SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO.: 4880/2024
In the matter between:
PREMIER FMCG (PTY) LTD Applicant
and
ZITIXO TRADING (PTY) LTD
(Registration number: K 20 2015043655/07a
For its liquidation) Respondent
JUDGEMENT
NOBATANA AJ:
[1] The applicant is a private company which specializes in fast moving consumer
goods, wholesaler and merchandising in the Republic, the example given by the
applicant of fast-moving consumer goods are packaged foods, beverages, toiletries,
candles cosmetic’s, over the counter drugs and other consumables. It was originally
a milling and bakery business.
[2] The applicant employs over 7000 employees, it operates 14 bakeries, 7 wheat
mills and 3 maize mills and various manufacturing plants. One of such employees of
the applicant who is among the two that are at the centre of this application is Charl
de Lange “De Lange” and the other is Enrico Windwaai “Windwaai”’
[3] De Lange was appointed as the applicant’s sales manager on the 27th of June
2016, he was reporting to the depot manager at the applicant’s depot in Gqeberha,
his annual salary was R380, 000, 00, which increased annually at 6%. He was
promoted, and as a con sequence of his promotion his salary increased to R 650,
000,00, also increasing annually at 6%. On the 2 nd of August 2022 he was appointed
as depot manager at the Gqeberha depot and his salary increased to R800 000, 00
which also increased annually at 6%. He resigned from the applicant in November
2024, after being confronted with allegations of fraud by the applicant, which
allegations lie at the heart of the present proceedings, and are dealt with more fully
below.
[4] Windwaai was first employed by the applicant as a production superintendent
on the 1 st of January 2022, he was promoted to depot manager at the applicant’s
depot in Gqeberha. He was further promoted to Bakery Manager at the applicant’s
bakery, Aeroton (Near Alberton Gauteng). He held that p osition until he resigned
from the employment of the applicant in November 2024, also pursuant with being
confronted with fraud, in the manner as set out below. De Lange replaced Windwaai
as production superintendent at the applicant’s Gqeberha depot after his promotion
to the position in Gauteng.
[5] Windwaai’s duties also included approving and submitting invoices for
payment, whilst he was still in Gqeberha. The applicant alleges that Windwaai was
part of a scheme, in terms of which excessive and undue amounts were paid to the
respondent, substantial amounts according to the applicant ended up in his personal
banking accounts and were also paid to accounts operated by his spouse. This
happened when Windwaai was employed by the applicant in Gqeberha, and he
happened when Windwaai was employed by the applicant in Gqeberha, and he
continued to receive these amounts even when he was transferred to Gauteng, as
aforesaid. The amounts paid to De Lange and Windwaai originated from the sole
director of the respondent, who is Shane Keys “Keys” according to the applicant.
[6] The applicant makes similar allegations in respect of De Lange. The applicant
further states that it launched an urgent sequestration applications against the
estates of Windwaai and De Lange, provisional orders were granted on the 26 th of
November 2024. The applica nt further alleges that, pursuant to both sequestration
orders being granted, it interviewed Windwaai and De Lange, who both confessed to
being part of a scheme in terms of which they allocated large quantities of sub -
contract work to the respondent, in re turn for monthly kickbacks (corrupt payments).
The applicant states that Windwaai in particular, provided detailed information
regarding the modus operandi of the scheme resulting in the corrupt payments.
[7] As pointed out above, the respondent only has one director, Keys. During
November 2019, the respondent ,was registered on the applicant’s financial system
as a supplier. According to the applicant, its suppliers can only be paid for services
rendered, if t hey are registered as such. A supplier when applying for the said
registration must complete a creditor vetting form.
[8] The services that the respondent was to provide was to provide painting and
signage for the applicant’s enterprise development program “ the program ”. The
program was aimed for assisting schools and general trading stores operated by
previously disadvantaged individuals and communities. The applicant involved
general trading stores and/or pre -schools for painting work t o be undertaken and
signage to be installed at the stores and pre -schools. The applicant covers the direct
costs on behalf of the store owners and preschools up to a certain value. The
program was initially focused in Gqeberha, but was later expanded to Qu eenstown
and East London
[9] A supplier agreement was concluded between the applicant represented by
De Lange and the respondent represented by Keys. The applicant further alleges
that the respondent managed by Keys, was directly involved in the fraud per petrated
by De Lange and Windwaai, as stated above. The applicant is of the view that the
respondents,affairs in this regard must be investigated by a liquidator. The applicant
respondents,affairs in this regard must be investigated by a liquidator. The applicant
further alleges that in September 2024, Mark Niemaan -Liversage, who is the grou p
risk and procurement manager of the applicant based in Midrand, Gauteng, and a
deponent to the founding affidavit “ the deponent” , was approached by Danny
Simpson “Simpson”, who is applicant’s bakery managing executive raising concerns
regarding suppliers that had grown substantially over time and to whom large
payments were made.
