IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 21411/21
1) REPORTABLE : NO
2) OF INTEREST TO OTHER JUDGES: NO
3) RE ISED.
26 June 2025
DATE
In the matter between:
AU AGGREGATE (PTY) LTD
and
JUGGERNAUT TRUCKING CC
MARTHINUS JACOBUS BEKKER
RICHARD MASOANGANYE
THE MASTER OF THE HIGH COURT, PRETORIA
In re:
JUGGERNAUT TRUCKING CC
and
AU AGGREGATE (PTY) LTD
JUDGMENT Applicant
1 st Respondent
2nd Respondent
3rd Respondent
4th Respondent
Applicant
Respondent
This judgment is handed down electronically by circulation to the parties/their legal
representatives by email and by uploading to Caselines. The date and time of hand
down is deemed to be 10:00 on 26 June 2025.
MOJAPELOAJ
INTRODUCTION:
1. Pursuant to a notice in terms of section 345(1 )(a) of the Companies Act 61 of
1973, Juggernaut Trucking CC launched an application for the liquidation of AU
Aggregate (Pty) Ltd during March 2021. The said application for liquidation was
not opposed, and on 05 November 2021, Juggernaut Trucking CC obtained an
order for the liquidation of AU Aggregate (Pty) Ltd. Mr. van As, who was the sole
director of AU Aggregate (Pty) Ltd until August 2021, was then summoned to
testify in the liquidation hearings, which were scheduled for 06 December 2022,
which hearings were later postponed to the following year. Mr. van As alleges
that he first obtained conclusive proof of the order that was granted against AU
Aggregate (Pty) Ltd on 12 May 2023. On 26 June 2023, this application for
recession was then launched.
2. This application for rescission is opposed by Juggernaut Trucking CC. The other
responden ts, that is, the liquidators and the Master of the High Court, do not
participate in this application for rescission. For the sake of convenience, the
parties will be referred to by their appellations in this application for rescission or
their shortened names.
BACKGROUND:
3. It is apposite to set out the background facts of this matter, in particular, the
timeline.
4. On 01 February 2021, Juggernaut Trucking, through its attorney, issued a notice
in terms of section 345(1 )(a) of the Companies Act to AU Aggregate, where it
was alleged that AU Aggregate and Juggernaut Trucking entered into an oral
2
agreement for the provision of screening services. It is alleged in the same notice
ft11at Juggernaut Trucking provided the services as agreed and as a result, AU
Aggregate is indebted to Juggernaut Trucking in the amount of R8 148 412.75.
Ti-le said notice required AU Aggregate to pay the said amount within 3 weeks
aliter the service thereof, failing which Juggernaut Trucking was going to proceed
with the application for the liquidation of AU Aggregate.
5. It does not appear that there was any response to the section 345(1 )(a) notice,
as Juggernaut Trucking, during March 2021, launched proceedings for the
liquidation of AU Aggregate . The said application for liquidation was served on
AU Aggregate's Ms. Basden on 12 May 2021. AU Aggregate then served its
notice of intention to oppose the liquidation application on 19 May 2021. At the
time of the service of the notice of intention to oppose, AU Aggregate was
represented by Scheepers and Aucamp Attorneys , their current attorneys in this
rescission application.
6. AU Aggregate 's attorneys wrote an email on 10 June 2021 wherein they
undertook to deliver their client's answering affidavit the following week. In that
regard, Juggernaut Trucking's attorneys, Donn E Bruwer Attorneys, indicated
that they were prepared to grant AU Aggregate condonation so that the
answering affidavit could be delivered the following week.
7. Instead of delivering the answering affidavit as promised, AU Aggregate's
attorneys withdrew as attorneys of record on behalf of AU Aggregate on 18 June
2021.
8. During August 2021, a resolution which is relevant to this matter was recorded
as follows:
"6. Mr. F. Devenier acknowledges that an application was launched
against AU Aggregate (Pty) Ltd in the High Court of South Africa,
Gauteng Division, Pretoria under case number 21411/2021, under
circumstances where the applicant Juggernaut Trucking CC
(registration number: 1998/052058/23) alleges that it contracted
3
with AU Aggregate (Ply) Ltd, which is incorrect as the agreement
was with Little Creek Trading 368 (Ply) Ltd (registration number:
2017/313617/07).
