IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No: 20548/2023

In the matter between:
FRANCISCO JOSE DE SA MIRANDA Applicant
and
TRUE RUBY TRADING 1035 CC First Respondent
(registration number 2011/066694/23)
JOSE ANDRE DE JESUS Second Respondent

Coram: Acting Justice P Farlam
Heard: 7 August 2024
Delivered electronically: 30 December 2024

JUDGMENT

2
FARLAM AJ
INTRODUCTION
[1] The applicant ( De Sa Miranda) and the second respondent ( De Jesus)
acquired the first respondent ( True Ruby) as a shelf corporation in 2012 for
the purposes of holding a property in Voortrekker Road, Parow (the Property).
De Jesus procured a 78% share in True Ruby, with De Sa Miranda holding
the remaining members’ interest (22%). The two are related by marriage (the
applicant is married to the second respondent’s sister) and at the time had a
very friendly relationship, in the course of which De Sa Miranda had sold De
Jesus a convenience store and bakery business known as La Ponte Rose,
which was the anchor tenant of the Property.
[2] For various reasons, their relationship has deteriorated appreciably. De Sa
Miranda has also effectively been excluded from, and until recently denied
knowledge of, the operations of True Ruby. After various interactions and
ultimatums, the applicant decided to launch an application in mid- November
2023 seeking to wind up True Ruby on just and equitable grounds;
alternatively on the basis that the corporation was unable to pay its debts (or,
in other words, was insolvent). The alternative winding-up ground, which was
only ever tentatively advanced, has not been pursued – correctly so, as it has
been shown by De Jesus that True Ruby can, and has, paid its debts . What
must thus be considered is whether it would be just and equitable to wind up
True Ruby, notwithstanding its solvency.

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[3] Before addressing that question, it is however necessary to address the
interlocutory application brought by De Jesus for the striking out of various
matter in the applicant’s founding and replying affidavits, and the admission of
a further answering affidavit in the event that the strike- out is not successful.
That application must logically be considered first, as it will determine the
factual matrix against which this application is to be adjudicated.
THE SECOND RESPONDENT’S STRIKE-OUT APPLICATION
[4] The second respondent applied on 2 August 2024, less than a week before
the hearing, to strike out various paragraphs of the applicant’s founding
affidavit, as well as various paragraphs of and certain annexures to the
replying affidavit. The second respondent alleged that the material identified
in the notice to strike out involved either scandalous and vexatious allegations;
or hearsay and opinion evidence; or new matter impermissibly adduced for
the first time in reply. In the event of the strike-out application not succeeding,
whether in whole or in part , the second respondent sought leave to file a
further (answering) affidavit, by a Mr Pravin Kalidas Vassen – a registered
accountant, who was appointed as the accountant for True Ruby in October
2023 – to which various annexures were attached.
[5] By the time that this interlocutory application was brought , the applicant had
already (on 24 July 2024) filed his heads of argument , which had, as a
consequence, been prepared on the basis of the allegations in the affidavits
as filed in the ordinary course, and oblivious of any strike-out application which
might be directed at the founding affidavit (of 13 November 2023) or the

4
replying affidavit (of 3 July 2024). Even the second respondent’s heads, which
accompanied the interlocutory application on 2 August 2024, did not motivate
the strike-out application or the request for leave to file Mr Vassen’s affidavit.
The strike-out application was however argued at some length, together with
argument on the merits, on the day of the hearing (7 August 2024), when the
second respondent’s counsel also handed up a short note which addressed
the grounds of the striking- out. Despite the unsatisfactory timing of the
interlocutory application, and the inconvenience occasioned thereby, I shall
therefore grant the second respondent’s request to have this application
considered, and address each of the paragraphs of the applicant’s affidavits
attacked in the second respondent’s counsel’s note, before turning to the
conditional prayer for the admission of Mr Vassen’s affidavit. For the
avoidance of doubt, I should record that I have also had regard to the other
paragraphs impugned in the notice to strike -out (i.e., the paragraphs in the
applicant’s affidavits which were identified in the notice to strike out, but not
referred to in second respondent’s counsel’s written note or his oral argument)
and consider the challenge to them to be unsustainable.
[6] Paragraphs 72 and 75 of the founding affidavit:
6.1. The second respondent seeks to strike out these paragraphs on the
basis that they are scandalous and vexatious. He does so with
reference to Uniform Rule 6(15), which provides that:
“The court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious or irrelevant, with an
appropriate order as to costs, including as between attorney and client.

5
The court may not grant the application unless it is satisfied that the
applicant will be prejudiced if the application is not granted.”
6.2. As that rule indicates, a court must be satisfied that a party seeking to
strike out the identified allegations will be prejudiced if the allegations
remain. The second respondent cannot demonstrate prejudice in this
instance, given that he delivered an answering affidavit in response to
the founding affidavit back on 18 April 2024 and did not in that affidavit
contend either that paragraph 72 or paragraph 75 needed to be struck
out, or that he was prejudiced by those paragraphs continuing to be
included in the founding affidavit.
6.3. The second respondent instead dealt with paragraph 72 in a blanket
response to paras 63 to 72 of the founding affidavit which read as
follows: “The allegations contained in these paragraphs are
argumentative speculation coupled with unwarranted hyperbole. For
the reasons as stated aforesaid, I deny the allegations contained in
these paragraphs as if individually traversed” . He responded to
paragraph 75 in an almost identically worded answer covering paras 74
to 78. In neither instance was it contended that the paragraphs now in
question should be expunged.
6.4. While the applicant’s allegations of suspected tax evasion in
paragraphs 72 and 75 of the founding affidavit are serious ones, they
moreover merely reflect what appears to be the applicant’s genuinely
held views, and should be considered in that context. I n addition, the
applicant’s suggestion in paragraph 72 that Mr Vassen did not appear

6
to have any intention of assisting the applicant to gain a full appreciation
of True Ruby’s financial position can be addressed by admitting Mr
Vassen’s affidavit, as indeed the second respondent’s attorney ’s
affidavit in support of the strike- out application unintentionally
acknowledged.
6.5. Prayer 3.1 of the notice to strike out, which is directed at these
paragraphs of the founding affidavit, is accordingly refused.
[7] Paragraphs 10.6 to 10.8 of the replying affidavit and annexures “RA1A” and
“RA1B” thereto:
7.1. These paragraphs contain allegations about interactions between a
former candidate attorney / professional assistant (Niel Hamman)
employed by the applicant’s former attorneys, FPS Attorneys, and De
Jesus in April 2021, with reference to what is contained in emails
appended to the replying affidavit as “RA1A” and “RA1B” . An obvious
difficulty with those allegations is that there is no affidavit from Mr
Hamman, who apparently left FPS Attorneys at the end of his practical
legal training, or from Rika Steenkamp who is indicated to have sent
the email appended as “RA1A” on 13 April 2021 and appears to have
spoken with Mr Hamman prior to doing so; or indeed from anyone else
at FPS Attorneys. The allegations about what De Jesus apparently told
Mr Hamman are thus (double or even triple) hearsay.
7.2. The second respondent has sought to strike out these paragraphs and
the annexures on that basis. The applicant has, in response, sought to