[10] The respondent was indicated as one of such suppliers. Simpson obtained
some of the respondent’s invoices from the applicant’s finance department, which he
shared with the deponent. These invoices reflected large payments to the
respondent. On the 1 st of October the deponent was requested by Simpson to
undertake a further investigation, the deponent requested further information relating
to the respondent on the same day.
[11] The information that was provided to the deponent included a selection of
emails collected from Windwaai’s email mailbox, which is administered by the
applicant, and invoices relating to the respondent. When the deponent realized that
the information received was incomplete, he requested access to Windwaai’s and De
Lange’s emails from the applicant’s information technology department “ IT
department”. The IT department has access to Windwaai’s and De Lange’s email
addresses. The deponent also received al l emails to and from Windwaai’s email
address. In terms of the applicant’s IT policy the applicant may access and view all
emails sent and received by its employees from the applicant’s email account.
[12] The deponent further states that the process of t he investigation took a while,
as the investigation was conducted by the deponent in addition to his normal
functions, which he performed as an employee of the applicant. The deponent
analyzed the emails over the period from 21 October to 12 th November 202 4. He
discovered various bank statements, which De Lange previously emailed to himself
from his personal email address, these bank statements showed that De Lange
received various payments into a Nedbank account held in his name, amounting to
R190 620.00. The deponent searched in De Lange’s communication with Keys as
he had identified that the payments were originating from him. He noticed that on the
20th of July 2020, Keys sent a signed letter on the respondent’s letterhead to De
20th of July 2020, Keys sent a signed letter on the respondent’s letterhead to De
Lange’s personal email a ddress , in this letter the respondent purported to confirm
that De Lange was an associate of the respondent and was earning a monthly
salary of R37 000.00. This email was forwarded by De Lange to his work email
address on the 21st of July. In addition to the above, the deponent found an unsigned
letter on the respondent’s letterhead which De Lange had sent from his personal
email address to his work email address dated 7 th August 2023, and this letter
indicated that, De Lange was an employee of the respon dent, it also confirmed that
the unemployment insurance fund deductions reflected on De Lange’s respondent’s
payslips were correct. None of these payments nor the reasons thereof were ever
disclosed to the applicant by De Lange. They only came to applicant ’s attention as a
result of the investigations conducted by the deponent in the manner as aforesaid.
[13] According to the deponent, the applicant considers these payments to be
‘gratification’ as defined in section 3 of the Prevention and Combatting of C orrupt
Activities Act, 12 of 2004 “ PRECCA”, and that it intends to lay criminal charges
against De Lange and the respondent, in addition, De Lange did not disclose any
private interest he might have had in relation to the contract entered into between the
applicant and the respondent, as he was required to do so in terms of the applicant’s
policy. The deponent further states that even if De Lange requested such a
permission, it would have been refused, as it amounted to a conflict of interest
between De Lan ge as an employee of the applicant and the respondent, who is a
service provider to the applicant.
[14] The deponent requested further a invoice and payment history relating to the
respondent from the applicant’s finance department. The deponent received
reconciliations over the period from 23 October to 6 th November 2024. The history
reflects that between December 2019 and August 2024 the applicant processed and
made payments to the respondent amounting to R12 915 123.00. The investigation
further reveale d that there was a discrepancy between the work undertaken in
respect of the program that had been recorded for BBBEE purposes, and the total
amount paid to the respondent in respect of its invoices. The deponent thereafter
undertook an invoice analysis, a nd discovered that not all the invoices rendered by
the respondent for work allegedly done by it were supported by data captured at the
applicant’s Gqeberha depot for BBBEE purposes, as is usually the case. He
concluded the analysis on the 6th of November 2024.
concluded the analysis on the 6th of November 2024.
[15] The deponent further states that from the initial invoice analysis for the value
of the work that was invoiced by the respondent to the applicant, for which the
applicant had paid for, there was no proof of work that was submitted, at the
applicant’s Gqeberha depot. The value of the work that was invoiced was
R2 708 000.00. It appeared that the respondent charged the applicant for work not
done, or overcharged the applicant to facilitate payment of the kickbacks to De
Lange and Windwaai. This, according to the deponent, explains the significant
increase in the annual payment made to the respondent from 2019 to 2024. As a
result of these discrepancies, the applicant requested forensic auditors to investigate
the suspected fraud. As part of their investigations the forensic auditors interviewed
De Lange and Windwaai and with their consent scrutinized their bank accounts with
respect of the period between January 2019 and November 2024. The deponent
states at the time of him deposing to this affidav it the Nedbank statements of
Windwaai were still outstanding.
[16] The investigation into available statements revealed that fraud was committed
against the applicant through the respondent in the amount of R3 295 860.00. This
amount is expected to incre ase to approximately R4 000 000.00 once all the bank
statements have all been scrutinized. An invoice reconciliation completed by the
applicant’s finance department also reflects that most of these invoices submitted by
the respondent over the period from 2019 to the date of the deposition of the
founding affidavit were approved by either De Lange or Windwaai. De Lange as
Gqeberha depot manager signed most invoices between July 2022 to August 2024,
before July 2022, invoices were approved by Windwaai.
