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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 054133/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 31 July 2025
SIGNATURE:
In the matter between:
DANIEL TERBLANCHE N.O. FIRST APPLICANT
HILMI DANIELS N.O. SECOND APPLICANT
and
S NGOMANE INCORPORATED RESPONDENT
Coram: Groenewald, RJ (AJ)
Heard on: 28 July 2025
Delivered: 31 July 2025 - This judgment was handed down electronically by
uploading to Caselines.
JUDGMENT
GROENEWALD AJ
Introduction:
[1] This is the return date in a winding -up application, where a provisional
winding-up order was granted on 28 August 2024. The application for the winding up
of Respondent is brought in terms of the provisions of sections 344(f), 344(h) and
346 of the previous Companies Act, Act 61 of 1973 ("the previous Companies
Act") and section 81(1)(c)(ii) of the Companies Act 71 of 2008 ("the 2008
Companies Act").
[2] The Respondent is not a layperson, being an incorporated company of
attorneys with its registered address located in Pretoria. The Respondent's deponent
is Mr Simeon Ngomane which describes himself in the affidavits as a 'duly admitted
attorney practising under the name and style S Ngomane Attorneys'.
[3] The Respondent in the main winding -up application ("the Main Application")
initially only filed a notice of intention to oppose, but failed to file an answering
affidavit before the provisional order was granted. The notic e was delivered several
months after the Main Application had been served and long after the ten days
afforded in the notice of motion had already expired.
[4] Subsequent to the granting of the provisional winding -up order on 28 August
2024, the Respondent proceeded to file its answering affidavit only on 29 November
2024. It is not unimportant that both the notice of intention to oppose and the
answering affidavits were delivered mere days before the Main Application and the
first return date was to be heard.
[5] There are three applications which this court is called upon to adjudicate upon,
namely:
[5.1] First, the Main Application, wherein the Applicant seeks a final winding -
up order in respect of the Respondent;
[5.2] Second, an application brought in terms of Rule 30A(2), read with Rules
6(5)(a) to (e) and 42(a) and/or the Common Law, which strikes at the
provisional order which was granted on the 28 th of August 2024. For
convenience, this application will be referred to as the Rescission Applicat ion;
and
[5.3] Third, an application ostensibly brought in terms of Rule 30A(2), read
with Rule 7(1) and (4), which relates to the response to a Rule 7 notice
delivered by the Respondent calling into question the authority and mandate
of Van der Merwe & Associates to act on behalf of the Applicants in the Main
Application. For convenience, this application will be referred to as the Rule
Application.
[6] The Main Application is premised upon a common cause cost order ("the Cost
Order") which was granted against the Respondent (Mr Ngomane being the First
Applicant therein and de bonis propriis against the Respondent as the attorney in
that case) on 17 Novem ber 2022, under case number 34251/21 of this Honourable
Court. Mr Ngomane was also one of three applicants cited in the Cost Order, albeit
ostensibly nomine officio.
[7] The relevant paragraph of the Cost Order reads as follows:
"The Applicants and S Ngo mane Attorneys are ordered to pay the costs de
bonis propriis jointly and severally on the scale as between attorney and
client which costs shall include the wasted cost of 3 and 17 August 2021."
(Own emphasis applied.)
[8] The Respondent first sought lea ve to appeal the Cost Order, which was
dismissed with costs on 16 February 2023. The order dismissing the application for
leave to appeal provides that: "The application for leave to appeal is dismissed with
cost, to be paid by the applicants jointly and s everally, the one paying, the other to
be absolved". Leave to appeal was thensought from the Supreme Court of Appeal.
[9] On 21 September 2022, the Supreme Court of Appeal dismissed the
application for leave to appeal with costs on the grounds that 'there is no reasonable
prospect of success in an appeal and that there is no other compelling reason why
an appeal should be heard'.
[10] The Respondent then approached the Constitutional Court to reconsider the
Cost Order of costs de bonis propriis , but, on t he 4 th of September 2023, that
application to the apex Court was also dismissed with cost.
[11] On 21 November 2023, by agreement between the cost consultants of the
Applicants and Respondent, the Taxing Master issued an allocatur in the amount of
R200,000.00.
[12] It is worth mentioning that Van der Merwe & Associates acted as attorney on
behalf of the Applicants in all of the preceding matters, including the respective
applications for leave to appeal, which are referred to above. The Taxed Bill of Cost s
also refers to 'fees and disbursements due to Van der Merwe & Associates', and the
invoice by counsel acting on behalf of the Applicants was directed to Van der Merwe
& Associates. This was never disputed, nor was an objection raised during taxation
to the contention that Van der Merwe & Associates were the Applicants' attorneys.
