REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024- 033125
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED : YES
1 August 2025
DATE
----
SIGNATURE
AKANI BUILDING SOLUTIONS (PTY) LIMITED
and
LEBO TEBO TRADING AND PROJECTS CC
[ Registration number: 2008/237123/23]
[ For its liquidation ]
JUDGMENT
J Vorster, AJ.
Applicant
Respondent
[1] The applicant seeks an order for the respondent's liquidation. It relies on the
provisions of section 69 of the Close Corporations Act, 69 of 1984, read with
Schedule 3 to the Companies Act, 71 of 2008, and section 344 of the
Companies Act, 61 of 1973.
1

2


[2] The relationship between the parties is contractual in nature. It is common
cause that the respondent was appointed by the Department of Education in
the Limpopo Province to render services at the Mosesane Baloyi Primary
School, and that it appointed the applicant as its sub-contractor in terms of a
written appointment letter dated 14 October 2022, for the provision of sanitation
facilities. The contract value was R1,959,222.32 (incl. VAT), and works were
expected to be completed by 31 January 2023.

[3] According to the applicant, the works assigned to it were completed, but the
respondent failed to pay an amount of R759,249.76.1

[4] When the application was argued, I raised a concern about the fact that the
Certificate of Tendered Security was issued on 30 April 2025, a date more than
10 days before the application came before me. In this regard, section 346(3),
in relevant part, provides:

“
every application to the Court referred to in subsection (1), … shall be
accompanied by a certificate by the Master, issued not more than ten days
before the date of the application, to the effect that sufficient security has been
given for the payment of all fees and charges necessary for the prosecution of
all winding-up proceedings and of all costs of administering the company in
liquidation until a provisional liquidator has been appointed, or, if no provisional
liquidator is appointed, of all fees and charges necessary for the discharge of
the company from the winding-up
.”

[5] However, having considered the judgments in De Wet NO v Mandelie (Edms)
Bpk,2 and Mafeking Creamery Bpk v Mamba Boerdery (Edms) Bpk ,3 I
conclude that: (i.) the date of the application is the date on which the application

1 In the founding affidavit the claim was said to be R790,272.95. In reply, the applicant stated that it had
made a mathematical mistake when adding the value of two outstanding invoice together, and reduced
its claim to R759,249.76.
2 1983 (1) SA 544 (T) at 545 - 546

its claim to R759,249.76.
2 1983 (1) SA 544 (T) at 545 - 546
3 1980 (2) SA 776 (NC) at 782.

3

is issued; and (ii.) it is not essential that the certificate be dated before the date
of the application. In fact, it need not, at that date, actually exist. All that is
required is that security must have been given before the matter is heard and
that the security certificate must accompany the application when it is heard.
4

[6] Turning to the merits of the application, the case advanced in the applicant’s
founding affidavit, where all the essential evidence to support its case must
appear,5 is fairly straightforward. It alleges that subsequent to its commo n
cause appointment as the respondent’s sub-contractor, it completed the works
and issued two invoices respectively dated 5 and 13 June 2023, which remain
unpaid. It further claims that evidence of its completion of the sub-contracted
works is to be found in: (i.) a certificate of practical completion issued by the
Limpopo Provincial Department of Education on 3 May 2023; (ii.) a progress
report dated 10 May 2023; and (ii.) email correspondence from the project
manager, Mr Khuzwayo of TKQ Consulting, dated 2 November 2023, which
inter alia refers to the fact that the works were completed.

[7] In its answering affidavit, the respondent admits its contractual relationship with
the applicant, but denies that the applicant completed the works. The
respondent explains that the applicant failed to complete t he works, or
abandoned the works. The result was that the respondent had to appoint other
sub-contractors to complete the works. The answering affidavit specifically
refers to the appointment of the following sub-contractors who, according to the
respondent, had to complete work for which the applicant was responsible: (i.)
Dusta General Services; (ii.) Rand Industrial and Mining Supplies; (iii.)
Mapitsana Logistics and Projects; (iv.) BWT; and (v.) Dominium Safety.

[8] Further, the respondent concedes that the project achieved practical
completion, but it says that it was as a result of work performed by other sub-

completion, but it says that it was as a result of work performed by other sub-

4 Court v Standard Bank of SA Ltd; Court v Bester NO and Others 1995 (3) SA 123 (A) at 131B - C.
5 Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 653H - 636B; Botha v Smuts
2025 (1) SA 345 (CC) at [58].

4

contractors, and not due to the applicant’s efforts. It refers to a snag list of
outstanding work that the applicant failed to complete, and to an email
addressed to the funder of the project, the Development Bank of Southern
Africa, dated 2 November 2023, in which it made mention of the applicant’s
failure.

[9] In reply, the applicant contends that the work undertaken by the sub-contractors
referred to in paragraph [7] above had nothing to do with the work contractually
assigned to it. It also refers to the so-called snag list and claims, with reference
to colour photos, that the work on the snag list was completed.

