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[2014] ZAGPPHC 235
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Meso v Matabele Dinare Building Consortium CC and Others (10370/14) [2014] ZAGPPHC 235 (23 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
no: 10370/14
Date:
23 April 2014
Not
reportable
Not
of interest to other judges
In
the matter between:
THIBEDI
DINEO MESO
…........................................................................................
Applicant
and
MATABELE
DINARE BUILDING CONSORTIUM CC
….........................
First Respondent
PETRUS
JACOBUS CORNE VAN STADEN NO
…...............................
Second Respondent
MBATHI
SHIRLEY MOTIMELE NO
….....................................................
Third Respondent
NEDBANK
LIMITED
…............................................................................
Fourth Respondent
MASTER
OF THE HIGH COURT
…..........................................................
Fifth Respondent
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
.......................
Sixth
Respondent
JUDGMENT
BAM
J
1.
The applicant, who
described himself as the "majority interest holder" of the
first respondent, on an urgent basis, applied
for an order rescinding
the final liquidation order obtained by the fourth respondent against
the first respondent, by default,
on 24 July 2013. On 2 November 2013
the second and third respondents were appointed liquidators of the
second respondent. The first
respondent was involved in the
construction industry, doing business with inter alia the sixth
respondent.
2.
The application was served
on the respondents on 4 April 2014. It is opposed by only the fourth
respondent. It was enrolled to be
heard in the Urgent Court for the
week of 14 April 2014.
3.
The fourth respondent
issued summons, under case no. 62076/11, against the first respondent
claiming delivery of a vehicle. On 26
April 2012 default judgement
was granted against the first respondent for the return of the
vehicle. The damages claim was postponed.
4.
On 6 July 2013 fourth
respondent served an application for the liquidation of the first
respondent. The application was granted,
also by default, on 24 July
2013. The grounds for the application were the aforementioned summary
judgement for the return of the
vehicle and a judgement obtained by
the fourth respondent in the amount of R1383 677.72. (According to
the applicant an excavating
machine belonging to the first respondent
was attached by the Sheriff in order to satisfy the said debt. This
fact was allegedly
not disclosed to the court granting the
liquidation order.)
5.
The liquidators, second,
third and fourth respondents, were appointed four months later, on 25
November 2013. The liquidators, themselves,
were informed of their
appointment on 17 December 2013, and due to the festive season when
their offices were closed, started to
take charge of the affairs of
the first respondent on 6 January 2013.
6.
The fourth responded, in
opposing this rescission application, contended that the application
was fatally defective in that the
applicant did not disclose the
"whereabouts" of any of the numerous creditors of the first
respondent. In this regard
it was submitted on behalf of the
applicant that the liquidators are at this stage in control and
possession of the first respondent's
estate, including all issues
pertaining to possible creditors, and it was therefore not required
from the applicant to refer to
any creditor. It was pointed out by
the applicant that the liquidators were cited as respondents.
In
this regard I am in agreement with the applicant's contention. I will
return to the issue of the liquidators.
7.
The applicant was in
control of and conducted the business of the first respondent. In
substantiating his application for the rescission
of the liquidation
order the applicant advanced reasons of which, pertaining to the
question of the late filing of this application,
the following seem
to be relevant:
(i)
At all relevant times the
first respondent was represented by Mr Mokoena of M B Mokoena
Attorneys;
(ii)
Upon receiving the
liquidation application, the applicant handed it to Mr Mokoena, in
the believe that Mr Mokoena would deal with
same;
(iii)
Subsequently, however, a
dispute about fees arose between the applicant and the said firm of
attorneys;
(iv)
On 3 December 2013 Mr Meso
was advised by somebody from the sixth respondent's offices that the
first applicant's attorneys have
informed the sixth applicant that
the first respondent had been liquidated on 24 July 2013 and that any
fees due to the first respondent
should be paid to the liquidators;
(v)
This was the first time Mr
Meso heard about the liquidation order. He was not informed by his
attorneys of record about the situation
pertaining to the liquidation
application at all;
(vi)
In the meantime the first
respondent carried on with its business with the sixth respondent and
was even awarded new contracts it
tendered for.
(vii)
Mr Meso was then advised by
a new set of attorneys that he should approach the liquidators in
respect of an application for the
rescission of the liquidation
order.
(viii)
On 8 January 2014 Mr Meso
held a meeting with the liquidators, second and third respondents,
advising the liquidators that they
should proceed with a rescission
application;
(ix)
On 24 January 2014 Mr
Meso's attorneys informed the liquidators that because of the fact
that no rescission application had been
lodged by the them, they
intended to proceed with the rescission application;
(x)
On 30 January 2014 Mr Meso
was informed by the sixth respondent that the first respondent's
contracts were in the process to be
reviewed. The sixth respondent
was however amenable to grant Mr Meso a further month in order to
lodge a rescission application.