7. Accordingly , Mr. F Devenier authorises Scheepers and Aucamp
Attorneys to utilize the proceeds of his 50% portion of the amount
of R 1800000 .00, to be received from DMR., to settle the case
with Juggernaut Trucking CC, under the aforementioned case
number."
9. There were no papers coming from AU Aggregate 's side. The matter was then
set down for hearing by default on 05 November 2021. A notice of set down in
that regard was served on AU Aggregate by the Sheriff on 04 August 2021.
Despite the service of the notice of set down, the matter was heard unopposed .
The judgement was thus granted by default for the liquidation of AU Aggregate
on 05 November 2021.
10. Mr. van As was then contacted telephonically on 07 February 2022 by one of the
joint provisional liquidators of AU Aggregate, who then requested certain
financial information in respect of the company. The liquidators did not receive
the requested information from Mr. van As. The insolvency inquiry was then
convened to be heard on 06 December 2022. In that regard, a subpoena was
served on 09 November 2022 on the receptionist at the premises of AU
Aggregate . The said subpoena was addressed to Mr. van As and he was
informed that he was summoned in terms of sections 414 and 415 of the
Companies Act, amongst others, to appear before the Master of the High Court
to testify to matters within his knowledge in respect of his dealings and
associations with the business, trade and property and affairs of AU Aggregate
(in liquidation) . The date for the hearing was 06 December 2022. The liquidation
hearing scheduled for 06 December 2022 was postponed to 07 February 2023.
On that date, the matter was further postponed to the week of 04 April 2024.
11. Despite receiving summons during November 2021, which clearly invited Mr. van
As to a liquidation hearing of AU Aggregate, Mr. van As, in the founding affidavit
for the application for rescission, states that he obtained conclusive proof that an
4
order for liquidation was granted against AU Aggregate on 12 May 2023. The
date of 12 May 2023 is one of the dates on which the liquidation hearing was to
be heard.
12. The application for the rescission of the default liquidation order was then
launched on or about 26 June 2023. The application for rescission was made
more than 19 months after the winding-up order was granted. As alluded to
hereinabove, this application for rescission is opposed by Juggernaut Trucking.
LEGAL PRINCIPLES:
13. AU Aggregate states that this application for rescission is brought in terms of the
common law and section 354 of the Companies Act. Section 354 of the
Companies Act provides as follows:
(1) 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, make an order
staying or setting aside the proceedings or for the continuance of
any voluntary winding-up on such terms and conditions as the
Court may deem fit.
(2) The Court may, as to all matters relating to a winding-up, have
regard to the wishes of the creditors or members as proved to it by
any sufficient evidence.
14. The application for a rescission of a winding-up order ought to be based on
section 354 of the Companies Act and not the common law. The Supreme Court
of Appeal in Ward v Smit & Others: In re Gurr v Zambia Corporation Ltd
1998(3) SA 175 SCA, held as follows:
5
·----- -·--·
"In order to have the final winding-up order set aside the appellants were
obliged to invoke the provisions of s354(1) of the Act .... 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. "1
15. In the matter of Ragavan and another v Kai Mining Services 2019 JDR 1739
(GP) this Court rejected the proposition that a winding-up order can be rescinded
under rule 42 and held that the legislated basis for rescinding a winding-up orders
is found in section 354 of the Companies Act, and that includes orders that are
alleged to have been erroneously made or granted.2
16. The SCA in Ward v Smit (supra) went on to state that:
"It follows that an applicant under the section must not only show that
there are special or exceptional circumstances which justify the setting
aside of the winding-up order; he or she is ordinarily required to furnish,
in addition, a satisfactory explanation for not having opposed the
granting of the final order or appealed against the order. Other relevant
considerations would include the delay in bringing the application and
the extent to which the winding-up had progressed. "3
17. The Court has a wide discretion in this regard. In the matter of
Klass v Contract Interiors CC (In Liquidation) and Others
2010 (5) SA 40 {W), it was held that in exercising its discretion, the following
principles apply:
17.1. The Court's discretion is practically unlimited, although it must take into
account surrounding circumstances and the wishes of parties in interest,
such as the liquidator, creditors, and members.
Ward v Smit (Supra) at page 180.
Ragavan v Kai (Supra) at paragraph 14.
Ward v Smit (Supra) at page 181.
6
---- -·. ··---------
17.2. The Court should ordinarily not set aside a winding-up where creditors or
the liquidators remain unpaid or inadequate provision has been made for
the payment of their claims.