[10] In respect of the scope of the work to be undertaken, in its replying affidavit the
applicant impermissibly attempts to broaden the ambit of its claim. Whereas in
the founding affidavit the applicant simply relied on the terms of the appointment
letter, the replying affidavit suggests that the scope of work was extended
“through site instructions”. Paragraph 12 of the replying affidavit explains the
position as follows:

“
As it would appear clearer below, the applicant was given several site
instructions to carry out while it was performing in terms of the contract on site.
These instructions are indicated as such on page 7 of the progress report
attached as annexure ‘’A3’’ to the applicant’s founding affidavit. I will attach
further written confirmation of these instructions later in this affidavit.
Resultantly, it is the carrying out of these site instructions that accounts for the
total amount that the respondent is indebted to the applicant
.”

[11] First, this is not the case the respondent was called to meet when it filed its
answering affidavit. The founding affidavit contains no express reference to site
instructions or an increase to the value of the contract.

[12] Second, to the extent that the progress report, which is an annexure to the
founding affidavit, refers to site instructions, the founding affidavit itself makes

founding affidavit, refers to site instructions, the founding affidavit itself makes
no mention of these site instructions. The stated purpose for which the progress

5

report was annexed to the founding affidavit was to confirm that the works had
been completed. In this regard, the court in Swissborough Diamond Mines
(Pty) Ltd and Others v Government of the Republic of South Africa and
Others,6 made the following apposite remarks concerning annexures to an
affidavit:

“Regard being had to the function of affidavits, it is not open to an applicant
or a respondent to simply annex to its affidavit documentation and to
request the Court to have regard to it. What is required is the identification
of the portions thereon on which reliance is placed and an indication of the
case which is sought to be made out on the strength thereof. If this were
not so the essence of our established practice would be destroyed. A party
would not know which case must be met
.”

[13] Similarly, in Lipschitz and Schwartz NNO v Markowitz, 7 the court made the
following comment concerning this issue:

“
A litigant cannot, as it were, throw a mass of material contained in the
record of an enquiry at the Court and his opponent, and merely invite them
to read it so as to discover for themselves some cause of action which
might lurk therein, without identifyi ng it. If this were permissible, the
essence of our established practice which is designed and which still
evolves as a means of accurately identifying issues and conflicts so that
the Court and the litigants should be properly apprised of the relevant
conflicts, would be destroyed
.”

[14] I align myself with the quoted findings, and conclude that the attempt to rely on
the progress report to broaden the scope of the applicant’s claim is in my view
impermissible.


6 1992 (2) SA 279 (T) at 324F-H.
7 1976 (3) SA 772 (W) at 117H – 776A.

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[15] When asked during argument whether the applicant could have dealt with the
issues raised in its replying affidavit, in its founding affidavit (so as to afford the
respondent an opportunity to engage with the issues), Mr Shongwe, who
appeared for the applicant, submitted that the issues were unforeseen when
the founding affidavit was prepared. Although this submission may be correct
in respect of the appointment of other contractors (on which I express no firm
view), it is not correct in respect of the site instructions as the applicant was
clearly aware that its claim was, at least in part, based on additional work.

[16] In argument the applicant urged me to “go deeper” and to critically evaluate the
defences advanced by the respondent. It further suggested that the defences
were unreasonable.

[17] It is, however, not open for me to critically interrogate the respondent’s defence.
The respondent simply had to allege facts which, if proved at a trial would
constitute a good defence to the claims made against the company.

[18] I am in all the circumstances satisfied that the respondent succeeded in
establishing that its indebtedness to the applicant is disputed on bona fide and
reasonable grounds. In Freshvest Investments (Pty) Ltd v Marabeng (Pty)
Ltd,
8 the Supreme Court of Appeal found:

‘This is an appeal, with the leave of the court a quo, against the dismissal of an
application for the winding- up of the respondent, Marabeng (Pty) Ltd. in
essence, the matter serves as a stark reminder that winding -up proceedings
are not designed for the enforcement of a debt that the debtor -company
disputes on bona fide and reasonable grounds. This has become known as the
“Badenhorst rule” after Badenhorst v Northern Construction Enterprises (Pty)
Ltd 1956 (2) SA 346 (T) at 347 -348. See also Kalil v Decote x (Pty) Ltd and
another 1998 (1) SA 943 (A) at 980B-D, as well as the authorities referred to in

another 1998 (1) SA 943 (A) at 980B-D, as well as the authorities referred to in
Kalil at 980D-F. A collection of more recent authorities on the application of the

8 (1030/2015) [2016] ZASCA 168 (24 November 2016), para. 1.

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Badenhorst rule is found in PM Meskin et el Henochsberg on the Companies
Act 5 ed Vol 1 at 693—694.’

