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2024
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[2024] ZAECQBHC 67
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Mama Money (Pty) Ltd v Siphumelele Logistics (Pty) Ltd (Ex Tempore) (2498/2024) [2024] ZAECQBHC 67 (18 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Not
Reportable
CASE
NO: 2498/2024
Matters heard on: 18
September 2024
Ex
Tempore Judgment on: 18 September 2024
In
the matter between:
MAMA
MONEY (PTY)
LTD
Applicant
And
SIPHUMELELE
LOGISTICS (PTY) LTD
Respondent
EX
TEMPORE JUDGMENT
BRODY
AJ
[1]
This matter is an application for the provisional liquidation of the
respondent and
was brought in the normal course on the 3
rd
of July 2024. In the application there are serious allegations made
against directors of the respondent and which amount to theft
and
fraud.
[2]
The matter previously came before this court after the respondent had
served and filed
a notice of opposition and immediately prior to the
previous date of the application the attorney of record for the
respondent,
Mr Thobile Ngengwana of Magugu Attorneys, had withdrawn.
[3]
The method of the withdrawal was not in terms of the rules of court
and my brother
Zono, ordered that the matter be postponed until the
17
th
of September 2024 and ordered that a full explanation
be given by Mr Ngengwana as to why he withdrew at such a late stage
and why
a costs order
de bonis propriis
should not be given
against him for failing to give a full explanation for his
withdrawal.
[4]
I was advised by Mr Ramsay, acting on behalf of the applicant in
argument that the
set down in this matter was served upon the
directors of the respondent on the 4
th
of September 2024.
That was the set down of the matter for hearing on the 17
th
of September 2024.
[5]
When this matter was called a director of the company appeared in
court and requested
this court for an opportunity to appoint legal
representatives for the respondent. After an exchange between the
director and this
court it was then queried whether the director had
the necessary legal right to appear in court and advance any case on
behalf
of the respondent, in terms of our law.
[6]
The director is not a legal practitioner and as Mr Ramsay argued it
is only in very
exceptional circumstances that a director may appear
in court and advance any case on behalf of a company.
[7]
In the interests of justice and having regard to the request made by
the director
I ordered that the matter be postponed for a day to
afford the respondent an opportunity to appoint an attorney, or
counsel.
[8]
Predictably when the matter was called an application for
postponement was brought
on behalf of the respondent and the
respondent has appointed Mr Ntanzi of Ntanzi Attorneys in Gqeberha. I
afforded the respondent
an opportunity to file answering papers and
this was duly done.
[9]
I have heard argument by Mr Ntanzi on behalf of the respondent and Mr
Ramsay on behalf
of the applicant.
[10]
I am satisfied that, although liquidation proceedings are generally
urgent proceedings, that
in regard to this liquidation there is no
apparent urgency save for the alleged criminal conduct on the part of
the director and
the possible change in directorships of the
respondent company.
[11]
I emphasise that the original notice of motion made provision for
opposition within ten court
days and then answering affidavits within
fifteen court days, and had the answering affidavits been served and
filed, this matter
would be awaiting a hearing date on the opposed
roll.
[12]
Having considered all the arguments in the matter on behalf of the
applicant and the respondent
and given the very serious allegations
made against the directors of the company, I believe it is in the
interests of justice that
an opposing affidavit to the provisional
order be received by this court in due course. The purpose for that
will be to deal with
the application for the liquidation and also to
deal with certain of the many very serious allegations made against
the directors.
If found true, the allegations will result in the
directors facing a criminal sanction and very possibly an
imprisonment in the
Cape Town courts.
[13]
I accordingly make the following order:
13.1
This matter is postponed as a final postponement to the 1
st
of October 2024.
13.2
The respondent is to file a comprehensive opposing affidavit by no
later than the 24
th
of September 2024.
13.3
The applicant is to reply by noon on the 27
th
of September
2024.
13.4
The respondent is to pay the wasted costs of the postponement on
scale B as contemplated by rule 69(7).
13.5 Mr
Thobile Ngwengana of Magugu Attorneys is to pay the wasted costs
occasioned by the postponement on the
3
rd
of September
2024 and on scale B as contemplated by rule 69(7)
de bonis
propriis
.
B.B.
BRODY
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicant
: Adv.
Ramsay
Instructed
by
:
Springer-Nel Attorneys
c/o Goldberg & De
Villiers Inc.
13 Bird Street
GQEBERHA
(Ref.: A Nel/mp/W08683)
Attorneys
for the
Respondent
:
Mr.
Ntanzi
Instructed
by
: Ntanzi
Attorneys Inc.
522 Govan Mbeki Avenue
North End
GQEBERHA
(Ref.:
Siphumelele/024/Civil/MN-24)