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[2012] ZAGPPHC 357
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Lamprecht v Klipeiland (Pty) Ltd (55088/2010) [2012] ZAGPPHC 357 (13 December 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NUMBER: 55088/2010
DATE:13/12/2012
In
the matter between:-
COENRAAD
JOHAN
LAMPRECHT
.................................................................
APPLICANT
and
KLIPEILAND
(PTY)
LTD
.....................................................................................
RESPONDANT
JUDGEMENT
De
Vos J,
[1]
This matter came before me on the extended return day of a
provisional winding-up order which was granted on 24 April 2012,
with
return date June 5th 2012. The provisional order was granted by Davis
AJ after hearing argument from both parties.
[2]
On the 5th of June 2012 the matter was removed from the unopposed
roll and set down on the opposed roll for the 11th of June
2012. Due
to some oversight no order was made to extend the rule nisi to the
11th of June 2012.
[3]
On June 11th 2012 Bertelsman J:
3.1
revived the interim order that had lapsed;
3.2
extended the return date to August 6th of 2012; and
3.3
ordered the respondent to file such additional document(s) as it
wishes by no later than July 16th of 2012, the applicant to
file his
answering affidavit, if any, by no later than Monday, July 23rd of
2012 and the respondent to file its reply by noon on
Monday, July
30th of 2012.
[4]
The respondent failed to comply with the order of Bertelsman J and on
July 17th 2012 served an UNSIGNED copy of an affidavit
by e-mail.
Gerhard Botha & Partners Inc (applicant’s attorneys)
responded to Respondents failure to comply with the Court
order in
two letters dated 17 July and 20 July 2012 respectively, addressed to
Respondent’s attorneys stating that the document
forwarded by
e-mail is not accepted as due compliance with the order.
4.1
The respondent only filed its further affidavit on July 31st of 2012;
4.2
On 6 August 2012, the Rule was extended to 18 September 2012;
4.3
The applicant filed its answering affidavit to the aforesaid on
September 10th of 2012.
4.4
On 17 September 2012, Preller J extended the Rule to 19 Septemeber
2012.
4.5
On 19 September 2012 and 20 September 2012, the matter was argued
before Preller J. The matter was eventually postponed to 28
September
2012 and the Rule was extended to that day. The respondent was
ordered to file a further set of affidavits by not later
than 16h00
on 26 September 2012;
4.6
On 26 September 2012 at 16h14, the respondent faxed an affidavit to
the applicant’s attorneys stating that the respondent
was
unable to respond to the applicant’s answering affidavit by
virtue thereof that the respondent’s directors were
in Japan
and Taiwan respectively;
4.7
On 28 September 2012:
(a)
the applicant filed an affidavit of an official of the Department of
Home Affairs stating that Mr Tsai, one of the respondent’s
directors, was in fact in the Republic of South Africa and by
necessary implication could have made and affidavit.
(b)
Van der Merwe DJP, by agreement between the parties, extended the
Rule to 4 October 2012 and ordered the respondent to file
its further
affidavits by no later than 12h00 on 2nd October 2012.
4.8
The respondent did not comply with the Court order. The matter was
then set down for the argument on the 5th of October 2012
before
myself.
[5]
The granting of the provisional winding up order was preceded by the
following events:
5.1
The notice of motion for the winding up of the respondent was served
on the respondent on September 23rd of 2010. Applicant’s
claim
against Klipeiland (Pty) Ltd would become prescribed in late November
2010. To avoid prescription the applicant also issued
a summons
against the Respondent during or about September 2010. By agreement
between the parties the summons was stayed pending
the application to
liquidate.
5.2
The only asset of the insolvent is a farm Klipeiland in the district
of Bronkhorspruit. Due to the dispute between the parties,
the
applicant applied by way of notice of motion on 29 September 2011 for
an interdict restricting the respondent to sell the farm
pending the
outcome of the liquidation application. The respondent opposed this
application and the matter was heard by Prinsloo
J on March 19th of
2012, when judgement was given in favour of the applicant including
costs.
5.3
On 20 May 2011, the matter was placed before Ranchod J. After
considering the application he referred the application to oral
evidence and postponed same sine die. The referral to oral evidence
was unlimited and included the question whether the applicant
has
locus standi to bring the application in terms of the provisions of
section 345 (1) (a) of the Companies Act, 61 of 1973 (i.e.
a creditor
to whom the company is indebted in the sum of not less than R100 (One
Hundred Rand) then due. I will revert to Ranchod
J judgement at a
later stage.