[17] The deponent further conducted investigations on Windwaai’s accounts and
he discovered an email dated 15 th April 2020, which Windwaai sent to himself, from
the email address of his wife. The email contained a bank statement in respect of a
bank account of Windwaai. The bank statement revealed statements to Windwaai,
which were made between the 7 th of February 2020 to 23 March 2020, amounting to
R44 800.00, all with the reference “ Shane”, which is the first name of Keys. On the
15th of April, there was an e mail on respondent’s letterhead, which confirmed
similarly that Windwaai was an associate of the respondent and was earning an
amount of R20 000.00. He also discovered an email which contained a bank
amount of R20 000.00. He also discovered an email which contained a bank
statement of Windwaai’s wife, in which she received an a mount of R32 000.00 with
the reference “Zitixo Trading” (the respondent). The deponent drew an inference that
the said an amount of R32 000.00 were kickbacks paid by the respondent through
Keys via Windwaai’s wife’s bank account. From this information the deponent also
concluded that Windwaai was also receiving payments from Keys every month from
2019 to the date of the deposition of the founding affidavit, as was with the case of
De Lange.
[18] According to the applicant, this too amounts to ‘ gratification’ as defined in
section 3 of PRECCA, as the payments were made to Windwaai by a registered
supplier of the applicant. The applicant intends to lay criminal charges against
Windwaai and the respondent.
[19] As was the case with De Lange, Windwaai did not disclose the relationship
between himself and the respondent, who was the supplier of the applicant, and
even if he had disclosed such an interest, the applicant would not have approved of
such a relationship as it amounted to a conflict of interest betwee n Windwaai as an
employee of the applicant and the respondent who was a service provider to the
applicant.
[20] The deponent further states that at the date of the deposition of the founding
affidavit, he did not have the full amounts paid by the responde nt to Windwaai’s
account, as they were paid in Windwaai’s Nedbank account, as the applicant at the
date of the deposition of the founding affidavit had not have access to Windwaai’s
Nedbank account , and even if it had the details of the banking transactio ns in
Windwaai’s Nedbank account, such details had not yet been analyzed.
[21] The applicant further reiterates that both Windwaai and De Lange admitted
their involvement in the fraudulent scheme involving the respondent and keys during
the investigations referred to above, and further that after the estates of Windwaai
and De Lange’s were provisionally sequestrated they both resigned as employees of
the applicant on the 29th of November 2024 with immediate effect.
[22] The applicant further states that pa yments to the respondent per annum from
the commencement of the contract until 2024, which was the first 10 months of the
contract, increased from R44 000.00 to R3 913 998.00. This increase, according to
the applicant, was in order to enable the responden t to earn sufficient income to
afford the unlawful kickbacks to De Lange and Windwaai, with whom it had a corrupt
relationship.
relationship.
[23] The applicant contends that the respondent must be wound -up by a court in
terms of section 344(h) of the 1973 Act also in terms of section 81 of the 2008 Act.
The applicant contends that,it is an innocent victim of fraud perpetrated by the
respondent over a long period of time. The fraud was committed whilst the
respondent knew that it prejudiced the applicant. The secretive manner in which the
fraud was perpetrated indicated that the respondent understood that its conduct was
unlawful and criminal.
[24] The applicant contends that the manner in which Keys used the respondent to
overcharge the applicant to facilitate the payment of kickbacks to De Lange and
Windwaai constitutes a contravention of the common law and a statutory prohibition
contained in sect ion 22(1) of the Companies Act 2008, (Act No. 71 of 2008), that a
company must not carry on its business to defraud any person or for any fraudulent
purpose as the respondent is a vehicle to perpetrate fraud, it would be just and
equitable to liquidate it so that a liquidator could investigate the fraud and recover
from Keys and any other person who benefited from the fraud the fruits of their
unlawful gains.
[25] The applicant intends to request the respondent’s liquidators to convene a
commission of enquiry into the trade dealings and affairs of the respondent in terms
of section 417 of the Companies Act 1973 to enable the liquidators to recover
monies paid to Keys and others, which the respondent would not be able to pay but
for the fraud on the applican t. The applicant accordingly submits that it is just and
equitable for the respondent to be wound-up in terms of both the 1973 and as well as
the 2008 Companies Act. The applicant further contends that in addition to the just
and equitable ground, it would also be appropriate to liquidate the respondent as it
was unable to pay its debts owed to the applicant. The respondent is indebted to the
applicant for an amount of R12 915 123.00 alternatively, R3 295 860.00, excluding
interest and costs. The debt is immediately due and payable.
[26] The respondent owns no immovable property and during the interview with
Windwaai on the 27th of November 2024, Windwaai indicated that Keys only owns a
bakkie, he could not indicate that the respondent owned any fixed prope rty. The
applicant further challenged the respondent to disclose the balance sheet of its
applicant further challenged the respondent to disclose the balance sheet of its
unencumbered assets, should it oppose this application.