17.3. Where the claims of the liquidator and all creditors have been satisfied,
the Court should have regard to the wishes of the members, unless those
members have bound themselves not to object to the setting aside order,
or the member concerned will receive no less as a result of the order
sought than would be the case if the company remained in liquidation.
17.4. In deciding whether or not to grant a setting aside order, the Court should,
where appropriate, have regard to issues of "commercial morality", "the
public interest" and whether the continuation of the winding-up
proceedings would be a "contrivance" or render the winding-up "the
instrument of injustice. "4
EXPLANATION FOR THE DEFAULT:
18. One of the considerations in this application for rescission is the explanation for
the default by the applicant. As held in the matter of Ward v Smit, an applicant
seeking rescission is ordinarily required to provide a satisfactory explanation for
the failure to oppose the granting of the final order.5 This requirement is grounded
in the principle that once a final order has been granted, it should not be lightly
set aside, and litigants are expected to conduct litigation with diligence and
accountability.
19. In this matter, the applicant was served with an application for the winding-up of
the company on 12 May 2021. The applicant's attorneys at the time undertook to
file the applicant's answering affidavit to oppose the liquidation application during
the third week of June 2021. Such an affidavit was not filed as the attorneys
withdrew as attorneys of record. The applicant did not file an opposing affidavit
to oppose the application. The application was eventually heard on an
Klass v Contract Interiors CC (Supra) al paragraph 65.
Ward v Smit (Supra), page 181.
7
unopposed basis on 05 November 2021. There was a period of 177 days
between the service of the application and the granting of the order.
20. The applicant's explanation for not opposing the matter can be summarized as
follows; (1) Mr. van As was facing numerous legal issues at the time, (2) Mr. van
As was suffering from ill health, (3) Mr. van As did not have enough finances,
and (4) Mr. van As took the attitude that the application for winding-up is without
merits.
21. While Mr. van As submitted documentary evidence that he was medically
indisposed during 2021, that is the period wherein the papers to oppose the
application for the winding-up of AU Aggregate were to be made, he, on the other
hand, states that he was busy in various Courts with litigation. During that time,
the applicant was able to instruct the attorneys Scheepers and Aucamp
Attorneys to file a notice to oppose the winding-up application and even made
an undertaking to file an answering affidavit. He further states that during that
period, his brother laid criminal charges against him, and he had to attend Court
on 26 August 2021, 09 September 2021, 12 October 2021 and 27 October 2021.
It therefore presupposes that during this period, he was medically fit to attend to
Court and therefore there is no reasonab le explanation why the winding-up
application was not attended to.
22. He was further able to attend Court for his personal matter, wherein the Court on
04 November 2021 granted custody of his minor children in his favour.
23. What is more startling is that he states that he was attending to more important
issues than the winding-up application. He states as follows:
"33.4 I was also simply occupied with issues I regard as more important
than the application launched by Juggernaut, which I regarded as
ill-advised and misplaced. In short, I was busy with litigation
concerning not only my livelihood, but also the well-being of my
children, compounded by my own well-being and the physical and
mental challenges due to my medical condition. With these limits
8
placed upon me, I was not able to attend to Juggernaut's
application."
24. Mr. van As further states that he resigned as the director of AU Aggregate at the
end of August 2021 and Mr. Devenier took over the position as the Director of
AU Aggregate. Since Mr. van As is no longer the Director from September 2021,
there is no reason afforded in the founding papers as to why Mr. Devenier did
not issue instructions to oppose the winding-up application. Mr. Devenier filed a
confirmatory affidavit, where he does not offer any reason as to why the winding
up application was not opposed.
25. In fact, Mr. Devenier states in paragraph 4 of his supporting affidavit that he was
not aware of the winding-up application brought against AU Aggregate and only
became aware of it during 2023. This allegation cannot be correct because on
12 August 2021, Mr. Devenier, who was also a Director of the company called
Little Creek Trading 368 (Pty) Ltd acknowledged in writing the application that
was brought against AU Aggregate and further authorized Scheepers and
Aucamp Attorneys to utilize the proceeds of his 50% portion of the amount of
R1 800 000.00 received from DMR to settle the case with Juggernaut Trucking.
It is therefore not correct for Mr. Devenier to state under oath that he became
aware of the winding-up application in 2023 when, in truth, he was aware of the
application on or before 12 August 2021.
