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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 2750/2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 9 June 2025
SIGNATURE:
In the matter between:
NICOLAS PETRUS MAREE 1ST APPLICANT
JOHANNES PETRUS WILHELMUS MAREE 2ND APPLICANT
ELSIE SOPHIA DE BEER 3RD APPLICANT
CORPRENT LEASING PROPRIETARY LIMITED 4TH APPLICANT
JOHANNES CORNELIUS GEORGE 5TH APPLICANT
BENJAMIN MCLEOD
JOHANNES STEPHANUS MCLEOD 6TH APPLICANT
PETRONELLA ESABELLA WILLEMSE N.O. 7TH APPLICANT
NICOLAS PETRUS MAREE N.O. 8TH APPLICANT
MADELÉ FREWEN N.O. 9TH APPLICANT
TALITA -KOEMI FABER N.O. 10TH APPLICANT
-and-
HANALINE BOERDERY PROPRIETARY LIMITED RESPONDENT
(Registration number: 1995/010321/07)
Delivered : 9 June 2025
This judgment was handed down electronically by circulation to the
parties’ legal representatives by e -mail. The date and time for hand
down of the judgment is deemed to be 9 June 2025.
Date heard : 27 May 2025
Coram : Bresler AJ
JUDGMENT
BRESLER AJ:
Introduction:
[1] This matter came before Court as an urgent application enrolled for hearing
on the 27th of May 2025. Due to the limited court time available on the said date, the
Court requested both parties to address both urg ency and merits, whereafter
judgment was reserved to enable the parties to file supplementary Heads with
specific reference to the enrolment of the unopposed Application for the Liquidation
of the Respondent on the same date and in the same proceedings.
[2] The Respondent applies for an extension of the time specified in the order
granted by the Honourable Madam Justice Naude -Odendaal on the 1st of April 2025,
and a suspension of Part B of the order, in terms whereof inter alia :
2.1 The Applicants are authorized to perfect the security which they hold
by virtue of the special notarial bond no. B[...], which was registered on 13
December 2023 (“the bond”);
2.2 The Respondent and its representative are ordered to hand over to the
Applicants and / or the Applicants’ authorised representative all the movable
property bound in terms of the bond and as more fully set forth in Annexure “A”
(“the movable assets”), situate on the farm known as the Remaining Extent of
the Farm Alyth 837, Weipe District Musina, Limpopo (“the farm”);
2.3 The Applicants are authorised forthwith to enter upon the farm and / or
any other premises where the movable assets, or some of the movable assets,
be found and to take possession of such movable assets.
2.4 The Applicants are to dispose thereof as they deem fit by way of a
properly advertised public auction, including notice in the Government
Gazette, as contemplated in Section 82(1) of the Insolvency Act, Act 24 of
1936.
2.5 The Applicants’ right to dis pose of the movable assets, forming the
subject matter to this special notarial bond no. B[...] is suspended to the 1st of
June 2025, including the removal of the assets.
2.6 The Applicants’ application for liquidation s per part B hereof, is case
management (sic) as follows:
2.6.1 The Respondent, and the Intervening Party, will serve and file any
further affidavits, dealing with Part B of this application, the liquidation
application, on or before the 22nd of April 2025.
2.6.2 The parties will then enrol the matter for hearing as soon as possible
on the urgent roll.
[3] The Respondent specifically applies for:
3.1 The suspension of the execution of Part A of the order to be extended
up to 15 July 2025; and
3.2 That the provisions of Part B of th e order, relating to liquidation, be
suspended to 15 July 2025.
[4] The parties are ad idem as to the factual synopsis of the matter insofar as
those facts are relevant to a determination of the issues currently before court. More
specifically, it is comm on cause that the Respondent did not oppose the Liquidation
application, that the debt remains unpaid and that the Applicants have not executed
Part A of the order to date hereof.
[5] It is furthermore common cause that the initial order was granted by
agreement between the parties and after it came to light that there is a possibility of
selling one of the immovable assets of a sister company of the Respondent, the
proceeds which will be utilised to pay the Applicants and the Intervening Creditor.
