IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION , PRETORIA)
(l) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
10 May 2025
MATLHATSE TRADING ENTERPRISE CC
REGNo:2002/086999/23
And
THE BODY CORPORATE OF BATELEUR
THE MASTER OF THE HIGH COURT
ICON INSOLVENCY
PRACTITIONERS (PTY) LTD CASE NO: 59894/2021
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
1
2
This judgment is issued by the Judge whose name is reflected herein and
is submitted electronically to the parties/their legal representatives by
email. The judgment is further uploaded to the electronic file of this matter
on CaseLines by the Judge or her Secretary. The date of this judgment is
deemed to be 10 May 2025.
JUDGMENT
COLLIS J
INTRODUCTION
[1] This is an opposed application wherein the Applicant seeks a rescission
of a final w inding -up order granted by Phooko AJ on 7 March 20221. The
application is opposed by the First Respondent, being the liquidating
creditor at whose instance the winding -up order was granted.
[2] The application is brought in terms of Rule 42(1) of the Uniform Rules
of Court, alternatively in terms of common law.
[3] The First Respondent served and filed its notice of intention to oppose
this application on 12 December 20222 and served and filed its answering
affidavit on 2 March 2023.3 Notwithstanding the service of the answering
1 Notice of Motion, p 014 -26 to 014 -29.
2 See Notice of Intention to Oppose, p 014 -4 to 014 -5.
3 See Filing Notice: Answering Affidavit, p 014 -30 to 014 -33.
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affidavit, the applicant has failed to file any replying affidavit or to take any
further steps to prosecute this matter and to bring this application to
finality. To this end , it was the First Respondent who proceeded to enrol
the application for hearing.
[4] In the absence of an Applicant having filed a replying affidavit, the case
made out by the First R espondent in the answering affidavit, has not been
disputed. In the matter of Standard Bank of SA Ltd v Sewpersadh and
Another 4 the purpose of a replying affidavit was held to be the following:
“The primary purpose of the replying affidavit is to put up evidence
which serves to refute the case made out by the respondent in his
answering affidavit.”
[5] In the context of a failure to deal with an allegation in an affidavit, the
Supreme Court of Appeal held in Municipality of Mossel Bay v The
Evangelical Lutheran Church and Another5 that:
“In this answer the drafter is remiss in his or her duty to meet any
and all material averments in the founding affidavit by either
admitting or denying, or confessing and avoiding, unless he or she
has no knowledge of any one or more or all of them …. A p roper
4 2005 (4) SA 148 (C) at 159 .
5[2013] JOL 30995 (SCA) .
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answer to material averments under reply requires, at the minimum,
a separate and unequivocal traversal of each and every such
allegation which the party seeks to contest .”
[6] In the case of The Minister of Social Development v Mpayipheli6 BR
Tokota J held that:
“The respondent persisted that he did not receive any response from
the Minister. Mr Dladla was not only in a position to deny this
allegation he had a duty to do so if the decision had been taken. He
decided not to do so but merely noted the allegations. If the
appellants' affidavit failed to admit, deny or confess and avoid
allegations contained in the respondent's founding affidavit the Court
was entitled to accept that such allegations were not in dispute and
were therefore correct.”
[7] Therefore, in circumstances where no replying affidavit has been filed ,
such as in the present matter, in order to refute the contents of the
answering affidavit this Court must and will accept the uncontested
evidence as presented by the respon dent.
CONDONATION
6 2018 JDR 0917 (ECM) .
5
[8] In this application, the applicant further seek condonation for the late
filling of th e application .7 In this regard the applicant avers that it could not
launch the application on time due to the unavailability of the written
judgment from the court a quo, but nevertheless decided to proceed with
the application in its form to avoid further delays.
[9] In this regard o n behalf of the respondent the argument advanced, was
that the order was obtained on an unopposed basis and as such no written
judgment is available and would be forthcoming. Be that as it may, no
challenge is made to the basis for the condonation being sought.
[10] Consequently, this Court is inclined to condone the late filing of the
application.
GROUNDS IN OPPOSITION
[11] On behalf of the respondent several grounds in opposition was raised.
It was firstly argued, that the applicant’s reliance on Rule 42 is
fundamentally flawed as the order sought to be rescinded is a liquidation
order, which has significant effects once such an order is granted.
7 Applicant’s founding affidavit, para 11 p 014 -9.
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[12] It is trite that the liquidation of a company’s estate establishes a
concursus creditorum whereafter nothing may be done by any of the
creditors to alter the rights of other creditors.8
[13] Secondly, any application for the setting aside or rescission of a
liquidation order can only be brought in terms of section 354 of the
Companies Act. Support for this assertion is found in several decisions listed
hereunder.
