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[2009] ZAGPPHC 94
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Inyanga Trading 444 (Pty) Ltd v R&T Ontwikkelaars (Pty) Ltd (57639/2007) [2009] ZAGPPHC 94 (3 July 2009)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
CASE NO: 57639/2007
INYANGA TRADING 444 (PTY) LTD
APPLICANT
And
R&T ONTWIKKELAARS (PTY) LTD
RESPONDENT
JUDGEMENT
MAVUNDLA J:.
[1] The applicant seeks an order in terms whereby the
respondent's company is placed under final winding up and that the
costs
of the application be costs in the liquidation. The
application is opposed.
[2] The applicant alleges in its papers
inter alia
that the
respondent is unable to pay its debts and that a notice in terms of
section 345 of the Companies' Act, 61 of 1973 was
delivered by hand
and sent by registered post to the registered office of the
respondent. Annexure "JPN2" is the relevant
letter of
demand in terms of the aforesaid section.
[3] The applicant alleges that the respondent is
indebted to it in the amount of R1 081 460.43 being amounts in
respects the earth
moving machinery let to the respondent by the
applicant. The applicant alleges further that the aforesaid amount
relates to the
various to various invoices numbered 001, 002, 003,
005 and 006 dated respectively 8 December 2006, 24 January 2007, 5
February
2007, 15 February 2007 and 28 February 2000.
[4] The cause of the respondent's indebtedness to the
plaintiff is alleged to be as the result of the applicant letting to
the
respondent a Komatsu TLB 4X4, a Komatsu bulldozer and a Komatsu
excavator. The TLB and Excavator were let to the respondent for
a
minimum of twelve month. A Bulldozor was let to the respondent for a
minimum for a period of three months. It is averred that
the
respondent needed the aforesaid machinery for purposed of executing
civil engineering services and infrastructure services
at a
development at Louis Trichard now Makhado.
[5] The appellant further alleges that the transport
costs for the TLB and the Bulldozer from Bela-Bela to Louis Trichard
became
payable on 7 January 2007. On 16 January 2007 a letter of
demand was allegedly written to the respondent in terms of which
payment
was demanded in the amount of R16 245.00. The applicant
further alleges that it then cancelled the rental agreement on 24
January
2007.
[6] The respondent denies that it is indebted to the
applicant in the aforesaid amount or at all and that it had to pay
any transport
costs to the applicant. The respondent contends on the
contrary that it is the applicant that is indebted to it in the
amount
of R17 125 000.00. The respondent's claim is set out in
summons that was issued under case number 57639/07 in this Court
against
the present applicant. A copy of this summons is attached to
the respondent's answering affidavit. It is not in dispute that such
summons were issued and served on the applicant.
[7] The plaintiff has also attached to its papers
copies of summons issued by the respondent against it under case
number 52131
(annexure JPN17) in which the respondent claims from
the applicant the amount of R17125 000.00. In the summons in
paragraph 6
thereof it is stated as follows: "On 24 January
2007 the defendant addressed the letter of cancellation to the
plaintiff,
a copy of which is not in the possession of the
plaintiff, in terms of which the rental agreement was cancelled as a
result of
the alleged repudiation by the plaintiff of the rental
agreement of 5 December 2006. As a result of the plaintiff's refusal
to
accept responsibility for the transport costs and plaintiff's
rejection of invoice 001 rendered by the defendant to the
plaintiff."
In paragraph 8 thereof it is stated "the
plaintiff disputed a liability for the transport costs, as reflected
in Annexure
"G" above and has also disputed the
correctness of tax invoice 001 dated 8 December 2006 rendered by
defendant to plaintiff.
In paragraph 9 it is stated that the
plaintiff had repudiated the rental agreement, and disputed the
alleged cancellation of
the agreement by defendant as appears from a
letter dated 26 January 2007 of plaintiff, which is annexed hereto
as Annexure "H".
It needs be understood that the plaintiff
herein above is the respondent in casu and the defendant is the
applicant in casu.
I find it not necessary to state much about the
progress of the civil proceedings referred to herein above. It
suffices to state
that these proceedings are pending.
[8] The respondent in its answering
affidavit states that the application is based upon claims which
form the subject of an action
which is currently pending between the
parties under case number 52131/2007 in the jurisdiction of this
court. In this regard
he has attached copies of the relevant
summons, which I have already referred to here earlier above. The
respondent further states
that the application of the applicant is
an attempt to enforce and allege that which is currently
bona
fide
dispute between all the relevant
parties.
[9] From the papers filed it is clear that each party
alleges that the other is indebted to it. They differ as to the
amounts
owed by the other.
[10] The circumstances upon which a liquidation order
are set out in section 344 of the Companies Act, one of which is in
terms
ofsubsection " (h) it appears to the Court that it is
just and equitable that the company should be wound up."
[11] The Court has discretion to grant a winding up
order irrespective of the ground upon which the winding up order is
sought.
In exercising its discretion, which must be exercised
judicially, the court must have regard to the reasons for the
proposed
winding up. The Court must also guard against the abuse of
the Court process, against frivolous application or against
perverting
the winding up process to enforce payment of a debt, the
existence of which is bona fide disputed
1
.
[12] For the Court to exercise its
judicial discretion, the approach it must adopt, where the
respondent disputes the validity
of the alleged debt, is to consider
whether the respondent has, on a balance of probability convinced
the Court, not that the
debt is not payable, but that it is disputed
on
bona fide
and
reasonable grounds; vide
Badenhorst v
Northern Construction Enterprises Pty Ltd.
