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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 2024-146798
In the matter between:
GERRITSEN TRADING CC APPLICANT
t/a GERRITSEN DRILLING SA
(Registration Number: 2008/032582/23)
and
BLYDSKAP HOLDINGS (PTY) LTD RESPONDENT
(Registration Number: 2019/423758/07)
Registered Address: 1[…] R[…] Avenue, Kenilworth, Cape Town, Western Cape
Neutral citation:
Coram: COOKE AJ
Heard: 13 August 2025
Delivered: 27 August 2025
ORDER
[1] The respondent is placed under provisional liquidation , and its assets are
placed in the hands of the Master of the High Court.
[2] A rule nisi is issued calling upon the respondent and all interested parties to
show cause on 7 OCTOBER 2025 why, if any, the following order should not
be made:
(a) a final liquidation order be granted; and
(b) the costs of this application be costs in the liquidation, in cluding costs of
counsel on Scale B.
[3] A copy of the provisional order shall be served in the following manner:
(a) by the sheriff on the respondent at 1[…] R[…] Avenue, Kenilworth, Cape
Town, Western Cape;
(b) by the sheriff on the employees of the respondent at Klipfontein Farm,
B[…] R[…] Road, Velddrif, Western Cape;
(c) by the sheriff on the registered trade union(s) of the employees of the
respondent at Klipfontein Farm, B[…] R[…] Road, Velddrif, Western Cape;
(d) on the South African Revenue Service situated in Cape Town;
(e) on the Master of the High Court situated in Cape Town; and
(f) by publication in The Cape Times and Die Burger newspapers.
[4] The application for condonation of the late delivery of the answering affidavit
and heads of argument by the respondent is granted, with the costs of the
application to be paid by the respondent, including costs of counsel on Scale
B.
JUDGMENT
[1] Over the last ten years , the use of WhatsApp has become ubiquitous. It is
now an essential social tool for many people. As appears from this matter,
WhatsApp is also increasingly being used in business dealings. As an
unfiltered contemporaneous record , WhatsApp communications can also be
of assistance to a court of law. In some instances, they will serve as the best
evidence in relation to a disputed issue - a reliable guide to what was really in
the minds of the parties. This is such a case.1
[2] This is an application for the provisional liquidation of the respondent
(‘Blydskap’). The application has its provenance in an agreement concluded
between the parties in terms of which the applicant (‘Gerritsen Drilling’) was
to drill boreholes for Blydskap. The terms of the agreement are disputed. It is,
however, common cause that in February 2024 , Gerritsen Drilling drilled
1 For a recent liquidation application where WhatsApp messages were relied upon, see Pillay v
Lopdale Energy (Pty) Ltd [2025] ZAGPJHC 681 (15 July 2025).
three boreholes on a farm owned by Blydskap located in the Sandveld region
near Velddrif . The first two boreholes were successful and Blydskap was
satisfied with the work. In relation to the third borehole, however, the drilling
penetrated a confined aquifer where the pressure was high enough to cause
water to rise unaided to the surface (the technical term for this is ‘artesian’).
Gerritsen Drilling stopped drilling on 1 March 2024 and to date , it has
performed no further work on the farm.
[3] Gerritsen Drilling rendered several invoices for the work done . Sporadic
payments were made by Blydskap, but the charges remained largely unpaid.
On 12 December 2024 this liquidation application was launched . At the time,
Gerritsen Drilling claimed that it was owed R514 023.80 by Blydskap. It is not
disputed, however, that since the application was launched, the sum of R108
118.51 was paid by Blydskap.
[4] It was agreed by the parties that Blydskap would deliver its answering
affidavit by 31 March 2025. This was confirmed in a timetable contained in a
court order dated 8 April 2025 . The answering affidavit , however, was only
delivered late on the afternoon of Friday, 8 August 2025, just a few days
before the matter was due to be heard on Wednesday, 13 August 2025. The
day before the hearing , Blydskap served a condonation application. A
replying affidavit was also delivered on that day. On the day of the hearing ,
Blydskap provided the court with the condonation application and heads of
argument stretching to 45 pages.