[13] The identity of the parties, the fact that the Respondent conducts his business
within the jurisdictional area of this Honourable Court and that the Respondent's
registered address is within the jurisdictional area of this Honourable Court are not in
dispute. There can be no doubt that this Court is seized with the jurisdiction to deal
with both the interlocutory and the Main Application.
[14] It is also not in dispute that the Applicants proceeded to tax their bill of cost,
and the cost orders granted in favour of the Applicants are attached to the founding
and the cost orders granted in favour of the Applicants are attached to the founding
affidavit as annexures "B" to "E".
[15] It is further common cause that the Respondent made a payment of a portion
of the taxed bill of cost. There is a dispute whether the Respondent is liable for the
payment of the full bill of cost or only a pro -rata portion thereof. I shall deal with this
issue below.
[16] It is not unimportant that the Respondent did not present a ny contradictory
evidence to demonstrate that the Respondent is not insolvent or that the Respondent
is in a position to make payment of the claimed amount, if such amount is in fact due.
One would have expected the Respondent to make a frank disclosure of its financial
position, to provide details of its assets and of its creditors. This was not done.
[17] On 24 November 2023, Van der Merwe & Associates, ostensibly acting as the
Applicant's attorneys, delivered a letter of demand to the Respondent to make
payment of the taxed bills of costs. On the 5 th of December 2023, a further e -mail
was dispatched, also by Van der Merwe & Associates, to the Respondent for
warning that if payment is not made that the Sheriff would be instructed to execute
the writ.
[18] On 5 December 2023, the Respondent sent a letter to Van der Merwe &
Associates, where the following was recorded in paragraph 3 thereof:
"We however, hereby request indulgence to pay the full amount of the taxed
bill of cost before or by the 30 April 2023 (sic). The reason for our request is
because we need to raise some funds in order for us to be able to pay the
taxed bill of cost in this matter''.
[19] The content of this letter is not unimportant. Not only does it acknowledge that
the Respondent accepted liability for the full amount of the taxed bill of cost, but also
insofar as there was no challenge to of the authority of Van der Merwe & Associates
to act on behalf of the Applicants.
[20] The Sheriff proceeded to execute a writ of execution a gainst the Respondent,
and the return reflects that the Respondent only had assets sufficient to cover
approximately R12 000 of the debt.
[21] On 8 August 2024, the Respondent sent a letter to Van der Merwe &
Associates, not denying the indebtedness nor d isputing Van der Merwe &
Associates' mandate, but stating the following:
"Kindly take note that the fact that we do not answer each and every letter you
addressed to us, that does not mean ignoring you. ( sic) The fact of the matter
is that it's a well -known fact that the owed amount needs to be paid and by
then we are not in a position to settle that account. However, the day we get
something we shall for sure pay."
[22] Ultimately, the Respondent paid R66 070 of the total Taxed Bill of R200
000.00. The Respondent contends that this is the amount for which it was liable for.
How it arrives at this amount, which is slightly less than a third (R66 666.67) of the
R200 000.00, is not properly explained in the Answering Affidavit.
[23] On 16 May 2025, the pres ent winding -up application was launched and
subsequently served upon the Respondent.
[24] On 15 August 2025, the Applicant filed a supplementary affidavit which was
uploaded to Case Lines in apparent anticipation of the date for which the winding -up
application was set down to be heard. The content of the supplementary affidavit
expands further on the facts relied upon in the founding affidavit. The supplementary
affidavit is a short document consisting of some 11 numbered paragraphs.
[25] On 15 August 2 024, the Applicants, under circumstances where the time
period afforded by the Rules to deliver a notice of intention to oppose had already
expired and where, to that date, no opposition was noted, delivered a short
supplementary affidavit.
[26] Only on t he 22nd of August 2024, approximately 3 months after the issue of
the liquidation application, the Respondent delivered its notice of intention to oppose.
In other words, some seven calendar days after the supplementary affidavit was
uploaded to Caselines. Albeit that the Respondent complained that the Respondent
was belatedly invited to the Caselines file by the Applicant, it is clear that the
Respondent did have access to the case file before the matter was heard on the 28 th
of August 2024 by the Honourable Justice Francis-Subbiah.
[27] Albeit that the Respondent's counsel in argument continued to deny that the
Respondent had access to Caselines before the granting of the provisional order, the
objective facts demonstrate the contrary. Not only is this fa ct stated under oath by a
member of the Applicants' attorneys, but the audit trail on Caselines (a screenshot of
which is inserted below) demonstrates the date when the attorney, Mr Ngomane,
was granted access to the Caselines File:
Mr Simeon Ngomane Invited Attorney 26 August, 2024 Miss Kim Marx Master Bundle
14:24SAST
[28] There is therefore no merit in the denial that the Respondent did not have
access to the Caselines file. It must be kept in mind that the Respondent only
belatedly delivered its notice of intention to oppose the application on 22 August
2024. The Respondent was invited to Caselines only four days later, on the 26 th of
August 2024. The Applicants cannot be blamed if the Respondent may have delayed
accessing the Caselines folder.