[27] The respondent has opposed this application, in its answering affidavit it
states that it notes that the applicant seeks its winding -up on the basis of 334(f) of
the 1973 Act, in that the applicant alleges that it is not able to pay a debt that it
allegedly owes the applicant, alternatively, on the basis of section of 344(h) of the
1973 Act, and/or section 8 1 (i)(c)(ii) of the 2008 Act in that it is just and equitable
that the respondent be liquidated. The respondent contends that before the applicant
can pursue and seek its winding -up in terms of section 344(f) of the 1974 Act, it
should first demonstrate t hat there is an existent debt that is owed by the
respondent, in support of the alternative ground, the applicant must set out grounds
upon which the court will be satisfied that it is just and equitable for the court to grant
relief sought by the applicant.
[28] Regarding the primary ground on which the applicant relies on, the
respondent states that the applicant, has set out an extensive account of its internal
investigation in respect of its former employees De Lange and Windwaai, and
according to the applicant, the manager of its investigation confirmed that the two
had committed acts of fraud against the applicant, and that both De Lange and
Windwaai confessed as being part of the scheme. The respondent states that the
applicant has failed to annex a copy of the said confessions by Windwaai and De
Lange or any confirmatory affidavits, and accordingly the allegations by the applicant
in this regard are unsubstantiated and bald.
[29] The respondent further disputes the authenticity of the two letters em anating
from it confirming that Windwaai and De Lange were its associates and were
receiving payments from it. The respondent further states that the applicant does not
state in its founding affidavit that the respondent has ever been advised of the
fraudulent conduct, secondly that it has never been approached by any law
enforcement agency regarding the allegation of fraud, thirdly that no demand has
been made by the applicant to the respondent for the payment of the money that is
the basis of the debt allegedly owed by the respondent to the applicant , which forms
the basis of the relief sought by the applicant in this application. Fourthly, the
existence of fraud is a mere suspicion.
[30] The respondent further contends that it is not open to the applican t to seek
[30] The respondent further contends that it is not open to the applican t to seek
the present order that it is now seeking, especially in view of the fact that the
applicant, on its own version, is still investigating the fraud. The respondent
accordingly concludes that the applicant has failed to meet the requirements
stipulated in both section 344(h) of the 1973 Act read with section 81(1)(c)(i) of the
2008 Act. The allegations made in support of this basis are speculative, as they are
based on an untested allegation of fraud that the respondent was never informed of
and are made without any demand made to the respondent in respect thereof.
[31] The respondent further contends that the applicant alleges that the
respondent is unable to pay its debt, whereas it has not demanded payment to the
respondent. The respondent accordi ngly contends that opposes this application on
the following grounds:
(1) That the application is premature as no demand has been made,
and/or that no evidence exist that the respondent committed the fraud
(2) That the attorneys of record for the applicant have not filed any power
of attorney confirming its authority to act on behalf of the applicant. The
applicant simply relies on the bald allegation made in the deponent’s
affidavit that he is authorized to con duct the matter on behalf of the
applicant. The respondent states that it was not in the position to file a
notice in terms of Rule 7(1) as it did not have funds to instruct its
attorneys to do so, and at the time when it could do so, the 10 day
period pre scribed in terms of the rule had lapsed and asks for
condonation in this regard as it had provided good cause for the delay
(3) The deponent to the founding affidavit has failed to file any confirmatory
affidavit confirming that this application had been autho rized by the
applicant
(4) The respondent further states that it opposes this application on the
above mentioned grounds, and accordingly does not propose to deal
with the allegations made by the applicant against De Lange and
Windwaai , which it does not hav e knowledge of. The respondent
accordingly does not admit or deny the allegations, secondly the
applicant has not informed the respondent of the allegations of fraud
against it, therefore it is not in a position to deal with these allegations
accordingly does not admit the said allegations.
[32] In relation to costs, the respondent contends that the respondent is not
[32] In relation to costs, the respondent contends that the respondent is not
entitled to costs, including costs of two counsel for the reasons that it has not
explained to the court the reason why it is seeking such a court order. This
application is a straightforward application that does not involve intricate principles of
law or complicated facts warranting the engagement of two counsel. The respondent
accordingly asks the court to dismiss this application on a punit ive scale of attorney
and client.
[33] In reply, the applicant states that in motion proceedings a respondent must
engage with factual allegations that fall within its personal knowledge, failure to do so
will ordinarily result in the applicant’s factual evidence being admitted as
uncontested.
[34] The respondent states that the applicant has not disputed that it paid
kickbacks to De Lange and Windwaai, instead of dealing with the allegations, the
respondent only stated that the source of the bank statemen ts reflecting the
fraudulent payments has not been verified, this is not an answer to the allegation
according to the applicant. The applicant further contends that the founding affidavit
clearly explains that the respondent is indebted to the applicant fo r an amount not
exceeding R12 900 000.00 or at least R3 200 000.00. The respondent does not
dispute receiving R12 900 000.00 from the applicant and does not deny that it did
have a corrupt relationship with De Lange and Windwaai. In addition the founding
affidavit made it clear that it would be just and equitable to liquidate the respondent
as it is used as a vehicle through which fraud was committed.
