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[2024] ZAKZPHC 41
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Southern Spirit Properties 227 (Pty) Ltd v Afro Joinery (Pty) Ltd and Another (10971/23P) [2024] ZAKZPHC 41 (18 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
COMPANY – Winding up –
Unable
to pay debts
–
Admissibility
of alleged acknowledgement of debt – Email marked “without
prejudice” – Whether email
amounted to acknowledgement
of debt – For purposes of establishing that debt existed,
communication met requirements
for admissibility –
Acknowledged indebtedness but differed with applicant’s
calculations on exact amount claimed
– Email met
requirements of admissibility – Respondent placed in
provisional liquidation – Companies Act
61 of 1973, s
345(1)(a).
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case no.: 10971/23P
In the matter between:
SOUTHERN SPIRIT
PROPERTIES
APPLICANT
227 (PTY) LTD
(Registration Number:
2007/027107/07)
and
AFRO
JOINERY (PTY) LTD
FIRST
RESPONDENT
(Registration Number:
2017/208658/07)
THE MASTER OF THE HIGH
COURT,
PIETERMARITZBURG
SECOND RESPONDENT
ORDER
The
following order shall issue:
1
The first respondent is hereby placed in provisional liquidation in
the
hands of the second respondent, the Master of the High Court,
Pietermaritzburg.
2
The second respondent is directed to forthwith appoint a provisional
liquidator
to immediately take charge of the first respondent, its
business, immovable property, movable property and assets whether
corporeal
or incorporeal, and to preserve and administer the first
respondent and such business, immovable property, movable property
and
assets for the benefit of the general body of creditors.
3
A rule
nisi
is hereby issued, calling on the first respondent
and all other interested parties to show cause on 4 March 2024 why
the first
respondent should not be finally liquidated.
4
This order and rule
nisi
are published, once in Daily Mercury
Newspaper circulating in KwaZulu-Natal and in the Government Gazette.
5
The costs of the urgent application; return dates and this
application are
costs in the winding-up.
6
The applicant shall be entitled to claim its costs on the attorney
and client
scale.
7
This order shall be served on the employees of the first respondent
and
the trade union, if any.
JUDGMENT
SIPUNZI AJ
Introduction
[1]
This is an urgent application for the
compulsory provisional liquidation of the first respondent.
T
he
applicant seeks an order in the following terms:
‘
1.
Dispensing with the requirements of form and service provided for in
the uniform rules
of court and permitting this application to be
heard as one of urgency in terms of rule (6)(12)(b) of the rules.
2.
Placing the first respondent in provisional liquidation in the
hands
of the second respondent, the Master of the High Court,
Pietermaritzburg.
3.
Directing the second respondent to forthwith appoint a provisional
liquidator to immediately take charge of the first respondent, its
business, immovable property, movable property and assets whether
corporeal or incorporeal, and to preserve and administer the first
respondent and such business, immovable property and assets
for the
benefit of the general body of creditors.
4.
Interdicting and restraining the first respondent from:
4.1.
removing any property and assets for their current location at Ares
Road, Oribi Village,
Pietermaritzburg, KwaZulu-Natal.
4.2.
concealing, disposing or misappropriating any of its property assets.
5.
Ordering that the interdict set out in paragraph 4 above shall
operate as an interim interdict with immediate effect, pending the
outcome of the return day set forth hereunder, or any further
proceedings flowing therefrom.
6.
Directing that the rule
nisi
is issued, calling on the first
respondent and all other interested parties to show cause on a date
to be determined by the court
hearing the urgent application, why the
first respondent should not be placed into final liquidation.
7.
Directing that the provisional order and rule
nisi
are
published, once in a newspaper circulating in KwaZulu-Natal and in
the Government Gazette.
8.
Ordering that the costs of the urgent application and return
day are
costs in the liquidation and that the applicant will be entitled to
claim its costs on the attorney and client scale.
9.
Ordering that any party who opposes this application pays the
costs
occasioned by such opposition.
10.
Granting the applicant further and/alternative relief.’
[2]
The matter served before this court on 28 July 2023; an order by
consent was obtained.
The order disposed of the prayers in paragraphs
1;4 and 5 in the notice of motion and gave further directives on the
conduct of
the first respondent, pending the determination of the
provisional liquidation application. The application pertaining to
the provisional
liquidation was adjourned. The focus of this judgment
will therefore be on the remainder of the relief sought as outlined
in paragraphs
2; 3; 6; 7; 8 and 9 of the notice of motion.
