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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG )
CASE NO: 2022/ 16061
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA LIMITED Applicant
and
KHEWIJA ENGINEERING & CONSTRUCTION (PTY) LTD
(Registration Number: 2009/021544/07) Respondent
This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email and by upload to CaseLines . The date
and time for hand down is deemed to be 10h00 on 10 January 202 5
_____________________________________________________________
JUDGMENT
______________________________________________________________ (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
10 January 2025 ……………………...
DATE SIGNATURE
2
S VAN NIEUWENHUIZEN AJ
INTRODUCTION
1 This matter was called before me on 26 November 2024 in the
opposed motion court whereafter it became clear that it is in fact unopposed
and that only the applicant was represented. 2 The applicant (“the bank”) seeks an order to the effect that the
respondent (“the company“ ) should be p laced in final winding -up. The
application is based on the company’ s inability to pay its debts.
3 In view of certain procedural aspects raised by the b ank’s counsel at
the outset , there is no need to refer to the merits of the matter.
4 The “joint practice” note filed by the bank’s attorneys is in fact a
unilateral practice note in as much as the respondent did not take any further
part in the proceedings after filing its an swering affidavit and counter -
application.
5 The company’s erstwhile attorneys withdrew as attorneys of record on
29 February 2024. The deponent to the answering affidavit of the respondent ,
Mr. Mabuza, a cknowledged receipt of the notice of withdrawal of the
company’s attorneys of record.
6 According to the notice of withdrawal of record the company's last
known address is Unit […] F[…] O[…] P[…] , Corner Ro[…] and F[…] B[…]
F[…] 2[…]. The deponent to the companies answering affidavit acknowledge d
receipt of s ame.
7 On 4 April 2024 t he bank’s attorneys attempted to serve a notice of
opposition t o the counter -application a t the aforesaid address , only to find that
the address has been vacated. After a W indeed search all subsequent notices
and proceedings were served a t the company's new address i.e. C[…] O[…]
3
O[…] P[…], P[…] S[…] S[…], Ext 6 […], P[…] 5[…]. of the Farm Drie,
Mpumalanga, 2302.
ANALYSIS
8 The procedural problem a lluded to by the bank’s counsel p ertains to
the fact t hat an application for provisional winding -up has already been
granted against the company under Case Number 4803/2023, in the
Mpumalanga Division of the High Court of South Africa, Middel burg, on 26
July 2024, returnable on 23 September 2024. On 23 September 2024 t he
provisional order for winding- up was extended to 22 November 2024.
9 When the matter was called the bank’s counsel pointed out that in
response to the most recent inquir ies made by the bank's attorneys’ , they
were informed that the Middelburg High Court has not as yet pronounced as
to whether a final liquidation order is granted or not . My understanding of the
position is that the applicant in the Middelburg matter is still awaiting the
outcome of the application for final liquidation which was sought on 22
November 2024.
10 In the absence of an assurance that th e liquidation application in the
Middelburg matter has been finally dismissed , I must assume that the
provisional order is still in place.
11 I was urged by counsel for the bank to consider whether I am not
entitled to grant an application for final winding- up in the present matter .
12 I was specifically referred to the decision in Ex parte W
J Upton Transport(Pty)Ltd; Man Truck & Bus (SA) (Pty) Ltd v W
J Upton Transport(Pty) Ltd
1 where Flemming J held as follows:
“I believe that there is adequate reason to suspect that the finality
achieved on that date was to some extent attributable to my attitude that there should be finality one way or the other in liquidation
1 1985 (1) SA 312 (W)
4
applications unless a case of adequate strength for the extension of the
return date is made out. Undue rigidity in that regard may obviously cause injustice. Injustice should, however, not be caused by a proper scrutiny of the actual existence of true justification of an extension. Such a scrutiny is necessary for various reasons of which two only need be mentioned. Firstly, the existence of a provisional liquidation
order creates an inability on the part of creditors to receive payment or
to enforce payment by way of execution or other positive conduct. The
Court should ensure that there is adequate justification for prolonging in
effect, if not in design, a moratorium to the company in provisional
liquidation. Secondly, there is no alternative to such scrutiny which is
truly effective to protect the general body of creditors against costs of
legal fees, administration costs and other financial disadvantages
which are run up in the process of granting extensions. ” 2
(my underlining)
13 He also held that:
“There appears to be, to say the least, room for the view that, once a
provisional winding- up order has been made, there is no room for a
second order to create the same result and that accordingly a second order should be refused. Cf Cohen Brothers and Co v Benjamin;
Jagger and Co v Benjamin 1912 WLD 42 and Pat C Cornick and Co
