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[2012] ZAKZPHC 16
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Nedbank Ltd v Royal Villa Marina Investments (Pty) Ltd (7277/2011) [2012] ZAKZPHC 16 (22 March 2012)
IN
THE KWAZULU NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA CASE NO. 7277/2011
In
the matter between:
NEDBANK
LIMITED
(Registration
No. 1951/000009/06)
….........................................................................
APPLICANT
and
ROYAL
VILLA MARINA INVESTMENTS (PTY) LTD
Registration
No. 2005/025804/07
….......................................................................
RESPONDENT
J
U D G M E N T
BOOYENS AJ
This is an application for the
provisional winding-up of the respondent in terms of the provisions
of section 344(f), as read with
section 345(i)(a) and 345(i)(c) of
the Companies Act 61 of 1973. Mr van Rooyen moved for the order set
out above, Mr Tobias who
represented the respondent opposed the
application on a variety of reasons.
The respondent is indebted to the
applicant on the applicant’s case in an amount of
R3,662,485-49. There are some disputes
between the parties as to the
calculation of interest. However, even if the issue of interest is
left completely aside, it is clear
that the respondent is indebted to
the applicant in the amount of R3,503,000-00.
The amount of indebtedness arose as a
result of several loans that were advanced by applicant to the
respondent all payable after
the expiry of twelve months, the twelve
months in respect of each loan has expired, no further extension has
been agreed upon between
the parties. It thus follows that the
amounts are currently due, owing and payable by the respondent to the
applicant.
Mr Tobias in essence argued that the
applicant has not complied with the provisions of section 346 of the
Act. He firstly argued
that at the time of the issuing of the notice
of motion, to wit 26 July 2011, no certificate of security as
required by section
346(3) of the Act was in existence. Such
certificate of security is date stamped by the Master of this Court
on 22 August 2011.
From a perusal of the papers in this matter, it is
apparent that the matter was set down to be heard on 31 August 2011.
That application
was then removed from the roll resulting from the
respondent’s notice of opposition dated 23 August 2011. I have
considered
the decision of
Court v Standard Bank of SA Ltd; Court
v Bester NO and Others
[1995] ZASCA 39
;
1995 (3) SA 123
(A). In that matter the
Appellate Division referred to the decision by Leon J in
RSA
Factors Ltd vs Hanson
1983 (4) SA 873
(D) and quotes with
approval at page 130 paragraph C the following passage:
“
Where, as here, a
nulla
bona
return is relied upon,
there was thus no need in terms of the Natal practice for the
application to be served upon the respondent
at all before a
provisional order of sequestration was obtained. And in the case of
such an application the long-standing practice
of the Natal
Provincial Division is that the security certificate need not be
lodged with the Court when the petition is filed:
it is sufficient if
the security certificate (which must not be stale) is lodged before
the hearing.”
In this instance it is clear that once
the matter had been set down the security certificate dated 24 August
2011 had been filed
for the matter which was due to be heard on 31
August 2011 and it was thus not stale.
It should be added that it is apparent
from the
Court v Standard Bank
judgment (supra)
that
the Natal practice was approved at 131E where Vivier J is quoted as
stating the following:
“
I am accordingly of the view
that s 9(3)(b) of the Act does not require the security certificate
to accompany the application either
when it is filed with the
Registrar or when it is served on the respondent and that the
practice in the Court
a quo
,
followed in the present case, does not conflict with the provisions
of the subsection. The point taken by the appellant that the
application was fatally defective for want of compliance with the
subsection cannot therefore succeed.”
It thus seems to me that the argument
by Mr Tobias in this regard is without merit and that there has been
compliance in this matter
with the requirements of the section.
In the respondent’s opposing
affidavit in paragraph 2 the deponent one Paruk states the following:
“
I am a director of the
respondent, a property owning company. I am duty authorized to the
extent that it may be necessary to depose
to this affidavit in
opposition.”
I
emphasize
the statement that the respondent is a property owning company. Mr
Tobias argued that there was noncompliance with the provisions
of
subsection 4A(a) which requires services upon trade unions and the
employees. The section reads as follows:
“
When an application is
presented to the court in terms of this section, the applicant must
furnish a copy of the application –
to every registered trade union that,
as far as the applicant can reasonably ascertain, represents any of
the employees of the
company; and
to the employees themselves –
(aa) by affixing a copy of the
application to any notice board to which the applicant and the
employees have access inside the premises
of the company; or
(bb) if there is no access to the
premises by the applicant and the employees, by affixing a copy of
the application to the front
gate of the premises, where applicable,
failing which to the front door of the premises from which the
company conducted any business
at the time of the application;”
The papers in this matter were served
at the company’s registered address where an employee could
provide no information about
the employees. However, of significance
is where the sheriff states that he served the affidavit and
annexures on one Cheryl Van
Dyk receptionist for the Chartered
Accountants, “there there are no employees of the respondent
company and she was unable
to provide information about the trade
union”. In a further service, at the chosen
domicilii
citandi
et executandi
at 18A Grace Avenue, Westville,
the sheriff states that he effected service in the following matter:
“
By proper service of a copy of
the abovementioned process upon Pume, the maid, a responsible
employee of the respondent, at its
domicilium
citandi
et
executandi
at the above
address after explaining the nature and contents thereof to the said
person served.”