[29] The Respondent did not attend court on the 28 th of August 2024, nor did it
seek confirmation from the Applicants that the matter would not proceed on that date.
On that date, the following order was granted:
"1. The Applicants are granted leave to file their supplementary affidavit
dated 14 August 2024 and it is admitted into evidence.
2. The Respondent is provisionally wound up and placed in the han ds of
the Master of High Court.
3. A Rule nisi is issued calling upon all persons who have a legitimate
interest to put forth their reasons why this court should not order the final
winding-up of the Respondent on 25 October 2024 at 10h00.
4. This order must forthwith be served upon:
4.1 The Respondent's registered address.
4.2 The South African Revenue Service.
4.3 The Master of the High Court, Pretoria.
4.4 The Respondent's employees, if any.
4.5 The Respondent's employees' trade unions, if any.
5. Costs are costs in the administration of the estate on a party and
party scale."
[30] Only on 16 October 2024, the Respondent proceeded to deliver a notice in
terms of Uniform Rule 7(1). The main application had been served on the
Respondent on 26 May 2024. In other words, the Rule 7(1) notice was delivered five
months after receipt of the winding-up application.
[31] On 23 October 2024, a response was delivered to the Rule 7(1) notice, which
forms part of the subject matter of one of the two interlocutory applications which are
referred to herein.
[32] The Respondent proceeded to deliver its answering affidavit in the winding
up application and dealt therein with both the founding and the supplementary
affidavits delivered by the Applicants.
Sequence of dealing with the applications:
[33] Mindful of the three applications that are to be decided, it is prudent to first
deal with the Rule 7 application. The result thereof will directly impact both the
Rescission Application and the Main Application. It must follow that if the Rule 7
Application is successful, the Main Application cannot proceed.
[34] If the Rule 7 Application is not successful, the Rescission Application is next
in sequence, as the status of the supplementary affidavit and potentially of the
provisional order may be affected by the outcome of that application. And lastly , if
the Rule 7 Application is not successful, the Main Application is to be dealt within the
ambit of the result of the Rescission Application.
[35] At the onset of the argument, the proposed sequence of dealing with the
applications was debated with cou nsel. Both counsel agreed that all three
applications would be argued at the same time, but subject to the qualification that if
the Rule 7 Application succeeds, that it would, of course, impact whether the Main
Application could be decided or not.
[36] For purposes of convenience, the parties will be referred to as in the Main
Application.
[37] Whilst the Respondent's counsel initially filed short heads of argument, heads
of argument in respect of both the Rule 7 Application and the Rescission Applicatio n
were only uploaded to Caselines some 29 minutes before the matter was to be
heard. The heads of argument were not served on the Applicants' attorneys.
[38] I asked Mr Shakoane SC whether he had informed his opponent, Mr Lotter, of
the further heads of a rgument, to which he answered in the negative. Mr Lotter was
not aware of the further heads of argument, and hard copies were only, following my
request, provided to Mr Lotter. The Respondent also did not participate in the
compiling of the joint practice note as required by the relevant directives of this Court.
The way in which this was dealt with is unfortunate, to say the least.
[39] It is now prudent to deal with the Rule 7 Application first:
The Rule 7 Application:
[40] On 16 October 2024, the Respondent proceeded to deliver a notice in terms
of Uniform Rule 7(1). The main application had been served on the Respondent on
26 May 2024. In other words, the Rule 7(1) notice was delivered five months after
receipt of the winding-up application.
[41] On 23 October 2024, the Applicants delivered their response to the Rule 7(1)
in the form of a document styled as "Confirmation of authority a mandate to act,
signed by the Second Applicant, who is the joint liquidator ", recording and confirming
that:
"1. VAN DER MERWE & ASSOCIATES ING (represented by Gert Van der
Merwe) is authorised and mandate to represent the Applicants under case
number 054133/2024.
2. VAN DER MERWE & ASSOCIATES ING (represented by Gert Van der
Merwe) was duly authorised and mandated to represent the Applicants in the
proceedings in which the cost orders were granted against the Respondent,
specifically and including case number 34251/21.
3. VAN DER MERWE & ASSOCIATES ING (represented by Gert Van der
Merwe) are instructed to represent the Applicants in all matters necessary to
protect their interest and execute any orders obtained against the Respondent
or any of its directors".
