IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(l) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
.... }If?:. .................... ..
/(/ SIGNATUR E
Case Number: 2024/107143
In the matter between:
EEW TRADING ENTERPRISE (PTY) LTD Applicant
and
DOD DIESEL DELIVERIES (PTY) LTD Respondent
JUDGMENT
H GA SNYMAN AJ
INTRODUCTION
[1] The applicant brings this application for the winding up of the respondent.
[2] The applicant trades as a distributor of petroleum products and derivatives.
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It purchases diesel and offers it for resale to wholesalers and end users. The
applicant supplies the same product it purchases from its suppliers, to
wholesalers and end users and does not change the product in any manner
whatsoever.
(3] The respondent was one of the applicant's customers.
BACKGROUND
(4) During about January 2024 the applicant supplied the respondent with
petroleum products, mainly diesel. The total invoice at the time amounted to
R780 ,000.00. The applicant also entered an acknowledgement of debt
agreement with the respondent, which agreement regulated the business
arrangement between the parties going forward.
[5) The applicant continued to supply the respondent with diesel. By or
approximately 24 May 2024, the respondent was indebted to the applicant in
the amount of R1 ,394,686.25.
(6] Since the amount remained unpaid, the applicant's attorneys on 15 July 2024
caused a notice in terms of section 345 of the Companies Act 61 of 1973
("the notice" and "the Companies Act 1973" respectively) to be served at the
respondent's place of business.
[7] The respondent did not comply with the notice. By 19 September 2024 the
applicant launched this application for the winding up of the respondent. The
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application was presented to court on 20 September 2024. Should the
applicant be successful with this application, 20 September 2024 would in
terms of section 348 of the Companies Act 1973 be the deemed date on
which the winding up of the company commenced.
[8] The applicant is bringing this application in terms of section 344(f) and (h) of
the Companies Act 1973. This is that the respondent company is unable to
pay its debts as described in section 345 and that it would be just and
equitable that the respondent be wound up. For purposes of section
345(1 )(a) of the Companies Act 1973, i.e. that the respondent is unable to
pay its debts, the applicant relies thereon that the respondent neglected to
pay the sum demanded from it in terms of the notice within a period of three
weeks. It also relies thereon that it has proven to the satisfaction of this court
that the respondent is unable to pay its debts.
[9] The applicant complied with the formal requirements insofar as service of the
application is concerned, provided for in section 346 of the Companies Act
1973.
[10] The applicant also obtained a certificate by the Master as envisaged in terms
of section 346(3} of the Companies Act 1973, albeit that it was only procured
and handed up from the bar on the day when the matter came before me. It
is trite that this suffices.
(11] The respondent opposed the application and entered a notice of its intention
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to oppose on 15 October 2024. It appointed CAWR Incorporated as its
attorneys of record.
(12] The respondent filed its answering affidavit on 4 November 2024. It denied
that it was insolvent or indebted to the applicant. In disputing the debt, the
respondent alleged that the quality of the diesel that the applicant supplied
to it was lacking.
[13] The applicant's replying affidavit was filed on 3 December 2024.
[14} As part of the reply the applicant denied that it delivered diesel of inferior
quality to the respondent. In any event, the applicant contended that the
regulations relating to the quality of the diesel on which the respondent relied,
were not yet in force and effect. The applicant also pointed out that the
respondent on two occasions provided it with fake and fraudulent proof of
payments for the diesel. The applicant never received the funds into its bank
account.
[ 15] The matter was set down for hearing on 18 August 2025. The notice of set
down was dated 9 April 2025.
[16] On 11 August 2025, the applicant filed a supplementary affidavit. The aim of
the supplementary affidavit was to provide this court with new facts and
information concerning the respondent. that transpired in the meantime.
Based on the new facts and information the applicant sought to apply for
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alternative relief. The new information was first, that the applicant obtained
information that the respondent initiated voluntary liquidation proceedings
under section 345 and 351 of the Companies Act 1973, through a special
resolution dated 16 April 2025. This was approximately a week after the
notice of set down. The resolution was registered under the provisions of
section 200 of the Companies Act 1973 on 14 May 2025.
