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[2009] ZAGPPHC 271
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Dynamic Wealth Stockbrokers (Pty) Ltd and Another v Bezuidenhout Hepple Inc and Others (49149/2008) [2009] ZAGPPHC 271 (22 September 2009)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NO: 49149/2008
DATE:22/09/2009
In
the matter between:
DYNAMIC
WEALTH STOCKBROKERS (PTY) LTD
…................................
First Applicant
THE
BRIDGING FACTORY (PTY) LTD
….................................................
Second
Applicant
and
BEZUIDENHOUT
HEPPLE INC
…............................................................
First
Respondent
(Reg.
No. 2003/017256/21)
TWR
HEPPLE
…....................................................................................
Second
Respondent
G
BARNARD
…...........................................................................................
Third
Respondent
C
H L EARLE
…........................................................................................
Fourth
Respondent
M
JOHNSON
…............................................................................................
Fifth
Respondent
JUDGMENT
MOTHLE
A J
1.
The Applicants brought an application seeking relief against the
Respondents in the following terms:
(i)
That an order be granted for the final winding-up of the First
Respondent;
(ii)
In the alternative to prayer (i), that an order for the provisional
winding-up of the First Respondent be granted, with a suitable
return
date;
(iii)
That it be declared that the Second to Fifth Respondents are liable,
jointly and severally, the one paying the others to be
absolved, to
the Applicants for the payment of R2,509,560.00 being the capital
amount of R1,200,000.00 plus a discounting fee at
the rate of 3.99%
for the first 30 days from 1 September 2006 and thereafter 0.14% per
day up to 21 October 2008;
(iv)
In the alternative to prayers (i) and (ii) above, and only in the
event that an order for the winding-up, whether final or
provisional,
be granted against the First Respondent, then an order for judgment
against the First Respondent for payment of R2,509,560.00
being the
capital amount of R1,200,000.00 plus a discounting fee at the rate of
3.99% for the first 30 days from 1 September 2006
and thereafter
0.14% per day up to 21 October 2008;
(v)
Costs of suit.”
2.
The notice of motion and the prayers sought are accompanied by a
founding affidavit in which the Applicants make certain allegations,
amongst others, that:
2.1.
They are the creditors to the First Respondent and have the necessary
locus standi to bring the application. The relationship
of the
Applicants in particular is described in the following terms, namely:
“
The
Second Applicant is the duly authorised intermediary of the First
Applicant, which renders a service that is commonly referred
to as
bridging finance to its customers”. Consequently, it will be
respectfully contended on behalf of the Applicants that
“The
Second applicant concludes the relevant agreements with the First
applicant’s customers” and the First Applicant
is the
party with the necessary locus standi and the First Applicant is the
creditor. ”
2.2.
The Applicants further raise an allegation that it seems there is a
link between the First Respondent and a firm of attorneys
in
Bloemfontein calling themselves “Bezuidenhout Inc”. In
support of that contention, they claim further that correspondence
has been exchanged between the parties where different letterheads
have been used. The Applicant concludes that the impression
left by
the use of the letterheads is that it is in fact one and the same
firm of attorneys that practices at different addresses
namely, in
Pretoria, Bloemfontein and Roodepoort.
3.
The Respondents filed an answering affidavit in which it denies the
contract, the liability and the amount as alleged by the
Applicants.
In particular, the Respondent raises the allegations that the
Applicants do not have locus standi to bring the application
and that
there are bona fide disputes which can only be resolved in a trial.
4.
As it will appear hereunder, and in particular the order I intend to
make, it is unnecessary to deal with the rest of the other
details of
the allegations contained in the founding affidavits, the answering
affidavits and the replying affidavit.
5.
It is now common cause between the parties that the allegations and
counter allegations exchanged in the affidavits are such
that
disputes of fact exists between the parties which, in my view, cannot
be resolved on the papers as they stand. The question
of locus standi
raised by the Respondents is one such issue, which will require oral
evidence to prove.
6.
Prior to the hearing of this matter, I indicated to both counsel the
problem of disputes of fact and the matter stood down for
counsel to
obtain instructions. When the matter was called, the parties conceded
that there was indeed disputes of fact but differed
on how the matter
should be handled. The Applicants agree that the matter be referred
to trial, while the Respondents want the
application dismissed.
7.
It is trite that where there is a dispute of fact in an application,
the Court may, where there is no request for the hearing
of oral
evidence, grant a final order on the notice of motion if the facts,
as stated by the Respondent, together with the facts
alleged by the
Applicant that are admitted by the Respondent, justify such an order.
I refer to Wightman t/a J W Construction v
Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA). Where, however, a request for oral evidence is made
by either one or more of the parties, the Court may either:
7.1.
Dismiss the application;
7.2.
Refer it to oral evidence only in respect of the allegations which
may not be resolved on the papers; or
Refer
the matter to trial.
refer
in this regard to the seminal case of Room Hire Co. (Ptv) Ltd v
Jeppe Mansions (Ptv) Ltd
1949 (3) SA 1155
(T).
8.
The Applicant’s counsel submitted that in their view, prayers 1
and 2 dealing with the request for provisional and/or final
winding-up order, should be refused as this cannot proceed by way of
action, but the alternative prayers in regard to the alleged
debt
arising out of the contract between the parties, be referred to trial
and that costs be reserved. The Respondents on the other
hand
submitted that the application be dismissed because amongst others,
the action would have in any way prescribed and further
that there is
really no real cause of action raised by the Applicants.
9.
The issue of prescription as contended by the Respondent is referred
to in the answering affidavit and the replying affidavit
but not
raised as a point in limine for determination by the Court. In fact,
Respondent contends that the point of prescription
will be raised in
the action. I agree that the prescription issue as well as any
defence to the Applicant’s cause of action
will be better dealt
with in action proceedings.
10.
Having considered the allegations and counter allegations contained
in the affidavits in this application, I am of the view
that a real
dispute of fact exists in this matter, justifying the referral of the
matter to trial.
11.
It is also practice that liquidation proceedings can only be brought
by way of application. For that reason, the action proceedings
cannot
deal with the relief sought in terms of prayers 1 and 2 regarding the
request for an order to provisionally or finally winding-up
the First
Respondents alternatively provincial liquidation.
In
the premises I make the following order:
(i)
Prayers 1 and 2 of the application are dismissed;
(ii)
The cause of action including Prayers 3 and 4 is referred to trial;
(iii)
The notice of motion stands as simple summons;
(iv)
The notice of intention to oppose shall stand as notice of intention
to defend;
(v)
The Applicant is ordered to file a declaration within 20 days from
date of this order;
(vi)
Upon filing of the declaration, the ordinary rules relating to action
proceedings shall apply;
(vii)
The costs of this application shall be reserved for determination by
the trial Court.
MOTHLE
A J
2
September 2009