[42] It is not unimportant that the response was delivered where Van Der Merwe &
Associates had, in all of the preceding litigation and subsequent applications for
leave to appeal, represented the Applicants. They had also represented the
Applicant in the process of taxing the bills of costs, and they represented the
Applicants in the correspondence relating to the costs issue. Even the invoice from
the counsel who had previously acted for the Applicants and formed an annexure to
the Taxed Bill of Costs was addressed to Van der Merwe & Associates as the
instructing attorney. Until the Rule 7(1) notice was delivered Van der Merwe &
Associates' authority to act was never disputed by the Respondent.
[43] Dissatisfied with the response to its Rule 7(1) notice, the Respondent
launched an application ostensibly in terms of Rule 30A(2), read with Rule 7(1) and
(4) - this is the Rule 7 Application. The Rule 7 Application was delivered on 8
November 2024.
[44] In that application, which is found in section 19 on Case Lines, the
Respondent, inter alia, seeks an order declaring that the Applicant s in the Main
Application failed to satisfy the court that Mr Gert Van der Merwe and the firm, Van
der Merwe & Associates are properly authorised and mandated to institute the
application proceedings for the liquidation of S Ngomane Incorporated or to act on
behalf of the Applicants in the Main Proceedings. Ancillary relief includes a
declarator that Mr Van der Merwe and the firm, Van der Merwe & Associates, may
not act on behalf of the Applicants (in the Main Application) in the liquidation
proceedings, that the institution of the liquidation application be declared
unauthorised, invalid and set aside as well as a of alternative relief in respect thereof.
[45] Uniform Rule 7(1) provides as follows:
"Subject to the provisions of subrules (2) and (3) a po wer of attorney to act
need not be filed, but the authority of anyone acting on behalf of a party may,
within 10 days after it has come to the notice of a party that such person is so
acting, or with the leave of the court on good cause shown at any time b efore
judgment, be disputed, whereafter such person may no longer act unless he
satisfied the court that he is authorised so to act, and to enable him to do so
the court may postpone the hearing of the action or application."
[46] The underlying purpose o f Rule 7(1) is, on the one hand, to avoid cluttering
the pleadings unnecessarily with resolutions and powers of attorneys whilst on the
other hand, it provides a safeguard to prevent a cited person from repudiating the
process and denying his or her author ity in respect of issuing the process. There is
process and denying his or her author ity in respect of issuing the process. There is
no doubt that Rule 7(1) also applies in both action and application proceedings.
[47] Rule 7(1) makes it clear that, subject to sub -rules (2) and (3) [which deal with
appeals], it is not necessary to file a power of attorney, but the authority to act may
be challenged within the context of the rule.
[48] The Applicants made much thereof t hat during the preceding litigation, the
Respondent never raised the authority of Van der Merwe & Associates as a bone of
contention. In fact, the Respondent engaged in correspondence even post the cost
order with Van der Merwe & Associates and sought an i ndulgence in respect of an
extension to make payment without uttering a word in respect of Van der Merwe &
Associates' authority to represent the Applicants. This is a relevant factor, but is by
no means decisive.
[49] Arguably, the delivery of the Rule 7 notice could have been triggered by the
anomaly which occurred when Van der Merwe & Associates initially launched an
application for the winding -up of the Respondent in its own name. It is correctly
pointed out in the papers, and it does not appear to be in issue, that the cost orders
were granted in favour of the Applicants and not in favour of Van der Merwe &
Associates. This apparent error was corrected (as Mr Lotter put it) when that first
application was withdrawn, and the costs were tendered in respect thereof.
[50] In considering the matter, regard is not only taken of the surrounding facts but
also specifically in respect of the response delivered to the Rule 7(1) notice.
[51] The Applicants directly raised the delay in the delivery of the Rule 7( 1) notice.
It is so that the delay in the delivery of the Rule 7(1) notice is not explained in the
Rule 7 Application. The Rule was considered by Collis J in Kaap-Vaal Trust (Pty)
Ltd v Speedy Brick & Sand CC (23143/2020) [2021] ZAGPPHC 668 (18 October
2021) where the Court dealt with a delay of 37 days (not five months as is the case
here) in the delivery of the Rule 7(1) notice required an application for condonation.
here) in the delivery of the Rule 7(1) notice required an application for condonation.
The applicant in Kaap-Vaal Trust neither explained nor requested leave from the
Court to dispute the authority of the attorneys outside of the 10 -day period. The
Court held that where a litigant fails to adhere to any time limit provided for in any
rule of court, Rule 27(3) specifically permits such litigant to seek condonation for its
non-compliance. In that case, the Court dismissed the application on the basis that
the applicant therein couldn't be granted relief on the merits in circumstances where
it, by itself, was in flagrant disregard of the rules of court.