8.
Although no confirmatory
affidavit of the attorney, Mr Mokoena, was attached to the founding
papers, which I do not find peculiar,
and the fact that the applicant
did not make any further enquiries about the results of the
liquidation application, I am persuaded,
in view of the circumstances
alluded to above, that the applicant has advanced a sufficient
explanation for his failure to personally
attend to the liquidation
application and his default when the order was granted.
9.
In respect of the question
whether the first respondent was indeed insolvent, the following
issues come into play:
(i)
The first respondent were
awarded several lucrative construction contracts since 2009 which
were still in progress at the time the
liquidation application was
filed;
(ii)
As a result of a dispute in
respect of a contract of more than R28M with the Mole Mole Local
Municipality, a court order was granted
on 25 March 2013 in favour of
the first respond against the said municipality. The dispute with the
said municipality caused financial
constraints to the first
respondent, but, according to the applicant, an amount of R4,7M is at
present due and payable.
(iii)
On 1 October 2012 a
contract to the value of more than R115M was awarded to the first
respondent by the sixth respondent, for a
period of 3 years;
(iv)
The first respondent was
awarded certain further allocations in terms of the provisions of the
R115M to the value of R6,788M and
R6363M. In terms of the said
allocations an amount of R2,7M is now due and payable to the first
respondent.
(v)
The sixth respondent, after
the liquidation order was granted continued its business with the
first respondent directly;
(vi)
On the applicant's version,
that was accepted, it appears that the business between the first
respondent and the sixth respondent
continued as usual for several
months after the liquidation order was granted. It is not explained
why the fourth respondent, who
was the applicant in the liquidation
application, apparently made no efforts to enquire about the
appointment of the liquidators,
even several months after the
liquidation order was granted.
10.
The Court that granted the
liquidation order was not aware of the aforementioned situation of
the first respondent.
11.
The fourth
respondent, in opposing the applicant's application for the
rescission of the liquidation order, stated in its opposing
affidavit, that it actually, "broadly speaking", has two
claims against the first respondent. The second claim involves
a
judgment in the amount of Rl,383,77,72 granted on 16 May 2012 in
favour of Imperial Bank. The fourth respondent alleged that
it
"procured" the rights previously held by Imperial Bank. It
is not explained by the fourth respondent when the rights
were so
“procured".
12.
The second and third
respondents, the appointed liquidators, filed an affidavit deposed to
by Ms Reinet Steynsburg, an insolvency
practitioner, who were
requested by the two respondents to assist in the "day to day"
administration of the winding up
of the first respondent. In the said
affidavit it was confirmed that a meeting with representatives of the
first respondent was
held on 17 January 2014, and that the
liquidators agreed to hold the matter in abeyance pending a
rescission application. The application
was served on 11 February
2014. The second and fourth respondents expressed their concern about
claims by SARS and Standard Bank
against the first respondent, which
seem to be justified in the circumstances. Reference is also made to
four further other creditors
of the first applicant, and a total
amount of about R280 000,00 in outstanding debts.
13.
From the said affidavit it
is not clear exactly what the liquidators did before they conceded to
hold the matter in abeyance pending
the rescission application. It
seems clear, however, that any further activities of the liquidators,
after the rescission application
was served, were in fact suspended.
14.
Apart from filing the said
affidavit, nobody represented the liquidators when the matter was
argued. It is therefore assumed that
they did not oppose the
application and abided the decision of this court.
15.
The question whether the
first respondent would have been liquidated by the court without all
the issues pertaining to the first
respondent's situation having been
ventilated, can obviously not be decided by this Court. This is in
any event something this
Court is not called upon to adjudicate. Al
this Court is requested to find is that the first respondent has a
bona fide defence
against the liquidation.
16.
In view of the
circumstances, I am of the view, despite the liquidator's concerns,
that the applicant has made out a proper case
to succeed with the
application.
17.
Accordingly the applicant
is in my view entitled to the relief sought. The consequences of the
rescission liquidation order are
governed by the Rules of Court. It
also includes that the liquidators appointment and activities will be
suspended pending the
final court order. Accordingly the fourth
respondent, being the applicant in the liquidation application, will
be entitled to proceed
with the application for
liquidation in terms of the Rules
and the provisions of the Insolvency and Company Acts.
ORDER:
(Made on 17 April 2014.)
1.
The final liquidation order
of the first respondent granted on 24 July 2013 is rescinded;
2.
Costs reserved.
A
J BAM JUDGE OF THE HIGH COURT
22
April 2014