[5] At the hearing, counsel for Gerritsen Drilling informed the court that his client
did not oppose the granting of condon ation in relation to the late delivery of
the answering affidavit and heads of argument . He confirmed also that it did
not require further time to supplement the replying affidavit.
[6] Having regard to the nature of the application, I consider that it is especially
important that all the relevant information be placed before this court.
Gerritsen Drilling will not be prejudiced as it delivered a reply and does not
seek further time to supplement the reply . Liquidation applications are also
inherently urgent, and Gerritsen Drilling could be prejudiced if there is a delay
in the determination of the application. I therefore accept that it is in the
interests of justice that the affidavit be admitted, and I am willing to condone
the late delivery of the affidavit and the heads of argument . Counsel for
Blydskap accepted that his client must pay the costs of the application for
condonation.
[7] I turn now to consider the merits of the liquidation application. In my view, the
matter may be assessed conveniently under four headings:
(a) Does Gerritsen Drilling have standing to bring the application? More
particularly, is Gerritsen Drilling a ‘creditor’ as contemplated by s
346(1)(b) of the Companies Act 61 of 1973 (‘the Act’)?
(b) Is Gerritsen Drilling’s claim disputed on bona fide (genuine) and
reasonable grounds (the so -called Badenhorst rule)? If so, the
application would be an abuse of process.
(c) Has it been proved to the satisfaction of the court that Blydskap is unable
to pay its debts, as contemplated by s 345(1)(c) of the Act?
(d) Even if the requirements for a liquidation are established, s hould the
court nonetheless exercise its discretion against granting a liquidation
order?
[8] Before turning to these four questions, I address a preliminary objection
raised by Blydskap in terms of which the authority to institute the proceedings
was challenged. This objection may be a ddressed briefly. The deponent to
the founding affidavit (Mr Coetsee) alleged that he was duly authorised to
institute the application. This allegation was admitted in the answering
affidavit. In any event, the remedy of a respondent who wishe s to challenge
the authority of a person allegedly acting on behalf of a purported applicant is
provided for in uniform rule 7(1). 2 Blydskap did not avail itself of this
procedure.
Standing
[9] It is well-established that in an opposed application for provis ional liquidation,
the applicant must establish its entitlement to an order on a prima facie basis.
This means that the applicant must show that the balance of probabilities on
the affidavits is in its favour. This would include the existence of the
applicant’s claim where such is disputed.3
[10] It is common cause that Gerritsen Drilling drilled three boreholes for
Blydskap and rendered invoices in relation to this work. Blydskap contends,
however, that the invoices were only issued for ‘administrative purposes ’.
Although the invoices are marked ‘pro forma’, it appears from the remarks on
the invoices that a final tax invoice would be issued after payment was
received. It may have been that the invoices were marked ‘pro forma’ for tax
reasons. Perhaps Gerritsen Drilling was concerned that there may be a delay
in payment and did not wish to incur a liability to pay VAT or income tax prior
to receiving payment. But, i n any event, it would have been apparent to
Blydskap that it was required to pay the amounts set out in the invoices,
notwithstanding the ‘pro forma’ label. Indeed, the evidence shows that
various payments corresponding to the figures in the invoices were made to
2 Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at 624I–625A.
3 Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A) at 97 5J-979F; Orestisolve (Pty) Ltd
t/a Essa Investments v NDFT Investment Holdings (Pty) Ltd and Another 2015 (4) SA 449 (WCC)
t/a Essa Investments v NDFT Investment Holdings (Pty) Ltd and Another 2015 (4) SA 449 (WCC)
(Orestisolve) para 7.
Gerritsen Drilling, and by the time the application was heard , most of the
charges in relation to the first borehole , and some in relation to the second
borehole, had been paid . The part payments made by Blydskap, and the
messages described below, give the lie to the contention that the pro forma
invoices were only issued for administrative purposes.