(17] When it obtained this information, the applicant's attorneys of record
approached the liquidators who were appointed in terms of the voluntary
liquidation ("the liquidators"). Amongst other things, the liquidators presented
the applicant with copies of the CM26 LIQ and CM 100 statement of affairs
documents as part of the voluntary winding up. This included a statement of
affairs by Mr Willem Kok ("Mr Kok"). Ms Marne Kok (~Ms Kok") was the
deponent to the respondent's answering affidavit. It appears from CM100 that
Mr Kok completed it in the capacity as director of the respondent on 4 April
2025. According to the CM100. the respondent's liabilities exceeded its
assets in the amount of R3,348,606.97.
[18] In addition to being furnished with the documentation referred to above, the
liquidators advised the applicant's attorneys that they were waiting on the
Master of the High Court to convene the first creditors meeting. Moreover,
that they are currently in the process of selling the respondent's assets. They
are awaiting confirmation from the Master for an extension of their power to
proceed with this.
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(19] The applicant points out in the supplementary affidavit that the attorneys of
record who represent the respondent in this application, are also those who
initiated the voluntary liquidation proceedings on behalf of the respondent.
(20] In addition to the above, it is set out in the supplementary affidavit that the
applicant discovered that another creditor of the respondent, namely Triken
Tyres {Pty) Ltd ("Triken Tyres"), launched an application for the respondent's
winding up in February 2025 in the High Court of South Africa Gauteng Local
Division, Johannesburg. The matter was due to be heard on 22 May 2025 on
an unopposed basis. The resolution to voluntary wind up the respondent was
registered days before this date.
(21] The applicant attached a copy the notice of motion and founding affidavit in
the Triken Tyres matter to the supplementary affidavit. It appears from the
founding affidavit in that matter, that the respondent followed the same
modus operandi in respect of Triken Tyres, namely that it provided Triken
Tyres with a proof of payment, which then actually turned out to be fake in
that the funds never reflected in the account of Triken Tyres.
[22) It was stated in the supplementary affidavit that in view of the above, the
respondent had abandoned any hope of opposing the present application
and that the respondent is hopelessly indebted and unable to settle its debts.
As part of the supplementary affidavit the applicant also included copies of
screenshots of advertisements published by the respondent in which it
offered for sale some of its assets.
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[23] As I see it the supplementary affidavit is highly relevant to the present
proceedings and ought therefore to be allowed.
[24] Taking the above developments into account, the applicant relies on section
346(1)(e) of the Companies Act 1973, which provides that a creditor may
make an application to court for the winding up of a company that is in
voluntarily liquidation. It therefore asked that the voluntary liquidation be
converted to a winding up by the court. In this regard, the applicant also relies
on section 354(2) of the Companies Act 1973, which provides that the court
may, as to all matters relating to a winding up, have regard to the wishes of
the creditors or members as proved to it by any sufficient evidence.
[25] To give effect to the alternative relief that it sought, the applicant gave notice
on 14 August 2024 that it would apply for its notice of motion to be amended.
This was served on the respondent, the liquidators, SARS and the Master on
15 August 2025. The applicant subsequently proceeded to effect the
amendment.
[26] On 31 July 2025 a complete set of papers in this application, together with
the supplementary affidavit and the notice of amendment were served on the
liquidators.
DISCUSSION
[27] It is trite that a company already in voluntary liquidation may be wound up by
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the court. This follows from section 346( 1 )( e) of the Companies Act 1973.
This is also exactly what happened in the matter of King Tyre Holdings (Pty)
Ltd v King Pie (Pinetown) (Ply) Ltd; King Pie Holdings (Pty) Ltd v King Pie
(Durban) (Pty) Ltd 1998 (4) SA 1240 (D).
[28) This was referred to with approval by the Supreme Court of Appeal in Afrisam
(South Africa) Proprietary Limited v Maleth Investment Fund Proprietary
Limited (651/2018) [2019] ZASCA 139 (01 October 2019) where the court
held as follows at paragraphs 28 and 29:
'128] The decision of the court in King Pie is consistent with the
provisions of the Act, which allude to the granting of a winding-up court
order in the context of a pending voluntary winding-up. The wide
discretion which the court has when considering that application was
described in Ward & another v Smit & others: In re Gurr v Zambia
Airways Corporation Ltd as follows:
'The language of the section is wide enough to afford the Court
a discretion to set aside a winding-up order both on the basis
that it ought not to have been granted at all and on the basis that
it falls to be set aside by reason of subsequent events.'
As shown above, the wide discretion of a court when considering an
application for winding-up is specifically given under s 347(4){a), that
the court 'may in the winding-up order or by a subsequent order
confirm all or any of the proceedings in the voluntary winding-up.'