7
justify the absence of affidavits from Hamman and Steenkamp on the
basis that they are no longer employed at FPS Attorneys, and that FPS
Attorneys were apparently unable to confirm Hamman’s whereabouts.
He has also sought to bolster that evidence by means of an email from
Mr Louis Lourens, of FPS Attorneys (annexed as “RA1B”), about what
Hamman told him at the time. That is however inadequate to justify the
admission of the hearsay evidence, even were I to have a discretion to
admit it under section 3 of the Law of Evidence Amendment Act, 45 of
1988 in the absence of an application to do so (an issue which is
therefore unnecessary to decide in the circumstances). It is not, for
example, indicated what attempts were made to find Hamman; nor is it
stated that any attempt was made to contact Steenkamp. Nor, as
indicated, is there even an affidavit from Lourens – merely an email.
That email moreover refers to “ Mr Hamman’s file note”, which is not
attached either. There is simply a confirmatory affidavit from Mr
Matthews, the applicant’s current attorney, about what Mr Lourens said
to him. But Mr Matthews should have known that an affidavit from him
could hardly suffice, as well as t hat, without attaching Hamman’s file
note, which Lourens had indicated was still available, it could not
credibly be argued that the hearsay evidence about what Hamman was
purportedly told should be admitted.
7.3. The applicant’s counsel submitted in argument that the second
respondent could not seek to strike out the hearsay evidence without
first denying it. No authority was provided in support of that submission.

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Nor would it seem to be justifiable where the hearsay evidence is
sought to be adduced for the first time in a replying affidavit. The further
submission that De Jesus has avoided dealing with these allegations
and annexures is also unsustainable given that there is no obligation
on De Jesus to rejoin to allegations in the applicant’s replying affidavit.
7.4. Paragraphs 10.6 to 10.8 of the replying affidavit and annexures “RA1A”
and “RA1B” thereto are accordingly struck out.
[8] Other paragraphs in the replying affidavit referring to “RA1A” and “RA1B”:
8.1. The second respondent’s counsel’s note contended that “ all reference
to [these annexures]” should also be struck from the replying affidavit.
It was not however indicated what those references were. The notice
to strike out attacked various other paragraphs which made mention of
the annexures, but did not refer to all such paragraphs in the reply,
while ins ofar as impugned paragraphs did refer to either of those
annexures they only did so in part , and so, because no basis was laid
for striking out the rest of the paragraphs in question, a more targeted
strike-out application would have been required.
1
8.2. The second respondent’s attack on other paragraphs in the replying
affidavit which seek to rely in part on annexures “RA1A” and “RA1B” is
therefore too unfocused and imprecise to be granted.

1 See the comments of the Namibian High Court (per Levy AJP) in Cultura 2000 and Another v
Government of the Republic of Namibia and Others 1993 (2) SA 12 (Nam HC) at 27I-28D.

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8.3. In keeping with the Constitutional Court’s statements in SARFU about
hearsay evidence being able to be ignored without being struck out, 2 I
shall not however have regard to further references to the offending
annexures in the replying affidavit.
[9] Paragraphs 11.4 and 11.5 and 33 of the replying affidavit:
9.1. The notice to strike out indicated that the second respondent sought to
strike out these paragraphs on the basis that they contained hearsay
and opinion evidence. By contrast, in the second respondent’s
counsel’s note, the striking out of these paragraphs was motivated on
the basis that they contained “vexatious and opinion evidence”.
9.2. The paragraphs in question refer to, and comment on, a report
prepared by Mr Vassen, dated 1 March 2024, which was appended to
the answering affidavit (with annexures) as “RT3”, and for some reason
has been annexed again to the replying affidavit (without annexures)
as “RA1”. There can be no serious objection to the applicant
commenting on that report, given that the second respondent
introduced it in his answering affidavit and relied upon it. T he
allegations that the applicant has made in the light of that report are
also not vexatious; nor do they constitute inadmissible opinions;
3 while

2 President of the Republic of South Africa and Others v South African Rugby Football Union and
Others 2000 (1) SA 1 (CC) para [105], where reference was made to Langham and Another, NNO
v Milne, NO and Others 1961 (1) SA 811 (N) at 817 A – F, and the cases cited there.
3 While the applicant was to some extent speculating about the causes of matters referred to in Mr
Vassen’s report, those allegations are, to my mind, within legitimate bounds. (As in Hidro-Tech
Systems (Pty) Ltd v City of Cape Town and Others 2010 (1) SA 483 (C) para [79], the applicant is


10
the earlier contention that they involved hearsay evidence was
understandably not pursued. Nor, in any event, is the second
respondent prejudiced by those allegations, particularly if Mr Vassen’s
affidavit is admitted. In my view, there is accordingly no basis for striking
them out.
[10] Annexure “RA2” and all references thereto in the replying affidavit:
10.1. Annexure “RA2” to the replying affidavit consists of a piece of A4 paper,
with handwritten recordals and what the applicant has stated are the
signatures of himself and the second respondent. It is stated in
paragraph 14.1 to have been included to support the applicant’s
contentions in the founding affidavit about the second respondent’s
acquisition of a 78% member’s interest in True Ruby, which has been
placed in dispute by the second respondent in his answering affidavit.
10.2. The second respondent has objected to its inclusion, as well as all
references to that annexure in the replying affidavit, on the basis that it
could have been included in the founding affidavit and is “ prejudicial
new matter in reply”.
10.3. It is correct that the document could have been appended to the
founding affidavit; but this does not mean that it could not legitimately
have been referred to for the first time in reply in order to explain why,

advancing contentions as to the inferences which it is believed could be drawn from irregularities
referred to in a financial statement). The allegations are in any event of limited value as it is for the
court itself to decide what inferences can appropriately be drawn on the basis of the evidence.

11
in the applicant’s view, the second respondent’s version in his
answering affidavit is untrue. It is a relevant document, of which the
applicant and the second respondent would appear to have first -hand
knowledge, and which the second respondent could, if he had so
wished, chosen to deal with in a further affidavit. Indeed, had the
document not been an authentic one, or had the second respondent
not in fact signed it, the second respondent would doubtless have
stated as much in a further (rebutting) affidav it which he would have
sought to have admitted together with the affidavit of Mr Vassen.
4 The
claim of prejudice by the second respondent therefore rings hollow.
10.4. As the Supreme Court of Appeal has confirmed, a court has a discretion
to admit new matter contained in a replying affidavit , and should
exercise that discretion “ with a fair measure of common sense” .5
Insofar as annexure “RA2” and references thereto in reply might not
constitute permissible responses to the answering affidavit, it would
seem appropriate to allow them. The second respondent’s request that
they struck out is therefore dismissed.

