IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024- 127178
In the matter between:
SUMENTHREN POOBALAN PILLAY
Applicant
and
LOPDALE ENERGY (PTY) LTD
Respondent
Coram : Johann Gautschi AJ
Heard : 11 June 2025
Delivered : This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date and time for hand- down
is deemed to be 10h00 on 15 July 2025
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
................................... ……………………
SIGNATURE DATE
Yes
15 July 2025
JRG
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 (the Act) .
[2] The Applicant conducts business as an importer and distributor of petroleum products from Mozambique to Johannesburg. Its sole director and 100%
shareholder is Edward Mwanandimandi (Edward), a Zimbabwean national.
[3] The debt of the Respondent upon which the Applicant relies has its origin in a business relationship in terms of which the Applicant lent substantial amounts to
the Respondent by way of three investment agreements concluded in the first
quarter of 2021 (the investment agreements) in terms of which the Applicant lent a total of R7.7 million to the Respondent as an investment in the Respondent’s
business of importing and distributing petroleum products and processing
substantial amounts of diesel at its diesel processing plants in Glen Austin, Johannesburg.
[4] Following the Respondent’s breach of the investment agreements, the Applicant and Respondent on 18 October 2021 concluded a written settlement agreement
and an acknowledgement of debt in respect of which Edward also signed as co-
principal debtor and surety for a total indebtedness of R18.75 million.
[5] In January 2022 the Respondent breached the settlement agreement by failing to pay the amount of R1.5 million which was due on 4 January 2022. In a letter
dated 4 January 2022 to the Applicant, Edward advised that the Respondent was
unable to pay the full amount 4 January 2022 and undertook to pay R1 million
on that day and the balance of R500,000 within 14 days.
[6] The Applicant responded by letter dated 5 January 2022. He advised that because the Respondent ’s breaches of the agreement the Applicant would be
forced to borrow an amount of R 500,000 which would only be advanced to him
at an extra charge of R50,000. Consequently, he advised his preparedness to
grant the indulgence sought on condition that the Respondent pay by no later
than 2 PM on 4 January 2021 the R50,000 which the Applicant would be charged
for borrowing the R500,000. He stipulated that the indulgence would only be for
a period of 14 calendar days which meant that the outstanding R500,000 would then be due and payable by not later than 18 January 2022, that no further
indulgence would be granted and if the Respondent should fail to make payment
legal action would be commenced without further notice to it.
[7] The Respondent having failed to pay the R500,000 by 18 January 2022, his present attorney of record addressed a letter dated 2 February 2022 to the
Applicant advising of the Respondent’s inability to pay the R500,000 and
requested a restructuring of the agreement to allow the Respondent to pay off
the debt at the rate of R500,000 before the seventh day of each month. That led
to the signing of a new acknowledgement of debt on 14 February 2022 (the
AOD). The AOD shows details of the opening balance of R15.5 million and the
monthly payments which had to be made in a schedule, annexure A to the AOD.
In terms of the AOD varying amounts would be paid until 15 April 2022.
Thereafter the balance outstanding would be paid at the rate of R500,000 per
month commencing on 15 May 2022 and no later than the 15
th of each
succeeding month. Interest would accrue on the outstanding amount on the
reducing balance at the rate of 8.25% per annum
[8] The Applicant’s case is that the Respondent failed to pay the R500,000 that was
due on 15 September 2024 as well as the R500,000 that was due on 15 October
2024. Consequently, by reason of clause 6 of the AOD which provides that “ – –
in the event of default, the full balance outstanding at date of default, shall immediately become due and payable” , as at 15 September 2024, the date of
default, the full amount due and owing and payable was R1,446,916 .
[9] The Applicant says that he “ engaged Edward the following day to follow up on
the payment. Edward was unable to make payment ”. Then he engaged Edward
again on WhatsApp on 19 September 2024 requesting to be advised on
payment. In response Edward referred to payments that he was expecting from
others which the Applicant understood to be creditors of the Respondent. The
following day, 20 September 2024 the Respondent again sent a WhatsApp
stating “– – we are waiting for some payments to come in soon then will pass on
to you ASAP sorry for the delay people have let me down – –“.
