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2024
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[2024] ZAFSHC 203
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Futurefin (Pty) Ltd v Auto Prins (Pty) Ltd (4772/2023) [2024] ZAFSHC 203 (28 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
Case
Number: 4772/2023
In
the matter between:
FUTUREFIN
(PTY) LTD
Applicant
And
AUTO
PRINS (PTY) LTD
Respondent
JUDGMENT
BY:
REINDERS, J
HEARD
ON:
7
MARCH 2024
DELIVERED
ON:
28 JUNE 2024
This
judgment was handed down in open court and distributed to the parties
via electronic mail communication.
[1]
The applicant company prays for an order that the respondent company
be placed under provisional liquidation
[1]
in the hands of the Master of the High Court, together with the usual
ancillary relief in applications of this nature.
[2]
According to the applicant, the respondent is indebted to it in the
amount of R 961 225.11 (together
with interest) being the balance due
and payable to the applicant in respect of a signed Acknowledgement
of Debt (the “AOD”:
annexure “DLV 4”) drawn
in favour of the applicant by the respondent on 21 July 2022. The
applicant avers that it holds
no security from the respondent for
these payments due to it.
[3]
The respondent opposes the application. In its answering affidavit
the deponent, as the sole director
of the respondent, states that the
respondent bases its opposition thereon that the applicant does not
have the necessary locus
standi to bring the application and/or the
respondent’s indebtedness is disputed on bona fide and
reasonable grounds.
[4]
Rogers J held as follows in
Orestisolve
(Pty) Ltd t/a Essa Investments v NDFT Investment Holdings (Pty) Ltd
and Another:
[2]
“
[7]
In an opposed application for provisional liquidation the applicant
must establish its entitlement
to an order on a prima facie basis,
meaning that the applicant must show that the balance of
probabilities on the affidavits
is in its favour (Kalil v Decotex
(Pty) Ltd and Another
1988 (1) SA 943
(A) at 975J –979F). This
would include the existence of the applicant's claim where such is
disputed…
[8]
Even if the applicant establishes its claim on a prima facie basis, a
court will ordinarily
refuse the application if the claim is bona
fide disputed on reasonable grounds. The rule that winding-up
proceedings should not
be resorted to as a means of enforcing payment
of a debt, the existence of which is bona fide disputed on reasonable
grounds, is
part of the broader principle that the court's processes
should not be abused. In the context of liquidation proceedings, the
rule
is generally known as the Badenhorst rule, from the leading
eponymous case on the subject, Badenhorst v Northern Construction
Enterprises
(Pty) Ltd
1956 (2) SA 346
(T) at 347H – 348C, and
is generally now treated as an independent rule, not dependent on
proof of actual abuse of process
(Blackman et al Commentary on the
Companies Act, Vol 3 at 14 – 82 to 14 – 83). A
distinction must thus be drawn between
factual disputes relating to
the respondent's liability to the applicant and disputes relating to
the other requirements for liquidation.
At the provisional stage the
other requirements must be satisfied on a balance of probabilities
with reference to the affidavits.
In relation to the applicant's
claim, however, the court must consider not only where the balance of
probabilities lies on the
papers but also whether the claim is bona
fide disputed on reasonable grounds. A court may reach this
conclusion even though on
a balance of probabilities (based on the
papers) the applicant's claim has been made out…”
[5]
In
Hulse-Reutter
and Another v Heg Consulting Enterprises (Pty) Ltd (Lane and Fey NNO
Intervening
[3]
Thring J said the following:
“
I think it is
important to bear in mind exactly what it is the trustees have to
establish in order to resist this application with
success. Apart
from the fact that they dispute the applicants’ claim, and do
so bona fide, which is now common cause, 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, in this
matter, have to prove the company’s
defence in any such
proceedings. All that they have to satisfy me of is that the grounds
which they advance for their 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 a trial. This is not an
application for summary judgment in which,
in terms of the Supreme
Court Rule 32 (3), a defendant who resists such an application be
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.”
[6]
In its defence the respondent disputes the applicant’s locus
standi to pursue the application.