[3]
The first respondent opposed the
application on the basis that the parties were still engaged
in a
pending litigation on the subject matter, as shall be dealt with in
detail below. The first respondent also denied that the
applicant was
its creditor as contemplated in s 346(1)(
b
) of the Companies
Act 61 of 1973 (“the Act”).
The
parties
[4]
The applicant, Southern Spirit
Properties 227 (Pty) Ltd, with registration number 2007/027107/07,
is
a company with limited liability duly incorporated in accordance with
the company laws of the Republic of South Africa, which
has its
registered address and principal place of business situated at 2[...]
P[...] Road, Masons Mill, Pietermaritzburg, KwaZulu-Natal.
[5]
The first respondent is Afro Joinery
(Pty) Ltd, a company with limited liability duly incorporated
in
accordance with the company laws of the Republic of South Africa with
registration number 2017/208658/07, which has its registered
address
situated at 2[...] P[...], Masons Mill, Pietermaritzburg,
KwaZulu-Natal.
[6]
The second respondent is the Master of
the High Court, Pietermaritzburg. It filed the report
confirming that
sufficient security had been lodged with it and filed a notice to
abide.
Facts
[7]
The applicant leased business premises
at 2[...] P[...] Road, Masons Mill, Pietermaritzburg,
KwaZulu-Natal
to the first respondent. The lease operated for a period of 24
months, with an option for renewal and purchase on
terms set out in
the lease agreement. The lease commenced on 1 September 2019 and
expired on 31 August 2021. Monthly rental amount
for period starting
from 1 September 2019 to 31 August 2020 was R48 000 and R51 840
for the period from 1 September 2020
to 31 August 2021.Thereafter the
lease agreement was on a month-to-month basis and on the terms
outlined in the lease agreement.
[8]
From
February 2022 to May 2023, the first respondent made irregular rent
payments with varying amounts under a month-to-month lease
agreement.
[9]
The first respondent fell into arears.
Pursuant to that, there was an exchange of correspondence
between its
representatives and those of the applicant. During the said exchange,
the applicant claimed that the arrears amounted
to R1 234 902.42. On
27 October 2022, the applicant issued summons against the first
respondent for the payment of the arrears
in rental. The first
respondent, who was the defendant in the action, also filed a
counterclaim for R118 199.43 which it alleged
would amount to
undue enrichment of the applicant.
[10]
In the trail of emails exchanged between the
representatives of the respective parties on 25 January 2023,
there
was a suggestion that the first respondent’s indebtedness to
the applicant could be an amount of R771 919.70.
This was
illustrated in the schedule that was attached to the email, drawn on
behalf of the first respondent.
[11]
On 03 July 2023, the applicant instituted an
application for the eviction of the first respondent from the
leased
premises. The applicant became aware that the first respondent had
vacated the premises on 18 July 2023, contrary to the
first
respondent’s earlier undertaking that it would do so on 31 July
2023. These developments were addressed by the subsequent
interim
interdict that was taken by consent of the parties on 28 July 2023.
Issues
[12]
The central question for determination is whether
the applicant made out a case for the granting of the
order of
provisional liquidation of the first respondent. This includes
whether the applicant established that it has the locus
standi as
contemplated in the Act.
[13]
Further to that, it became necessary for the court
to also consider whether the communication marked “without
prejudice” in the email dated 25 January 2023 is admissible in
these proceedings and whether it amounted to an acknowledgement
of
debt by the first respondent.
Submissions
[14]
According to the applicant, the first respondent
had acknowledged its indebtedness of the rental arrears
that were due
as a result of their lease agreement. They based their contention on
the email correspondence exchanged on 25 January
2023. On the other
hand, the first respondent denied that the content of the
communication amounted to an acknowledgement of their
debt to the
applicant. According to the first respondent, the said correspondence
is not admissible in these proceedings. The basis
of their contention
being that the correspondence in question was marked ‘without
prejudice’.
[1]
[15]
According to the first respondent, its
indebtedness to the applicant was still a subject of dispute, a
matter that was still
sub
judice,
to
which the first respondent had a counterclaim
.
Among others, the first
respondent contended that the disputed amount was occasioned by
‘whether the lease agreement was renewed
or not, which affects
the calculation of the arrear rental, as evident from the
contradictory allegations between the applicant’s
founding
affidavit and its particulars of claim which has led to a dispute
about how much [was] in fact owed.’