[35] The applicant further states that the respondent in its answering affidavit has
not denied making pay ments to Windwaai. The applicant in this regard further
annexed the affidavit of Windwaai where he admits payment from Keys and/or the
respondent. Similarly, the respondent denies the source of the two letters which
confirm that Windwaai and De Lange are a ssociates of the respondent entitled to be
paid certain sums of money.
[36] It is clear on the letters themselves that the origin of the letters are from the
email address of Keys, who is the sole director of the respondent, as the email
address from whic h the letters came from is s[...]. This is not denied by the
address from whic h the letters came from is s[...]. This is not denied by the
respondent, and Keys does not deny that it is his signature which appears on the
letters.
[37] The applicant further states that a full investigation on the role of the
respondent will be revealed in the criminal proceedings that will ensue. The applicant
denies that a demand for payment is a prerequisite for a liquidation application. The
---
applicant further reiterates that it will d emand a commission of enquiry to be
instituted by a liquidator in terms of section 417 f the Companies Act after the order
in this application is granted. The applicant further states that the respondent was
invited to file a balance sheet reflecting its a ssets and liability, it has failed and/or
ignored the challenge. The applicant further states that the deponent of an affidavit in
a liquidation application is in the position of a witness and does not need any
authority to depose to the affidavit, this is a trite legal principle. The applicant in any
event, annexed an authority to institute the legal proceedings in the form of a
resolution of the company, which authorizes and rectifies all steps that have been
taken in these proceedings, to the extent that this is necessary.
[38] The applicant states that the bare denial of the allegations concerning De
Lange and Windwaai is inadequate. It notes that the respondent has failed or made
no attempts to expressly deny its involvement in the fraud. The applicant further
states that although there are further investigations that are being conducted in
relation to the fraud, the founding affidavit has provided a detailed exposition of the
fraud already uncovered. There is accordingly no basis that what is contained in the
affidavit is a suspicion. A proper perusal of the affidavit makes it plain to see that the
involvement of the respondent in the fraud is beyond any doubt. The response of the
respondent when confronted with the express allegation concerning its rol e in the
fraud is unconvincing and suggests that it is unable to deal with the allegation of
fraud on a factual level.
[39] In respect to the issue of costs, the applicant is of the view that the discretion
to award an appropriate cost order lies with the court and at the hearing of the
application, it will deal with the appropriate scale of costs to be awarded.
application, it will deal with the appropriate scale of costs to be awarded.
[40] During argument Mr. Voster SC, on behalf of the applicant stated that the
applicant and the respondent had a contractual relationship, which commenced in
November 2019 and terminated late 2024, when the applicant discovered that the
respondent was in a corrupt relationship with 2 of its employees, and had defrauded
it. The respondent received undue payments to facilitate payment of kickbacks to
applicant’s employees De Lange and Windwaai. The amounts paid by the applicant
to the respondent for services rendered had increased dramatically in the first 10
months of the contract from the initial amount of R44 000.00 to R3 913 998.00. The
volume of orders placed with the respondent also increased, this increase according
to the applicant was aimed in order for the respondent to earn sufficient income to
pay unlawful kickbacks to Windwaai and De Lange.
[41] Windwaai and De Lange have admitted their i nvolvement in the fraudulent
scheme involving the respondent and its sole director Keys. After the provisional
sequestration of their estates, Windwaai and De Lange resigned from their
employment with the applicant on the 24 th of November 2024 with immedia te effect.
The present application is for the winding -up of the respondent in terms of 334(f) of
the 1973 Companies Act, 61 of 1973 on the basis that the respondent is unable to
pay the debts owed to the applicant alternatively, in terms of section 334(h) of the
1973 Act, on the basis that it is just and equitable that the respondent should be
wound-up.
[42] In view of the fact that the termination of the contractual relationship had its
origins in bribery and fraud, the applicant was entitled to void the agreement and
claim repayment of the amounts paid to the respondent in terms of the agreement. In
addition, the applicant is entitled to claim repayment of the amounts paid to the
respondent without the respondent performing any work to justify the payment. In the
light of the fact that the respondent (i) the respondent owns no assets; and (ii) an
investigation into its commercial affairs is justified to determine the full extent of the
benefits it derived from the fraud; an order for its liquidation is justified. The test
which the applicant must satisfy to be entitled to a provisional winding -up order was
set out in Kalil v Decotex (Pty) Ltd and Another1
“Where on the affidavits there is a prima facie case (i.e. a balance of probabilities) in favour of
the applicant, them, in my view, a provisional order of winding up should normally be granted
and, save exceptional circumstances, the Court should not accede to an application by the
and, save exceptional circumstances, the Court should not accede to an application by the
respondent that the matter be referred to the hearing of viva voce evidence”
[43] This test was reformulated by the Supreme Court of Appeal in Afgri
Operations Ltd v Hambs Fleet (Pty) Ltd 2. In order to resist the application, the
respondent in terms of the principles set out in Kalil was stated as follows:
1 (158/87) [1987] ZASCA 156; [1988] 2 All SA 159 (A) (3 December 1987).
