111056-2025 & 11100382025-ld 1 JUDGMENT
18-08-2025
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 111056/2025 & 111003/2025
DATE: 18-08-2025
In the matter between
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BENNIE KEEVY N.O. Applicant
and
MI CAH KITCHENS Respondent
J U D G M E N T
THERON , AJ : In matters number S22 and S26, the matters
of Keevy and two others, S22 and the matter of De Wet and
another in their representative capacities as liquidators, I
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was asked to make a declarator in terms of section 388 of
the old Companies Act, declaring that the respective
companies are unable to pay their debts.
I intimated to Ms Pinde r, when the matter was initially called,
that I was not prepared to grant an order or to grant a
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED.
DATE 25-08-2025
SIGNATURE
111056-2025 & 11100382025-ld 2 JUDGMENT
18-08-2025
declarator that these companies are unable to pay their
debts.
I want to indicate that the path to convert a voluntarily
creditors' winding up, which is the case in both these
matters, is through section 346(1)(e) of the old Companies
Act.
The applicants in thi s matter, however, does not have
standing in terms of section 346(1)(e) of the Companies Act
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to seek a conversion from a voluntary winding -up to a court
winding up, or so -called compulsory winding -up.
The mechanism of section 388 available inter alia to the
liquidators to seek or to seek a determination of any
question arising in the winding- up or for a Court to exercise
any of the powers in the Act if a company was in fact being
wound up by the Court, is a mechanism which is not meant
to cater for the situation that the liquidators find themselves
in.
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Although it is so that a section 417 inquiry can only be held
in circumstances where a company is unable to pay its
debts, it does not mean that this Court needs to declare
that to be so at this stage.
111056-2025 & 11100382025-ld 3 JUDGMENT
18-08-2025
I have read the papers, and I am satisfied that on the facts
placed before me, these companies are indeed companies
which are unable to pay its debts, but I am only so satisfied
on the untested say so, under oath, of the liquidators.
I must intimate immediate that that does not mean that I do
not believe the liquidators or that I doubt their oath. I am,
however, not prepared to grant a declarator that will be
valid from now on and forever and a day in circumstances
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where further investigation into the trade dealing and affairs
of the companies might show that the companies have other
assets, hidden assets or that their assets and liability
position is different from what the liquidators are, at this
stage, aware.
In those circumstances it may later transpire that the
companies were in fact able to pay their debts. I accept
that it is unlikely on the facts that were placed before me in
th ese two matters, but a declaratory order has
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consequences reaching far past today's date.
The Court, in Hu dson v The Master 2002 (1) SA 862 (T)
found that the time when the determination must be made
whether a company is unable to pay its debts, is when the
111056-2025 & 11100382025-ld 4 JUDGMENT
18-08-2025
section is invoked.
It is unnecessary for me to at this stage, to make the
declarator and implicit in granting the order that a 417
inquiry be held is my satisfaction , at this stage, that the
companies are unable to pay their debts .
I therefore make the orders in the draft orders that were
handed to me, that I have dated and signed. I marked it X.
- - - - - - - - - - - -
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……
THERO
N AJ
JUDGE OF THE HIGH COURT
DATE : 25-08-2025