The App licants’ attorneys were informed on the 14th of April 2025 that the auction of
this property was successful.
[6] The Respondent’ s attorneys were informed in return that a request for
extension would only be considered once the transaction has been confirmed.
Issues that require determination:
[7] In this Court’s view, only the following issues stands to be determined:
7.1 Is the Respondent entitled to an extension of time and a suspension of
Part B of the order; and
7.2 Is the Applicants entitled to a liquidation order (either provisionally or
final) in lieu of the absence of a formal notice of set down.
The Applicable Legal P rinciples:
Urgency:
[8] It is trite law that an Applicant needs to show that he will not be afforded
substantial redress should the matter be heard in due course. The Applicants raised
the issue that there was an unreasonable delay in launching the proce edings.
[9] As held in East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley
Granite (Pty) Ltd and Others1, a delay in bringing the application is not in itself a
reason for refusing to regard the matter as urgent. A court is obliged to consider the
circumstances and the explanation provided. The crucial question that must be
answered is whether the applicant would be afforded substantial redress if the matter
were heard in the ordinary course.
[10] In Stock and Ano ther v Minister of Housing and Others2 it was held that
an applicant cannot be held to have been dilatory in bringing the application if he/she
first sought compliance from the respondent before resorting to litigation.
[11] After considering the circumstances, the undisputed facts and the explanation
provided, I am of the view that the applicants would not be afforded substantial
redress if the matter was to be heard in the ordinary course, and that it cannot be
said that the y were dilatory in instituting the application. Therefore, the applicants'
non-compliance with the time periods, service, forms, and procedures prescribed by
the Uniform Rules of Court are condoned, and the application will be entertained in
terms of rule 6(12).
Merits:
1 [2011] ZAGPJHC 196 (2011 JDR 1832)
2 2007 (2) SA 9 (C)
[12] The Applicants opposition is premised on the basis that no case has been
made out for the rescission or variation of the order granted on the 1st of April 2025.
The order has, after all, been obtained by consent.
[13] Mr. Morton, app earing for the Respondent in the matter, stated during
argument that they are not applying for a rescission or variation of the order. The
Respondent is applying for an extension of time as contemplated in Rule 27(1) which
states:
‘(1) In the absence of agreement between the parties, the court may upon
application on notice and on good cause shown, make an order extending or
abridging any time prescribed by these rules or by an order of court or fixed
by an order extending or abridging any time for doing any act or taking any
step in connection with any proceedings of any nature whatsoever upon such
terms as to it seems meet.’
[14] It must be noted from the onset that it appears that the first part of the
Respondent’s relief is premised on the provisions of Uniform Rule 27(1). The
suspension of the liquidation proceedings is however not contemplated by the
provisions of Rule 27(1).
[15] To succeed with an application for the extension of any time frame, the
Applicant must show ‘good cause.’ There is no ex haustive definition of ‘good cause’
and a Court has a very wide discretion in this regard. Two principal requirements for
the favourable exercise of the court’s discretion have however been identified as the
following:
15.1 The applicant must have a satis factory explanation for his delay; and
15.2 The applicant must convince the Court that it has a bona fide defence.
[16] In casu , the Respondent states that its attorney informed the Applicants’
attorneys as early April 2025 about the sale of the immovab le property of the
Respondent’s sister company. The Applicants reiterated that an extension of time
will only be considered once the transaction has been confirmed. The sole reason for
the current proceedings before court is because the purchaser in that t ransaction
has not delivered guarantees to date. It is not relevant to these proceedings why the
guarantees have not been delivered. Suffice to state that the Respondent has no
evidence that this alleged transaction will come to fruition. Since it is subje ct to the
delivery of the guarantees by the purchaser evidencing the availability of funding, the
transaction has no force and effect until the suspensive condition has been complied
with.
[17] In this Court’s mind, it presupposes that the Respondent knew , or reasonably
should have known, as early as 15 April 2025 that the Applicants required some form
of confirmation that the purchaser is willing and able to perform. The purchaser being
merely willing to perform is not adequate.