[10] The Applicant then by WhatsApp sent a letter of demand dated 26 September
2024 in terms of section 345 (1) (c) of the Act to the Respondent . The
Respondent responded “ let me push payment in the coming week and
endeavour to pay around the 20s the other payments and going to the client’s
office now ”. Despite that, no further payment from the Respondent was received
by the Applicant.
[11] The Applicant then launched an urgent application for liquidation of the
Respondent (the urgent application). The Applicant explained that the urgent
application was withdrawn on 15 October 2024 by reason of erroneous documentation which had been attached to that application. T he Applicant in his
founding affidavit in the present application drew attention to the contents of the answering affidavit filed by the Respondent in that urgent application and, inter
alia, to the fact that the Applicant had included an erroneous payment schedule
as annexure FA26 to the founding affidavit in the urgent application. Its
significance lies in the statements made by Edward in the answering affidavit
filed for the Respondent in the urgent application which contradict the contents
of the defenc es raised by the Respondent in the answering affidavit in the present
application.
[12] In the Respondent ’s answering affidavit in the urgent application Edward stated
at paragraph 25 that “I must start off by clearly stating that I acknowledge that as of February 2022 the respondent was indebted to the applicant in the amount of
R15,500,000 (fifteen million five hundred thousand rand) the underlying basis
being the failed investment agreeme nt that was followed by the signed
acknowledgement of debt” .
[13] Further in paragraph 30 of that answering affidavit he stated that: “From 25
February 2022 to August 2024, I have in total actually paid the Applicant an
amount of R15,800,000, being R 300,000 in excess of the R 15,500 ,000 that was
brought forward on 14 February 2022 according to his annexure FA 26” .
[14] Moreover, in the urgent application the Respondent attached the financial
statements of the Respondent for the year ended February 2023, two pages of
which were attached to the founding affidavit in the present application. The full
financial statements w ere attached to the answering affidavit in this application
as annexure LE 3 . The Applicant points out that the auditors qualified the
financial statements by stating that “ we do not express an audit opinion on these
financial statements” and that the financial statements reflect the position at 28
February 2023, almost 2 years earlier. They do not reflect the Respondent’s
admitted liability to the Applicant which, according to the Applicant, stood at
R9,726,735 as at 28 February 2023, the date of the financial statements, whereas the financial statements show no l iabilities as at 28 February 2023.
[15] In addition, far from proving the Respondent’s solvency as at the time of launching of this application, even as at 28 February 2023 the full financial
statements annexed to the answering affidavit in this application show total
current assets consisting of cash and cash equivalents of only R62,152, the
remaining assets being non- current assets consisting of property, plant and
equipment and loan to group company totalling just under R43 million.
[16] The Respondent’s answering affidavit submitted in limine that the application had
been served on the Respondent by WhatsApp and that it should be dismissed for lack of proper service of the application by the sheriff. That was without
substance as the Respondent filed an answering affidavit and appeared by
counsel to oppose the application also on the merits. In the result this argument
was, understandably, not persisted in during oral argument by Respondent’s counsel.
[17] The thrust of oral argument by Respondent’s counsel was that the Applicant’s repeated use of winding up proceedings constituted an abuse of process to
enforce payment of a debt in respect of which, according to the Respondent’s
affidavits, the Respondent had raised a genuine and bona fide defence to the
Respondent’s alleged liability based on reasonable grounds and involving factual
disputes that require reference to oral evidence; that the February 2023 financial
statements showed that the Respondent is commercially solvent; and finally, that
even if I were to find that the requirements for a final winding up had been met, I
should exercise a discretion to dismiss the application, alternatively, refer the
matter for the hearing of oral evidence.