4 In circumstances where a respondent does not seek to rebut allegations of that kind made in reply,
an inference can even be drawn that the allegations are accurate: see, for example, Pretoria
Portland Cement Co Ltd and Another v Competition Commission and Others 2003 (2) SA 385
(SCA) para [63]; Commissioner of Customs and Excise v Rennies Group 1999 (3) SA 771 (SCA)
at 784E-F, Da Mata v Otto N.O . 1972 (3) SA 858 (A) at 869A -B; Marshall v Marshall (Pty) Ltd &
Others 1954 (3) SA 571 (N) at 576C-D.
5 Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA) para [15].

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[11] Paragraph 26 of the replying affidavit:
11.1. The second respondent complains that this paragraph contains new
matter impermissibly introduced in reply. I disagree.
11.2. The paragraph responds directly to the second respondent’s assertion
in paragraph 53 of his answering affidavit that he had never seen the
valuation referred to in paragraph 20 of the founding affidavit and
appended thereto as “FJM2”. That there is also reference to “RA2” in
this context is not objectionable, and indeed merely confirms that this
annexure is a relevant response to the contents of the answering
affidavit.
11.3. The attempt to strike out this paragraph is accordingly rejected.
[12] Paragraph 34 of the replying affidavit:
12.1. Once again, the second respondent’s complaint is that this paragraph
contains new matter – this time concerning Mr Vassen – which should
not have been contained in a replying affidavit.
12.2. That charge is again not well-founded. The paragraph was a legitimate
(albeit not entirely clear) response to paragraph 74 of the answering
affidavit, to which it was indicated to be a reply. As the second
respondent’s counsel’s note indicated, any negative insinuations about
Mr Vassen’s actions which might be considered to be contained therein
have moreover been addressed in Mr Vassen’s further affidavit.

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12.3. The request to strike out this paragraph is consequently refused.
[13] The second respondent’s strike- out application is therefore unsuccessful,
save in respect of paragraphs 10.6 to 10.8 of the replying affidavit and
annexures “RA1A” and “RA1B” thereto. I do not consider it appropriate to
make a costs order in respect of this interlocutory application. Both the
applicant and the second respondent , who have each had some success,
should bear their own costs in relation thereto.
[14] In the light of the findings with regard to the second respondent’s strike- out
application, it is necessary to deal with the conditional prayer for the admission
of Mr Vassen’s affidavit.
[15] As I have indicated above, I consider that this affidavit is relevant. It provides
a fuller picture of True Ruby’s financial position and the documents germane
thereto. It also addresses allegations in the replying affidavit about Mr Vassen
and his firm which it is appropriate to allow him to comment on. It is therefore,
in my view, in the interests of justice to allow it into evidence, pursuant to the
discretion recognised in Rule 6(5)( e), despite it being tendered at a very late
stage by the second respondent and the lateness of the affidavit not being
adequately explained. There is also no discernible prejudice to the applicant
as a result of this affidavit being allowed, as the applicant’s counsel, who
submitted that the affidavit was not relevant, informed the court that the
applicant did not want to respond to the affidav it (which he contended was
irrelevant) in the event that it was admitted – and the applicant is accordingly

14
not disadvantaged by not being able to reply thereto without triggering a
postponement, (which the applicant was desirous of avoiding).
[16] The second respondent is accordingly granted leave to file Mr Vassen’s
affidavit (attached to the affidavit of the second respondent’s attorney in
support of the second respondent’s strike-out application marked “PKV1”).
THE APPLICANT’S WINDING UP APPLICATION
[17] As mentioned in the introduction, the applicant seeks the winding up of True
Ruby on just and equitable grounds (an earlier alternative prayer for the
winding up of the close corporation on the basis that it is insolvent having been
abandoned).
The legal basis for the relief sought
[18] As the winding up application has to be premised on the basis that True Ruby
is a solvent corporation, the application is brought in terms of section 67 of the
Close Corporations Act, 69 of 1984 (the CC Act), read with section 81(1)(d)(iii)
of the Companies Act, 71 of 2008 (the Companies Act).
6

6 An insolvent corporation could be wound up on just equitable grounds in terms of section 344( h)
of the Companies Act, 1973, read with section 66(1) of the CC Act – which states that the laws
mentioned or contemplated in item 9 of Schedule 5 of the Companies Act apply to the liquidation
of corporations to the extent not otherwise provided for in the CC Act. In terms of i tem 9(2) of
Schedule 5 of the Companies Act , section 344 of the Companies Act, 1973, among others, does
not apply to solvent companies . As the Supreme Court of Appeal made clear in Boschpoort
Ondernemings (Pty) Ltd v ABSA Bank Ltd 2014 (2) SA 518 (SCA) ; [2014] 1 All SA 507 (SCA) ;
[2013] ZASCA 173 para [20], the winding up of solvent companies is instead regulated by Part G
of Chapter 2 of the Companies Act, and particularly sections 79 to 81 thereof – and thus the Part
of the Companies Act referred to in section 67(1) of the CC Act.

15
[19] Section 81(1)( d)(iii) of the Companies Act simply states that a solvent
company may be wound up by a court at the instance of a director or
shareholder of the company, or the company itself, on the grounds that “ it is
otherwise just and equitable for the company to be wound up”. As was clarified
by the Supreme Court of Appeal (SCA) in Thunder Cats ,7 the just and
equitable ground in section 81(1)( d)(iii) does not merely pertain to matters
similar to the other grounds stated in section 81(1) , and the word “otherwise”
in the subsection does not limit what is meant by “just and equitable”.8 As also
recently confirmed by the SCA in Superior Macadamias 9 (in which the court
was similarly required to apply section 81(1)(d)(iii) of the Companies Act):10
“[19] This Court has explained the approach to an application contending that it
is just and equitable that a company be wound up:
‘As has often been said about the only remaining winding-up ground persisted
in by the appellants, namely, that of “just and equitable” – it postulates not
facts but a broad conclusion of law, justice and equity.’11
Although our courts have ‘evolved broad categories of circumstances in which
they would grant a winding-up order on the just and equitable ground . . . these
categories do not constitute a complete and closed list’. 12 The facts of each
case must be considered.”

