REPUBLIC OF SOUTH AFRLCA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION , JOHANNESBURG
Case Number. 051018/24
(1)
(2}
(3) REPORTABLE NO
OF INTERESTTOO
7VIS:ED ~
5 Q.li:o~'-~__,___ __
DATE S1GNATVR£
In the matter betweerr
KANJVEST 3146 CC {REGISTRATION NO: 2000/039077/23)
KOOP DE VRJES STYGER
And First Applicant
Second Applican1
PETATYPE (PTY) LTD (REGISTRAT ION NO: 2021/469203/07) Respondent
JUOGMENT- LEAVE TO APPEAL
MAHOMEDJ
[1) This Is an application for ieave 10 appeal an order I granted for prov1s1onal
llqu1dauon The matter was on my unopposed roll on 3 December 2024 The
Respondent applied for a postponement of the matter, no substantive apphcat1on
was before me, the application was opposed I dismissed the application and
gran1ed the prov1s1onal order.
[2] Counsel for the Applicant Advocate Lauw submitted that the matter was properly
before me on the unopposed roll, both the motion papers and set down were
served on the Respondent and no answering papers were flled. Furthermore .
counsel contended that the claim was for a Hqu1dated amount, being costs
awarded to the Applicant in previous litfgatfon, one was awarded 3 years ago.
T~e Respondent paid some of the costs awarded others remain unpaid.
[3] The evidence 1s that the Respondent filed a Nofice of Appeal, against a finding
and leave was granted in 2021 but it did nothing thereafter, the appeal lapsed
and in 2022 , the Applicant In thatinstance was again awarded costs, about two
years ago. In 2024 the Applicant demanded payment. they were ignored, and In
May 2024 It launched thts. application befo.re me for an order for provisiona l
Ifquidation. Advocate Lauw for the applicant confirmed that the papers were
served, the Respondent filed a notice to oppose, but no answenng papers were
filed. A notice of set down was served. A further a_ttempt to delay the finalisation
of this· matter; an no version by the respondent , for either the .applicant or this
court lo work with. Mr Lauw contended thal in August 2024, the respondent
issued a summons and In August fi!ed a stay application to this matter.
(4] Mr. Lauw argued that the Respondent failed to satisfy the requlrements for a
postponemen t The ?PPlication for po~ponement is made only days before the
hearing there is no explanation as to why the application for a postponement
could not have been filed much earlier. It was argued that the application for the
postponement Is again a tactic to buy more time and delay the finalisation at the
matter.
[5] The Respondent applied for.a postponement , pending the outcome of the action
proceedings. I noted that it was not a postponement to file Its answering papers
to the applrcatfon before me. Moreover , I noted in its papers It is alleged that ,t
ls not insolvent, however, the debt remained unpaid. In Epstein v EpslBin1. it
was held that a Court has the discretion to grant or refuse the order In Fedco v
Meyefl, the Court held that actual proof of solvency was payment of the debt. At
the hearing of the application counsel was unable to provide an explanation for
'1987 \4) OS 606 ( CJ
'1988(4) SA 207 ECD al 212 Hi
2
the Respondents failure to apply for the postponement much earlier. It was not
disputed that the Respondent had sufficient ttme from the date of service of the
applfcation , after if filed its notice to defend, several months ago. Mr. Louw
submitted that the Respondents have no! met the first requirement for a
postponement , in addTessing the time delay
[6] I noted that there are no facts before this Court which demonstrated the
Respondent 's bona fides fn bringing this application for postponement. No
proper reasons ·are before this Court, and glven the congested court roll, if -the
matter is postponed pending the outcome of-tile trial, the Respondent would have
gained a further tw-0 to four years. Effectively there Is the danger to th~
unsuspecting public, as it continues to operate in Insolvent circumstances .
(7) It was not disputed that the set down of both the application and the date on the
unopposed roll was served. The Respondent's counsel Advocate Du Plessis,
submitted that there was a stay applfcation and that the matter must be
postponed pending the outcome of that application .
[8] Mr. Louw argued that this was another tactic brought late In the proceedings to
obstruct the Applicants , he submitted that there was no nexus between the action
and the liquidation application . Mr. Louw reminded me that the dispute betw~en
the parties commenced back in 2014 regarding the ownership cif certain parking
bays in a e-0mplex development.
