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[2008] ZAWCHC 303
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Standard Bank of South Africa Ltd v ERF 289 Bantry Bay (18997/2008) [2008] ZAWCHC 303 (21 November 2008)
IN
THE
HIGH COURT OF SOUTH AFRICA
(
CAPE
OF GOOD HOPE PROVINCIAL DIVESION)
CASE
NO
:
18997/2008
DATE
:
21
NOVEMBER 2008
In the matter between:
STANDARD
BANK
Applicant
and
ERF
289 BANTRY BAY
Respondent
JUDGMENT
GAUNTLETT,
AJ
:
[1]
In
this
matter there is an opposed application for a provisional winding-up
order. I have read the papers which have been filed on
both sides,
and considered the oral submissions which have been advanced by
counsel for the applicant and respondent respectively.
[2]
It is not customary in matters of this kind to seek to hand down full
reasons for a ruling of this nature, but it seems to me
desirable in
the circumstances of this matter that I should do so, at least in
brief outline.
[3]
I am satisfied that the requirements for a provisional winding-up
order are made, and that
it
is
an appropriate case in my judgment for such an order to issue. In
this regard,
it
is
important to note that the debt
in
question
is not disputed, and that, as far as I read the papers, there is no
proper defence made out to the contention that the
respondent is
commercially insolvent. It is further important that the notice
in
terms
of section 345 of the Act was served as long ago as 22 October 2008,
and elicited at that stage, without proper explanation,
no adequate
response at alt.
[4]
This notwithstanding, objection was made this morning in argument on
the basis that the matter is not urgent. It seems to me
that this
misconceives the positron. As was explained in the Supreme Court of
Appeal decision
in
Commissioner.
South African Revenue Services v Hawker Air Services (Ptv) Ltd
(approximately 2006), the question of urgency is a matter for the
discretionary determination by the Court hearing the matter.
It
affords no basis
h
as appears to have become the unfortunate practice
in
certain
courts, for the matter not to be entertained at all, and even (in the
circumstances of that particular case) to be dismissed.
[5]
In the present case, it is quite clear from the procedural history
outlined in the papers, that some considerable forbearance
has been
exercised in relation to the collection of the debt - for that, as
counsel for the applicant squarely acknowledged, is
the applicant's
intention, as it is permitted to do, in instituting these
proceedings. The position moreover is as I have indicated,
there has
been no response, without explanation, to the section 345 notice, nor
is there any adequate explanation as to why this
application served
on 11 November 2008 elicited no evident reaction until today.
[6]
In the circumstances, it seems to me that the attempt to procure a
postponement of the matter is not well founded, and is calculated
to
delay.
I
am
not impressed by the argument that there is a web of other litigation
relating to the position of tenants. There is no contractual
privety
between the applicant and those entities, and the proceedings in
relation to eviction against them is patently res
inter
atios acta
as
far as they are concerned.
[7]
As regards the merits of the matter, as I have indicated, in my view
a good case is made out and I have accordingly that
a
provisional winding-up should issue i the terms indicated in the
draft marked "X".
GAUNTLETT,
A J