2 (542/16) [2017] ZASCA 24; 2022 (1) SA 91 (SCA) (24 March 2017).
“Consequently, where the respondent shows on a balance of probability that its indebtedness
to the applicant is disputed on bona fide and reasonable grounds, the Court will refuse a
winding up order. The onus on the respondent is not to show that it is not indebted to the
applicant: it is merely to show that the indebtedness is disputed on bona fide and reasonable
grounds.”
[44] In Imperial Logistics Advance (Pty) Ltd v Remnant Wealth Holdings (Pty)
Ltd3, the Supreme Court of Appeal held that the enquiry into whether the
indebtedness was disputed on bona fide and reasonable grounds required scrutiny
of the respondent’s case:
“[33] The next question is whether the appellant had made out a case for the liquidation of
the respondent. It is trite that winding -up proceedings are not to be used to enforce
payment of a debt that is disputed on bona fide and reasonable grounds. The
procedure for winding -up is not designed for the resolution of disputes as to the
existence or non-existence of a debt.
[34] Where, however, the respondent’s indebtedness gas prima facie been established,
the onus is on it to show that this indebtedness is indee d disputed in bona fide and
reasonable grounds, In addition to its statutory discretion, the court has an inherent
jurisdiction to prevent abuse of its process and, therefore, even where a good ground
for winding -up is established, the court will not grant the order where the sole or
predominant motive or purpose of the applicant is something other than the bona fide
bringing of the company’s liquidation for its own sake
[37] The question which arises is whether the respondent has established that it has
reasonable grounds for disputing the existence of the appellant’s claims. This calls for
scrutiny of the allegations forming the basis of the respondent’s defenses.”
[45] In essence a respondent in a liquidation application must dispute a debt on a
bona fide basis that the respondent subjectively believes to be true. The court must
bona fide basis that the respondent subjectively believes to be true. The court must
then determine objectively whether the respondent’s subjective belief is reasonable.
[46] In response to the respondent’s challenge on the authority of the deponent to
depose to the founding affidavit, the applicant submitted that, the challenge of
authority of the applicant in an affidavit in the manner that it is done by the
respondent is inappropriate in that it is trite that a deponent to affidavit is in a position
of a witness, and his authority to represent a litigating party is irrelevant, in this
3 (326/2021) [2022] ZASCA 143 (24 October 2022).
regard the applicant referred the court to the decision in Ganes v Telecon Namibia
Limited4
“In my view, it is irrelevant whether Hanke has been authorized to depose to the founding
affidavit. The deponent to an affidavit in motion proceedings need not be authorised by the
parties concerned to depose to the affidavit. It is the institution of the proceedings and the
prosecution thereof which must be authorized. In the present case the proceedings were
instituted and prosecuted by a firm of attorneys purporting to act on behalf of the respondent “
The applicant accordingly submitted that there was no merit to the objection.
[47] In response to the second objection, by the respondent, that the investigations
of the applicant in relation to the allegation of fraud are incomplete the applicant
referred the court to the decision in VBS Mutual Bank (in li quidation) v Mudzonga 5,
and submitted that although decision was a sequestration application, the principle
that can be extracted from the decision in relation incompleteness of the
investigation is applicable to a liquidation application in that decision it was held in
relation to the incompleteness of an investigation:
“In Irvin and Johnson (Pty) Ltd v Basson…the investigation was not yet complete, and Basson
had admitted misappropriation in the amount of R16 000….The court held that as the
investigation had established liability over R100, the applicant had established that it had the
locus standi. The court stated as follows:
‘for the present purposes, it is of no consequence, in my view, that the full extent of the
respondent’s liability may eventually prove to be in excess of the amount of R103 925, 49.
The evidence as it stands, if accepted, established a liability of not less that the amount to
which I have referred. Then there is also evidence that the respondent confessed or admitted
to having misappropriated a fixed sum of R16 000. On that basis, and without expressing any
to having misappropriated a fixed sum of R16 000. On that basis, and without expressing any
views as to the conclusion to which a court might come when all the affidavits are eventually
considered. I am satisfied that, for the present purposes the applicant has establis hed that it
has locus standi”
[48] It was further submitted on behalf of the applicant that in investigation as it
currently stands it was established that the applicant has been defrauded by the
respondent for the amount of at least R3. 295. 860, 00, whic h has not been disputed
by the respondent, the total amount paid by the applicant to the respondent arising
from the contract was R12 915 123,00.
4 2004(3) SA 615 (SCA) at 624 [19].
5 (25057/208) [2019] ZAGP JHC 273 (23 August 2019) at [46] and [47].