26. Cumulatively, the above demonstrates that the applicant, through Mr. van As and
Mr. Devenier, has failed to give a reasonable explanation for not having opposed
the winding-up order.
DELAY IN BRINGING THE APPLICATION:
27. An application of this nature must be brought within a reasonable period. For the
applicant to succeed with the application for rescission, the applicant must show
good cause or sufficient cause by giving a reasonable explanation for the delay.
The applicant must further show that the application for rescission is bona tide
9
and that the applicant has a bona tide defence to the claim with a prima facie
prospect of success.
28. The order that is sought to be rescinded was granted on 05 November 2021. The
summons in terms of sections 414 and 415 of the Companies Act were issued
and service was effected and Mr. van As was aware of such. In terms of the said
summons, Mr. van As was requested to appear before the master of the High
Court in order to testify to matters within his knowledge in respect of his dealings
and association with the business, trade, property and affairs of AU Aggregate
(In Liquidation). In the same summons, he was requested to produce books or
papers in his custody or under his control relating to the company's liquidation.
He was summoned to appear on 06 December 2022. It is clear from the
summons that he was appearing in relation to the liquidation proceedings of AU
Aggregate. The initial hearing was postponed to 07 February 2023 by Mr. van
As's then attorney, Mr. A. Quass.
29. In considering the explanation proffered by Mr. van As, it is necessary to assess
the role and conduct of his legal representative. It cannot reasonably be accepted
that the attorney was unaware of the nature of the proceedings in which he
appeared on behalf of his client. As an officer of the Court, the attorney has a
duty to act with diligence and to ensure that his client is properly informed. It is
therefore to be inferred that the attorney would have duly advised Mr. van As of
the nature and implications of the matter. In the absence of any cogent evidence
to the contrary, the Court must proceed on the assumption that Mr. van As was
adequately apprised of the proceedings and their potential consequences.
30. Mr. van As states that he appeared on 7 February 2023, and the liquidators failed
to appear, and the matter was once again postponed to 12 May 2023. Mr. van
As further states that he was operating under the impression that he would be
able to explain to the Court that the application was ill-founded and that the Court
should not grant any relief. He does not state that he was in possession of an
application or a notice of motion. He attended on the strength of the summons
mentioned above. He states that he only became aware on 12 May 2023 when
10
conclusive proof of the order being granted against AU Aggregate was obtained
by him from the liquidators.
31. It should be noted that even though Mr. van As states that the application was
without merit, he did not take any steps to file an opposing affidavit.
32. Mr. van As participated in the liquidation hearing of AU Aggregate, which is the
execution of the very same order that AU Aggregate now seeks to challenge. Mr.
Devenier, who was the director of AU Aggregate during the period of the
impugned Court order and the liquidation hearing, does not offer any explanation
for the failure to defend the winding-up order and the delay.
33. By attending the liquidation hearings on several occasions either personally or
through an attorney, Mr. van As must surely have acquiesced in the judgment
that is now sought to be set aside. He knew all along about legal proceedings
and relief sought and judgment against AU Aggregate, but did nothing, and is
only taking steps at this very late stage of the execution process.
34. In Schmidlin v Multisound (Pty) Ltd 1991(2) SA 151 (CJ, the Court, in dealing
with the issue of undue delay, held:
"Delay is however relevant in this case, not per se, but because that
judgment was not a mere paper tiger but was being executed albeit in
minuscule monthly instalments via the s 65 proceedings in the
magistrate's court. Acquiescence in the execution of a judgment
must surely in logic normally bar success in an application to rescind on
the same basis as acquiescence in the very granting of the judgment
itself would."
35. AU Aggregate's position is further weakened by the fact that the application for
rescission was brought only after Mr. van As, either personally or through legal
representation, had participated in several of the liquidation proceedings. By
doing so, he engaged in the process that gave effect to the very order he now
seeks to set aside. It must accordingly be concluded that Mr. van As acquiesced
in both the existence and execution of the winding-up order. As held in Ward v
Smit 1998 (3) SA 175 (SCA) at 181, a party seeking rescission must provide a
11
satisfactory explanation for their inaction.6 Furthermore, in Hlatswayo v Mare
and Deas 1912 AD 242 at 253, the Court emphasized that once a party has
acquiesced in a judgment , the right to have it rescinded may be lost.7 In the
present matter, the applicant's prolonged inaction, coupled with participation in
the liquidation process, demonstrates a clear acceptance of the order. In these
circumstances, the application for rescission must fail.