[18] The Respondent state d in the Founding affidavit that the Applicants have
delayed in delivering their guarantee requirements. This is of no relevance to the
issue at hand since the Applicants merely required some form of confirmation that
the transaction will indeed realise.
[19] In this Court’s view, the explanation for the delay in launching the proceedings,
and then only launching it on extreme truncated time frames, is less than satisfactory.
The Court is however obliged to consider this explanation against the backdrop o f
the ‘bona fide defence’ .
[20] It is trite that a debtor’s willingness to make payment does not constitute a
defence. In these circumstances, a too pedantic approach to the term ‘defence’
should be avoided. It is after all common cause that the liquidation proceedings are
unopposed as no opposed papers had been filed as directed in the order of 1 April
2025. I am therefore of the view that the position of the concursus creditorum should
also be considered.
[21] At this stage, there is no evidence before court that the transaction alluded to
will be perfected. No evidence whatsoever has been provided that the purchaser is
indeed able to purchase the property and that it has the necessary fu nding at hand.
The Respondent in fact stated that obtaining funding for such large amount takes a
considerable time. If the suspensive condition has not been met, no enforceable
agreement is deemed to exist between the seller and the purchaser.
[22] This court cannot suspend the execution of an admitted debt indefinitely on
the premise of a sale agreement that may or may not come into effect in the near
future on an undetermined date. It is unreasonable to expect from the Applicants to
simply remain statio nary until the immovable property is effectively sold and the sale
agreement comes into effect.
[23] On this basis, this court finds that good cause has not been shown to exists at
this stage for the extension of the time period stipulated in part A of t he order of 1
April 2025.
[24] As to the suspension of the liquidation proceedings, it has already been stated
herein above that this relief is not contemplated in Uniform Rule 27. Uniform Rule
45A however gives the court the power, upon application, to s uspend the operation
and execution of any order for such period as it may deem fit. The discretion to
suspend an order must be exercised judicially but is not otherwise limited. The Court
must determine if such stay will be in the interest of justice.
[25] As stated herein before, the application for the liquidation of the Respondent
is pending and remains unopposed. This Court is not able to determine on a balance
of probabilities that the Respondent is, in fact, commercially and factually solvent.
[26] Determining a just and reasonable order that is in the interest of justice, does
not mean that the Court must only consider the position of either the Applicants or
the Respondents. There is no injustice towards the Respondent in continuing with
proceeding s that are aimed at securing a just and equitable division of its assets in
favour of its creditors. That is after all the aim of liquidation proceedings.
[27] The inherent urgency in insolvent proceedings has formed the subject of
several decisions. In Ex parte: Nell N.O. and Others3 the Court, with reference to
Absa Bank Ltd v De Klerk and Related cases4 restated the principal that there is
often a large body of creditors whose rights are affected by insolvency proceedings.
If a case has therefore been made out, a removal of the property from the control of
the Respondent, a suspension of the enforcement of creditor’s rights of action and
execution in the ordinary course should therefo re occur as soon as possible.
[28] On this basis, this Court finds that a further suspension of the liquidation
proceedings will not be to the benefit of all parties concerned and no case is
therefore made out for the court to exercise its discretion in f avour of granting the
relief.
The enrolment of the liquidation:
[29] The Applicants submitted in their further Heads of Argument that ‘all parties
who have made their intention known, or elected to partake in the proceedings, were
fully aware thereof tha t the Applicants were of the intention to seek an order for the
winding -up of the Respondent on the 27th of May 2025. The order of 1 April 2025
pertinently provides that the application for liquidation will be enrolled as soon as
possible. The Respondent w as represented during the hearing and was forewarned
that the Applicants intends to apply for its liquidation.
[30] It is common cause that no actual formal notice of set down was delivered.
The Respondent objected that the matter is not properly before c ourt.