5.3.1
The respondent filed an application for leave to appeal on 3 June
2011 against this order. The application for leave to appeal
was
heard on 29 November 2011 by Ranchod J and on 5th December 2011 the
application was dismissed.
[6]
On the 19th of March 2012 the referral to oral evidence served before
Kruger AJ. By agreement the following order was made by
Kruger AJ, on
the 20th of March 2012.
“
That
by agreement between the parties the respondent admit and concede
that the applicant is a creditor of the respondent within
the meaning
of section 345 (1) (a) of the Comp6anies Act, 61 of 1973 (i.e. a
creditor to whom the Company is indebted in a sum
of not less than
R100 (One Hundred Rand) then due and thus has locus standi such that
it can rely on section 345 (1) (a) of the
Company Act 61 of 1973”.
6.1
Kruger AJ ordered the respondent to pay for the costs incurred during
the period May 20th of 2011 up to and including March
19th of 2012,
such costs to include the qualifying fees of Pual Van Wyk, the
applicant’s expert.
6.2
The application was then postponed to April 2012.
[7]
When the provisional order was granted, Davis AJ, found that the
respondent’s admission before Kruger AJ (March 2012),
i.e. that
the applicant was a creditor in terms of the provisions of the Act,
could on the evidence be nothing other than an admission
of liability
for R6 000 000.00 (Six Million Rand) claimed by the applicant. He
found that; “Once the respondent conceded
the liability and in
the absence of any allegations in that regard the respondent became
liable for that which was agreed being
the full remuneration "and”
it is difficult to come to any other conclusion that this admission
can be anything else
than for this full remuneration “and"
I need not however find that the full amount of R6 000 000.00 (Six
million Rand)
is owing. I need not make express findings against the
respondent’s deponent”.
[8]
The respondent in an attempt to avoid the provisional order being
made final filed a further affidavit stating:
8.1
that the admission recorded in the order of Kruger AJ was
“strategically" made;
8.2
that the applicant’s claim is disputed, and that the
applicant’s remuneration would be in kind ... most definitely
not handing of money.
8.3
that the applicant is put to the proof of the amount of its claim,
8.4
that the applicant is the only creditor of the respondent,
8.5
that the applicant holds security for its claim i.e. for “an
amount that it may ultimately prove to be entitled to”
which
has to be weighed up against the value of the property which is
according to the respondent’s version worth R60 000
000.00
(Sixty million rand);
8.6
that the respondent’s monthly income is in excess of its
monthly expenses;
8.7
that the respondent recently received a true and bona fide offer for
the purchase of its only asset, the farm Klipeiland for
an amount of
R60 000 000.00 (Sixty million rand) and that should the provisional
order for liquidation hereof be discharged, the
applicant would be
able to sell the property and would have sufficient funds at its
disposal to meet its obligations.
[9]
I will now revert back to the proceedings before Preller J. On the
10th of September 2012, the applicant filed a further opposing
affidavit to rebut the allegations made by the respondent. On the
20th September 2012 the matter was postponed to 28 September
2012
(after argument was heard) and the Rule extended to that day. The
reason for the postponement was the certain “new matters”
were raised by the applicant and that the respondent needed time to
respond thereto. The respondent was accordingly granted leave
to file
a further set of affidavits by not later than 16h00 on 26 September
2012 to deal with the “new matters”.
[10]
On the 26th September 2012 at 16h14 the respondent’s attorney
faxed a document to applicant’s attorney stating
that the
respondent’s attorney is unable to respond to the applicant’s
further affidavit due to the fact that the respondent’s
directors were in Japan and Taiwan respectively.
[11]
On the 28 of September 2012, the applicant filed a further affidavit
obtained from an official of the department of Home Affairs
stating
that Mr Tsai one of the respondent’s directors was in fact in
the Republic of South Africa during the period given
by Preller J to
respondent’s directors to file a further affidavit.
[12]
It appears that due to the excuse raised by the respondent on 26
September 2012 (that it is unable to file its further affidavit)
the
matter was referred back to the DJP who then ordered that such an
affidavit had to be filed not later then 12h00 on 2 October
2012. The
respondent, as said, failed to file such affidavit in time. On the
3rd October 2012, the Deputy Judge President Van der
Merwe referred
the matter to myself which was to be heard on the 5th October 2012.
On the 4th October 2012 during the morning I
was approached in
chambers to accept the respondent’s further affidavit. This
request was refused by myself as there was
no explanation for the
late delivery of the statement nor was it accompanied by an
application for condonation. I therefore refused
to accept such
statement and made it clear that unless the respondent files a proper
application for condonation I will not read
the additional affidavit.