[2]
Relevant
legal discussion
[16]
The applicants sought to have the first respondent
liquidated in terms of the provisions of s 345 of the
Act. Section
345 provides that:
‘
When
company deemed unable to pay its debts—
(1)
A company or body corporate shall be unable to pay its debt if—
(a) A
creditor, by cession or otherwise, to whom the company is indebted in
a sum not less than one hundred rand
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; or
(ii) …
and
the company or body corporate has for three weeks thereafter
neglected to pay the sum, or to secure or compound for it to be
the
reasonable satisfaction of the creditor; or
(b) …
(c) It
is proved to the satisfaction of the Court that the company is unable
to pay its debts.
(2)
In determining for the purpose of subsection (1) whether a company is
unable to pay its debts, the Court shall also take
into account the
contingent and prospective liabilities of the company.’
Locus
Standi
[17]
Among others, the applicant alleged that it had
locus standi as the creditor of the first respondent in
the
application for its provisional liquidation. According to the
applicant, when the first respondent fell into arears from 17
to 30
November 2021, there were discussions between their legal
representatives. The subject of these discussions included means
to
be explored by the first respondents on how the applicant would be
paid arear rental that was owed to it. Furthermore, on 5
October 2022
a demand for the payment of the arear rental and service charged in
the sum of R1 234 902.42 was addressed to
the first respondent.
When there was no payment made, summons was issued for the payment of
arrear rental and service charges on
27 October 2022.
[3]
[18]
The applicant further stated that its claim that
it is the creditor has not been disputed, save for the
contention
that the first respondent denied the amount of the alleged debt or
its basis. The first respondent also contended that
there was a
dispute being determined in action proceedings before this honourable
court as to the amount owed to the applicant
and that the amount was
certainly not liquidated.
[4]
[19]
The first respondent further admitted in the
answering affidavit that from 16 February 2022 until 5 May
2023, it
made irregular payments of varying amounts to the applicant.
[5]
The first respondent however denied that its alleged failure to pay
the applicant was without good and sufficient reason.
[20]
From the above, it can be safely gathered that the
first respondent did not
per se
take an issue with the claim
that the applicant was its creditor, save to contend that the amount
involved was not liquidated and
a subject of court proceedings.
[21]
For the purposes of establishing
locus
standi,
for
which the applicant bears the burden of proof, it sufficiently
established that it was the creditor to the first respondent,
as
contemplated in the Act.
[6]
Therefore I am satisfied that the applicant has locus standi to
institute these proceedings.
Admissibility
of the alleged acknowledgement of debt
[22]
Notably, the applicant alleged that the first
respondent unequivocally acknowledged that it owed a debt
to the
applicant. The applicant based its allegations on the communication
dated 25 January 2023, which was part of the exchange
between their
representatives. According to the applicant, the reading of the
communication in the context of the discussion should
not be viewed
as a settlement proposal but a mere admission that the first
respondent owed some arrear rental to the applicant.
They differed on
the calculation of the amount. It further argued that therefore the
disclosure of that communication was not privileged.
It was also
submitted that all that the applicant was required to establish was
that there was money owed to it by the first respondent
and that,
that communication alone met that requirement.
[23]
On behalf of the first respondent, it was
submitted that the email was part of negotiations and an invitation
to the applicant to engage in a discussion. It denied that it
amounted to an unequivocal acknowledgement of the first respondent’s
indebtedness to the applicant. It was further argued that it should
not be admissible, for reason that it was also marked, “Without
Prejudice”. The respondent’s argument to this was that
the letter was in the spirit of negotiation of the action proceedings
that were unfolding. It emphasised that the wording of the text,
namely ‘might owe some arear rental’ amount of
approximately
R770 000; and ‘round table meeting to
discuss the discrepancies and agree on a way forward’ was no
unequivocal
acknowledgement of debt. According to it, so the argument
went, the dispute was about the manner of calculation of the arear
rental.
[24]
The contentious part of the email is illustrated
in the extract below:
‘
From:
Jeremy Capon –
j[...]
Sent:
25 January 2023 08:16
To:
Anthony Grant-
a[...]
Subject:
Southern Spirit Properties 227 (Pty) Ltd//Afro Joinery and D Steiner
Dear
Ant
“
WITHOUT
PREJUDICE”
Further
to the above matter, wherein we act on behalf of D Steiner and
Afrojoinery (Pty) Ltd I have been given a copy of a (sic)
dated…January 2023.
This
letter is somewhat confusing due to the fact that your client has
previously issued summons and has now sent a further letter
which
appears to some extent to contradict what was previously been stated.