[14] This first thereof is the matter of Ward v Smit & Others: In re Gurr v
Zambia Corporation Ltd9 where the SCA stated the following:
“In order to have the final winding -up order set aside the appellants
were obliged to invoke the provisions of s 354(1) of the Act. I shall
assume without deciding that they had locus standi to do so. The
section reads:
`The Court may at any time after the commencement of a winding -
up, on the application of any liquidator, creditor or member, and on
proof to the satisfaction of the Court that all proceedings in relation
to the winding -up ought to be stayed or set aside, m ake an order
staying or setting aside the proceedings or for the continuance of any
8 Walker v Syfret N.O. 1911 AD 141 at 160.
9 1998 (2) SCA 175 .
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voluntary winding -up on such terms and conditions as the Court may
deem fit.'
The language of the section is wide enough to afford the Court a
discretion to set aside a winding -up order both on the basis that it
ought not to have been granted at all and on the basis that it falls to
be set aside by reason of subsequent events. (Mesk in Henochsberg
on the Companies Act at 747; see also Joubert (ed) The Law of South
Africa vol 4 first re -issue para 185 (M S Blackman).
[15] The authority of Ward supra was again dealt with in the matter of
Impac Prop Cc v THF Construction CC10 where Keightley J at paragraph 10
held as follows:
“It is clear from these authorities that insofar as the issue of the ambit
of s354 is concerned, the decision in Storti is clearly wrong. Thus, I
am not bound to follow Storti in this particular respect. On the
contrary, the authorities are clear that the application for rescission
ought to hav e been based on s354 of the Companies Act and not the
common law.”
[16] On the question of whether an applicant may apply for a rescission of
a liquidation order in terms of Rule 42, Fabricius J, in the matter of Ragavan
10 (40906/16) [2019] ZAGPJHC 497 (5 December 2019) .
8
and Another v Kal Tire Mining Services SA (Pty) Ltd and Others11 in which
matter the applicants also applied for the rescission of a final winding -up
order in terms of the provisions of Rule 42 , it was stated as follows:
“In my view, it is correct to say that s. 354 is the legislated basis to
rescind winding -up orders, and that this would include orders that
were allegedly erroneously sought or granted. Applicants did not
bring the rescission application with reference to this section, and on
behalf of the Respondents it was contended that this was fatal to the
rescission application.
It is clear from the allegations made in the Founding Affidavit that
Applicants rely both on procedural deficiencies at the time of the
hearing of the liquidation application, relating to non -service of the
application and/or notice thereof, and on allegat ions that the debt
relied upon was in issue. On the facts of this case, I am therefore in
agreement with Counsel for the Respondents that the provisions of s.
354 are of application .“
[17] It is for the above reasons that counsel for the First Respondent had
argued that these authorities make it clear that the only basis upon which
11 (40723/2018) [2019] ZAGPPHC 455 (12 August 2019) .
9
a winding -up order may be rescinded is in terms of the provisions of section
354 and not on any other ground or any other basis.
[18] Having regard to the above authorities , it is clear that the Applicant’s
reliance on Rule 42 or the common law is therefore clearly misguided and
incorrect and the application can therefore only proceed on the basis of
section 354 of the Companies Act , which is not the basis upon which the
Applicant has approached th e Court.
[19] Consequently , I must conclude that the provisions of Rule 42 and the
common law does not apply to rescission of a liquidation order.
[20] A further preliminary point raised by the First Respondent is the
Applicants lack of locus standi .
[21] The applicant in casu, is the company which was liquidated by the
Honourable Court on 7 March 2022. In terms of section 354(1) of the
Companies Act only a certain class of individuals have the necessary locus
standi to bring an application before a Court.
[22] Section 354(1) of the Companies Act provides the following:
“The Court may at any time after the commencement of a winding -
up, on the application of any liquidator, creditor or member, and on
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proof to the satisfaction of the Court that all proceedings in relation
to the winding -up ought to be stayed or set aside, make an order
staying or setting aside the proceedings or for the continuance of any
voluntary winding -up on such terms and condition s as the Court may
deem fit.”
[23] The wording of the section makes it clear that the only persons which
has the necessary locus standi to launch an application in terms of section
354 is a creditor, liquidator or a member of the company. The section
makes it clear that the company itself does not have locus standi to launch
this application.
[24] In casu, the compan y itself, which is under liquidation brought the
recission application and this is in clear violation of section 354 (1) of the
Companies Act . This much was conceded in the Heads of Argument filed on
behalf of the Applicant.12 As a result it must follow , that the Applicant lacks
the necessary locus standi to have launched these proceedings.
[25] A company’s lack of locus standi, was specifically also confirmed by
the court in the matter of Storti v Nugent13 where the court dealt with the
question whether a company has locus standi. The Court there in stated the
following:
12 Applicant’s Heads of Argument para 7.4 p 020 -9.
13 2001 (3) SA 783 (W).