7 Thunder Cats Inv estments 92 (Pty) Ltd and Another v Nkonjane Economic Prospecting &
Investment (Pty) Ltd and Others 2014 (5) SA 1 (SCA); [2014] 1 All SA 474 (SCA); [2013] ZASCA
164 para [14].
8 Subsections 81(1)( d)(i) and (ii) refer, respectively, to a situation in which the directors are
deadlocked in the management of the company and the shareholders are unable to break the
deadlock, and a situation in which the shareholders are deadlocked in voting power and have failed
to elect successors for a period which includes at least two consecutive annual general meetings.
9 Superior Macadamias (Pty) Ltd and Others v Emvest Agricultural Corporation (Mauritius) Ltd and
Another (865/2022) [2024] ZASCA 182 (24 December 2024).
10 Ibid para [19] (footnotes in original, but with numbering consecutive to previous footnotes herein).
11 Cuninghame and Another v First Ready Development 249 (Association incorporated in terms of
section 21) 2010 (5) SA 325 (SCA); [2010] 1 All SA 473 (SCA); [2009] ZASCA 120 para [3]
12 Ibid para [14].

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[20] The five broad categories which have been accepted over the years to
constitute “ just and equitable” grounds, without limiting the kinds of
circumstances in which a just and equitable winding up could occur, 13 have
been summarised as follows by the SCA in JP Markets (which added that
these remain applicable under the Companies Act, and may be extended):14
“(a) disappearance of the company’s substratum; (b) illegality of the objects of
the company and fraud in connection therewith; (c) a deadlock in the
management of the company’s affairs which can only be resolved by winding it
up; (d) grounds analogous to those for the dissolution of partnerships; and
(e) oppression.”
[21] As noted in Rand Air , the grounds analogous to those for the dissolution of
partnerships which can serve as a basis for a just and equitable winding up
order would be relevant “[w]here the company is a private one and its share
capital is held wholly or mainly by the directors and it is in substance a
partnership in corporate form”.
15
[22] Guidance as to the grounds which would justify the dissolution of a
partnership, and hence, too, the winding up of companies or corporations akin

13 The SCA reiterated this in Thunder Cats (para [15]) in the following passage [footnotes omitted]:
“Nor can any general rule be laid down as to the nature of the circumstances that had to be
considered to ascertain whether a case came within the phrase. There is no fixed category of
circumstances which may provide a basis for a winding-up on the just and equitable ground. In
Sweet v Finbain [1984 (3) SA 441 (W)] it was said:
‘The ground is to be widely construed; it confers a wide judicial discretion, and it is not to be interpreted
so as to exclude matters which are not eiusdem generis with the other grounds specified in s 344. The
fact that the Courts have evolved certain principles as guides in particular cases, or examples of
situations where the discretion to grant a winding-up order will be exercised, does not require or entitle
the Court to cut down the generality of the words “just and equitable”.’
14 JP Markets SA (Pty) Ltd v Financial Sector Conduct Authority 2002 (4) SA 94 (SCA) para [31].
15 Rand Air (Pty) Ltd v Ray Bester Investments (Pty) Ltd 1985 (2) SA 345 (W) at 350G.

17
to partnerships, can be found in Emphy , where Leon J inter alia stated the
following:16
“… in Marshall v Marshall (Pty) Ltd and Others 1954 (3) SA 571 (N) BROOME
JP followed Lawrence v Lawrich Motors (Pty) Ltd 1948 (2) SA 1029 (W) and
applied what was said by Lindley on Partnership 11th ed at 691:
"Keeping erroneous accounts and not entering receipts... continued quarrelling, and
such a state of animosity as precludes all reasonable hope of reconciliation and friendly
co-operation, have been held sufficient to justify a dissolution... It is not necessary, in
order to induce the Court to interfere, to show... any gross misconduct as a partner. All
that is necessary is to satisfy the Court that it is impossible for the partners to place that
confidence in each other which each has a right to expect, an d that such impossibility
has not been caused by the person seeking to take advantage of it".
In Lawrence's case supra MURRAY J also quoted with approval what was
said in Lindley on Partnership (supra) in holding that a dissolution of partnership
will, inter alia, be directed when it is impossible for the persons to place that
confidence in each other which each has a right to expect, and such impossibility
has not been caused by the person seeking to take advantage of it. And again
where the one person's misconduct is such as to render it impossible for the
parties to conduct their business together according to the agreement into which
they have entered.”
[23] Emphy also refers to the case of Franckenberg v Peetz ,17 where a partner
applied on motion for dissolution of the partnership, alleging
misrepresentations by his partner as to the amount of his liabilities and that
those liabilities had been paid out of partnership monies. The Court found that
it could not resolve those allegations on the papers ; but concluded from the
affidavits that “ all hope of amicable cooperation and mutual confidence
between the two men has disappeared”, adding:

16 Emphy and Another v Pacer Properties (Pty) Ltd 1979 (3) SA 363 (D) at 366A-D
17 1934 NPD 162 – which was referred to with apparent approval by the Appellate Division in Fortune
v Versluis 1962 (1) SA 343 (A) at 349.

18
“It is true that the respondent denies that the relations between himself and the
applicant are intolerable, but in the same breath he charges the applicant with
serious breaches of the partnership agreement and says that the recriminations
which have taken place between the parties have been deliberately brought
about by the applicant’s mala fides. The making of charges so grave and serious
is utterly irreconcilable with the desire to continue the partnership. There exists,
as I have said, between the part ies, on the facts before me, no hope of co-
operation …”
[24] Of relevance, too, in this context is Moosa N .O. v Mavjee Bhawan, where
Trollip J (as he then was) stated:18
“Dealing with the winding-up at the instance of a member of a solvent company
which is in the nature of a partnership - obviously the kind of company in question
here – the author [B.H. McPherson in vol. 27 (1964) Modern Law Review 282]
says at p. 303:
'There are in fact two principles which guide the Court in exercising its discretion
to wind up a domestic company of this kind: the first is that enunciated by Lord
SHAW in Loch v John Blackwood Ltd .; the second derives from Re Yenidje
Tobacco, where the majority of the Court treated as the controlling consideration
the absence of any hope of reconciliation and friendly co - operation between the
members in the future. And these two principles are sufficiently distinct to make it
possible for a member of a domestic company, who cannot bring his case within
the first principle, nevertheless to succeed by basing it upon the second.'
As Loch v John Blackwood, 1924 A.C. 783, and Re Yenidje Tobacco Co. ,
(1916) 2 Ch. 426 (Court of Appeal), have both been followed here, each
according to the appropriate circumstances, I think that the above thesis that the
two principles are distinct and can be used conjointly or alternatively can be
accepted as being a correct guide for our Courts too. As pointed out in Marshall
v Marshall (Pty.) Ltd, and Others , 1954 (3) SA 571 (N) at p. 579F - G, the two
principles very often overlap. Both principles were relied upon by the applicant in
the present case.
The principle enunciated by Lord SHAW in Loch's case at p. 788 is that it may
be just and equitable for a company to be wound up where there is