(Pty) Ltd v Mimosa Meubels (Edms) Bpk; Bakker & Steyger (1960) (Pty) Ltd v Mimosa Meubels (Edms) Bpk 1961 (4) SA 119 (T)
where a
"practice" is referred to. Cf also Ex parte De Villiers and Van Niekerk: In
re Hill and Son 1918 WLD 15 wherein it was, inter alia, said: "It is the
business of attorneys to see that there is not already a provisional
order taken out". As this aspect has not been argued, I prefer to leave
that question open. Assuming the validity of both orders and accordingly the presence of that basis for costs, It would appear to be a sound approach, finding some authority in relation to sequestration, to view the knowledge of an existing order or of a competing application as an important consideration affecting the award of costs. Compare,
2 See p 313 B -F
5
although not directly in point, Butcher and Sons Ltd v Moola & Co;
Elephant Trading Co Ltd v Moola & Co 1929 TPD 402; Nunnerley and
Co Ltd v Patel 1930 TPD 116 and the general approach to competing
applications for sequestration. ” 3 (my underlining)
14 Prior to the aforesaid decision the practise in this division was that the
court routinely granted provisional liquidation orders and only after the return
date of a rule nisi, a final order. In the above decision Flemming J made it
clear that it is undesirable that provisional orders be granted and extended
from time to time w ithout proper motivation. Thereafter the granting of a
provisional order for winding- up became the exception and in appropriate
matters a final order, with no intervening rule nisi, the norm
15 I cannot fault this approach especially in circumstances where two
competing applications for liquidation are brought and both creditors are
aware of each other's application or could have become aware thereof by
making reasonable enquiries.
16 In arriving at the above conclusions Flemming J made no mention of
the backdating (at times referred to as ante- dating) of the commencement of
winding -up as referred to in section 348 of the Act which reads as follows:
“The winding- up of a company by the Court shall be deemed to
commence at the time of the presentation to the Court of the
application for the winding- up.”
17 I was also referred to the decision in Voltex (Pty) Limited v Resilient
Rock(Pty) Limited 2023 JDR 2011 (GJ) as well as the numerous decisions
referred to in that case.
18 The bank’s counsel (correctly so) made it clear that the Voltex
decision (same being an appeal) is not authority that I may rely on to avoid the
provisions of section 347(5) of the Act. This section provides as follows:
3 See p 316B -E.
6
“The Court shall not grant a final winding- up order in the case of a
company or other body corporate which is already being wound up by
order of Court within the Republic ".
19 The bank’s attorneys could not have foreseen that an application for
the winding -up of the company will be launched in Middelburg. They can thus
not be blamed for the present state of affairs where two applications for a final
winding -up of the company are pending before different divisions of the High
Court, and in one of which a provisional order for liquidation has already been
granted.
20 The bank’s counsel specifically submitted that the commencement of
winding -up in the present matter will predate the commencement of winding-
up in the Middelburg matter should I grant any kind of winding- up relief. I
accept that this is of great importance to the creditors of t he company.
21 Nevertheless I am of the view that I do not have the power to grant
any final liquidation order. This is so given that on a plain reading of section
347(5) of the Act , it does not permit me to grant the relief sought. The
company is already “ being woun d up” up due to the provisional order that has
been granted in Middelburg. I may either dismiss the present application for
winding -up or exercise my discretion to postpone same to a later date which
will permit the bank to move the application for final liquidation in the event
that the provisional winding- up order in the Middelburg matter is by such date
discharged.
22 So as to preserve the potential benefit that may be bestowed on
creditors in terms of section 348 of the Act, (should the provisional order in
Middelburg be discharged) I am of the view that this matter should be
postponed to 21 July 2025 , same being a date having been obtained from the
Registrar for use in the event of the above outcome.
23 In the circumstances I make the following orders:
1. The application for winding- up of the respondent is postponed for
hearing to the opposed roll of 21 July 2025;
7
2. The costs of the hearing on 26 November 2024 are reserved for
hearing on 21July 2025.
S VAN NIEUWENHUIZEN AJ
ACTING JUDGE OF THE HIGH COURT
Date Judgment reserved: 26 November 2024
Date Judgment delivered: 10 January 2025
Representation for applicant
Counsel : Adv S Symon S.C.
Instructed by: Martins Weir Smith Inc,
Hans Merensky Office Park,
Ground Floor, Block D,
32 van Buuren Road,
Bedfordview
Tel: 011 450 3054
Fax : 086 591 3424
Email: alexb@mwlaw.co.za
REF:MR MARTINS/AP/T489
Representation respondent:
Counsel: None
Instructing Attorney None
Respondent’s Address : Charlie One Office Park,
Piper Str Secunda Ext 64,
Erf 5 […] Portion 5[ …] of F[…] Drie,
Mpumalanga
2302
8
Deponent to Answering Affidavit’s Email Address :
Themba.Mabuza@khewija.com