(Emphasis suppUed)
[29] Were it necessary for the voluntary winding-up to be set aside
before granting an order of compulsory winding-up, confirmation of the
proceedings under the voluntary winding-up would be an anomaly.
The setting aside of Cemlock's voluntary winding-up was therefore not
necessary. Those proceedings could be set aside if the court, in the
exercise of its discretion, found that it was necessary to do so."
[29) It does not appear from the papers whether Triken Tyres proceeded with its
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application for liquidation of the respondent before the High Court,
Johannesburg. I, therefore, requested the applicant to clarify this aspect. The
matter stood down for this purpose. When the matter resumed, an affidavit
by Ms Karike Huijstek ("Ms Huijstek"), an attorney employed by the
applicant's attorneys of record, was presented to court. From this it appears
that Ms Huijstek contacted Triken Tyres· attorneys of record, Mr Peter Payne
of Payne Steynberg Inc ("Mr Payne") on 18 August 2025. She inquired from
Mr Payne whether Triken Tyres proceeded with their liquidation application
against the respondent. Mr Payne confirmed that Triken Tyre did in fact not
pursue the Johannesburg application on its "return date", because the
effective date of the liquidation in the Johannesburg application is later in
time than the effective date of the present application for the respondent's
winding up. However, he confirmed that Triken Tyres has not withdrawn the
application.
[30] As I see it, the reference to "return date" is not correct. According to the notice
of motion in that matter, what was at stake on 22 May 2025 (which was also
described in the supplementary affidavit as the return date) was the date on
which the notice of motion signalled that the matter would be brought before
court, if the matter was not opposed. It is therefore clear that no winding up
order, albeit provisional or final, has been granted yet in the Triken Tyres
matter.
[31] As I see it, the respondent passed the resolution placing it in voluntary
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liquidation in an attempt to circumvent the consequences of both the present
and the Triken Tyres liquidation applications. Under the circumstances, it did
not serve a legitimate purpose. The liquidators and the respondent with full
knowledge of the alternative relief the applicant would seek before this court,
also did not appear and place anything before me based upon which I could
exercise my discretion not to set the voluntary winding up aside.
[32) Under the circumstances I am satisfied that the applicant has made out a
case for the winding up of the respondent company by court order. There are
clearly many benefits for the applicant rather for the respondent to be wound
up by this Court. as opposed to being in voluntary liquidation. The latter for
instance does not afford the applicant the same mechanisms to conduct
inquiries in terms of section 417 and 418 of the Companies Act 1973.
[33] During the course of the argument, I inquired from Mr Ferreira who appeared
on behalf of the applicant whether a final order as opposed to a provisional
order ought to be granted. Mr Ferreira moved for a final order. I pointed out
to him that in the King Pie matter, the court granted a provisional winding up
order calling upon all interested parties to show cause why on the return date,
why the voluntary winding up should not be set aside in terms of section 354
of the Companies Act 1973. Mr Ferreira left it in the court's hands to
determine whether a provisional, or final order are to be granted.
[34] After considering the matter, I am of the view that no purpose will be served
to grant a provisional order. It is apparent that liquidators in the voluntary
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winding up have taken active steps to wind up the respondent and is intent
to continue to do so. Under the circumstances, it is urgently necessary for
that process to be stopped and to be set aside, and for a final order to be
granted.
[35} In the result, I grant the following orders, which orders in the main accords
with the notice of motion as amended, and the draft order that was handed
up on behalf of the applicant at the hearing:
ORDER
(1] Leave is granted for the filing of the applicant's supplementary affidavit, and
the supplementary affidavit is accepted as properly filed and part of the
record of these proceedings;
[2] The respondent company is placed under final winding-up;
{3] The voluntary winding-up of the respondent, as initiated by special resolution
dated 16 April 2025 and registered on 14 May 2025, is set aside.
[4] The effective date of the liquidation order is 20 September 2024.
(5] The cost of this application, including the filing of the supplementary affidavit,
is hereby included as costs in the administration of the respondent's insolvent
estate. The costs to be on Scale B.
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Heard in court: 18 August 2025
cling Judge of the High Court of
South Africa, Gauteng Division,
Pretoria
Delivered and uploaded to Caselines: 29 August 2025
Appearances:
For the applicant:
For the respondent:
PP Ferreira
Instructed by Du Plessis Myburg Verbeek
Attorneys
No appearance