18 Moosa N.O. v Mavjee Bhawan (Pty) Ltd and Another 1967 (3) SA 131 (T) at 137B – 138A.

19
'justifiable lack of confidence in the conduct and management of the company's
affairs . . . grounded on conduct of the directors, not in regard to their private life
or affairs, but in regard to the company's business';
that lack of confidence is not justifiable if it springs merely from
'dissatisfaction at being outvoted on the business affairs or on what is called
the domestic policy of the company',
but it is justifiable if in addition there is a lack of probity in the directors' conduct
of those affairs. The other principle derived from the Yenidje Tobacco Co. case,
usually called the 'deadlock' principle, is founded on the analogy of partnership
and is strictly confined to those small domestic companies in which, because of
some arrangement, express, tacit or implied, there exists between the members
in regard to the company's affairs a particular personal relationship of confidence
and trust similar to that existing between partners in regard to the partnership
business. Usually that relationship is such that it requires the members to act
reasonably and honestly towards one another and with friendly co- operation in
running the company's affairs. If by conduct which is either wrongful or not as
contemplated by the arrangement, one or more of the members destroys that
relationship, the other member or members are entitled to claim that it is just and
equitable that the company should be wound up, in the same way as, if they were
partners, they could claim dissolution of the partnership.”
[25] Against that legal backdrop, I turn to considering the relevant facts and
contentions in the present case. As what is sought at this time is a provisional
winding-up order, the test to be applied is that enunciated in Kalil v Decotex,19
where the Appellate Division held that, in an opposed winding-up application,
a prima facie case for a provisional order is established when an applicant can
show that, on an assessment of all the affidavits, the balance of probabilities
is in its favour.

19 Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A); [1988] 2 All SA 159 (A) at 976-982; see,
too, Payslip Investment Holdings CC v Y2K Tec Ltd 2001 (4) SA 781 (C) at 783F-H.

20
The just and equitable grounds contended for by the applicant
[26] The applicant essentially seeks the winding up of True Ruby on the basis that
he has justifiably lost all trust and confidence in the second respondent, as a
result of inter alia De Jesus’s failure to provide him with necessary information
and documentation about True Ruby, or even answer his calls or queries, over
an extended period of time; De Jesus’s failure to attend properly to the tax and
accounting obligations of True Ruby; De Jesus’s failure to pay the applicant
his share of True Ruby’s income for m ore than a decade; and De Jesus’s
recent assertions – repeated in his answering affidavit – that the applicant was
no longer entitled to be a member of the close corporation (an allegation
which, according to the applicant, is demonstrably false). The applicant also
complains that the second respondent will no t allow him to participate in the
business of True Ruby, as he is entitled under the Association Agreement of
November 2012 to do.
[27] That the applicant was kept in the dark about True Ruby’s affairs for a long
time is beyond doubt, and accordingly undisputed. So, too, is True Ruby’s
non-compliance with its tax and financial reporting obligations for many years.
The second respondent does however put much of the blame for the lack of
communication, absence of financial statements, and failure to file tax returns
or pay tax on True Ruby’s former accountant, and contends that these
deficiencies have now been addressed by the appointment of Mr Vassen in
the last quarter of 2023 and the work that Mr Vassen has done since then.

21
[28] It is correct that Mr Vassen’s actions have done much to regularise the many
instances of gross corporate non-compliance, which to a certain extent could
be attributed to True Ruby’s former accountant. While De Sa Miranda takes
issue with the instructions given to Mr Vassen, and thus the accuracy of the
statements and reports generated by Mr Vassen on the strength thereof, his
suspicions in that regard would also not justify the winding up of True Ruby,
not least because there would be other, less drastic, ways in which the
accuracy of the information, and thus too the statements and reports which
are dependent thereon, could be interrogated – and it has been held that a
court should, before winding up a solvent company, be satisfied that all
alternative means have been investigated and failed.
20 Had the only
justification for a just and equitable winding up of True Ruby been De Jesus’s
non-communication with De Sa Miranda over the past decade and his failure
(as the effective managing member as a result of De Sa Miranda’s emigration
to Australia) to ensure that the corporation complied with even its most basic
obligations up to the end of 2023, I would therefore have been inclined to
dismiss the application on the basis that there could potentially still have been
alternative means of addressing the historical problems and current concerns.
[29] As indicated above, another key component of the applicant’s case is however
that the second respondent contends that the applicant is no longer entitled to
be a member of the close corporation and also, relatedly, refuses to allow the

20 Muller v Lilly Valley [2012] 1 All SA 187 (GSJ) para [33]; Robson v Wax Works (Pty) Ltd and Others
2001 (3) SA 1117 (C) paras [38] -[53]; Recycling and Economic Development Initiative of South
Africa NPC (Redisa) v Minister of Environmental Affairs 2019 (3) SA 251 (SCA) para [116].

22
applicant to participate in the management of the business of True Ruby. If
the second respondent’s stance with regards to the applicant’s membership
of True Ruby is , on a balance of probabilities, untrue, then, in my view, the
applicant would be entirely justified in insisting that the trust which it is
necessary to repose in the second respondent has been irremediably
destroyed and that he and the respondent can accordingly no longer co-exist
as members of the same corporation. It would then also seem jus t and
equitable for True Ruby (a private company in the nature of a partnership) to
be wound up, as no viable alternative remedies have been suggested by the
second respondent and there is also no suggestion that the second
respondent could buy out the applicant’s member’s share. I therefore turn to
considering that issue below, commencing with some background for context.
The dispute regarding the applicant’s continued entitlement to his 22%
member’s share
[30] In 2011, the applicant decided to sell the Property (in Voortrekker Road,
Parow), which, as mentioned in the introduction, houses a building in which
the anchor tenant was a convenience store and bakery business known as La
Ponte Rose. The Property was then owned by a close corporation, Jose Dasa
Prop CC (Dasa Prop), of which De Sa Miranda was the sole member. The
applicant asked De Jesus whether he would be interested in buying the
property, and De Jesus indicated that he was.
[31] According to De Sa Miranda, he had obtained a valuation of the Property and
the rental enterprise conducted thereon in 2010 from Divaris Property Brokers,

23
which had advised that the value of the land and the business was R5.9
million. There is a dispute as to whether De Jesus was asked to pay that
amount, though it anyway seems clear that De Jesus would not have been
able to do so. What is however common cause is that the Property was sold
by Dasa Prop to De Jesus in March 2011, in terms of a written deed of sale,
for R4.5 million. The deed of sale makes no mention of the rental enterprise
being sold; only the immovable property (erf 7470 Parow).
[32] The sale agreement was conditional upon De Jesus obtaining a mortgage
bond for R4.5 million (i.e., 100% of the purchase price) within 60 days of the
signing of the agreement. De Jesus could not obtain a bond for that amount.
Sometime after the 60-day period had expired ( seemingly in 2012), an entity
called Business Partners agreed to provide De Jesus with finance of R3.5
million, against the security of a bond. That left a shortfall of R1 million
between the finance and the purchase price. De Jesus did not have that
amount of money available at the time, and so De Sa Miranda agreed to loan
the R1 million needed to complete the purchase from Dasa Prop. De Jesus’s
inability to come up with all the funds for the purchase of the Property also
meant that the purchaser would now be a corporate entity (True Ruby) in
which De Jesus and De Sa Miranda would hold members’ interests
proportional to their contributions to the purchase price. As De Jesus has
pointed out, R1 million is 22% of the total purchase price of R4.5 million; hence
De Sa Miranda acquiring 22% of True Ruby in March 2012; and De Jesus
(who would be respo nsible for repaying Bu siness Partners) having a 78%
member’s interest.