[52] In answer to the App licants' reliance on Kaap-Vaal Trust the Respondent
referred to Masithela N.O. and Others v Master of the High Court Pretoria and
Others (60899/2021) [2024] ZAGPPHC 287 (19 March 2024), but this case is
clearly distinguishable as (recorded in par 39.7 of t hat judgment) in that case "...no
objection was taken by the Applicants that the Rule 7 challenge was out of time. In
the Answering Affidavit filed on behalf of the Applicants in opposition to the Rule
30A(2) application no point, whether in limine or at a ll, was taken in respect of the
late challenge in terms of Rule 7." The first time that this was raised was at the
hearing of the Rule 30A(2) application, when senior counsel appearing on behalf of
the Applicants, in passing, made mention that the Rule 7 c hallenge was filed at a
very late stage. No specific challenge was made to argue that, as a consequence of
the late challenge, the Rule 7 Notice was defective or void. Therefore, the delay
point was not properly advanced on the papers, and on that basis, t he point could
not be entertained.
[53] It follows that each matter must be decided on its own merits. In the present
matter, the delay point was pertinently raised both in the Answering Affidavit [the
point was taken in limine in a distinct rubric under the heading "Point in limine: non -
compliance with the prescribed time frame in Uniform Rule 7'' ] to the Rule 7
Application and extensively in the Applicants' heads of argument. The Respondent's
long delay was inordinate, and there is no proper explanation for that delay. It follows
that Kaap-Vaal Trust supra decision finds application, which is in itself dispositive of
the Rule 7 Application.
[54] Even if I am wrong that the Kaap-Vaal Trust case applies, the Rule 7
[54] Even if I am wrong that the Kaap-Vaal Trust case applies, the Rule 7
Application also cannot succeed on the m erits thereof. Ultimately, the sub rule
provides that wh ere authority has been challenged, the requirement is that the
person concerned shall satisfy the court that he is "authorised so to act".
[55] It is trite that this person concerned may do so by adducing any acceptable
form of proof and not necessarily by the filing of a written power of attorney. In
Administrator, Transvaal v Mponyane and Others 1990 (4) SA 407 ( W) at 409 it
was held that:
"In my view there is nothing in Rule 7 in its present form that requires the
authorisation of an attorney to be embodied in a document styled a power of
attorney. The provisions of Rule 7 specifically requiring powers of attorney in
appeals fortifies the impression that otherwise an attorney's mandate can be
proved otherwise than by the production of a written power of attorney. I also
think that Rule 7 should be viewed against the background of its original form.
...I have no doubt that the underlying intention of the recent amendment of
Rule 7 was to make the Rule less cumbersome and formalistic. I therefore
conclude that proof of the authority of the respondents' attorney is not
dependent on the production of a written power of attorney."
[56] The sub-rule requires that the court must be satisfied that authority exists at
the time when proof of it is proffered: there is nothing in the Rule which suggests that
the court is required to investigate the validity of past acts in the context of author ity
to act.1 Mr Daniels, the Second Applicant, signed the confirmation of authority and
did so in his capacity as joint liquidator. The confirmation of authority is harmonious
with the past conduct of Van der Merwe & Associates acting as the Applicants'
attorneys.
[57] Having also independently considered the Rule 7 Application upon its own
merits, the court concludes that Van der Merwe & Associates is properly authorised
to represent the Applicants in these proceedings and on this further basis, also the
Rule 7 Application stands to be dismissed.
[58] It follows that the Rule 7 Application stands to be dismissed with costs of
counsel on Scale B.
1 Johannesburg City Council v Elesander Investments (Pty ) Ltd 1979 (3) SA 1273 (T ) at 1280A;
Texeira v lndustria l and Mercantile Corporation 1979 (4 ) SA 532 ( O) at 539F; Morais v City of Cape
Town 1997 (3) SA 1097 (C) at 1101D.
The Rescission Application:
[59] As the Rule 7 Application has been disposed of, the next application which i s
to be dealt with is the Rescission Application.
[60] As part of the provisional order which was granted by the Honourable Justice
Francis-Subbiah on the 28 th of August 2024, she also proceeded to grant leave for
the inclusion of the supplementary affidavit into evidence. The fact that the
provisional order pertinently deals with leave to file the supplementary affidavit
demonstrates that the Learned Judge had applied her mind to the issue of allowing
the evidence contained in the supplementary affidavit and held that it should be
allowed. This is not a further set of affidavits as provided for by Rule 6, as it was
delivered before the answering affidavit. It is also not correct to state that the
Applicants did not make out their case in the Founding Affidavit. The supplementary
affidavit is harmonious with the case made in the Founding Affidavit and seeks to
present further relevant facts.
[61] The Respondent takes issue with the provisional order and with the
supplementary affidavit and contends that it was not served upon the Resp ondent
prior to the granting of the provisional order.