[11] The WhatsApp messages exchanged between Mr Rabie , Blydskap’s sole
director, and Mr Gerritsen, who is described as the sole director of Gerritsen
Drilling, reveal that Mr Rabie accepted that his company was liable to
Gerritsen Drilling:
a. On 29 April 2024 , Mr Gerritsen enquired of Mr Rabie whether
payment would be made the following day (ie by the end of the
month), to which Mr Rabie responded ‘ Ons maak so’ (we will do
so).
b. Then on 6 August 2024 , Mr Gerritsen enquired how the financial
matters were looking in relation to a payment , to which Mr Rabie
responded ‘Gaan julle die maand betaal ’ (we are going to pay this
month).
c. On 1 October 2024, a different creditor (Mr Reinke) asked Mr Rabie
when his outstanding account would be paid. In response , Mr
Rabie said ‘Die maand. Volle bedrag. Twee betalings soos fondse
loskom. Vir regverdigheid gaan ek vir Pierre 4 voortrek derhalwe
twee betalings.’ (This month. Full payment. Two payments as funds
become available. For fairness , I will prefer Pierre therefore two
payments.)
4 ‘Pierre’ is a reference to Mr Gerritsen.
d. In early November 2024, Mr Gerritsen sent several WhatsApp
messages to Mr Rabie recording that no payment had been made.
Eventually, on 14 November, Mr Rabie advised that he had spoken
to his accountant and ‘ (s)y sal eers vandag of môre by betalings
kom. Jammer daaroor.’ (She will only get to payments today or
tomorrow. Sorry about that.)
e. No payment was received, and further WhatsApp messages were
exchanged between them culminating in a message from Mr
Gerritsen to Mr Rabie on 28 November 2024 in which Mr Gerritsen
asked if Mr Rabie could please arrange for payment of the
outstanding amount by no later than 30 November 2024. Mr Rabie
wrote back ‘ Korteliks daars voorsiening gemaak vir betaling. Ons
het fakture uitgereik aan kliente en sodra hulle betaal diens ons jou
rekening’ (In short, provision has been made for payment. We have
issued invoices to clients and as soon as they pay, your account
will be serviced.)
f. In response , Mr Gerritsen advised Mr Rabie that 30 November
2024 was his cut off point.
[12] Needless to say, no payment was made by the end of November, and the
application was duly issued a couple of weeks later.
[13] The WhatsApp messages are admitted. There is, however, no attempt by
Blydskap to explain the messages . Nor is there any suggestion that they
should be given a meaning other than their natural meaning. In my view, the
messages should therefore be taken at face value.
[14] According to Mr Rabie, he informed Mr Gerritsen on 22 April 2024 that he
would only pay t he invoices once the defects relating to the third borehole
had been repaired, and once he had received the SANS reports. 5 Mr
Gerritsen, on the other hand, alleges that Mr Rabie never asked him for
these reports and his company is exercising a right of r etention over such
documents until payment is made.
[15] To place Mr Rabie’s allegation in context, as shown above, on 29 April 2024,
just a week after the alleged discussion, Mr Rabie indicated in a WhatsApp
message that he would make payment by the end of t he month. Not a word
about the third borehole or the SANS reports. In addition, Blydskap continued
to make payments to Gerritsen Drilling in relation to the first borehole on 10
May 2024 and 1 June 2024. Even after the liquidation application was
brought, further payments were made on 21 December 2024 in respect of
the first two boreholes. In so far as Mr Rabie’s account is at odds with the
contemporaneous record, as well as his conduct, I do not accept that his
account is probable.
[16] Even if there were defe cts in relation to the third borehole, this does not
explain why Blydskap did not pay the significant amounts owing in respect of
the second borehole.