24
[33] The involvement of De Sa Miranda and De Jesus in True Ruby was regulated
by the Association Agreement that they concluded on 27 November 2012.
That agreement inter alia:
33.1. Recorded the percentage interests of the two members;
33.2. Recorded the extent of each member’s financial contributions to the
R4.5 million purchase price payable by the corporation for the Property,
and that De Sa Miranda would make his contribution in cash, while De
Jesus would borrow his contribution from a financial institution and that
he would be solely responsible for servicing that loan;
33.3. Stated that the members would be entitled to interest on their loan
accounts at a rate as may from time to time be agreed;
33.4. Stated that, unless otherwise provided, the quorum at a meeting of
members shall be both members ; that meetings could take place
telephonically due to De Sa Miranda spending a substantial amount of
time overseas; and that resolutions at meetings of members shall be
decided by a consensus between the members;
33.5. Stated that a member could not dispose of his member’s share without
first making an offer to sell that interest by means of a written notice to
the remaining member, which shall be irrevocable for 30 days after
receipt and state the price required and the terms of payment;

25
33.6. Stated that the members will decide annually on the payments to
members, and that they could also from time to time make such
members’ payments as they may deem fit;
33.7. Required that the members ensure that proper books and records, as
described in section 56 of the CC Act, be kept, and that the members
prepare financial statements for the corporation within nine months of
the end of its financial years, in accordance with section 58 of the CC
Act;
33.8. Stipulated that each member “is legally in a relationship of trust with the
Close Corporation”, and must act honourably and bona fide towards
the corporation, and use their abilities to its benefit and advantage, as
well as avoid a material conflict of interest between themselves and the
corporation;
33.9. Stated that the members will jointly manage the business of the
corporation.
[34] On the same day as he signed the Association Agreement (27 November
2012), De Jesus also signed a written loan agreement between Business
Partners Limited and True Ruby, on behalf of the close corporation. As De
Jesus noted in his answering affidavit, Business Partners made it a condition
precedent of that loan agreement (which it signed on 23 January 2013), that
there be an agreement between De Jesus and De Sa Miranda “regarding the
repayment and exit strategy in respect of [De Sa Miranda’s] 22% membership
in True Ruby ”, and that the agreement “ state that there will be no exit from

26
True Ruby … or repayment of the loan accounts for a period of 5 years from
date of the first advance by Business Partners without the written consent of
Business Partners” (clause 8.4.14). (A clause to that effect was inserted by
hand into the Association Agreement as clause 11.9.) A further condition
precedent was that De Jesus and De Sa Miranda “must subordinate their loan
accounts in the borrower [True Ruby] to Business Partners” (clause 8.4.16).
[35] According to De Jesus, De Sa Miranda made his contribution towards the
purchase price (R1 million) to Dasa Prop after the conclusion of the
Association Agreement (i.e., after 27 November 2012), and Business Partners
paid the balance upon registration of the transfer of the Property to True Ruby
on or about 28 March 2013.
[36] At some point in 2012 or 2013, De Jesus paid R850 000 in cash to De Sa
Miranda. The precise date of the payment, as well as the reason therefor, are
the subject of dispute.
36.1. De Sa Miranda alleges that the cash was paid to him “during November
2012” and more particularly “ on the same day we executed our
Association Agreement [i.e., 27 November 2012]”. According to De Sa
Miranda, this amount was part of the price paid for the Property and
rental enterprise and was originally intended to be R1 million. Although
the key paragraph of his founding affidavit is somewhat confusing in
this respect, it is evident from his affidavits as a whole that De Sa
Miranda’s version is that this amount was always intended to be in
addition to the Property purchase price of R4.5 million. De Sa Miranda

27
also alleges that the reason why this amount was paid in cash was that
De Jesus had informed him that he had cash in that amount which had
been “hidden from the tax man”.
36.2. De Jesus, on the other hand, alleges in his answering affidavit that the
R850 000 was paid to the applicant “[a]fter the transfer of the Property
in March 2013”, in part repayment of the R1 million loaned by the
applicant in November 2012, leaving him owing De Sa Miranda
R150 000. De Jesus also alleges that De Sa Miranda had insisted that
this significant amount be paid in cash, as he “ preferred to receive the
money in cash”.
[37] According to De Sa Miranda, the only payment made to him in respect of True
Ruby from March 2013 to date has been a sum of R20,000, paid in June 2013.
De Jesus acknowledges this, stating that the amount related to the months of
April and May 2013. De Jesus does however dispute that this was the only
payment made to De Sa Miranda since True Ruby took transfer of the
Property. He alleges in his answering affidavit that, in addition to the R850,000
allegedly paid in cash in March 2013, he “ paid the applicant at least an
additional amount of R292 000” in mid -August 2013, which “ to [his] mind ”,
covered the capital and “ any interest on the R 1 000 000.00 [loan] that could
possibly be owed”, adding that De Sa Miranda was “ required to then transfer
over the 22% members’ interest to [him]”, albeit that this could only occur after
Business Partners’ loan had been finally repaid. As purported proof of such
payments, De Jesus annexed cheque counterfoils (bearing the dates 13 and

28
15 August 2013), reflecting payments in the total amount of R292,000 to Dasa
Prop.
[38] Between 2018 and 2023, Da Sa Miranda attempted without success to get
information about True Ruby’s finances and business from True Ruby’s former
accountant, a Mr Raphael Berkman, and De Jesus. De Sa Miranda also
alleges that, when he spoke with De Jesus between 2017 and 2020, he
enquired from him about payments which he believed to be due to him
(something which De Jesus denies). De Sa Miranda further alleges (this time
without dispute) that he was unable even to get hold of De Jesus telephonically
from 2020 to 2023.
[39] Eventually, in September 2023, the applicant’s current attorneys sent a letter
to De Jesus giving formal notice of a members’ meeting and advising him that,
if he did not attend, De Sa Miranda would apply to court to have True Ruby
liquidated on just and e quitable grounds. The meeting was duly held
telephonically on 2 October 2023. A transcript of the meeting, which De Jesus
has confirmed is generally correct, has been appended to the founding
affidavit.
[40] The applicant was encouraged by that telephone call, as well as the
appointment of a new accountant for True Ruby, and conveyed as much
during the next couple of weeks. The applicant also continued to seek more
information about True Ruby. An email sent by his attorneys to Mr Vassen on
17 October 2023 requested that Mr Vassen copy him in all communications
about True Ruby, supply him with details concerning the tax and financial