[62] It is not disputed that at the time when the supplementary affidavit had been
uploaded, the time period afforded by the Rule to deliver a notice of intention to
oppose the Main Application had lo ng since lapsed and the Respondent only
belatedly filed that notice after the supplementary affidavit had already been
uploaded to Caselines; and
[63] It is also so that the Respondent was in fact already invited to the Case Lines
file before the date upo n which the provisional order was granted. The Respondent
did not appear when the Main Application was heard, nor did it address
correspondence to the Applicants' seeking a postpone ment of the matter or
arranging for time periods to deliver an answering affidavit.
[64] The Rescission Application is brought in terms of Rule 30A(2) read with Rule
6(5)(a)(2)(e) and 42(a) and/or the Common Law. The notice of motion includes both
declaratory relief in respect of the status of the supplementary affidavit as well as
prayers directed at the recission and/or setting aside thereof.
[65] Insofar as declaratory relief is sought in respect of the status of the
supplementary affidavit, it must be kept in mind that the introduction thereof and the
status thereof are already the subject matter of the provisional order. That court
granted leave for the admission of that supplementary affidavit, and it is not for this
court to make declaratory orders contrary to the order which has already been
granted. The exception would be in the case where the initial order was a nullity. 2
This is not such a case. The mere fact that the Respondent did not appear at court
and that the provisional order was granted i n his absence does not render the
provisional order a nullity.
[66] The following relevant factors are to be considered:
[66.1] The Respondent failed to timeously file a notice of intention to oppose.
Therefore, at the stage when the supplementary affid avit was uploaded, there
was no indication that the Respondent intended to oppose the application;
[66.2] The Respondent was granted access to the Case Lines file within four
days following receipt of its notice of intention to oppose, which only came to
light on the 22 nd of August 2024. In this regard, the Respondent is not a lay
person and would most certainly not have been ignorant of the implications of
belatedly filing the notice of intention to oppose;
[66.3] Upon consideration of the founding affidavit, there is no doubt that even
in the absence of the supplementary affidavit, the provisional order would
have been granted. Even if the contents of the supplementary affidavit are
disregarded, it is clear that the provisional order would still have been granted;
disregarded, it is clear that the provisional order would still have been granted;
2 The Master of the High Court (North Gauteng High Court, Pretoria) v Mota la NO and Others 2012 (3)
SA 325 {SCA).
[66.4] In its answering affidavit, the Respondent, mindful that only a
provisional order had been granted, has had the opportunity to address the
contents of both the founding and the supplementary affidavit. The complaint
of prejudice is therefore more perceived than real;
[66.5] The provisional order was granted on 28 August 2024, but the
Rescission Application was only launched more than two months later in early
December 2024. There is no explanation for this delay; and
[66.6] In addition, mindf ul that the Respondent seeks the recission of a
provisional winding-up order, it appears that it has failed to give notice of its
application to interested parties. 3 Mr Shakoane SC was asked if notice was
given to the Master, SARS or creditors, and he answ ered in the negative. It is
also not stated in the Rescission Application whether provisional liquidators
have been appointed, and there is no indication that notice was given to any
interested parties. The Respondent is silent about its creditors. It seem s
rather ironic that the Respondent complains about an order granted in its
absence, yet fails to disclose whether there are other interested parties and
does not give notice to those parties of the Rescission Application, which may,
in turn, also affect those parties.
[67] There is something to be said about the delay in the delivery of the answering
affidavit to the Rescission Application. The Applicants' attorneys provide a rather thin
explanation for this delay, which Mr Shakoane SC, with good reason, criticised. That
being said, the Respondent also delayed: its delivered its notice to oppose months
after the time period provided for; the provisional order was granted on 28 August
2024, yet the Rescission Application was launched only in December 2024. Even the
heads of argument in the Rescission Application and the Rule 7 Applications were
only uploaded less than 30 minutes before this application was to be heard.
only uploaded less than 30 minutes before this application was to be heard.
3 Re Calgary and Edmonton Land Co Ltd (1975) 1 All ER 1046; Herbst v Hessels 1978 (2) SA 10 5 (T)
109; errace Bay Holdings (Pty) Ltd v Strathmore Diamonds (Pty) Ltd 1976 (3) SA 664 (SWA). See
also: Machina Ltd v Rossouw 1959 (2) SA 218 ( O) at 219; Abdurahman v Estate Abdurahman 1959
(1) SA 872 (C) at 873F.
[68] Ultimately, both parties delayed in respect of the delivery of notices, affidavits
and in respect of compliance with both the Rules of Court and the practice directives
of this Court. It appears in the interest of justice to allow the respective affidavits.
[69] Under the circumstances, the Rescission Application also stands to be
dismissed, with costs, including costs of counsel on Scale B.