In an attempt to effect service on the
employees, the further return of service by the sheriff Mr Singh
states the following:
“
Manner of service –
execution. Party served: The employees of Royal Villa Marina
Investments (Pty) Ltd. Attempted service
on: 01.08.11 at 15h22. There
are no employees at the given address as the given address is a
private residence of Mr Hoosen.”
An effort to serve on the trade union
representing the employees met a similar fate at the said address. In
an affidavit dated 8
February 2012 the deputy sheriff Sanjith Singh
states, in paragraph 4, that on 1 August 2011 at the registered
address of the company,
Cheryl Van Dyk, receptionist for the
chartered accountants, informed him that there are no employees of
the respondent company.
In the applicant’s founding
affidavit deposed to by Mark Gregory Croxford on 22 July 2011, he
stated that the applicant shall
ensure that there will be compliance
with the provisions of section 346 of the Act insofar as service on
the employees and a trade
union is concerned. In the respondent’s
opposing affidavit deposed to by Mohammed Salim Dawood Paruk the
deponent does not
refer at all to the affidavit of the applicant
referring to the employees and the trade union. It is in my view
apparent that the
issue of employees of what is described as a
property owning company, had never been raised before it was argued
in this court.
I am in any event satisfied that all reasonable
efforts were made by the applicant to serve on the employees and a
trade union.
I would have expected Mr Paruk to have
dealt with the affidavits by the sheriffs relating to employees and
trade unions if there
were any employees. I am satisfied that the
applicant had done all it could to find out whether there were
employees. Such indications,
as there were, were to the contrary.
Therefore I am satisfied that the argument by Mr Tobias relating to
non-service on the employees
and the trade union does not hold water.
I have also considered the judgment of
Hendriks NO and Others v
Cape Kingdom (Pty) Ltd
2010 (5) SA 274
(W).
Mr Tobias further argued that in my
discretion I should not liquidate the respondent in that the
applicants could have followed,
as he called it, cheaper procedure,
by simply issuing summons and executing against the respondent. Mr
Tobias relied in this regard
on the decision
Gardee v Dhanmanta
Holdings and Others
1978 (1) SA 1066
(NPD). I have considered
that judgment but find that in the unique circumstances prevailing in
that case, it does not provide any
authority for Mr Tobias’
submission. The decision dealt with the situation where there was an
application for the sequestration
of a partnership with the
consequential sequestrations of all the partners’ estates.
Didcott J who gave the judgment, ultimately
found that there were not
sufficient allegations to indicate that there are advantages to
creditors in the matter, and made the
remark obiter, in my opinion,
that the issuing of summons and execution is sometimes a cheaper
remedy than liquidation.
In my view the applicants are entitled
to approach this court for an order liquidating the respondent. It is
clear from a reading
of the papers that notwithstanding several
efforts, the respondent has been unsuccessful in selling the
immovable property and
for that reason it seems to me to be desirable
that a liquidator should henceforth deal with the matter.
The following order is made:
That Royal Villa Marina Investments
(Pty) Ltd (Registration No. 205/025804/07) be and is hereby placed
under provisional liquidation
in the hands of the Master of the
KwaZulu Natal High Court, Pietermaritzburg.
That a
rule nisi
do hereby
issue calling on the respondent and all other interested persons to
show cause, if any, to this Court on the 3
rd
day of May
2012 at 09h30 why the respondent company should not be finally wound
up.
That this order be served on the
respondent company at its registered office situated at 2
nd
Floor, 12 Palm Boulevard, Gateway, KwaZulu Natal, and that the order
be published on or before the 30
th
day of April 2012,
once in the Government Gazette and once in the Witness newspaper.
That the costs of this application be
costs in the winding-up of the respondent company.
…………………………………
BOOYENS AJ
Application heard on : 14 March 2012
Counsel for the applicant : Mr R M van
Rooyen
Instructed by : Lynn & Main
Incorporated
Counsel for the respondent : Mr D G
Tobias
Instructed by : Omar & Associates
Judgment delivered on : 22 March 2012