29
status of True Ruby, calculate all amounts due to him in terms of what was
described as the 22% / 78% rental sharing agreement with De Jesus, and
furnish him with a schedule detailing all rental income currently received by
True Ruby. On the same day, the applicant’s attorneys also sent an email to
De Jesus requesting information of the leases in place for the Property and
referring to De Jesus’ obligation to ensure that De Sa Miranda is “ fully
compensated for the amount that is overdue for payment to him i n terms of
[their] agreement”.
[41] In response, the applicant’s attorneys received a letter from the second
respondent’s attorneys on 25 October 2023, contending inter alia that:
41.1. De Jesus is not liable for and cannot tender the amount claimed by De
Sa Miranda, as De Jesus had paid De Sa Miranda “ R850 000 in cash
in November 2012 in the presence of various witnesses including 3
representatives of the Bank of Madeira at the residence of Adelino
Ribeiro at 22 Franschhoek Street, Panorama”, and “ R500,000 in 3
instalments of R252,000 on 13 August 2013, R40,000 on 15 August
2023 and R208,000 on 15 August 2013 from monies received as part
of an inheritance”;
41.2. De Jesus disputes in its entirety the claim to a 22% share of all rental
from 2012 to the present, as he submits “ that he bought [De Sa
Miranda’s] share in the Closed Corporation and that [Da Sa Miranda]
has not affected the transfer of the 22% share”;

30
41.3. De Sa Miranda has “ reneged on the agreement [between the two
regarding the sale of the Property] and decided to claim additional
money from [De Jesus] which [De Jesus] erroneously paid under
duress but denies owing”;
41.4. De Jesus “hereby claims transfer of the 22% share to [him] and further
demands that the surplus money that he paid to [De Sa Miranda] in the
amount of R350,000 and which is due and owing”.
[42] The applicant has asserted in the founding affidavit that the content of that
letter “is a complete fabrication”. He has specifically denied that the payment
of the R850 000 in November 2012 was payment for his 22% member’s
interest in True Ruby, as well as that De Jesus paid him R500,000 in August
2013 (an allegation which he was challenged to prove).
[43] According to the applicant, that letter appears was the last straw, and led him
to conclude finally that he could no longer co-exist with the second respondent
in True Ruby, nor trust De Jesus to act honestly or transparently in relation to
True Ruby and himself.
[44] As mentioned earlier, a key question for purposes of this winding- up
application is whether the version in the second respondent’s attorney’s letter
of 25 October 2023, as persisted with (albeit not entirely consistently) in the
second respondent’s answering affidavit, is indeed untrue. For if it is, then De
Sa Miranda would seem to be justified in contending that it would be untenable
for him to remain as a member of True Ruby together with De Jesus; while De
Jesus’s unwarranted insistence that De Sa Miranda’s membership interest

31
should be transferred to him would in any event preclude the corporation from
functioning in accordance with the Association Agreement or indeed at all. And
that being so, the applicant would have made out a case for the provisional
winding up of True Ruby on just and equitable grounds (there being no
plausible and less drastic alternatives21).
[45] As I have also explained, at this stage, when a provisional winding-up order is
sought, the applicant is only required to show that, on all the affidavits, his
version is more probable than the second respondent’s. That there is a dispute
of fact is therefore not an obstacle to a provisional winding-up order. As this is
not a case in which a creditor is seeking the liquidation of a company on the
basis that it is unable to pay its debts, it is moreover of no moment whether
(as submitted by the second respondent’s counsel with reference to
Orestisolve
22) a stricter test applies to factual disputes regarding a
respondent’s indebtedness.
[46] In my view, the balance of probabilities is strongly in favour of the applicant’s
version; or, put differently, the applicant’s version is considerably more
plausible than the second respondent’s. Some important considerations in this
regard are the following:

21 The second respondent’s counsel did not strongly press the existence of alternative remedies,
despite my raising this issue during oral argument. Such potential alternatives as were mentioned
– e.g., the applicant raising his concerns with Mr Vassen “directly or through a mediated process”,
or suing De Jesus personally for any claim he might believe he has against him – would in any
event not be adequate.
22 Orestisolve (Pty) Ltd t/a Essa Investments v NDFT Investment Holdings (Pty) Ltd and Another
2015 (4) SA 449 (WCC) para [7].

32
46.1. De Jesus did not mention during their recorded members’ meeting on
2 October 2023 that he considered himself to have already paid De Sa
Miranda for the latter’s 22% member ’s interest back in 2013 and that
he was accordingly long since entitled to the transfer of that 22%
interest and thus also did not owe De Sa Miranda anything more.
46.1.1. On the contrary, there was the following interaction, after De
Jesus had advised De Sa Miranda that the loan to Business
Partners had been fully repaid [emphasis added]:
“Miranda: So did you spoke to um to Business Partners about
giving you a new loan to buy me out or something like that?
De Jesus: Uh no, I didn’t. No I didn’t. I didn’t. I didn’t speak to
business. I’ve got a good name. I didn’t skip once. You know I’ve
battled so much. Look I can go to business partner. I’ll just work
extra late to pay you off and and get you off my back. You know
what I mean? And and carry on.
You know what I mean? It has to be resolved. But uh yeah that’s
it. …”
46.1.2. There was also the following exchange a short while later:
“Miranda: Okay. So yeah as you know as you know we’ve been
I’ve been involved with you now. It’s going 10 and a half years.
Okay. I mean 10 and a half years you never give me a cent. I mean
you give me R20,000 when we started and then that was it.
De Jesus: Yeah yeah yeah
Miranda: So I mean I’ve been waiting. I mean like we’ve not been
in contact for some time and um so how do you see how we’re
going to sort this out? What do you think we should do to sort this?
Look when this needs to be sorted out. Okay because I mean …