[17] Blydskap’s counsel submitted that no demand for payment had been made
and Blydskap was never placed in mora. This submission is difficult to
square with the evidence of pro forma invoices, statements and requests for
payment in the WhatsApp exchanges, all culminating in an email dated 29
November 2024 in which Mr Gerritse n pointed out that the debt had been
owing since March 2024 and he asked Mr Rabie to arrange payment of the
outstanding amount no later than 30 November 2024 . Not to mention the fact
that several of the invoices were paid by Blydskap.
5 The reports concern South African National Standard 10299 -2:2003 Part 2 – The Design,
Construction, and Drilling of Boreholes. They are required for registering the boreholes with the
Department of Water and Sanitation.
[18] It was also contended in the answering affidavit that the part payments had
been made as an indulgence to Gerritsen Drilling to ease its supposed cash
flow problems. This contention does not sit comfortably with the WhatsApp
exchanges and, to my mind, is improbable.
[19] Having regard to the WhatsApp exchanges, read with the invoices,
statements and other correspondence, I am satisfied that Gerritsen Drilling
has established, on a prima facie basis, that it is a creditor of Blydskap and
thus entitled to seek the liquidatio n of the company. It matters not, for the
purposes of this application, precisely when the invoices were rendered. Nor
does it make a difference if certain small amounts fall to be deducted from
the amount owing. These do not detract from the essential fac t that Blydskap
owes money to Gerritsen Drilling.
[20] Blydskap’s counsel, with some justification , criticised Gerritsen Drilling in so
far as the founding affidavit was deposed to by one of its attorneys, and no
confirmatory affidavit by Mr Gerritsen was delivered until over three months
later. Even then, the confirmatory affidavit was of the type criticised in Drift
Supersand (Pty) Limited v Mogale City Local Municipality ,6 and this affidavit
failed to have regard to the fact that certain payments had been made since
the founding affidavit was signed. The affidavit should not have confirmed the
founding affidavit without qualification. To this criticism , I may add that
Gerritsen Drilling should have addressed the issues with the third borehole in
its founding papers.
[21] Nonetheless, in my view, Gerritsen Drilling’s claim is established on common
cause facts, particularly the documentary record. On an overall view of the
affidavits, and notwithstanding the hearsay in the founding affidavit, I am
satisfied that Gerritsen Drilling has established on a balance of probabilities
that it is a creditor of Blydskap and thus has standing to bring this application.
6 [2017] 4 All SA 624 (SCA) para 31.
The defences raised by Blydskap
[22] The second question is linked to the first. Except here, Blydskap bears the
onus of proving that it has a genuine and reasonable defence.7 A court may
reach this conclusion even though on a balance of probabilities (based on
the papers), the applicant’s claim has been made out.8
[23] The defences raised by Blydskap may be summarised as follows:
(a) Payment of the debt was withheld by Blydskap due to Gerritsen Drilling’s
failure to properly perform specialist drilling services and tests in respect
of the three boreholes. Blydskap admits that there is an unpaid balance
of R379 271.29 but asserts that t his amount is not due and payable 9
because Gerritsen Drilling failed to properly perform and Blydskap
elected to withhold performance until the defects have been addressed.
According to Blydskap, t he non -payment of the debt therefore results
from a contractual dispute, not insolvency.
(b) Gerritsen Drilling never deducted the amounts for costs of transfer,
transport, establishment and setup regard ing certain invoices, and did
not deduct certain costs in respect of the water production testing for the
second borehole.
(c) The defects with the drilling services resulted in Blydskap suffering
damages and as a result , it has a counterclaim against Gerritsen Drilling
which it intends prosecuting. The damages are provisionally calculated at
R1 050 000.