[31] Extensive reference was made by the Applicants to the case of Ngassam v
MTN Group Management Services (Pty) Ltd5 wherein the Court restated the well -
known maxim that ‘ the rules are made for the court, and courts are not established
for rules’.6
3 2014 (6) SA 545 (GP) at par 55
4 1999 (4) SA 835 (E) at 838J – 839A
5 2024 JDR 1115 (GJ)
6 As referred to in Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC)
[32] The liquidation proceedings were not heard in the absence of the Respondent,
nor was t heir presence precluded in any way as contemplated in Zuma v Secretary
of the Judicial Commission of Enquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector Including Organs of State7. The
Respondent wilfully failed to file any Answering affidavit notwithstanding a court
order directing it to do so.
[33] Counsel for the Applicants correctly referred to Afgri Operations Ltd v
Hambs Fleet Management (Pty) Ltd8 (the cita tion of the reported case refers to
‘Hambs’ although the word ‘Hamba’ might have been intended) where the Supreme
Court of Appeal stated:
‘... generally speaking, an unpaid creditor has a right, ex debito justitiae, to a
winding up order against the respo ndent company that has not discharged
that debt. ... the discretion of a court to refuse to grant a winding -up order
where an unpaid creditor applies therefor is a “very narrow” one that is rarely
exercised and then in special or unusual circumstances only .’
[34] This Court is satisfied that the Respondent stands to be wound up on the
basis that it is deemed to be unable to pay its debts as contemplated in Section
345(1)(a) of the Companies Act, Act 61 of 1973.
[35] The Respondent remains adamant that it can secure the funds to pay the
Applicants from a third party in the form of the proceeds of the sale of an immovable
property. The Court is not privy to any information pertaining to Creditors or Debtors
of the Respondent as the Respondent had dismally fa iled to present proof of its
alleged solvency. As a consequence, and ex abudante cautela , the Court is not
inclined to grant a final order. Evidence may well be placed before the Court that, by
virtue of the funds from the third party, the Respondent is ab le to pay its creditors in
full. A provisional order is more appropriate as it would entitle Creditors and Debtors
alike to present information to Court to either confirm or rebut the assumption of
insolvency.
7 2021 (11) BCLR 1263 (CC)
8 2022 (1) SA 19 (SCA) at para 12
Costs:
[36] There is no reason why the cost order should not follow the outcome of the
proceedings. Having regard to inter alia the nature of the proceedings and the
importance thereof to the parties, costs are awarded to counsel on Scale B. Insofar
as the Respondent is hereby placed under provision al liquidation, the cost order will
be costs in the winding -up process.
Order:
[37] In the result the following order is made:
37.1 The Respondent’s urgent application, set down for hearing on 27
May 2025, is dismissed with costs on a party and party sc ale, including
costs to counsel on Scale B.
37.2 Part A of the order granted on the 1st of April 2025 is hereby made
final insofar as same constituted an interim order.
37.2 The Respondent is hereby placed under provisional liquidation in
the hands of the Master of the High Court;
37.3 A rule nisi is here by issued calling upon all concerned persons to
appear and show cause, if any, to this Court at 10:00 on 09 SEPTEMBER
2025 why the Respondent should not be placed under final winding -up
order;
37.4 Service of the rule nisi must be affected on the Responde nt at its
registered address and the address of its attorneys, and by publication
forthwith once in each of the Government Gazette and in a local
newspaper circulating in the area where the Respondent conducts
business and service must otherwise take place in accordance with the
statutory provisions including service on SARS, the Master and the
employees insofar as same may be found at the registered address.
37.5 The costs of the application are costs in the winding -up of the
Respondent and includes the c osts to counsel on Scale B.
M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE APPLICANTS : Adv. AJ Schoeman
INSTRUCTED BY : Hay & Scott Attorneys
Pietermaritzburg
roderick@hayandscott.co.za
litigation6@prattluyt.co.za
FOR THE FIRST TO FOURTH : Mr. JP Morton
RESPONDENTS
INSTRUCTED BY : Beukes Sikhala Attorneys Musina
law@cnilaw.co.za
FOR THE INTERVENING PARTY : Absent
: Jaco Roos Attorneys
Pretoria
litigation6@prattluyt.co.za
benhardt@prattluyt.co.za