[49] It was further submitted that it is trite that an agreement established as a
result of bribery, is voidab le at the instance of the innocent party 6 and accordingly in
view of the fact that the supplier contract between the applicant and the respondent
to was intended to defraud the applicant who was an innocent party, it was open to
the applicant to have the agreement set aside as void, and that the applicant has
elected to void the agreement, and the applicant is accordingly entitled to restitution,
and in this regard be refunded by the applicant the entire amount of R12 915 123,
00 which was paid by the app licant to the respondent in respect of a void contract,
the respondent was accordingly liable to the applicant for the entire amount of
R12 915 123,00, and accordingly also on this ground the applicant has the requisite
locus standi to institute the prese nt action against the respondent and to seek the
relief that it seeks in these proceedings.
[50] Finally the applicant submits that the respondent owns no immovable
property, and that this allegation has not been disputed on the papers, the
respondent has failed to file its balance sheet despite being challenged to do so by
the applicant in its founding affidavit, the applicant accordingly contends that it is
entitled to the order in terms of section 334(f) of the 1973 Act, winding up the
respondent. The ap plicant in this regard referred to the decision in Thunder Cats
Investments 92 (Pty) Ltd and another v Nkonjane Economic Prospecting and
Investment (Pty) Ltd and Others7 in which it was held that:
“Section 344(h) of the 1973 Act provides that a company may be wound up by the court when
it is ‘just and equitable’ to do so. A winding up on this basis ‘postulated not facts but only a
broad conclusion of the law, justice and equity, as a ground for winding -up’….There is no
fixed category of circumsta nce which may provide a basis for winding -up on the just and
equitable ground…
equitable ground…
…some of the categories that have been identified are the disappearance of a company’s
substratum; illegality of the objects of the company and fraud in relation to it ….No doubt
these categories remain under the new Act and may be extended”
[51] It was submitted on behalf of the applicant that the applicant was used as a
vehicle through which fraud was committed. It is therefore just and equitable that it
be wound up so that a l iquidator can investigate its affairs. Such an investigation will
6 See Extel Industrial Ltd and another v Crown Mills (Pty) Ltd 1999 (2) SA 719 (A), and also North
West Provincial Government v Tswaing Consulting CC 2007 (4) SA 452 (SCA) at 460B -D.
7 2014 (5) SA 1 (SCA).
enable the liquidator to set aside impeachable transactions and to at least attempt to
undo the harm caused by the fraudulent scheme.
[52] In relation to the approach adopted by the responde nt in its affidavit in
opposition to this application, it was submitted on behalf of the applicant that, in
motion proceedings the affidavit take the place of both the pleadings and the
supported facts, the answering affidavit of the respondent avoided dea ling with
almost all the relevant factual allegations.
[53] The applicant referred the court the following dicta of the Supreme Court of
Appeal dealing with the interpretation of affidavits in an opposed application where
there are disputes of fact;
“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that
the party who purports to raise the dispute has in his affidavit seriously and unambiguously
addressed the fact said to be disputed. There will of course be instanc es where a bare denial
meets the requirement because there is no other way open to the disputing party and nothing
more can therefore be expected of him. But even that may not be sufficient if the fact averred
lies purely within the knowledge of the averri ng party and no basis is laid for disputing the
veracity or accuracy of the averment. When the facts averred are such that the disputing party
must necessarily possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case
on a bare or ambiguous denial the court will generally have difficulty in finding that the test is
satisfied. I say ‘generally’ because factual averments seldom stand apart from a broader
matrix of circumstances all of which needs to be borne in mind when arriving at a decision.
A litigant may not necessarily recognize or understand the nuances of a bare or general
denial as against a real attempt to grapple with all relevant factual allegati ons made by the
denial as against a real attempt to grapple with all relevant factual allegati ons made by the
other party. But when he signs the answering affidavit, he commits himself to its contents,
inadequate as they may be, and will only in exceptional circumstances be permitted to
disavow them. There is thus a serious duty imposed upon a lega l adviser who settles and
answering affidavit to ascertain and engage with facts which his client disputes and to reflect
such disputes fully and accurately in the answering affidavit. If that does not happen it should
come as no surprise that the court takes a robust view of the matter.”
[54] The founding affidavit according to the applicant makes allegations of fraud
against the respondent. The deponent to the answering affidavit, is the respondent’s
sole director, he ought to have knowledge of the allegations against the respondent.
He decided not to deal with the allegations. The applicant lists the serious allegations
that were made against the respondent and the response that was given by the
respondent to those allegations, which are inter alia as follows:
1. Kickbacks paid by the respondent through its sole director, Keys, to De
Lange and Windwaai. The response of the respondent to this allegation
is that it merely disputes the source of the bank statement reflecting the
payment, as not being verified. The fact of the payment of the kickbacks
is not disputed
2. The second serious allegation is that an investigation reveals that the
applicant was overcharged by the respondent to facilitate the payment of
kickbacks, which is the modus operandi of the fraud amounting to
R3 295 860.00. The respondent does not deny the fraud, it merely states
that it was not advised about the alleged fraudulent conduct, or was not
questioned by the applicant or any law enforcement agency, no demand
has been made. The existence of the fraud is a suspicion, and the fraud
is still being investigated.