7 Afgri Operations Ltd v Hamba Fleet (Pty) Ltd 2022 (1) SA 91 (SCA) (Afgri) para 6.
8 Orestisolve para 8.
9 In other places in the answering affidavit, it is alleged that the amount is ‘payable, but not due’.
[24] In suppor t of its defence s, Blydskap relies upon the terms of an oral
agreement supposedly concluded on 23 November 2023 on a telephone call
between Mr Gerritsen and Mr Rabie. On Blydskap’s telling of the agreement ,
there are no less than fifteen terms of the agree ment set out over three
pages of the answering affidavit. In my view, it is fanciful to suggest that
these parties concluded a detailed and complex agreement over the
telephone. Not only this, but the specific terms relied upon by Blydskap were
not mention ed in the various WhatsApp exchanges. I am therefore not
satisfied that the terms of the agreement are as alleged by Blydskap.
[25] The answering affidavit is, in certain respects, contradictory. For instance, Mr
Rabie alleges in one part of the affidavit that payment would be due and
payable after the SANS reports for each borehole were received. But later in
the affidavit, he alleges that he told Mr Gerritsen that the agreement was that
he would only pay once the whole project was completed. The
inconsistencies in the affidavit are an indication that the defence is not
genuine and reasonable.
[26] In relation to the withholding defence, Blydskap called in aid the principle of
reciprocity (exceptio non adimpleti contractus).10 It argued that it is entitled to
withhold payment until Gerritsen Drilling has complied with its obligations,
and in particular has provided SANS reports to Blydskap. To succeed with
this argument, Blydskap would have to show that Gerritsen Drilling was
obliged to provide the SANS reports before or at the same time as payment
is made. 11 There is, however, no mention of the SANS reports in the
WhatsApp exchanges. In addition, the invoices include notes stipulating that
the drilling reports and the pump test reports will be issued after payment has
been received. I understand the ‘drilling report’ to be a reference to the SANS
report. It is clear from the invoices that Gerritsen Trading intended
report. It is clear from the invoices that Gerritsen Trading intended
10 Cradle City (Pty) Ltd v Lindley Farm 528 (Pty) Ltd 2018 (3) SA 65 (SCA) paras 20-24.
11 Mörsner v Len 1992 (3) SA 626 (A).
withholding the reports required by Blydskap as a means of ensuring and
incentivising payment. On the affidavits to hand, I am not persuaded that the
provision of SANS reports was reciprocal to the payment obligation.
[27] As regards the alleged failure to deduct amounts, in my view it does not help
Blydskap if certain amounts fall to be deducted from the invoices. If a creditor
establishes a case for liquidation, where a portion of the amount of the debt
is disputed by the debtor, or the precise amount of the debt is uncertain, such
a dispute will not constitute a defence. The whole of the debt must be
disputed on genuine and reasonable grounds.12
[28] In support of t he counterclaim , Blydskap relied upon a report from
Groundwater and Earth Science South Africa (Pty) Ltd (‘GEOSS’) . This
report appears to have only been commissioned in April 2025 , several
months after the application was launched . In his answering affidavit, Mr
Rabie alleged that GEOSS confirmed that Gerritsen Drilling made a mistake
by drilling into an artesian water body. As I read the report, this is not
necessarily correct. The criticis ms levelled at Gerritsen Drilling concern
inadequacies in the record -keeping. It is not clear to me how these
administrative inadequacies caused the borehole to be artesian.
[29] In addition, even on Blydskap’s account, the drilling of the third borehole was
‘halted due to complications arising from the site’s complex geological
conditions’. It is not evident to me that the failure to anticipate these
geological conditions constituted a contractual breach by Gerritsen Drilling.
[30] A week after the problem with the third borehole arose , Mr Rabie sent an
email to Mr Gerritsen suggesting that they should look at drilling a fourth
borehole and requesting a half-price discount. Furthermore, within a month of
12 Electrolux South Africa (Pty) Ltd v Rentek Consulting (Pty) Ltd 2023 (6) SA 452 (WCC)
(Electrolux) para 26.
the problem arising, Mr Rabie sent his company’s formal details to Mr
Gerritsen for the purposes of generating an invoice. This contemporaneous
communication indicates that, at that stage at least, Mr Rabie did not blame
Mr Gerritsen for the problem with the third borehole.