[13]
On October 5th 2012 when the matter was called before me I enquired
from respondent’s counsel whether they are proceeding
with a
condonation application in order to place their affidavit before me.
I was informed that they are not proceeding with such
application as
it will cause a delay. The upshot of this is that only the original
three sets of affidavits are before the Court
except in so far as the
applicant’s previously amplified these papers.
[14]
I now return to Ranchod J judgement. To understand the issues raised
before Ranchod J, I refer to an extract of his judgement
which reads
as follows:
14.1
Very briefly the facts are as follows:
The
applicant alleges that the cause of the respondent’s
indebtedness to the applicant is an oral agreement that was concluded
during March or April 2005 between the applicant and the respondent
represented by its directors Jauline Cole and Youngful Tsai.
In terms
of the agreement the applicant was appointed as project manager in
respect of the establishment of a township and certain
immoveable
property owned by the respondent.
14.2
It is further alleged that as remuneration the respondent would pay
the applicant R6 million as well as give the applicant
an erf of his
choice in the proposed township, the agreed value of the erf being
R1,5 million.
The
said moneys would be paid to the applicant and the erf transferred to
him as soon as a certificate in terms of Section 82 of
the Town
Planning and Township’s Ordinance 15 of 1986 had been issued.
14.3
The applicant says he then set about his work with the local
authority approving the proposed township on 7 September 2007.
On or
about 25 November 2007. On or about 25 November 2007 the respondent
and a company called Dyna Deals 3 (Pty) Limited concluded
a joint
venture agreement. The terms of the joint venture agreement, which
was signed on behalf of the respondent by Tsai, effectively
made the
applicant’s involvement as project manager superfluous and
unnecessary.
14.4
Later, says the applicant, in November 2007 the applicant was asked
by the respondent to be available and present after a meeting
between
the respondent and Dyna Deals. After the respondent’s meeting
with Dyna Deals Tsai advised the applicant that his
services as
project manager were no longer required by the respondent.
14.5
Further, because at that point in time the requisite consent in terms
of the Agricultural Land Act 70 of 1970 in respect of
the proposed
township was still outstanding, Tsai requested the applicant’s
assistance in securing such consent.
14.6
The applicant says he then set about obtaining the aforesaid
consent
which was granted on 6 May 2008.
14.7
The applicant further alleges that in terminating the applicant’s
appointment as project manager as aforesaid the respondent
either
repudiated the oral agreement between the parties which repudiation
the applicant accepted or it cancelled the same without
just cause.
14.8
The applicant says he has numerous meetings with Tsai since December
2007 as well as others professing to represent the respondent
concerning the respondent’s indebtedness to the applicant with
a view to reaching an amicable settlement and the payment
of the
respondent’s indebtedness to the applicant but all this to no
avail.
14.9
On 23 June 2009 and again on 27 April 2010 the applicant met with
Tsai in order to secure payment of the moneys due to him.
In the
course of these meetings Tsai acknowledged unequivocally that the
respondent was indebted to the applicant and made various
offers of
settlement none of which resulted in the respondent’s
indebtedness being paid, so says the applicant.
14.10
He says further that the respondent was fully aware of the
applicant’s claim but did not attempt to satisfy the same.
For
this reason the applicant caused a demand in terms of the provisions
of Section 345 of the Companies Act to be served on the
respondent.
14.7
The respondent replied to the aforesaid letter of demand by way of a
letter dated 20 August 2010. In paragraph 3 of this letter
the
respondent denied:
“
That
any agreement was concluded in terms of which the applicant would be
paid an amount of remuneration in money”
14.8
The respondent went on to allege that the agreement between the
parties which was oral and was concluded in 2003 was that the
applicant was inter alia to have had the property rezoned from
agricultural to developable land, to have the property proclaimed
as
a township, to have a general plan for the property approved by the
surveyor-general and to find a purchaser for approximately
192, 11
hectares of the property for R120 million. As remuneration the
applicant was to receive 6, 3877 hectares of land once he
had
attended to these matters.
14.9
The applicant failed to attend to the aforesaid, says the respondent
and was thus not entitled to remuneration. Further, as
the agreement
was not in writing the same fell foul of the provisions of the
Alienation of Land Act 68 of 1981
.
14.14
The respondent followed up its reply four days later by way of a
letter dated 24 August 2010. In this letter the respondent
alleged
inter alia that a winding up application would be an abuse of process
of Court.
14.15
The aforesaid letter was replied to by the applicant by way of a
letter dated 16 September 2010. In this letter each of the
respondent’s allegations were refuted in turn.