The Main Application:
[70] In the Main Application, the Respondent raises several technical defences:
[71] Firstly, it launches an attack on the Deponent's locus standi to represent the
Applicants. The Respondent contends that the Applicants do not have locus standi to
pursue this application because it contends that Van der Merwe & Associates are not
mandated to act on the Applicants' behalf. Essentially, this argument overlaps with
the Rule 7 application, and the finding on that application disposes of this point. The
Applicants' locus standi is linked to the indebtedness allegedly owed by the
Respondent. If the Applicants establish that they are creditors within the ambit of the
remaining provisions of the previous Companies Act, then they have, in their
capacity as creditors, locus standi to bring this application.
[72] Secondly, the Respondent raises a mate rial non-joinder point contending that
the other parties to the cost orders should have been joined as parties to the present
proceedings. This point overlaps with the defence in respect of the merits, which
basically boils down to a main point that the co st order should be interpreted as
meaning that each of the parties ordered to pay the costs in the Cost Order must pay
a pro rata portion of the taxed costs. The Respondent contends that paragraph 2 of
the Cost Order provides that the Respondents must pay the costs “jointly and
severally'” which the Respondent advances should be interpreted as having to be
shared "equally'' between all of the Respondents.
shared "equally'' between all of the Respondents.
[73] There is no basis upon which to contend that the other Respondents in the
Cost Order should be jo ined to this application. The issue at hand relates to the
winding-up or not of the Respondent and not in respect of the status of the other
parties to those proceedings. The findings made herein have bearing upon the
Respondent's position and therefore, t he other parties, which the Respondent
contends should have been joined, do not have the necessary material interest to
justify the necessity to be joined by the Applicants. Ultimately, the central question
on the merits is whether the Respondent should be wound-up or not. That is not an
issue which would affect the parties which the Respondent contends should have
been joined. The point is therefore untenable.
[74] Thirdly, the Respondent attacks the jurisdiction of this court to hear the
application, but premises that attack upon a purported lack of locus standi and a
material non-joinder. Both of these points stand to be rejected. In the first paragraph
of the answering affidavit, the Deponent pertinently alleges that the Respondent's
offices are situate d at Suite 1 […], 1 st Floor, 2 […] C[…] T[…] Building, Pretorius
Street, Pretoria, Gauteng Province. Therefore, the attack on jurisdiction cannot
succeed.
[75] Fourthly, the Respondent contends that there are material disputes of fact
which make the adjudication of this matter upon application impossible and contends
that a referral to trial or viva voce should be ordered.
[76] Based on the findings below, I conclude that there are no material disputes of
fact which preclude this matter from proceeding on motion.
[77] This leaves the defence on the merits. The Respondent contends that the
correct interpretation of the Cost Order would be that the Respondent was only
responsible for its pro-rata share of the R200 000-00 cost order, which would amount
to an amount of R66 070 -00. In essence, the Respondent contends that it has paid
what is due by it. How the Respondent arrives at the amount of R66 070 -00 is not
properly explained.
[78] The Respondent's contention that the Applicants have not proven that they
actually incurred the agreed Taxed Amount is also without merit. It is a defence
actually incurred the agreed Taxed Amount is also without merit. It is a defence
which should have been raised at taxation. The fact that the Respondent agreed to
the amount puts an end to the issue.
[79] As a general principle in our Common Law, even co -debtors cannot be liable
for more than their pro-rata share, save where there is evidence of an intention to
create a joint debt. For this reason and for many years, as is demonstrated for
example in the decision of Roelou Barry (Edms) Bpk v Bosch en 'n an der 1967 (1)
SA 54 (C ) at 59C , the general proposition has been that where the court intended
parties to be liable in solidum the Court would includes words such as or similar to
'Jointly and several'.
[80] Ultimately, a consideration of the Order must o ccur. As Nicholas AJA pointed
out in Administrator, Cape and Another v Ntshwaqela and Others 1990 (1) SA
705 (A) at 715F- I:
"[Trollip JA] said (at 304 D - H) that the basic principles applicable to the
construction of documents also apply to the construction of a court's judgment
or order: the court's intention is to be ascertained primarily from the language
of the judgment or order as construed according to the usual well -known rules.
As in the case of any document, the judgment or order and the court's
reasons for giving it must be read as a whole in order to ascertain its intention.
If on such a reading, the meaning of the judgment or order is clear and
unambiguous, no extrinsic fact or evidence is admissible to contradict, vary,
qualify, or supplement i t. Indeed, in such a case not even the court that gave
the judgment or order can be asked to state what its subjective intention was
in giving it. But if any uncertainty in meaning does emerge, the extrinsic
circumstances surrounding or leading up to the c ourt's granting the judgment
or order may be investigated and regarded in order to clarify it. "
[81] In Elan Boulevard (Pty) Ltd v Fnyn Investments (Pty) Ltd And Others
2019 (3) SA 441 (SCA) the Court held at par 16 referred with approval Administrator,
Cape and Another supra and added that:
"...A part of the 'usual we lI-known rules' of interpretation, according to Olivier
JA, is -
'dat mens jou nie moet blind staar teen die swart -op-wit woorde nie,
maar probeer vasstel wat die bedoeling en implikasie is van dit wat
gese is. Dit is juis in hierdie proses waartydens die samehang en
omringende omstandighede relevant is."'
