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[2013] ZAGPPHC 285
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E H Hassim Hardware t/a E H Hassim v Silangos Managemnt Systems CC (66580/2012) [2013] ZAGPPHC 285 (10 October 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO: 66580/2012
DATE:10/10/2013
In
the matter between:
E
H HASSIM HARDWARE T/A E H
HASSIM
...........................................................
APPLICANT
and
SILANGOS
MANAGEMNT SYSTEMS CC
(Registration
number:
2003/069516/23)
..............................................................
RESPONDENT
JUDGMENT
KUBUSHI,
J
[1]
This is an application for the liquidation of the respondent. The
applicant is applying for the winding-up of the respondent
in terms
of the provisions of section 344 (f) and 346 of the Companies Act 61
of 1973 (the Act) which has been retained in terms
of items 7 and 8
of schedule 3 to the new
Companies Act 71 of 2008
and
sections 66
and
69
(1) of the
Close Corporations Act 69 of 1984
.
[2]
The applicant alleges that the respondent owes it an amount of R998
496, 31 which is disputed by the respondent. The evidence
before me
is that the respondent's indebtedness to the applicant emanates from
a court order and a subsequent arbitration award
in terms of which
the applicant obtained a judgment against the respondent for payment
of R2 100 000, 00 and a subsequent award
of R400 000, 00. The
respondent was further ordered to pay costs in the amount of R100
000, 00. All these amounts came to the sum
of R2 600 000, 00.
Pursuant to an attachment order obtained by the applicant against the
Standard Bank account of the respondent,
the applicant was able to
receive direct payments from Standard Bank on behalf of the
respondent totalling R2 101 098, 37 which
left a balance of R498 901,
63.
[3]
At the hearing of the matter the respondent's counsel submitted that
the respondent has made a further payment of R400 000,
00 which left
only R98 000, 00 in dispute. The applicant's counsel was not aware of
the payment and was thus not prepared to accept
that the payment was
made without instructions from his instructing attorney. I therefore
requested that I be provided with proof
of payment of the alleged
payment.
Indeed
on 2 August 2013 I was provided with an affidavit attested by a
candidate attorney from the respondent's attorneys to which
was
attached proof of payment of the R400 000, 00. Although the
respondent's counsel disputed the balance of R98 000, 00 I am,
however, prepared to accept that that amount is still due and owing.
[4]
My view is that I should exercise my discretion against the grant of
an order for the liquidation of the respondent. Even if
it could be
concluded that the respondent was unable to pay its debts, I can
still exercise my judicial discretion in terms of
section 344
of the
Companies Act to
refuse the application. See Western Assurance Co V
Caldwell's Trustee
1918 AD 262
at 271.
[5]
Section 344
sets out circumstances in which a company may be wound up
by a court. Sub-section 344 (h) provides that: -
"A
company may be wound up by the court if it appears to the court that
it is just and equitable that the company should be
wound up."
This
sub-section gives a court the discretion to grant or refuse the
application.
[6]
It is common cause that the respondent cannot pay its debt in one
lump sum. However, the respondent has accepted that he owes
the
applicant and even tendered to
pay the debt off as and when money is
received from its debtors. This the company has done. The evidence is
that the initial amount
due was R2 600 000, 00. At the hearing of the
application the amount owing was a mere R98 000, 00. To my mind the
circumstances
of this case do not call for the winding-up of the
respondent. I find therefore that it is not just and equitable to do
so.
[7]
I was not addressed on the issue of costs and I do not intend to make
an order in that regard. Each party must pay own costs.
[8]
In the premises the application is dismissed. I make no order as to
costs.
E.
M. KUBUSHI
JUDGE
OF THE HIGH COURT
Appearances:
HEARD
ON THE :31 JULY 2013
DATE
OF JUDGMENT:10 OCTOBER 2013
APPLICANT'S
COUNSEL: ADV D. PRINSLOO
APPLICANT'S
ATTORNEY : BRESLER BECKER
C/O
DU PLESSIS & EKSTEEN INC
RESPONDENT'S
COUNSEL :ADV B. D. STEVENS
RESPONDENTS'
ATTORNEY : ROUTLEDGE MODISE INCORPORATED