14.16
Thereafter the applicant instituted legal proceedings against the
respondent based upon the abovementioned cause of action
in this
Court under case number 55086/10. The reason for this was to stay the
running of prescription. The proceedings in the aforesaid
action have
by agreement between the parties been stayed.
14.17
The respondent denies that it is indebted to the applicant in the
amount claimed by the applicant or at all. The respondent
raised
several points in limine. One was that the agreement as propounded by
the respondent was not in writing and thus fell foul
of the
provisions of
Section 2
of the
Alienation of Land Act and
was
therefore invalid. Secondly, that it constituted a sale of
unidentified immoveable property before a declaration of an approved
township and thus fell foul of the provisions of Section 67(1) read
with 67(2) of the Ordinance and is therefore of no force or
effect.
Thirdly,
that no case is made out in terms of
Section 345(1
)(b) or (c) of the
Companies Act in that the respondent’s assets exceed its
liabilities by approximately R60 million.
Furthermore,
that the applicant cannot rely on Section 345(1) (a) of the Companies
Act because its claim is illiquid and the applicant
is only a
contingent creditor.
14.18
Also that there are material and bona fide disputes of fact that
cannot be resolved on the papers and that the application
constitutes
an abuse of process and a weapon in terrorem.
14.19
It is common cause, as I said, that the applicant relies on Section
345(1) (a). Section 345(1 )(a) reads as follows:
(1)
“A company or body corporate shall be deemed to be unable to
pay its debts if:
(a)
A creditor, by cession or otherwise, to whom the company is indebted
in
a sum not less than R100 then due-
(i)
has served on the company, by leaving the same at its registered
office, a demand requiring the company to pay the sum so due.”
I
will not read (ii) and continue then:
“
And
the company or body corporate has for three weeks thereafter
neglected to pay the sum, or to secure or compound for it to the
reasonable satisfaction of the creditor.”
14.20
In argument the respondent’s counsel said the real issue is
whether the debt is due as set out in the Section of the
Act. It is
on this point that there are factual disputes as I mentioned earlier.
14.21
Mr Marcelled for the respondent submitted that the points in limine
are a matter of law and can be determined, if I understood
him
correctly, without reference to the facts.
14.22
However, to determine whether those points of law raised are valid or
relevant one cannot but refer to the relevant facts.
14.23
I therefore agree with Mr Wesley’s submission that one has to
take into account the substantial facts in determining
the points in
limine and in this case n particular the issues whether the debt is
due and payable. The problem is that the substantial
facts are as I
said in dispute in this regard.
14.24
The evidence of the applicant and that of the respondent differs
materially concerning the circumstances surrounding the conclusion
of
the agreement between the parties, the terms
thereof
and the remaining facts of the matter, respondent’s
indebtedness to the applicant and thus the applicant’s locus
standi as a creditor of the respondent is also disputed.
In
the event I am of the view that the aspect of the matter should be
referred to
oral
evidence.
[15]
Ranchod J concluded on page 8 of his judgement:
“
In
all circumstances I am of the view that a provisional winding up
order should not be granted at this stage and that the matter
be
referred to oral evidence on the disputed facts.”
[16]
The referral to oral evidence includes factual and legal disputes. On
this basis the matter was placed before Kruger A.J. Apparently
the
order granted by Kruger A.J was given as a result of an agreement
reached between the appellant and the respondent. Only one
of the
disputes referred to by Ranchod J is dealt with in this order i.e.
“that by agreement between the parties the respondent
admit and
conceded that the applicant is a creditor of
the
respondent .................... in view of the provisions of the
Companies Act.” It is
merely
a concession that the applicant has the necessary locus standi to act
in terms of the provisions of Section 345(1)(a) of
the Companies Act
1973.
[17]
It seems that when the matter thereafter served before Davis A.J, he
was of the view that all other disputes of fact and law
has been
conceded by the
respondent
and that the admissions could not be anything else then admitting
liability for the full remuneration.
[18]
I do not sit as a Court of Review or appeal on Davis AJ’s
findings. However, it is clear that Kruger A. J order deals
with only
one of the disputes referred to him for oral evidence i.e. the locus
standi of the applicant. None of the other disputes
referred were
decided upon for example:
(a)
The terms of the contract;
(b)
Whether the applicant was to remunerated in money and or the form of
the transfer of land.
(c)
The applicability of the Provisions of the
Alienation of Land Act 68
of 1981
and its effect on the validity of the oral contract ect.
[19]
The concession made by the respondent must be seen against the
applicant’s claim for damages based on the applicants
acceptance of the respondents unlawful termination of his mandate.