APPLICANTS LACK OF LOCUS STAND/:
36. It was submitted on behalf of Juggernaut Trucking that the applicant, AU
Aggregate, or Mr. van As, does not have the necessary locus standi to bring this
application, taking into account the provisions of section 354(1) of the Companies
Act.
37. The deponent on behalf of the applicant is Mr. van As, who identifies himself as
the previous director of the applicant. He states that he is fully authorized to
depose to the founding affidavit on behalf of the applicant by virtue of the fact
that he is a trustee of the Frikkie van As Familie Trust, which holds the entire
shareholding in the applicant. He states that this renders the Trust a member of
the applicant for the purpose of the provision of section 354( 1) of the Companies
Act. However, the Trust is not the applicant in this matter. The only applicant in
this matter is the company, AU Aggregate, which was liquidated by the order of
this Court on 05 November 2021.
38. In terms of section 354(1) of the Companies Act, a specific class of people
possesses the requisite locus standi to bring an application for rescission before
a Court. The provisions of section 354(1) of the Companies Act are worth
repeating:
"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
Ward v Smit (Supra).
Hlatswayo v Mare and Deas 1912 AD 242.
12
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 conditions as the Court may deem fit."
39. In the matter of Matlhatse Trading Enterprise CC v Body Corporate of
Bateleu rand Others 2025 JDR 2203 (GP), this Court, after analyzing, amongst
others, the authority in Storti v Nugent 2001 (3) SA 783 (W), held that:
"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. "8
40. In this matter, there is only one applicant, AU Aggregate. Although Mr. van As
states that he has been authorised by the Frikkie van As Trust to depose to the
founding affidavit, the Trust itself is not the applicant. It therefore follows that AU
Aggregate lacks the necessary locus standito have launched these proceedings.
This application should therefore fail.
THE COSTS:
41. It was argued by Counsel on behalf of the Juggernaut Trucking that the
deponents on behalf of the company, Mr. van As and Mr. Devenier, the previous
directors of the company in liquidation, should be ordered to pay the costs of this
application for rescission in their personal capacities . The reason advanced by
Mr. van Rooyen on behalf of Juggernaut was that the creditors should not be
burdened with legal costs in this matter. The conduct of both Mr. van As and Mr.
Devenier in this matter needs to be considered closely for consideration of the
costs.
Mallhatse Trading Enterprise CC v Body Corporate of Bateleu Rand Others 2025 JDR 2203 (GP}, at paragraph 23.
13
42. The principle of awarding costs has been reiterated in the matter of Ferreira v
Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996
(2) SA 621 (CC)9 where it was held as follows:
"The Supreme Court has, over the years, developed a flexible approach to
costs which proceeds from two basic principles, the first being that the
award of costs, unless expressly otherwise enacted, is in the discretion of
the presiding judicial officer, and the second that the successful party
should, as a general rule, have his or her costs. Even this second principle
is subject to the first. The second principle is subject to a large number of
exceptions where the successful party is deprived of his or her costs.
Without attempting either comprehensiveness or complete analytical
accuracy, depriving successful parties of their costs can depend on
circumstances such as, for example, the conduct of parties, the conduct of
their legal representatives, whether a party achieves technical success
only, the nature of the litigants and the nature of the proceedings. I mention
these examples to indicate that the principles which have been developed
in relation to the award of costs are by their nature sufficiently flexible and
adaptable to meet new needs which may arise in regard to constitutional
litigation. . ... "
43. The consideration behind punitive costs is to punish a litigant who is in the wrong
due to the manner in which he or she approached litigation or to deter would-be
inflexible and unreasonable litigants from engaging in such inappropriate
conduct in the future. It has generally been said in several cases that the Court
will issue a cost award on an attorney and client scale as a matter of showing its
displeasure against a litigant's objectionable conduct. In determining whether the
behaviour of a litigant is objectionable, the Court will have regard to the nature
of the litigant's conduct.10
10 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 {2) SA 621 (CC) at paragraph 3.
Maribatsi v Minister of Police 2020 JOR 1324 (GJ).