[31] If Blydskap sincerely believe that it enjoyed a counterclaim, then it is
inexplicable that Mr Rabie continued to indicate that the accounts would be
paid throughout 2024 and indeed made payments. Furthermore, the
counterclaim was not articulated until afte r the liquidation application had
been brought and I infer that it was contrived as a means of opposing the
liquidation application. This is a case where , like in Afgri, the inertia of
Blydskap in pursuing its right of action alleged in the counterclaim generates
a considerable sense of unease about the genuineness of its contestation.13
[32] In the circumstances , I do not consider that the defences and counterclaim
raised by Blydskap are genuine and reasonable. It has not been shown that
Blydskap sincerely wishes to contest the claim and believes it has
reasonable prospects of success. 14 The application is accordingly not an
abuse of the court’s processes.
Inability to Pay Debts
[33] I come now to the third question, namely whether it has been satisfactorily
proved that Blydskap is unable to pay its debts . Once again, the WhatsApp
exchanges tell a story.
[34] Blydskap enlisted the assistance of Mr Reinke of Anton R einke Irrigation
(Pty) Ltd to assist with irrigation on the farm. Mr Reinke attended a meeting
13 Afgri para 18.
14 See Orestisolve para 67. The absence of a genuine belief in the defence distinguishes this
matter from cases such as Hülse-Reutter and Another v HEG Consulting Enterprises (Pty) Ltd
(Lane and Fey NNO Intervening) 1998 (2) SA 208 (C) . Compare GAP Merchant Recycling CC v
Goal Reach Trading 55 CC 2016 (1) SA 261 (WCC) (GAP).
that was held on the farm on 22 April 2024 when the parties discussed the
problems with the third borehole. As shown above, t he WhatsApp record
reveals that on 1 October 2024 , Mr Reinke asked Mr Rabie when his
outstanding account would be paid. In response , Mr Rabie said two
payments would be made as funds become available. In similar vein, in
November 2024, Mr Rabie indicated that he would only be able to pay
Gerritsen Drilling’s account after receiving payment from clients.
[35] It appears from th ese communications that, as of October / November 2024,
Blydskap was unable to pay its debts as th ey fell due. This indicates that
Blydskap was unable to meet the current demands upon it in the ordinary
course of its business, and it was therefore in a state of commercial
insolvency.15
[36] The WhatsApp exchanges also disclose that in July 2024 , Blydskap was
experiencing difficulties with SARS (‘SARS nog hardegat’ – SARS are still
stubborn). This is consistent with Blydskap not being able to meet its
financial obligations.
[37] There is no intimation that Blydskap’s financial position has improved. It is
instructive that Blydskap has not put up any evidence regarding its current
financial position, save for a letter from its auditors confirming that Blydskap
‘is solvent, and that the company’s assets exceed its liabilities’ . This is far
from adequate proof of Blydskap’s commercial solvency. Gerritsen Drilling’s
attorney contacted the author of th is letter who advised that he had not
considered whether Blydskap had the financial means to settle its debts as
and when they become due.
[38] Documentation relating to the purchase of the farm was annexed to the
answering affidavit and the purchase price for two properties may be
15 See Rosenbach & Co (Pty) Ltd v Singh’s Bazaars (Pty) Ltd 1962 (4) 593 (D&CLD).
discerned from this documentation. But the extent to which the properties are
encumbered by mortgages is not clear . Blydskap has not suggested that it
has any realisable assets which could be used to pay its debts. As in
Electrolux, Blydskap did not indicate anywhere in its answering affidavit that
it has the assets, resources or sources of income to pay its debts as and
when they fall due, or to pay the debt owing to Gerritsen Drilling.16
[39] Mr Rabie claimed that he had been requested by his attorneys to provide
financial and management accounts, but he was waiting for financial rep orts
from the auditors. Even if a financial report from the auditors was absent ,
Blydskap should have been able to furnish its attorneys with management
accounts. I also would have expected Blydskap to provide an indication of its
assets and liabilities an d its income and expenses. No such information has
been provided even though Blydskap took eight months to prepare its
answering affidavit.