This is common cause.
[20]
When the matter was argued before me respondents counsel again
submitted that certain disputes are not capable of being resolved
on
the papers, and that the application should be dismissed on this
ground alone with a punitive cost order. See Badenhorst v Northern
Construction Enterprises (Pty) Ltd 1956(2) SA 346 (T) at 347 –
348.
[21]
It is also submitted that it is by no means clear that the applicant
is entitled to damages. Applicants claim is based on agency
alternatively on mandate, however, applicants case is not that his
mandate was irrevocable. If it were to be found to be revocable
the
applicant would not be entitled to damages. See Joel Malamed and
Hurwitz v Cleveland Estates (Pty) Ltd. Kpr; Joel Melamed and
Hurwitz
v Vormer Investments 1984(3) SA155(AD) at 171 C-G
Where
a mandate is not irrevocable and there is no agreement not to revoke
but the agent/mandatory has commenced to act on it before
revocation,
, the principal is bound to pay
id quod interest
of the
agent, i.e to reimburse and indemnify the agent for all expenses and
liabilities properly incurred prior to the revocation.
(See De
Villiers and Macintosh, The Law of Agency in South Africa 3rd edition
p614 - 615 and 622.
It
was also submitted that there is no indication on the papers what the
applicants
id quod interest is.
[22]
The mere fact that the applicant has locus standi to institute
winding up proceedings in terms of the provisions of Section
345 of
the Companies Act of 1973, does not entitle him to rely on the
deeming provisions of inability to pay its debtors as contemplated
in
Section 345 of Act 61 of 1973 unless he also proves that the Company
is also insolvent. The respondent denies that it is insolvent.
See
HBT Construction vs Uniplant Hire 2012(5) SA 197 (FB) at 199 A-G.
[23]
What remains in dispute is whether the amount was due and payable as
the respondent disputes the applicant’s claim. The
concession
made by the respondent that he is indebted in a sum of not less than
R100 is not an admission that the full amount of
R6 million was due
and payable. The concession clearly does not go that far. In my view
the respondent’s willingness to admit
more than R100 being due
and payable is a clear indication that he places the balance of the
amount claimed in dispute.
[24]
I concur with the view expressed by Ranchod J that certain factual
issues had to be resolved after hearing oral evidence and
only
thereafter legal findings can be made. This was not done.
[25]
The respondent challenges applicant’s claim. The reason for
referring the matter to oral evidence was done to establish
on a
balance of probabilities if a provisional order should be granted. If
it were to be found that the indebtedness to the applicant
is
disputed on bona fide and reasonable grounds, the Court will refuse a
winding up order. The onus on the respondent is not to
show that it
is not indebted to the applicant, it is merely to show that the
indebtedness is disputed on bona fide and reasonable
grounds. See
Kalil v Decotex (Pty) Ltd and Another at 980 B to D.
[26]
The word Provisional entails the motion that greater clarity and
certainty will be obtained later. The same principle is applicable
when the matter was referred to oral evidence. This in my view was
not achieved as it is still in dispute whether the respondent
has
bona fide and reasonable grounds to dispute applicant’s claim
for final relief. The only part disposed of is that it
was found that
the applicant is a creditor of the respondent in terms of the
Provisions of the Companies Act. The effect of the
failure to comply
with Ranchod J order is that the facta probandum remains open to
doubt.
In
all the circumstances I am of the view that the provisional order
should not be confirmed.
I
therefore make the following order;
1.
The provisional order granted by Davis A.J for the provisional
winding up of the respondent, Klipeiland (Pty) Ltd is discharged.
2.
The matter is referred back to Kruger A.J to determine all other
outstanding issues referred to him by Ranchod J.
3.
The interdict granted by Prinsloo J restricting the respondent to
sell the farm Klipfontein is extended pending the outcome of
the
liquidation application.
4.
Costs of this application is reserved.
HJ
DE VOS
JUDGE OF THE NORTH & SOUTH
GAUTENG HIGH COURTS, PRETORIA
Attorneys
for Applicant:
Gerhard
Botha and Partners Inc.
Suite
9 First Floor.
Waterkloofrand
Centre.
Rigel
Avenue.
Erasmus
Rand.
Pretoria.
Applicant’s
Advocate: Adv. L.W. de Koning SC.
Attorneys
for Respondent:
Bowman
Gilfilian Attorneys.
C/O
Savage Jooste & Adams Inc.
141
Boshoff Street.
Nieuw
Mucleneuk.
Pretoria.
Respondent’s
Advocate: Adv. A B Rossouw SC with F. Saint.