33
De Jesus: We must come to this. We look at this one or two
options. Alright. We can between me and you make a resolve
something and and and I can start paying you off. Or I can go to
Business Partners. Right? And you can look and I never pay off to
pay you anything, here is a lease sir [unclear], give me another
loan so I can pay Josie off.
…
Miranda: So what do you think we should do?
De Jesus: we should go to Absa for a loan
Miranda: But you see Andrew (unclear) as you know as you know
we tried to when I first start with you we tried to go to Absa to get
a loan. As you know no one could help us only Business Partners.
As you had a loan with Business Partners I think your best option
is to go to Business Partners and ask them to give you a loan. But
again we have are we going to go about this? How do I know how
much money you owe me? How are going to sort this out?
De Jesus: yeah we must come together and work things out.
Miranda: Yeah because I mean look I want you know I did.
De Jesus: I still got the papers that you wrote out you signed
underneath, and you paid me this and this. …”
46.2. There is moreover no indication of De Jesus or an attorney on his behalf
ever having made a claim or demand of that kind between 2013 and
25 October 2023, as one would have expected De Jesus to have done
had he completely repaid De Sa Miranda’s loan, and made further
payments to him, by mid-2013, as De Jesus has now alleged.
46.3. Furthermore, the second respondent’s attorney’s letter of 25 October
2023 is inconsistent with De Jesus’s version in his answering affidavit.
As evident from the quotations from the letter above, the letter states

34
that the R850 000 cash payment was made “ in November 2012”, and
thus effectively at the time that the Association Agreement was signed
on 27 November 2012 – rather than around the end of March 2013, as
alleged in De Jesus’ affidavit . That difference is important, because, if
the R850 000 was in fact paid in November 2012 (as averred in the
letter), it cannot credibly be contended, in the light of the contents of
the Association Agreement, that this payment was in substantial
reimbursement of the R1 million loan . Nor would it have made sense
for De Sa Miranda to have made a R1 million loan in November 2012,
only to be repaid 85% of it almost instantaneously by De Jesus. Any
loan would instead have been only for R150 000, and De Sa Miranda’s
member’s interest (if indeed it was considered appropriate for him to
have one) would concomitantly only have been around 3.33%.
46.4. The handwritten page dated 27 November 2012, and bearing the
signatures of De Sa Miranda and De Jesus, records a payment by De
Jesus of R850 000, supporting what was stated by De Sa Miranda in
his founding and replying affidavits, and what was asserted in the
second respondent’s attorney’s letter of 25 October 2023, ab out when
that payment was made. And, as explained immediately above, it is not
credible that the R850 000 was in repayment of a R1 million loan from
De Sa Miranda if that cash payment was made virtually simultaneously
with the loan itself. Nor would it have made sense for the transaction to
have been structured in the way it was if De Jesus could pay almost all
of the R1 million shortfall between the finance from Business Partners

35
and the purchase price some months prior to the transfer of the
Property.
46.5. In addition, the financial statements for True Ruby for the financial year
ending 28 February 2024, as furnished by Mr Vassen to the members
on 1 March 2024 (and appended to the answering affidavit) refer to De
Sa Miranda having a loan to the corporation of R969 635.00 in both the
2023 and 2024 financial years. As De Sa Miranda has contended, that
appears to be incompatible with De Jesus’s contention that De Sa
Miranda’s entire loan was repaid, together with any interest that might
have been owing, by August 2013; and there is notably no suggestion
as to how such a large loan could otherwise have come about.
46.6. As De Jesus has himself highlighted, the loan agreement with Business
Partners not only subordinated the members’ loans to True Ruby, but
did not allow repayment of De Sa Miranda’s loan account for a period
of five years of the first advance by Business Partners (in January 2013)
without the written consent of Business Partners . There is no
suggestion that Business Partners’ consent was requested or obtained.
Had De Jesus repaid De Sa Miranda’s entire loan by the third quarter
of 2013, he would thus have br eached his commitments to Business
Partners, which could in turn have resulted in his finance from Business
Partners being withdrawn, and Business Partners foreclosing on their
bond over the Property. That is not a consequence that one would have
expected De Jesus to have lightly entertained, more particularly when

36
there was no necessity, or even any particular reason, to repay De Sa
Miranda’s loan within so short a time.
46.7. As the Property and the rental enterprise conducted thereon had been
valued in 2010 at R5.9 million (and a value of R5.9 million had also
been confirmed in the handwritten note of 27 November 2012), it is hard
to believe that even a benevolent brother -in-law would sell the whole
enterprise for R4.5 million (i.e., R1.4 million less than the valuation) in
2011/2012, while it is anyway more plausible that the price would
effectively have been R5.350 million (R4.5 million plus R850,000).
46.8. The second respondent’s attorney’s letter of 25 October 2023 is also at
variance with De Jesus’s answering affidavit with regard to De Jesus’s
alleged repayments. The letter alleges repayments of R500,000 in
three instalments in mid -August, whereas the affidavit only alleges
repayments totalling R292,000 in two tranches. De Jesus’s version on
oath is therefore undermined in this respect as well. It is also difficult to
believe that, if only R150,000 was really owing to De Sa Miranda as of
March 2013 (with R850 000 of his R1 million loan having been paid off
within about four months of the loan having been made), De Jesus
would have paid even R292,000, let alone R500,000, to De Sa Miranda
in August 2013 to cover the balance of the loan and “ any interest ”
thereon.
[47] I therefore find that, on the balance of probabilities, the applicant has made
out a case for the just and equitable winding up of True Ruby.

37
ORDER
[48] I accordingly make the following order:
A. As regards the second respondent’s interlocutory application:
1. The application to strike out is dismissed, save in respect of the portion
of prayer 3.3 of the notice to strike out which pertains to paragraphs
10.6 to 10.8 of the replying affidavit and annexures “RA1A” and “RA1B”
thereto.
2. The second respondent is granted leave to file the further affidavit of Mr
Pravin Kalidas Vassen, deposed to on 1 August 2024, which was
annexed to the founding affidavit in the strike- out application marked
“PKV1”.
3. There is no order as to costs.
B. As regards the main application:
4. The first respondent, True Ruby Trading 1035 CC (reg. no.
2011/066694/23), is placed under a provisional order of winding up in
the hands of the Master of the High Court.
5. A rule nisi is issued calling upon the respondents and all interested
persons to show cause, if any, on Wednesday, 26 March 2025 (subject
to confirmation with the registrar; alternatively such return date as the
registrar allocates), as to why:
a. The first respondent should not be finally wound up in the hands
of the Master;
b. The costs of this application should not be costs in the liquidation;
alternatively paid by the second respondent.

38
6. Service of this Order is to be effected:
a. On the first respondent;
b. On the Master of the High Court;
c. On the South African Revenue Service (SARS), at 22 Hans
Strijdom Avenue, Cape Town, Western Cape;
d. On any and all employees of the first respondent and any
registered trade union(s) that may represent such employee(s);
e. By publication once in in the Government Gazette and once in a
newspaper circulating in the Western Cape.


_________________________
ACTING JUDGE P FARLAM

For applicant:
Adv LN Wessels
Instructed by: Matthews Enslin Inc. c/o Bezuidenhout Lak Attorneys

For second respondent:
Adv Dale Lubbe
Instructed by: Ashraf Mahomed Attorneys