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[2013] ZAGPPHC 132
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Corporate Money Managers (Pty) Ltd and Others v Panomo Properties 49 (Pty) Ltd (65348/2012) [2013] ZAGPPHC 132 (24 May 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case number: 65348/2012
Date:24 May 2013
In
the matter between:
CORPORATE
MONEY MANAGERS (PTY)
LTD
...............................................
1
st
Applicant
CMM
FINPRO (PTY)
LTD
......................................................................................
2nd
Applicant
MICRO
CAPITAL (PTY)
LTD
..................................................................................
3rd
Applicant
FOUR
RIVERS TRADING 307 (PTY)
LTD
...........................................................
4th
Applicant
REGENT
GROUP CAPITAL (PTY)
LTD
...............................................................
5th
Applicant
ESCAPE
INVESTMENTS (PTY)
LTD
.................................................................
6th
Applicant
(T/A
SAKHA IBLOKHO)
CMM
TREASURY SERVICES (PTY)
LTD
.........................................................
7th
Applicant
CMM
CASH MANAGEMENT
FUND
.................................................................
8th
Applicant
PIETER
HENDRIK STRYDOM
N.O
....................................................................
9th
Applicant
JOHN
RODERICK GRAEME POLSON
N.O
.....................................................
10th
Applicant
LOUIS
STRYDOM
.................................................................................................
11th
Applicant
and
PANOMO
PROPERTIES 49 (PTY)
LTD
............................................................
Respondent
PRETORIUS
J,
[1]
This is an application for the liquidation of the respondent by the
court in terms of the provisions of the
Companies Act No 71 of 2008
and more particularly item 9 of chapter 5 of the Transitional
arrangement, applicable in terms of the new
Companies Act, No 71 of
2008
. The respondent has been placed under voluntary liquidation in
terms of
section 80
of the new
Companies Act. The
applicants apply
for an order setting aside the voluntary liquidation order by the
court and for a liquidation order pursuant to
the respondent’s
commercial insolvency.
[2]
An application was launched by the applicant on 7 November 2011 in
terms of which the applicants have proven that the respondent
is
commercially insolvent, that it is unable to pay its debts and that
it would be just and equitable to wind-up the respondent
as an
insolvent company.
[3]
An order for provisional liquidation of the respondent was granted
on 18 June 2012. On the return date the particulars of a
voluntary
liquidation in terms of
section 8
of the
Companies Act of 2008
was
presented to the court by the respondent.
[4]
The applicants applied for a fresh provisional liquidation order
setting aside the voluntary order and was granted a provisional
order. Due to technical reasons the provisional order was
subsequently discharged.
[5]
The current application was relaunched for liquidation of the
respondent as an insolvent company by the court. The applicants
contend that it is in the interest of creditors that the respondent
be finally liquidated in terms of the provisions of the
Companies Act
of 2008
, read with the provisions of Chapter XIV of Act No 61 of 1973
and that the voluntary liquidation be set aside.
[6]
At the outset, during argument, counsel for the applicants informed
the court that Mr Parreira, the deponent to the founding
and replying
affidavits of the respondent, had been provisionally sequestrated on
10 April 2013. Therefore, according to the applicants,
Mr Parreira
has no locus standi to oppose the application for liquidation.
Section 69(8)(b)(i)
of the
Companies Act No 71 of 2008
provides:
“
(8)
A person is disqualified to be a director of a company if-
(a)
....
(b)
Subject to subsections (9) to (12), the person -
(i)
is an unrehabilitated insolvent;”
[7]
The object of this provision is not punitive, but to protect the
public and shareholders by ensuring that their interests are
not
endangered in any way.
[8]
In the present matter the respondent did not inform the applicants or
the court immediately when Mr Parreira was sequestrated
and the
applicants only became aware of it a couple of days before the
present application was heard. There is no explanation before
court
by the respondent explaining why he was sequestrated or any
explanation of any kind as to why the business has failed. There
is
no application that Mr Pareira should still be regarded as a director
of the respondent.
[9]There
is no explanation as to why Mr Parreira’s sequestration was not
immediately conveyed to the applicants and the court.
[10]The
disqualification of an unrehabilitated insolvent arises as soon as
the order for provisional sequestration of a person’s
estate is
made, which in this instance was 10 April 2013. The argument by Mr
Pienaar, for the respondents, that when the pleadings
were completed
Mr Parreira had not been provisionally sequestrated cannot be
supported as the provisions in the Act are quite clear
and not
subject to different interpretations. Mr Pareira cannot represent the
respondent in any way due to him being an unrehabilitated
insolvent.
[1]
In the circumstances, the court finds that Mr Parreira has no locus
standi.
[2]
The court finds on a balance of probabilities, after having
considered all the arguments and authorities and reading the papers
that the respondent is insolvent and must be liquidated a provisional
liquidation order should be granted.
[3]
The following order is made:
1.That
Panamo Properties 49 (Pty) Ltd and ail other interested parties be
and are hereby called upon to show cause, if any, to this
Honourable
Court on 12 August 2013 at 10h00 or soon thereafter as the matter may
be heard:
1.1
Why the respondent should not be compulsorily wound-up by order of
this Court;
1.2
Why any voluntary winding-up implemented in respect of the
Respondent, should not be set aside;
1.3
Why the costs incurred by the Applicants, under case number
63748/2011, should not be ordered to be costs in the winding-up
by
the Court of the Respondent;
2.
That this order shall operate as an order provisionally winding-up
the Respondent compulsorily;
3.
That this order be served forthwith upon Respondent at its registered
office and a copy of this order shall be published in the
Government
Gazette and once in the Citizen newspaper;
4.
That the order be served on the employees of the Respondent, if any,
and that the Applicants’ attorneys file an affidavit
on the
return date in respect of service and compliance with this order;
5.
That this order be served on the Companies and Intellectual Property
Commission;
6.
That the costs of this application be costs in the winding-up of the
Respondent.
Judge
Pretorius
Case
number : 65348/2012
Heard
on : 24 May 2013
For
the Plaintiff : Adv Badenhorst SC
Instructed
by : Roestoff & Kruse
For
the Defendant : Adv Pienaar
Instructed
by : EW Serfontein & Associates INC
Date
of Judgment : 24 May 2013