[40] In all the circumstances, I am satisfied that Gerritsen Drilling has shown that
Blydskap is unable to pay its debts.
Discretion
[41] Generally speaking, an unpaid creditor has a right to a liquidation order
against a company which has not discharged its debts. Once a creditor has
satisfied the requirements for such an order, the court may not decline to
grant the order on a whim . There must be a particular reason why the order
is withheld. 17 The court exercises a narrow discretion when deciding a
liquidation application and will not be easily swayed towards exercising its
discretion in favour of a debtor which has not discharged its debts.18
16 Electrolux para 34; GAP para 53.
17 Orestisolve para 18.
18 Electrolux para 24.
[42] Blydskap relies upon the following factors in its heads of argument:
(a) It and several third parties would be prejudice d by a provisional liquidation
order. According to Blydskap, it provides direct employment to ten
employees, and their families are dependent on their income.
(b) If an order is granted, the action proceedings that Blydskap contemplates
will come to an end and it will effectively be prevented f rom having its
legitimate claim against Gerritsen Drilling determined.
(c) Blydskap is solvent and can pay its liabilities as and when they are due,
owing and payable.
[43] It is instructive that Blydskap does not suggest that its finan cial position is
likely to improve. Nor does it place any evidence before the court which
shows that it will, in due course, be able to pay its debts. If I were to exercise
my discretion in favour of Blydskap, it is likely that this will serve only to
prolong the inevitable.
[44] The potential prejudice is not such as to warrant a refusal of the application.
The employees will not necessarily lose their jobs if the company is placed in
provisional liquidation, and interested parties, including the employees , may
place evidence before the court on the return day should they wish to do so.
Furthermore, t he contemplated action proceedings will not necessarily be
frustrated by a liquidation. If the liquidators consider that there is merit in the
counterclaim, they could institute such a claim against Gerritsen Drilling. As
to the solvency of Blydskap , this aspect has been addressed above. I am
therefore not persuaded that the factors raised by Blydskap are sufficient to
justify the exercise of my discretion in its favour.
[45] The existence of a counterclaim which, if established, would result in a
discharge by set -off of an applicant's claim for a liquidation order is not, in
itself, a reason for refusing to grant an order for the liquidation of the
respondent but it may, howev er, be a factor to be taken into account in
exercising the court's discretion as to whether to grant the order or not .19 The
discretion to refuse a liquidation order where it is common cause that the
respondent has not paid an admitted debt is, notwithstan ding a counterclaim,
a narrow and not a broad one .20 In my view, for the reasons set out above,
Blydskap’s counterclaim is not advanced sincerely. In addition, the merits of
the counterclaim are not without difficulties. In the result, I do not consider
that the alleged counterclaim presents a basis to exercise my discretion
against the granting of the order.
Conclusion
[46] The admitted WhatsApp exchanges are decisive. They show that (a)
Blydskap is indebted to Gerritsen Drilling, (b) it does not enjoy a genuine and
reasonable defence, and (c) it is unable to pay its debts. There is no
substantial reason to exercise a discretion against the granting of the order
sought. It follows, to my mind, that Blydskap should be placed into
provisional liquidation.
[47] In the circumstances , I am satisfied that the requirements for a provisional
liquidation order have been satisfied , and I accordingly grant the order set
out above.
Cooke AJ:
19 Afgri para 7.
20 Ibid para 13.
_____________________________
DJ COOKE
ACTING JUDGE OF THE HIGH COURT
Appearances
For applicant: Stephan van der Meer
Representing: Van der Meer and Partners Inc
For respondent: Scott Pitcher
Instructed by: Lamprecht Attorneys