[82] The Respondent's interpretation only selectively focuses on the word "jointly"
and ignores the inclusion of the word "severally''. This approach cannot be correct.
The inclusion of the word "severally", especially combined with "jointly'' demonstrates
the intention that more is meant than a pro rata liability. The Court's choice of words
in the Cost Order was calculated and should be given effect to.
[83] From consideration of the Cost Order, it is abundantly clear that what was
intended by the Honourable Acting Judge was that the parties ordered to pay the
cost must do so jointly and severally. Therefore, the Applicants would be quite
entitled to enforce their cost order against any one of the parties against whom the
cost order was granted, either against them all jointly or against one. In this case, the
Applicant has, as it is entitled to do, elected to enforce its cost order against the
Respondent. Obviously, should the Respondent pay the full cost order, it would in
turn be entitled to reclaim the pro-rata share from the other parties against whom the
Cost Order was granted.
[84] This being so, it must follow that the Respondent's contention in regard to the
interpretation of the Cost Order is untenable and stands to be rejected. The
Respondent is grasping at straws to avoid the inevitable.
[85] On the Respondent's version, it has not even paid a full third of the taxed bill
of costs. It has failed to demonstrate that it is able to make payment; in fact, based
on the Respondent's own correspondence, it is clear that the contrary is true and that
the Respondent is unable to make payment.
[86] Insofar as the Respondent has contended that this Court should exercise its
[86] Insofar as the Respondent has contended that this Court should exercise its
narrow discretion in its favour, the following was stated in Afgri Operations Ltd v
Hamba Fleet (Pty) Ltd 2022 (1) SA 91 (SCA) at pages [12] and [13]:
---
"[12] Notwithstanding its awareness of the fact that its discretion must be
exercised judicially, the court a quo did not keep in view the specific principle
that, generally speaking, an unpaid creditor has a right, ex debito justitiae, to a
winding-up order against the respondent company that has not discharged
that debt. Different considerations may apply where business rescue
proceedings are being considered in terms of Part A of chapter s ix of the new
Companies Act 71 of 2008. Those considerations are not relevant to these
proceedings. The court a quo also did not heed the principle that, in practice,
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 in
special or unusual circumstances only.
[13] As mentioned above, mere recourse to a counterclaim will not, in itself,
enable a respondent successfully to resist an application for its winding-up.
Moreover, as set out above, the discretion to refuse a winding -up order where
it is common cause that the respondent has not paid an admitted debt is,
notwithstanding a counterclaim, a narrow and not a broad one. In these
respects the court a q uo applied 'the wrong principle[s]'. There must be no
room for any misunderstanding: the onus is not discharged by the respondent
merely by claiming the existence of a counterclaim. The principles of which
the court a quo lost sight are: (a) as set out in Badenhorst and Kalil, once the
respondent's indebtedness has prima facie been established, the onus is on it
to show that this indebtedness is disputed on bona fide and reasonable
grounds and (b) the discretion of a court not to grant a winding-up order upon
the application of an unpaid creditor is narrow and not wide."
[87] Under these circumstances, and mindful of the acknowledgements made in
correspondence by the Respondent itself in respect of its inability to pay, this court
correspondence by the Respondent itself in respect of its inability to pay, this court
can only conclude that the provisional order should be made final.
The order:
[88] The following order is made:
1. The application in terms of Rule 30A(2), read with Rule 7(1) and (4) with
notice of motion dated 3 December 2024, is dismissed with costs,
including costs of counsel on Scale B;
2. The application in terms of Rule 30A(2), read with Rules 6(5)(a) to (e) and
42(a) and/or the Common Law, with notice of motion dated 2 December
2024, is dismissed with costs, including costs of counsel on Scale B;
3. The provisional winding -up order, granted on 28 August 2024, is
confirmed, and the Respondent company, S Ngomane Incorporated, with
registration number 2007/025777/21, is hereby placed under final
winding-up in the hands of the Master of the High Court, Pretoria;
4. The cost of this application shall be costs in the administration of the
winding-up and shall include the costs of counsel on Scale B.
RJ GROENEWALD (AJ)
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 31 July 2025.
For the Applicant : Adv GJ Lotter
Instructed by : Van der Merwe & Associates
For the Respondent : Adv G Shakoane SC
with
Adv M C Ntshangase
Instructed by : S Ngomane Inc
Matter heard on : 28 July 2025 - Court 6C
Judgment date : 31 July 2025