2
[13] In my view, the following citation is
apposite to this matter. The Court in
Robson
v Wax Works (Pty) Ltd and Other
3
said:
"[13] The
applicant was aware prior to the institution of the application that
his money claims against the first respondent
were disputed. It is
trite that winding up proceedings are inappropriate when brought by
a creditor whose claims are reasonably
and bona fide disputed. See
Badenhorst v Northern Construction
Enterprises Pty Ltd
1956 (2)SA 346 (T) and
many subsequent cases in which the so-called
Badenhorst
rule has been applied (some of which are
collected in Kali v Decotex (Pty) Ltd and Another
1988 (1) SA 943
(A) at 980D-f). The institution by a creditor of winding up
proceedings in such circumstances has on occasion been stigmatised
as an abuse of process.
[14] What a respondent must show to demonstrate in
winding up proceedings that a creditor-applicant's claim is
reasonably disputed
has recently been restated by this Court (per
Thring J) in Hülse-Reutter and Another v HEG Consulting Enterprises
9Pty) Ltd
(Lane and Fey NNO Intervening)
1998 (2) SA 208
(C) at
219F-220A:
'Apart from the fact that they dispute the
applicant's claims, and do so
bona fide,...
what they must establish is no more and no
less than that the grounds on which they do so are reasonable. They
do not have to establish,
even on the probabilities, that the
company, under their direction, will, as a matter of fact, succeed in
any action which might
be brought against it by the applicants to
enforce their disputed claims. They do not. . . have to prove the
company's defence
in any such proceedings. All they have to satisfy
me of is that the grounds which they advance for their claims and the
company's
disputing these claims are not unreasonable. To do that, I
do not think that it is necessary for them to adduce on affidavit, or
otherwise, the actual evidence on which they would rely at such
trial. This is not an application for summary judgment in which
...
a defendant who resists such an application by
delivering an affidavit or affidavits must not only satisfy the court
that he has
a
bona fide
defence
to the action, but in terms of the Rule must also disclose fully in
his affidavit or affidavits " the material facts
relied upon
therefor"... It seems to me to be sufficient for the
[respondents] in the present application, as long as they
do so
bona
fide,
...
to allege facts
which, if proved at a trial would constitute a good defence to the
claims made against the company."
[14] From the very fact that the
proceedings instituted by the respondent against the applicant are
pending, it is safe to assume
that the applicant is disputing its
indebtedness to the respondent, in as much as the respondent
disputes that it is indebted
to the applicant. These are disputes
that can not be resolved on affidavits. For each party to succeed on
its claims against
the other, viva vice evidence would have to be
lead. That being the position, I can safely assume that there is a
dispute of
fact as regards to who is indebted to the other and to
what extent. But besides, when the applicant initiated the present
proceedings
against the respondent, was aware of the pending action
of the respondent against it.
[15] In
Blackman
Jooste Everinghen commentary on Company Act
Volume
3 pages 14-79 it is stated that "the procedure for winding up
is not designed for the resolution of disputes for the
existence or
non-existence of a debt, and therefore winding up proceedings are
not appropriate, and ought not to be resorted
to, in order to
enforce payment of a debt, the existence of which is
bone
fide
disputed by the company on reasonable
or substantial ground. 'Great care must be taken by a Court to
ensure that liquidation proceedings
are not employed to shut the
doors of the Court to a Respondent who may well on the basis of
evidence placed before an appropriate
court convert a
bona
fide
dispute into one which is clearly
compelling in successful.'"
4
[16] Where there is a
bona
fide
dispute of facts, and the respondent
bona fide and on reasonable grounds disputes the claim, then the
court should not lightly
grant a winding up order;
vide
Kyle and Others v Maritz & Pieterse Inc.
5
[17] I am of the view that the respondent
has satisfied me that he has a
bona fide
defence against the applicant's alleged
claim, in the form of a counter claim. I need not interrogate
whether he will succeed
with his claim against the applicant. In the
premises, in the light of the herein above referred to authorities,
I am of the
view that in the circumstances of this case an
appropriate order is to dismiss the applicant's application with
costs.
[18]
In casu
both
parties employed senior counsel. It shows that the case is very
important to both parties especially having regard to the
respective
claims each party alleges that it is being owed by the other. It is
therefore justifiable that the successful party
be entitled to the
costs of senior counsel as well.
[19] I therefore make the following order:
That the application is dismissed.
That the applicant to pay the costs of this
application, which costs shall include the costs of senior counsel.
N.M.
ÐÐ
VUNDLA
JUDGE OF THE HIGH COURT
DATE OF JUDGMENT: 03/07/2009
APPLICANT'S ATT : MARK EFSTRATIOU INC
PLAINTIFFS' ADV : ADV A C FERREIRA (SC)
DEFENDANT'S ATT : J.P.A VENTER ATTROENYS
DEFENDANT'S ADV : ADV M M RIP (SC)
9
1
Henochsberg
on Companies Act at Vol 1 691 [issue 1] -694 [Issue 23].
2
:
1956
(2) 346 at 347 H-348.
3
2001
(3) SA 1117
at 1122B-G.
4
Vide
Porterstraat 69 Eindomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd
2000 (4).
5
2002
(3) ALL SA 223(T)
at page 227 para [13].