Whilst
Ikhlaas doesn’t deny that Afrojoinery might owe some arrear
rental he has calculated that the amount that he owes your
client is
significantly less than the amount claimed.
Based
on the attached calculation there is an amount of approximately
R770 000.00 outstanding which is a far cry from the amount
claimed in the letter and summons.
In
order to resolve the matter without resorting to costly litigation
please can you confirm whether you and your client would be
amenable
to having a round table meeting to discuss the discrepancies and
agree on a way forward.
We
look forward to hearing from you.
In
the interim all of our client’s rights remain reserved.
Yours
sincerely
Jeremy
Frank Capon…’
[25]
The preferred approach on the question of
admissibility of the communication would be to examine the nature
of
the email dated 25 January 2023; its content; the context and its
purpose against the applicable legal principles. I am also
mindful of
the guidance the Supreme Court of Appeal gave
in
Natal
Joint Municipal Pension Fund v Endumeni Municipality,
[7]
where
it
recognised
that
the circumstances in which a document came into being, is one of the
factors to be considered when interpreting a document.
Wallis JA
stated:
‘
Whatever
the nature of the document, consideration must be given to the
language used in the light of the ordinary rules of grammar
and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material known to
those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the light of
all these
factors. The process is objective not subjective. A sensible meaning
is to be preferred to one that leads to insensible
or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against, the temptation
to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used…’
[26]
For this reason, it would be apposite to apply the
principle in
Jili
v South African Eagle Insurance Co. Ltd
[8]
where it was held that:
‘
No
conclusive legal significance that attaches to the phrase ‘without
prejudice’. The mere fact that a communication
carries that
phrase does not
per
se
confer upon it the privilege against disclosure, for example where
there exists no dispute between the parties or it does not form
part
of a genuine attempt at settlement… nor is a communication
unadorned by that phrase always admissible as evidence,
for it will
be protected from disclosure if it forms part of settlement
negotiations…’
[27]
Furthermore, in regard to liquidation proceedings,
an exception to the general rule can be found in
ABSA
Bank Ltd v Hammerle Group
[9]
where it was held that:
‘
It
is true that, as a general rule, negotiations between parties which
are undertaken with a view to settlement of their disputes
are
privileged from disclosure. This is regardless of whether or not the
negotiations have been stipulated to be without prejudice.
However,
there are exceptions to the rule. One of these exceptions is that an
offer made, even on a ‘without prejudice’
basis, is
admissible in evidence as an act of insolvency. Where a party
therefore concedes insolvency, as the respondent did in
this case,
public policy dictates that such admission of insolvency should not
be precluded from sequestration or winding-up proceedings,
even if
made on a privileged occasion. The reason for the exception is that
liquidation or insolvency proceedings are a matter
which by its very
nature involves the public interest.’
[28]
One has to give regard to the content of the
communication; the purpose which it sought to accomplish in
the
course of the discussions, the dictum in
Absa
and the
arguments advanced. If one aligned with
Jili,
to the extent
that the phrase ‘without prejudice’ carried no conclusive
legal significance against disclosure
,
considered in context
of the discussions between the representatives, the argument against
admissibility of the email of 25 January
does not find support. In
light of the proceedings at hand, I agree that for purposes of
establishing that a debt existed, the
said communication met the
requirements for admissibility. In the context of the matters that
were under discussion, it cannot
be said that the parties were
engaged in genuine settlement negotiations when the correspondence
was written. Furthermore, for
reasons outlined in
Absa
the
communication in issue does not enjoy the non-disclosure rule
.
As correctly argued by the applicant, the letter acknowledged
indebtedness but differed with the applicant’s calculations
on
the exact amount claimed.
[29]
Therefore, for the purposes of establishing that a
debt existed and acknowledged by the first respondent,
I am satisfied
that the email dated 25 January 2023 met the requirements of
admissibility.
Section
345 of the Companies Act
[30]
The application for the provisional liquidation of
the first respondent is founded in the provisions of
s 345(1)(
a
)
of Act. The opposition of the liquidation application appears to be
based on the contention that the first respondent has a counterclaim
to the moneys claimed in the action proceedings. According to
the first respondent, the dispute over its alleged indebtedness
to
the applicant was still a subject of ongoing court proceedings. The
first respondent argued that their defence of a counterclaim
to the
applicant’s claim was based on bona fide and reasonable
grounds. The first respondent also argued that no defence
was
necessary when the applicant had no
locus standi
to bring the
application for its liquidation in the first place
[31]
In order to consider the implication of the said
counterclaim, it will be imperative to reflect on what
was said in
Afgri
Operations Ltd v Hamba Fleet (Pty) Ltd.