[18] The genuine and bona fide defence contended for was based on the submission
that the AOD incorrectly reflected in opening balance of R15.5 million, whereas
it should only have been reduced by R500,000 because it failed to take into
account a payment of R500,000 which had been made by the Respondent on
the very day of signing of the AOD, namely 14 February 2022. Proceeding on
that basis it was submitted by reference to a schedule of payments attached to
the answering affidavit that: firstly , the 14 February 2022 payment of R500,000
(the first payment) should have been shown as a payment in reduction of the
R15.5 million and that there were a further three payments which had incorrectly
not been reflected in reduction of the amount owing on the AOD, namely,
secondly, R50,000 on 20 February 2022 (the second payment), thirdly, R350,000 on 14 March 2022 (the third payment ) and fourthly, R289,800 on 17 May 2022
(the fourth payment). I shall now address these individually by reference to the detailed contents of the Applicant’s replying affidavit where these four payments
were dealt with and where it was , in my view, convincingly demonstrated that
none of them could credibly be taken into account in reduction of the AOD debt .
That being so the Applicant in my view proved that the Respondent has not
raised a genuine and bona fide defence based on reasonable grounds.
[19] The first payment : the R500,000 paid on 14 February 2022. There is no
substance in this alleged defence. Not only was it contradicted by the
aforementioned statements made under oath by Edward on behalf of the
Respondent in the urgent application in which he acknowledged that the amount
owed under the AOD was R15.5 million, but also the timeline explained in detail
by the Applicant in its replying affidavit showed that the R500,000 payment made
on 14 February 2022 was made at 12:24:06 as reflected on the proof of payment
annexed to the answering affidavit. It was thus paid prior to signing of the AOD
later that afternoon after a draft thereof had been emailed to the Respondent’s
attorney at 15:45 that afternoon. Importantly, the attorney responded to the draft
by letter dated Accordingly, that payment served to re duce the existing
outstanding balance from R16 million to R15.5 million as is borne out by the
exchange of WhatsApp messages and correspondence annexed to the replying
affidavit. Moreover, an adverse inference must be drawn against the
Respondent for failing to deal with the further contents of the replying affidavit by way of a rejoining affidavit when it could and should have done so if indeed it
was able to counter the contents of the reply ing affidavit.
[20] The second payment : the Respondent’s own schedule (annexure LE1b) shows
that the R50,000 payment relied upon was made on 20 February 2022. The
Applicant’s replying affidavit explained that it was made for legal services
rendered to Edward in respect of a SAE Revenue Services matter. He annexed
screenshots of his conver sation with Edward on 18 February 2022 and on 20
February 2022 which support the Applicant’s version on the probabilities. Given
the relationship between the parties as illustrated by the multiple WhatsApps
attached to the papers, the absence of an invoice from the Applicant as submitted
in argument for the Respondent does not in my view detract from the explanation
given by the Applicant . Here again the Respondent’s failure to file a rejoining
affidavit to counter the aforegoing must count against the Respondent.
[21] The third payment: the schedule of payments annexed to the Respondent’s
answering affidavit shows two payments of R350,000 each, both on 14 March
2022. That was obviously an error as was conceded in oral argument on behalf
of the Respondent, correctly in my view.
[22] The fourth payment: in this instance the WhatsApp messages attached by the
Applicant to his replying affidavit provide overwhelming and convincing proof that
this payment was merely reimbursement by the Respondent to the Applicant for US$18,000 in cash which the Respondent had received from the Applicant. The
Respondent’s counsel was not able to provide any argument to counter that
evidence. Also in this instance an adverse inference must be drawn from the
Respondent’s failure to file a rejoining affidavit to counter the Applicant’s
evidence in its replying affidavit.
[23] In the result the Applicant has in my view convincingly shown that the Respondent is insolvent and unable to pay it states as contemplated by section
344 (f) of the Act and that the defences raised by the Respondent are without
merit and do not constitute genuine and bona fide defences. In the
circumstances the Applicant is, in my view, entitled to an order for the final
winding up of the Respondent.
IT ISORDERED THAT:
1. The estate of the Respondent is placed under final liquidation in the hands of
the Master of the High Court;
2. The costs of this application are costs in the liquidation of the Respondent’s
estate.
___________________________
JOHANN GAUTSCHI AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant: Adv N Strydom Instructed By: SP Attorneys Inc
For the Respondent: Adv KL Kelaotswa
Instructed By: Alibi Inc. Attorneys