It is averred that no valid causa
exists for the AOD upon which the application is based. Respondent
points out that in terms of
the AOD the respondent is described as
“the debtor” and the applicant as “the creditor”
and that respondent’s
indebtedness arises from the sale of
vehicles by the creditor to the debtor. However, in terms of the
Master Rental Agreement the
entity known as Futureneers Drive (Pty)
Ltd purchased vehicles and rented it to dealers and once sold, would
receive payment from
the dealer. This Agreement was concluded between
Futureneers Drive (Pty) Ltd and the respondent who did not sell any
vehicles owned
by the applicant. The debt referred to in the AOD
certainly did not arise from the sale of vehicles by the applicant to
the respondent.
It is concluded that the amount of R 138 500.00 was
never due by the respondent to the applicant. The respondent disputes
therefore
that the applicant has a claim or locus standi to pursue a
liquidation application. Respondent further relies on an agreement in
terms whereof a partial payment in the sum of R 580 000-00 was made,
but states that after delivery of a certain Hyundai- vehicle
for the
aforementioned value, applicant disputed such value and issued two
summonses against the respondent based on the AOD. Whilst
these
actions are pending, it launched this application for liquidation.
Respondent submits that this is an abuse of court processes.
[7]
The applicant in the founding papers explained that it issued the
liquidation application having
learned that a company known as
Autostar has started doing business from the same address as
respondent and that it considers that
respondent has closed its doors
and moved its assets into a new entity. Applicant’s attorney
enquired from the respondent
to clarify same, however the applicant
did not believe the contents of the response it received. The
response received before the
liquidation application was issued, was
that Autostar and Autoprince are two separate companies that have
been trading on occasion
from the same premises and that “the
guiding minds” of both are the same person. No transfer of
assets has taken place
and both entities are trading. Respondent in
this respect states that Autostar was registered as GNR Motors (Pty)
Ltd in 1988 whilst
respondent was incorporated in 2017.
[8]
Applying the principles stated above I should be mindful thereof that
it is unnecessary and undesirable
to come to any final conclusion as
to the legal validity of the respondent’s defences. It would be
sufficient to find that
the respondent has discharged the onus of
showing that the debt is disputed on bona fide and reasonable
grounds, and if so, liquidation
proceedings would be inappropriate to
establish the existence of the debt.
[4]
[9]
A factor weighing heavily with me is that the applicant has
instituted two actions against the
respondent on the same AOD it
relies upon in these proceedings. The Master Rental Agreement on face
value does not support the
applicant’s version that respondent
is indebted to the applicant arising from the sale of vehicles by the
applicant to the
respondent. In reply the applicant concedes that
this is so, but says that such claim has been ceded to it. The
liquidation application
was not prompted by respondent’s
failure to pay in terms of the AOD. On the contrary, failure to pay
resulted in summons
to be issued. The liquidation application was
prompted by applicant’s concern of Autostar doing business from
the same premises.
In this respect the applicant was supplied with
information and it appears that both companies have existed for
several years.
The applicant harbours certain suspicions in respect
of the respondent and Autostar, but as mentioned, it remains
suspicions and
no facts have been adduced to contradict the
explanation given by the respondent and which was available before
the initiation
of the liquidation proceedings.
[10]
The factual disputes between the parties will in all probability be
ventilated in the mentioned two action
proceedings. I cannot resolve
that on the papers, however I can and do find that the respondent has
shown that the debt is disputed
on bona fide and reasonable grounds
within the context of liquidation proceedings. It follows that the
application for liquidation
cannot be granted.
[11]
There is no reason why costs should not follow the result. In my view
the appropriate scale for such costs
should be on a Scale B as
envisaged in Uniform Rule 67A.
[12]
I make the following order:
The application is
dismissed with costs on Scale B.
C
REINDERS, J
On
behalf of the Applicant:
Adv A
Sander
Instructed
by:
Brett
Carnegie Attorneys
c/o
Kruger Venter Attorneys Inc
BLOEMFONTEIN
On
behalf of the Respondent:
Adv
HJ van der Merwe
Instructed
by:
Arnold
De Jager, Brepols and Kapp Attorneys
c/o
Bezuidenhouts Inc
BLOEMFONTEIN
[1]
Relying
on sections 344 and 345 of the Companies Act 61 of 1973 read
together with the
Companies Act 71 of 2008
.
[2]
2015 (4) SA 449 (WCC).
[3]
1998
(2) SA 208
(C) 219E-220A.
[4]
See:
Investec
Bank Ltd & Another v Lewis
2002 (2) SA 111
(C) at 119 F-H.