REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number : 2024-26563
In the matter between:
In the matter between:
Morwell Plant Hire (Pty) Ltd. APPLICANT
and
Tseke Construction CC RESPONDENT
___________________________________________________________________
JUDGMENT
Johann Gautschi AJ
[1] This is an opposed application for the final winding up of the Respondent in which
the Applicant relies on the inability of the Respondent to pay its debts in terms of
section 344 (f) and 345 (1) (c) of the Companies Act 61 of 1973 read with sections
69 (1) (c) and 69 (2) of the Close Corporation Act 69 of 1984.
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
______________ _________________________
DATE SIGNATURE
[2] The Applicant ’s case is based upon the Respondent ’s inability to pay its debts in
terms of Section 344 (f) of the Companies Act 1973 pursuant to a demand for
payment in terms of section 345 of the Companies Act 1973 made by letter dated
8 January 2024 and a notice in terms of section 69 of the Close Corporations Act
1984 served at the registered address of the Respondent on 15 January 2024.
[3] The Respondent raises only two issues in its answering affidavit .
[4] Firstly, that it does not “entirely disagree that the Respondent is indebted to the
Applicant ” because it disagrees with the correctness of two of the items in the
Applicant ’s statement of account for reflecting a balance of R357,322 owed by
the Respondent pursuant to plant hired by it from the Applicant . However, the
Respondent only disputes amounts totalling R63,889.75 in two of the invoices by
reason of which the Respondent alleged that “the invoice amounts are
exaggerated”. Consequently, there is an amount exceeding R290,000 which
remains having an undisputed. Furthermore, the Respondent ’s answering
affidavit responds as follows to the Applicant ’s allegation that the Respondent is
hopelessly insolvent and that it has been granted ample time to make a payment
but, despite several promises that never materialised: “The contents herein are
noted safe to state that the Respondent is hopelessly insolvent and must be
subject to a liquidation process. The Applicant is currently appr opriately pursuing
Sayiyeni on the basis of cession agreement ”.
[5] The second issue raised by the Respondent relates to the above -mentioned
cession agreement (the cession defence) . Respondent ’s counsel submits as
follows in his heads of argument: “ – – the application of the Applicant to put the
Respondent on the final liquidation is not justifiable since the Respondent admits
only to the debt that was ceded to Sayiyeni and the Applicant is aware of this fact
and agreed to the debt being ceded to Sayiyeni. This is evident in that similar
proceedings have been instituted by the Applicant in the Limpopo Polokwane
High Court against Sayiyeni for the same date – –. It is therefore the
Respondent ’s admission that its defence is bona fide, reasonable and justifiable
and the Court should not grant the order winding up the Respondent . – – – The
parties entered into a second agreement, which is a cession agreement between
the Applicant, Respondent and Sayiyeni in terms of which the Respondent ceded
all the debts emanating from the plant hire agreement to Sayiyeni. The Applicant
was at all material times aware of the fact Sayiyeni was not responsible for the
debts owing by the Respondent hence the Applicant instituted a similar
application Polokwane division of the Limpopo High Court. The Respondent
acknowledges that it was indebted to the Applicant but denies the amounts as
reflected by the Applicant in this application and secondly denies that currently it
is indebted to the Applicant since the debt was ceded to Sayiyeni. Therefore the
Applicant has a right of recourse against Sayiyeni as it has rightfully done so and
not against the Respondent .”
[6] The cession defence is misconceived. The terms of the written cession attached
to the founding affidavit are not in dispute. As pointed out by the Applicant s in
its replying affidavit, “the cession agreement between the Applicant and the
Respondent only made provision for the Applicant to recover its funds from the
Sayiyeni Communications (Pty) Ltd as a result of the fact that the Respondent
alleged that Sayiyeni Communications bracket Ltd is indebted to itself . – – – – It
has further transpired that Sayi yeni Communications (Pty) Ltd is not indebted to
the Respondent whatsoever as per annexure “RA1”. Hence, the aforementioned
entails that the Respondent is commercially insolvent and there is no security for
its debt against the Applicant. ” Annexure RA1 referred to 1s a statement of the
Respondent issued to Sayiyeni Communications (Pty) Ltd dated 30 December
2023 which reflects a nil balance owing to the Respondent .
[7] The mere fact that the Respondent ceded to the Applicant a debt allegedly owed
to it by Sayiyeni does not serve to extinguish the aforementioned balance of not
less than R290,000 admittedly owed by the Respondent to the Applicant . It is
trite that the onus is on the debtor to prove a defence of payment, but the
Respondent ’s answering affidavit went no further than to allege a cession to the
Applicant of its alleged rights to claim from Sayiyeni . Besides this misconceived
cession defence, there is the Resp ondent ’s admission that it is hopelessly
insolvent.
[8] In the circumstances I am of the view that the Applicant should be granted an
order for the provisional winding up of the Respondent . At my request the
Applicant provided further addresses for service as shown in the order below so
as not to limit service to the registered address of the Respondent .
IT ISORDERED THAT:
1. The abovementioned Respondent is hereby placed in provisional liquidation with
return dated 11 August 2025.
2. The Respondent and all interested parties are called upon to show cause on 11
AUGUST 2025 why, if any, th is order should not be made final:
3. This provisional order is to be served by the Sheriff upon the Respondent and upon
the employees of the Respondent at its registered address and at the following
addresses:
3.1. 54 Lyndhurst Estates, Corlett Drive, Lyndhurst ;
3.2. 999 Bergrivier Drive, Chloorkop;
3.3. 112 Johannesburg Road, Lyndhurst ;
3.4. 321 Commercial Street, Wadeville.
4. This provisional order be served upon the Master of the High Court and the South
African Revenue Service by way of filing notice, by hand and/or electronically;
5. This provisional order be published in one each of the Government Gazette and “ The
Star” newspaper.
6. The costs of this application be cost in liquidation.
___________________________
Johann Gautschi AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant: ADV E NEL
Instructed by: WYNAND DU PLESSIS ATTORNEYS
(011 7601058 )
For the F Respondent: ADV TE MOREMI
Instructed by: MAUBANE INC. ATTORNEYS
(066 5621647)