[10]
In this case, the court of first instance had dismissed the
application for winding up of the respondent solely on the basis that
it had a counterclaim against the appellant.
[32]
The SCA emphasised that, ‘mere recourse to a
counterclaim will not, in itself, enable a respondent
successfully to
resist an application for its winding-up’. The counterclaim
must also be shown to be genuine. It further
stated that:
‘
The
existence of a counterclaim which, if established, would result in a
discharge by set-off of an applicant's claim for a liquidation
order
is not, in itself, a reason for refusing to grant an order for the
winding-up of the respondent but it may, however, be a
factor to be
taken into account in exercising the court's discretion as to whether
to grant the order or not.’
[11]
[33]
It was further critical of the failure by the court of first instance
to correctly observe the rule
that once the respondent’s
indebtedness has prima facie been established, the onus is on
respondent to show that its indebtedness
is disputed on bona fide
grounds and that the court had the discretion not to grant a
winding-up order upon the application of
an unpaid creditor is narrow
and not wide
.
[12]
The SCA upheld the appeal by the creditor and placed the respondent
under final liquidation.
[34]
Therefore, it is imperative
in
casu
to
assess if the merits of the defence raised by the first respondent,
namely, a pending dispute and counterclaim of the rental
arears
allegedly owed to the applicants. This should be viewed against the
fact that this application is one that is a debt-driven
liquidation.
Therefore, the ultimate test would be the ‘The
Badenhorst
test’,
[13]
namely, that a liquidation order will not be granted where it is
sought to enforce a genuinely disputed claim.
[14]
The essence of the test was that, although it is trite that
liquidation proceedings are not to enforce payment of a debt that is
disputed on
bona
fide
and
reasonable grounds, the respondent will not succeed in its defence if
it failed to show such grounds.
[35]
In order to reach a conclusion, among others, it
would be prudent to consider if the first respondent was
unable to
pay its debt without good and sufficient reason. This consideration
must,
inter
alia
,
be informed by the attempts, if any, made to demand or place the
first respondent on terms to enforce the debt, and whether the
first
respondent had made any attempts to satisfy the debt, if it existed.
In such determination, the court’s reasoning when
it dealt with
the continued failure to pay the debt in
Express
model trading 289 CC v Dolphin Ridge Corporate
[15]
finds application, albeit the first respondent, in this instance,
argued that the applicant lacked
locus
standi
and
that there was a counterclaim
.
Herein, the court held
that without an adequate explanation for failure and delay to pay,
the appellant, who sought a condonation,
could not succeed. Among
others, the appellant was arguing that it had assets which it could
liquidate in order to cover its liabilities.
Subsequently, it
transpired that a third party paid the levy arrears on behalf of the
debtor, the court found that, the payment
of the debt could well be a
sign that the respondent was creditworthy, but equally, it could be a
demonstration of the opposite,
namely that it was unable to pay its
debt or that it refused to do so on unreasonable grounds.
[36]
A glean at the interaction between the
representatives of the parties; the demand for payment of arrear
rentals and service charges; the litigation proceedings in an action
claim, the eviction proceedings; the interdict and the proceedings
at
hand, reveal that the applicant had a genuine demand for the payment
of the rental and service charges. These materialised when
the first
respondent began to make irregular rental and service charges
payments from February 2022 to May 2023. Despite the demand
being
made in October 2022, and in a period of 15 months, the first
respondent paid varying amounts towards rental and service
charges.
These payments are also as tabulated in the schedule that was
attached to the email dated 25 January 2023 and when it
fell into
arears.
[37]
The chronology of the events that preceded this
application include the first respondent falling into arears
when it
began to make varying amounts of rental during the month to month
lease agreement; demand for payment; summons issued in
demand of the
outstanding arrear rentals; followed by a counterclaim (despite the
right of renewal and no set-off clauses of the
lease agreement)
[16]
and email discussions. Even in the face of the eviction proceedings,
no payments were made for the continued occupation of the
applicant’s
property. Instead, when the applicant pursued this application, there
was a consent order taken, and the first
respondent moved to another
property adjacent to that of the applicant. A holistic approach and
in particular, the application
of the ‘
Badenhorst
test’ and
Afgri
Operations
to
the dispute revealed the first respondent had no reasonable grounds
upon which the established debt was not met when due or on
demand.