14
44. The conduct of the parties is not the only consideration when it comes to
awarding punitive costs. In other words, the ground for awarding these costs is
not limited to punishing the offending party but includes ensuring that the
successfu l party will not be out of pocket in respect of the expenses caused to
him or her by the approach to litigation by the losing party. In the matter of
Vehicle Delivery Services a division of Onelogix (Pty) Ltd v Key Group and
Another11 it was held as follows:
"The primary underlying purpose of any costs award is to minimise the
extent to which a successful litigant will be out of pocket as a result of
litigation that he or she should not have had to endure. Costs orders often
do not even achieve that objective, and fall short of assisting the successful
litigant in fully recovering his or her expenses. It will at times be just and
equitable to award costs on a punitive scale, not just to punish vexatious
litigation, but also to assist the successful litigant in recouping their often
substantial expenses. Generally, punitive costs orders are not frequently
made. Exceptional circumstances must exist before they are warranted. "
45. In awarding punitive costs this Court held in the matter of Maribatsi v Minister
of Police 2020 JDR 1324 (GJ) that, ... the Court will look at whether there exists
evidence of intentional , outrageous , reckless or conscious disregard of the rights
of others created by the statute. The existence of such evidence will in general
be deemed sufficiently flagrant to warrant the granting of punitive costs.
46. The following factors in relation to Mr. van As are taken into consideration :
46.1. The reasons for the failure to oppose this application as given by Mr. van
As, who was the director when the application for liquidation was launched
and served. Although he submitted medical evidence to support his
allegation that he was medically unable to attend to this matter, his
11 Vehicle Delivery Services a division of Onelogix (Ply) Ltd v Key Group and Another (4655'2021) [2023) ZAFSHC 141 (11 May 2023) at
paragraph 4
15
activities during that period show that he was capable of defending this
matter if he chose to. He was able to attend Court on several occasions
to deal with the dispute of custody of his children. He also attended the
criminal court on various occasions during the same period.
46.2. After the winding-up order was granted, he participated in the liquidation
hearings after being summoned to appear. Although the hearings were
postponed several times, it is this Court's view that Mr. van As was, during
that time, aware of the purpose of the hearings. He was well aware that
the Company was liquidated when he either appeared himself at the
liquidation hearing or was represented by an attorney.
46.3. His attitude to the winding-up application can be summarised by his
assertion in the founding affidavit, where he states that he was occupied
with the issues he regarded as more important than the application
launched by Juggernau t, which he regarded as ill-advised and misplaced.
He states that he was busy with litigation that concerned not only his
livelihood, but also the wellbeing of his children, compounded by his own
well-being and the physical and mental challenges due to his medical
conditions.
46.4. With this attitude that Mr. van As displayed towards the winding-up
application, there is no reason why he should not bear the costs of this
application for rescission. There is no reason why the respondent or the
creditors of AU Aggregate should be out of pocket as a result of this
application. Therefore, punitive costs are justifiable.
47. In relation to Mr. Devenier, the following facts are relevant:
4 7 .1. Mr. Devenier took over the position as the director of AU Aggregate during
the end of August 2021. He has attested to a supporting affidavit in this
application for rescission but does not offer any explanation for failing to
oppose the winding-up application and for the delay in bringing the
rescission application.
16
·-------- -
47.2. Mr. Devenier acknowledged in writing on 12 August 2021 that an
application was launched against AU Aggregate by Juggernaut Trucking.
However, in his supporting affidavit in this rescission application , he states
under oath that he was never aware that an application for the winding
up of the AU Aggregate was made. Mr. Devenier deliberately
misrepresented the true facts about his knowledge and involvement in this
matter.
48. It is therefore my view that both Mr. van As and Mr. Devenier should bear the
cost of this rescission application in their personal capacities on a punitive scale.
49. Under the circumstances, I make the following order:
49.1. This application for rescission of the winding-up order of this Court of 05
November 2021 is dismissed.
49.2. Mr. Fredrik Johannes van As and Mr. Ferdinand Smartenryk Devenier are
ordered to pay the costs of this application in their personal capacities ,
the paying on an attorney and client scale.
Counsel for the Applicant
Attorney for the Applicant
Counsel for the Respondent
Attorneys for the Respondent I
ACTING JUDGE
HIGH COURT GAUTENG DIVISION, PRETORIA
Adv DC du Plessis
Scheepers and Aucamp Attorneys
Jaco van Rooyen
Donn E Bruwer Attorneys
17
Date heard 07 February 2025
Date of the Judgement 26 June 2025
18