[19] I further respectfully agree with the below passage in ABSA Bank Ltd v Erf
1252 Marine Drive (Pty) Ltd.9 There, Binns-Ward J, said the following:

“I am hesitant to accept the notion that the Badenhorst rule goes to standing.
After all, as Corbett JA observed in Kalil v Decotex supra, at 980, it is
conceivable that a creditor could establish on a balance of probabilities that it
had a claim against the respondent company in winding-up proceedings, while
the respondent at the same time was able to establish that the claim was
disputed on bona fide and reasonable grounds. The applicant in such a case
would have established its standing, while the responde nt would have
established, irrespective of the merits of the claim or its defence to it, that the
remedy sought by the applicant should not be granted. The Badenhorst rule
would thus seem to constitute a selfstanding (and possibly flexible) principle
that winding-up proceedings are not an appropriate procedure for a creditor to
use when the debt is bona fide disputed. Availment of the procedure in
circumstances in which the Badenhorst rule applies can be an abuse of
process. It is so, however, only when the creditor knew, or should reasonably
have foreseen that the debt was disputed on bona fide and reasonable grounds
at the time of the institution of the proceedings
.”

[20] In Hülse - Reutter and Another v HEG Consulting Enterprises (Pty) Ltd
(Lane and Fey NNO Intervening),10 Thring, J. said the following with regard to
what a respondent must show to demonstrate in winding-up proceedings that
a creditor-applicant’s claim is reasonably disputed:

“Apart from the fact that they dispute the applicant’s claims, and do so bona
fide, ... what they must establish is no more and no less than that the grounds
on which they do so are reasonable. They do not have to establish, even on

on which they do so are reasonable. They do not have to establish, even on
the probabilities, that the company, under their direction, will, as a matter of

9 [2012] ZAWCHC 43 (15 May 2012) para. 25.
10 1998 (2) SA 208 (C) at 219F-220A.

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fact, succeed in any action which might be brought against it by the applicants
to enforce their disputed claims. They do not ... have to prove the company’s
defence in any such proceedings. All they have to satisfy me of is that the
grounds which they advance for their claims and the company’s disputing these
claims are not unreasonable. To do that, I do not think that it is necessary for
them to adduce on affidavit, or otherwise, the actual evidence on which they
would rely at such trial. This is not an a pplication for summary judgment in
which ... a defendant who resists such an application by delivering an affidavit
or affidavits must not only satisfy the Court that he has a bona fide defence to
the action, but in terms of the Rule must also disclose ful ly in his affidavit or
affidavits “the material facts relied upon therefor”... It seems to me to be
sufficient for the [respondents] in the present application, as long as they do so
bona fide, ... to allege facts which, if proved at a trial would constitu te a good
defence to the claims made against the company
.”

[21] A lack of bona fides is not readily inferred (see: Robsen v Wax Works (Pty)
Ltd and Others 11), and there is nothing on the papers which leads me to
conclude that the respondent does not genuinely dispute the applicant’s claim.
It raised the disputes it is now relying on in November 2023, long before the
liquidation application was issued. The respondent has satisfied me that the
grounds which they advance for disputing the applicant’s claim are not
unreasonable. It has alleged facts which, if proved at a trial, would constitute a
good defence to the claim made against it. My conclusion that the respondent
has succeeded in establishing that its indebtedness to the association is
disputed on bona fide and reasonable grounds, renders it unnecessary to
decide the question whether the respondent is able to pay its debts.

[22] What remains to consider is the question of liability for costs. The usual order

[22] What remains to consider is the question of liability for costs. The usual order
is that the successful party is awarded its costs. I find no reason to deviate from
the usual order.

[23] The respondent employed two counsel and during argument it was submitted

11 2001 (3) SA 1117 (C) at para. 15.

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that the costs of two counsel were reasonably incurred. I agree. The respondent
faced an order for its liquidation. Such an order has far-reaching commercial
consequences and under the prevailing circumstances the employment of two
counsel cannot be said to have been overcautious or luxurious. It was a wise
and reasonable precaution on the part of the respondent.
12

[24] As a result, the following order is made:

[24.1] The liquidation application is dismissed.
[24.2] The applicant is ordered to pay the costs occasioned by the
application on scale C, such costs to include those occasioned by
the employment of two counsel (where so employed).


J VORSTER, AJ
Acting Judge of the High Court


Date heard: 28 July 2025.
Judgment date: 1 August 2025.

Appearances:
For the applicant:
Counsel: C Shongwe
Instructed by: Mashiane, Moodley & Monama Attorneys (Sandton)

For the respondent:
Counsel: E Mokutu SC
(heads of argument by E Mokutu SC and M Motlogelwa)
Instructed by: Kotzé Low Swanepoel Attorneys (Vryburg)



12 Pride Milling Co (Pty) Ltd v Bekker NO and Another 2022 (2) SA 410 (SCA) at 424 [40].
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