represented
throughout by its attorney. There were
negotiations and letters
supporting these negotiations between the parties for six months
prior to the launching of this application.
There were
negotiations for six months before the agreement of debt was signed.
A letter by the respondent’s attorneys,
dated 19 October 2011,
is attached which set out the proposed terms of the agreement.
There can be no doubt that this acknowledgment
of debt was agreed to
by the representative of the respondent and that the respondent was
at all times
ad
idem
with the terms of the acknowledgement of debt.
[8]
Nowhere
was it mentioned that the respondent is not liable to repay the
amounts due to the agreements that the applicant had entered
into
with Noelene Enterprises. There is no proof whatsoever that
Noelene Enterprises was involved in this acknowledgement
of debt at
all.
[9]
There
is no basis to allege that Noelene Enterprises had accepted
responsibility for the repayment of the loan. The last
instalment the respondent paid was the payment of the amount of
R50 000 on 30 September 2013. The court cannot accept
that
a party who denies owing any money will make payments over a period
of two years in the amount of R1 350 000.
[10]
Furthermore
this defence of Noelene Enterprises being liable for the respondent’s
acknowledgement of debt was never raised
at all in any correspondence
between the attorneys for the applicant and the attorneys for the
respondent and was only raised in
the opposing affidavit. The
respondent’s counsel could not refer the court to any term in
any correspondence presented
to court that the applicant had agreed
that the respondent may pay the loan as and when the two transactions
the respondent was
involved in, would pay.
[11]
Counsel
for the respondent conceded that the respondent is legally and
factually insolvent, as the respondent’s liabilities
exceed its
assets. It is common cause that the letter sent to the
respondent in terms of section 345 of the Companies Act
61 of 1973,
by registered post was sent to the
domicilium
address, and it was conceded by the respondent that it had received
the letter.
[12]
The
letter sent to the respondent on 21 May 2014 provided written notice
to the respondent that it intended to proceed with liquidation
proceedings against the respondent within 21 days. The notice
of motion of the application for the respondent’s liquidation
was attached to the letter.
[13]
The
respondent replied that it did not deny owing the applicant money and
admitted it was not in a position to pay the outstanding
amount, once
again referring to the Tshwane and Ga Rankuwa projects which could
place the respondent in funds in future.
There was no agreement
between the applicant and the respondent that the applicant would
wait for the respondent to honour the
acknowledgment of debt until
these two projects were completed. None of the promises
previously made by the respondent had
been honoured.
[14]
I
find that the respondent is deemed unable to pay its debts in terms
of section 345 (1)(a)(i) of the 1973 Companies Act and section
345(1)(c) of the Act as the respondent has failed on demand to pay a
debt which is due; there is an unsatisfied demand insufficient
for
the purposes of section 345(1)(a) and respondent has conceded it is
unable to pay its debts and that its liabilities exceed
its assets.
[15]
As
service of the provisional order should be affected on all the
interested parties, the following order is granted.
[16]
Order:
1.
The
respondent company is hereby placed under provisional winding-up;
2.
All
persons who have a legitimate interest are called upon to put forward
reasons why this court should not order the final winding-up
of the
respondent company on 13 July 2015 at 10h00;
3.
A
copy of this order must forthwith be served on the respondent company
at its registered office and be published in the Government
Gazette
and Pretoria News newspapers;
4.
A
copy of this order must be served on the employees of the respondent
company at its registered address;
5.
A
copy of this order must be served on the respondent’s
employees’ trade union at its registered address;
6.
Costs
of the application will be costs in the liquidation.
_____________________
Judge C Pretorius
Case
number
: 50307/2014
Appeal heard on
: 2 June 2015
For the
Applicant
:
Adv. JE Ferreira
Instructed
by
: DR TC BOTHA ATTORNEYS
For the
Respondent
: Adv. MH Van Twisk
Instructed
by
: DE BEER JANSE VAN VUUREN INC
Date of
Judgment
: 9 June 2015