JUDGMENT
[9I I was satisfied that the matter wa~ properly before me on the unopposed roll, I
dismissed the applicatfon for a postponement, there was no substantive
application before me. The practise is established and known that there must be
a substantive appfication for postponement oi a matter. Counsel for the
Respondent, proffered that he was· instructed only to apply for a postponement
of the application for provisional liquidation, on grounds that there was a stay
application pending, he could not take the matter further. I noted Mr. Louw's
submissions that the there is no nexus between the-acboJT proceedrngs , for
constitutional damages and the application before me. In London Estates (Pty)
3
Ud v Nair3 the court staled th.at In pro11isional liquidation there needs to be only
a prima facfe proof of facts. I noted Mr. Louw's submission that where a daim is
based on a llquld debt, there is a presumption of insol11ency in this instance. The
claim is for payment of costs awarded in earlier litigation and as 1axed by the
taxing master.
[1 OJ The Respondent in iis grounds of appeal stated that the order I granted was
in11alld fn that I addressed the stay application , whfch is pending and that it was
not before me. Furthermore , ii was submitted that I 011erlooked the fact that the
Applicant's security was stale, it was paid aiter the dies permitted in the
Companies Act, and this itself precluded the Court from granting this order-for
pro11isional liquidation . Another ground for appeal wa~ tha1 the Respondent was
denied Its constitutional right to a fair hearing. The Respondent's failure to raise
those defences earlier, all within its knowledge begs the question, why 1t failed to
file answering papers timeously , or at all, where 1t could have presented the
several defences it now raises in this leave _application
(11) I gained the impression that the application for a postponement was an attempt
to buy more time, there was nothing of substance before this Court lo grant the
apphcatlon .
(12} Based on the facts before me, I am not persuaded that the Appflcant's leave to
appeal satisfies tbe requirements for a leave to appeal as set out in s17(1)(a)',
where an Applicant must demonstrate it has probablht1es ot success to a
certainty. not just some chance In MEG for Health, Eastern Gepe v Mkhitha and
Anolhe~. it was held:
"Once-again it Is necess_ary to say that leave to appeal. especially to this court,
must not be granted unless there are reasonable prospects of success Section
17{1)(a) of /he Superior Courts Act 10 Of 103 makes it clear Iha/leave lo appeal
may only be given where the Judge concerned is of /he opinion that fhe appeal
, 1957 (3) SA 591 Nat 593
• Act 10 of 2013
'f2016]ZASCA 116 (2.S November,016 )
4
would have a reasonable prospect of success. or there is some compelling
reason why ,t should be heard."'
"An Applicant tor/eave to. appeal must convince a Court on proper grounds /hat
there 1s a raasorrable prospect or realishc chance of success on appeal A mere
possJbJ/Ity of success. an arguable case, or one that Is r,ot hopeless is not good
enough There must be sound rational has,s to conclude- lha1. there is a
reasonable prospect of success on appeal. '"
(13] The debt was due and payable years ago, it Is a liquid debt, there 1s no chance
of any further debate on llabtllty Mr Louw·s submissions that there was no
nexus between the a:ctIon proceedrngs and the application for prav,sIona l
liquidation remarned unchallenged. The stay application is in my view havfng
considered the history and behaviour of the respondents another attempt to
deJay the finalisation of the matter Advocate du Pless,s's submissions that the
court is denying the Respondent its constttutionaJ right to a hearing, is rejected,
blame must he at the door of the Respondent or its legal representatives
[141 I am oflhe vfew that the points/grounds raised ,n the notice of appeal were known
and could have been raised In opposing papers, or in a substantive appltcation
for a postponement There is no other compelltng reason for the appeaJ to be
heard
Order
[15] AocordingJy , the appHcation for leave to appeal is refused I found no reason to
deviate from the genera~ rule that costs must follow th
MAHOMEDJ
JUDGE OF THE HIGH COURT
JOHANNESBURG
5
For-the Applicant Mr. M. Lauw
Instructed by Jaco Roos Inc Attorneys
For the Respondent Mr. J. C. Vlljoen
Instructed by Jacques Classen Inc Attorneys
Date of hearing. 24 January 2025
Date of Judgment: 05 February 2025
6