[38]
It remained undisputable that although there were
monies owed to the applicant, the liquidity of such monies
might be a
subject for another determination. The cumulative analysis of amounts
involved in the application at hand, being the
amount of R771 919.70
as suggested on behalf of the first respondent in the email dated 25
January 2023; R1234 902.42 claimed
in the summons; and R118 199.43
claimed in the counterclaim, sufficed to establish that the amount
involved met the requirements
in s 345(1)(
a
)(i) of the Act.
The fact that the amount owed to the applicant may not be a
liquidated amount should not be a justifiable basis
to resist its
application based on s 345 of the Act.
[39]
As it was emphasized in
Afgri Operations,
the
mere fact that the respondents have a counterclaim against the action
for arrear rental instituted by the applicant cannot absolve
them
from the provisional liquidation. The first respondent has not
sufficiently shown that its indebtedness to the applicant was
disputed on bona fide and reasonable grounds. In this instance, the
applicant has met all the requirements in terms of the provisions
of
the Act upon which it relied, the counterclaim of the first
respondent failed to stand in the applicant’s application.
In
my view, the applicant has established a case for the provisional
liquidation of the first respondent.
Costs
[40]
When the consent order was granted on 28 July
2023, the costs were reserved for hearing when the matter
was
re-enrolled. During the hearing of the arguments on 24 October 2023,
on behalf of the applicant, it was argued that the costs
should
include the costs of senior counsel. The first respondent was opposed
to these submissions and argued that the issues involved
were not so
complex as to warrant the appointment of a senior counsel, with which
I agree. On the overall costs, they agreed that
such costs should be
costs in the winding-up.
Order
[41]
In the result, the following order is therefore
made:
1
The first respondent is hereby placed in provisional liquidation in
the
hands of the second respondent, the Master of the High Court,
Pietermaritzburg.
2
The second respondent is directed to forthwith appoint a provisional
liquidator
to immediately take charge of the first respondent, its
business, immovable property, movable property and assets whether
corporeal
or incorporeal, and to preserve and administer the first
respondent and such business, immovable property, movable property
and
assets for the benefit of the general body of creditors.
3
A rule
nisi
is hereby issued, calling on the first respondent
and all other interested parties to show cause on 4 March 2024, why
the first
respondent should not be placed in final liquidation.
4
This order and rule
nisi
are published, once in Daily Mercury
Newspaper circulating in KwaZulu-Natal and in the Government Gazette.
5
The costs of the urgent application; return dates and this
application are
costs in the winding-up.
6
The applicant shall be entitled to claim its costs on the attorney
and client
scale.
7
This order shall be served on the employees of the first respondent
and
the affected trade union, if any.
SIPUNZI AJ
APPEARANCES
For
the Applicant:
Adv P
Strathern SC
Instructed
by:
Grant
and Swanepoel Attorneys
For
the First Respondent:
Ms E
Van Jaarsveld
Instructed
by:
Hay
and Scott Attorneys
Date
of hearing:
24
October 2023
Date
of judgment:
18
January 2024
[1]
Preliminary answering affidavit,
para
44.
[2]
Respondent’s
heads of argument, para 12(iii).
[3]
Founding
affidavit, paras 29 and 30 and as substantially admitted at paras 42
and 43 of the first respondent’s preliminary
answering
affidavit.
[4]
Preliminary
answering
affidavit, para 22.
[5]
Preliminary
answering
affidavit, para 51.
[6]
Section 346(1)(
b
)
of
the
Companies Act.
[7]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA).
[8]
Jili
v South African Eagle Insurance Co Ltd
1995
(3) SA 269
(N) at 275B.
[9]
ABSA
Bank Ltd v Hammerle Group
2015
(5) SA 215 (SCA).
[10]
Afgri
Operations Ltd v Hamba Fleet (Pty) Ltd
2022
(1) SA 91 (SCA).
[11]
Ibid
,
para 7.
[12]
Ibid
,
para 13.
[13]
Badenhorst
v Northern Construction Enterprises (Pty) Ltd
1956
(2) SA 346 (T).
[14]
Orestisolve
(Pty) Ltd t/a Essa Investments v NDFT Investment Holdings (Pty) Ltd
and Another (Pty) Ltd
2015
(4) SA 449
(WCC).
[15]
Express
Model Trading 289 CC v Dolphin Ridge Body Corporate
2015
(6) SA 224 (SCA).
[16]
See
Clause
4.1 ‘…the Lessee shall be entitled to renew the
lease…on the terms and conditions applicable to the
initial
period…’ and clause 5 of the lease agreement.