11
“Secondly, only the liquidator, a creditor or member may bring such
an application. The company itself, as represented by its board of
directors does not have locus standi in judicio under this section.”14
[26] The above position was also confirmed by the authors of Henochsberg
which state s:
“The persons who have locus standi to bring an application under the
section are exclusively the liquidator of the company (including its
provisional liquidator), a creditor or a member of the company.”15
[27] A company’s failure of lack of locus standi I am of the view , is
dispositive of the entire application and consequently the application falls
to be dismissed.
COSTS
[28] In its Heads of Argument the respondent requested of the Court to
order costs in the event of the application being d ismissed to be paid by
the director, Mr Mmaselema Christopher Moakamedi and this on a punitive
scale.
14 Storti v Nugent 2001 (3) SA 783 (W) at 794C .
15 Henochsberg on the Coompanies Act, 71 of 2008, volume 2 page APPI -108.
12
[29] In this regard counsel submitted that the costs should not be against
the applicant, being the company under liquidation, as this will be
prejudicial to the creditors and be prejudicial to the administration of the
insolvent estate.
[30] The Applicant in its Heads of Argument on point held the view that
notwithstanding the provisions of section 345, that it was entitled to have
approached this Court in terms of Rule 42 to rescind the liquidation order.
[31] The Applicant has failed to refer this Court to any authorities in support
of this view adopted by it and I am of the view it could not, as none existed.
[32] In granting cost orders the judicial officer always has a discretion and
costs generally will follow the result.16 In exercising its discretion in
awarding costs it is expected that a court will exercise this discretion with in
the parameters of certain well -established principles.17
[33] The most important of these principles is that where a party has been
substantially successful in bringing or defending a claim, that party is
16 Ferreira v Levin, Vryenhoek v Powell 1996 (2) SA 621 (CC) at 624. See also
President of the Republic of South Africa & Others v Gauteng Lions Rugby Union
& Another 2002 (2) SA 64 (CC), 2002 (1) BCLR 1 (CC), [2001] ZACC 5 at para
15.
17 See A Cilliers The Law of Costs (2006) at § 14.04, citing Neugebauer & Co Ltd
v Hermann 1923 AD 564, 575; Penny v Walker 936 AD 241, 260; Protea Assurance
Co Ltd v Matinise 1978 (1) SA 963, 976 (a); Kilian v Geregsbode, Uitenhage 1980
(1) SA 808, 815 -816 (a).
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generally entitled to have a cost order made in its favour against the other
party who was not successful.18
[34] As me ntioned , the first respondent is seeking costs on an attorney and
client scale against the applicant in the event of being the successful party .
[35] In support of this contention the first respondent relied on the
sentiments expressed by the author A C Cilliers’ in Law of Costs where the
argument was advanced that the object of an award of costs on attorney
and client scale is aimed at the reimbursement of the successful party and
the disapproval of the conduct of the other party.19
[36] In Nel v Waterberg Landbouwers Ko -operatiewe Vereeniging20, the
leading case regarding attorney and client costs in South Africa, Tindall JA
held that:
“[t]he true explanation of awards of attorney and client costs not
expressly authorised by Statute seems to be that, by reason of
special consideration arising either from the circumstances which give
rise to the action or from th e conduct of the losing party, the court in
18 Skotnes v SA Library 1997 (2) SA 770 (SCA). In order to establish who is to be
regarded as the successful party, the court must look at the substance of the
judgment and not merely its form.
19 Law of Costs, par 4.04, page 4 -6.
20 1946 AD 597, referred to as such in Swartbooi v Brink 2006 (1) SA 203 (CC) at
213.
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a particular case considers it just, by means of such an order, to
ensure more effectually than it can by means of a judgment for party
and party costs that the successful party will not be out of pocket in
respect of the expense caused to him by the litig ation.”
[37] Based on these principles, counsel submitted that the Court should
grant costs on an attorney and client scale.
[38] This Court is persuaded that given the facts of the matter at hand and
the failure by the Applicant to address the issue of costs comprehensively
in its heads of argument , that awarding costs on the scale sought by the
first respondent would be merited under the circumstances and that such
costs, is to be paid by the director of the applicant on a punitive scale given
the stance adopted by the director .
ORDER
[39] Consequently the following order is made:
39.1 The applica nt is granted condonation for the late launching of the
application.
39.2 The application is dismissed .
39.3 The director of the Applicant, Mr Mmaselema Christopher Moakemed i,
is ordered to pay the cost of the application on an attorney and client scale.
Appearances
Legal Representat ive for the Applicant:
Instructed By:
Counsel for the First Respondent:
Instructed By:
Date of Hearing:
Date of Judgment: C.COLLIS
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
Mr. M Modise
Modise Attorneys
Adv. R de Leeuw
EY Stuart Inc. Attorneys
14 August 2024
10 May 2025
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