About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 202
|
|
Kliprivier Gedeelte 8 (Pty) Ltd v Bees Winkel (Pty) Ltd (5270/2023) [2024] ZAFSHC 202 (4 July 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
no: 5270/2023
In
the matter between:
KLIPRIVIER
GEDEELTE 8 (Pty) Ltd
Applicant
And
BEES
WINKEL (Pty) Ltd
Respondent
CORAM:
MB NEMAVHIDI AJ
HEARD
ON:
09 MAY 2024
DELIVERED
ON:
4
JULY 2024
*
JUDGMENT
BY:
MB NEMAVHIDI AJ
Introduction
[1]
The applicant seeks a provisional order, and thereafter a final order
of winding-up of the respondent. The evidence presented
on behalf of
the applicant is primarily deposed by its sole director on Mr. Petrus
Van Heerden (Mr. Van Heerden). He is the erstwhile
director of the
respondent.
[2]
The
locus standi
of the applicant to prosecute the relief
sought is premised on the preposition that the applicant is
purportedly a creditor of
respondent. The applicant has, as its
provenance, a written agreement concluded between the respective
parties on 31 March 2022
(the sale agreement). The applicant sold its
30% shareholding to the respondent for an amount of R2 200 000.00
(R2.2m). The applicant
received R1.1m from the respondent and
contends that respondent is indebted to it in the amount of R1.1m
which constitutes the
balance of the purchase price in terms of the
sale agreement.
[3]
The applicant alleges that the respondent is insolvent as it cannot
pay its debts. This demand was addressed
by the applicant to the
respondent in accordance with the provisions of s 345 of the
Companies Act 61 of 1973 (the Act).
[4]
The respondent opposes the relief sought in the main by the applicant
on the following grounds:
(a)
The sale agreement is in truth and in fact
void and or unenforceable;
(b)
The defense of declaring the sale agreement
void is in terms of s 218 of the Act;
(c)
A further defense in terms of Section 48(6)
of the sale agreement can be reversed;
(d)
The sale agreement is stayed, alternatively
suspended, up and until the respondent is in a financial in a
position to resume payment
until the arbitration (or litigation in
any other forum) has been finalized in terms of s 48(5) of the Act.
Brief
Background
[5]
The respondent is an online livestock auction platform incorporated
in 2017. The applicant was
a director of the company and a 30%
shareholder. In 2021 a dispute arose between the directors of the
respondent regarding the
manner in which the respondent’s
affairs were conducted. This resulted in the sale of the applicant’s
30% shares to
the respondent in 2022. The share value of the
applicant’s shares amounted to R2.2m payable as follows:
(a)
R500 000,00 payable to the applicant upon
signing of the documentation to effect the transfer of shares,
(b)
R50 0000,00 per month until such time the
balance of R1.7m has been paid to the applicant. The first payment to
be made on or before
7 May 2022.
The respondent managed to
make twelve payments of R50 000,00, to the total of six hundred
thousand rand.
[6]
On 3 April, the respondent transmitted a letter to the applicant
indicating that it could not pay the amount
of R50 000.00 and
indicated that they would notify the applicant when they are ready to
continue with the monthly obligations.
The applicant then demanded
payment of the accelerated amount of R1.1m as per the sale agreement.
The respondent failed to comply
with the applicant’s demand and
instructed his attorney to transmit a demand in terms of s 235 of the
Act to the respondent.
[7]
The memorandum of incorporation (MOI) and the shareholders agreement
of the respondent required approval for
the transaction by way of
special resolution passed by 100% of the shareholders. This approval
for the respondent to purchase the
shares from applicant was not
approved. The provisions of s 48(8), which are incorporated in the
MOI and shareholders agreement,
did not comply with s 48(8)
(a)
as it requires that a decision of the board of a company to attend to
a share buyback must be approved by a special resolution
of
shareholders of such a company if any of the shares forming part of
the buyback will be acquired from a director or prescribed
officer of
the company.
[8]
The liquidity test in terms of s 46 of the Act together with the
provisions of s 4 of the Act was never complied
with. Based on the
financial statements, the company was never able to pass the
liquidity test for the transaction to be enforceable.
There was no
independent report in terms of s 114 of the Act. It is a requirement
in terms of s 48(8) which is incorporated in
the shareholders
agreement.
[9]
The personal financial interests of Mr. van Heerden, the director of
respondent and seller of the 30% shares,
was not in compliance with
the requirements stipulated by s 75(3) of the Act. The respondent
argues that as a result of non-compliance
with the MOI and the
provisions of the Act, the sale agreement is void.
The
test for liquidation applications
[10]
In this division, in the matter of Standard Bank of South Africa Ltd
v Danie Thomas Boerdery,
[1]
Daffue J addressed the legal principles applicable in instances where
an applicant seeking a provisional winding up order, alleged
that it
is an unpaid creditor of the respondent who could not obtain payment
and the respondent, in its opposition, disputed the
validity of the
applicant’s claim. He held that in adjudicating the dispute, a
court was bound to consider all affidavits
placed before it and ‘[i]f
an applicant’s claim is bona fide disputed by the respondent on
reasonable grounds, on application
for a sequestration or winding up
order cannot succeed.’
Corbett
JA put it as follows in
Kalil
v Decotex
:
[2]
‘
Consequently,
where the respondent shows on a balance of probability that its
indebtedness to the applicant is disputed on bona
fide and reasonable
grounds, the Court will refuse a winding-up order. The onus on the
respondent is not to show that it is not
indebted to the applicant:
it is merely to show that the indebtedness is disputed on bona fide
and reasonable grounds.’
[3]
In
Investec
Bank Ltd v Lewis
[4]
Grisel J confirmed that if is unnecessary for the Court to make a
final determination as to the legal validity of the defence.
It is
sufficient to find that the indebtedness of the respondent is
disputed on
bona
fide
and reasonable grounds.
[5]
[11]
Although there is no onus on the respondents to establish that they
are solvent, the respondent’s case should be
met in an adequate
and reasonably convincing manner in order that the dispute can be
said to be
bona
fide
and predicated on reasonable grounds.
[6]
In the circumstance, I am satisfied that the indebtedness of the
respondent is disputed on
bona
fide
and on reasonable grounds
.
Order
[12]
In the result I make the following order:
1.
The application for provisional winding up of the respondent falls to
be
dismissed.
2.
The applicant to pay costs on a Rule 67A scale B.
MB NEMAVHIDI AJ
Appearances
For
the Plaintiff:
Adv
AA Basson
Instructed
by:
C/O
Hendre Conradie INC
(Rossouws
Attorneys)
Bloemfontein
For
the Fourth Defendant:
Adv
S Tsangarakis
Instructed
by:
Symington
and De Kok Attorneys
Bloemfontein
[1]
Standard
Bank of South Africa Ltd v Danie Thomas Boerdery
[2013] ZAFSHC 32.
[2]
Kalil v
Decotex
1988(1) SA 943 A.
[3]
Ibid at 980B–D.
[4]
Investec
Bank Ltd v Lewis
2002 (2) SA 111 (C).
[5]
Ibid at 119F-G.
[6]
See the unreported decision of
Hannover
Group Reinsurance (Pty) Ltd and Another v Gungudoo and Another
[2010] ZAGPJHC 65;
[2011] 1 All SA 549
(GSJ).