3. The third serious allegation according to the applicant is that the
respondent is unable to pay the debt owed to the applicant, the
respondent’s response to this allegation only states that no demand has
been made, it does not dispute that it is unable to pay its debts and does
not place anything to court that it is able to pay its debts.
[55] Accordingly, it is the submission of the applicant that the allegations made by
it against the respondent remain unanswered. The answering affidavit ac cording to
the applicant does not raise any dispute of fact, as to the existence of a debt owed to
the applicant, it merely raises technical points and the respondent’s sole director,
Keys, avoided engaging head on the factual allegation, that fall within his personal
knowledge, such as the payments made by him to De Lange and Windwaai and the
two letters signed by him. Accordingly, the applicant contends that it is an unpaid
two letters signed by him. Accordingly, the applicant contends that it is an unpaid
creditor who has a right to a winding-up order against the respondent, and that under
the circumstances, a final order must be granted.
[56] Ms. Msizi on behalf of the respondent submitted that the assertion of the
applicant that the respondent is indebted to it, is founded upon the outcome of
internal investigations conducted by the a pplicant. The applicant states that the
outcome of the investigation established that the respondent was in cahoots with
Windwaai and De Lange to defraud the applicant, as a result of the fraud, the
applicant is owed by the respondent an amount which is still under investigation.
[57] It is further submitted on behalf of the respondent that the allegations made by
the applicant against the respondent are bald and further that the applicant sought to
supplement its founding affidavit in reply, which in doin g so it was unsuccessful. The
second basis on which the respondent opposes applicant’s application is that the
applicant relies on the evidence of third parties, which is untested and that no claim
has been made by the respondent and no criminal case has been opened against it.
[58] The respondent accordingly contends that the application is premature, in
other words the applicant has filed to satisfy the court that it meets the requirements
of sections 334 (f), 334(h) or 81(1)(c)(ii) of the Companies Act. With regards to costs,
the respondent submits that there is no justification for the Court Order sought by the
applicant in respect of the scale of costs (attorney and client) and the cost of two
counsel. The respondent accordingly contends that in the ev ent that the court grants
the order sought by the applicant in this application, it should grant a normal order on
the party and party scale, and that the applicant must not be awarded the costs of
two counsel as this is a simple application.
[59] It is t rite that in an opposed application the order can be granted in favour of
the applicant where there are disputes of fact if there is no application for the referral
of disputes of facts to oral evidence based on the undisputed facts. This test was set
out in the well-known decision of Plascon-Evans Paints Ltd v Van Riebeeck Pains
(Pty) Ltd 8, and according to Harams 9 “If, notwithstanding that there are facts in
(Pty) Ltd 8, and according to Harams 9 “If, notwithstanding that there are facts in
dispute on the papers, the court is satisfied that the applicant is entitled to relief in
view of the facts stated by the respondent together with the facts in the applicant’s
affidavits which are admitted or have not been denied, it will make an order giving
effect to such finding” In respect to how a dispute of fact arises this was discussed in
8 1984 3 SA l23 (A) 634.
9 Harams: Civil Procedure in the Superior Court, B -59.
the well-known decision of Room Hire Co (Pty) Ltd v Jeppe Street Mansions 10 in
summarizing what was stated in the decision , Harams11 states as follows:
“1. The respondent may deny one or more of the material allegations made on the
applicant’s behalf and produce evidence to the contrary, or apply for the leading of
oral evidence of witnesses who are not presently available or who, though averse to
making an affidavit , would give evidence of subpoenaed.
2. The respondent may admit the applicant’s affidavit evidence but allege other facts,
which the applicant disputes.
3. The respondent, while conceding that he has no knowledge of one or more material
facts stated by the applicant may deny them and put the applicant to the proof , and
himself giving or proposing to give evidence to show that the applicant and his
deponents are biased and untruthful or otherwise unreliable , or that certain facts
upon which t he applicant relies to prove the main facts are untrue. The absence of
positive evidence directly contradicting applicant’s main allegations, does not render
a case such as this free of a real dispute of fact.”
The learned author12 further states that:
“On the other hand, a real dispute of fact does not arise where the respondent:
1. states that he can lead no evidence himself or by others to dispute the truth of the
applicant’s statements, but puts the applicant to the proof or truth of the applicant’s
statements, but puts the applicant to the proof, or
2. relies on a bare denial of allegations in the applicant’s affidavits.”
[60] In my view, when applying these principles, there are no disputes of fact
between the version of the applicant and that of the respondent and accordingly the
application can be dealt with or to be granted on the version of the applicant, I say so
for the following reasons:
60.1 applicant’s application is for a final order of sequestration against the
respondent . It is common cause that the application is based on the
respondent . It is common cause that the application is based on the
provisions of sections 344(f), and/or 345(h) o f the old Companies Act
read with section 81(1)(c)(ii) of the 2008 Act
60.2 Section 344(f) provides that a company may be liquidated if:
“(a) …
10 1949 3 SA 1155 (T).
11Op sit at page B -58.
12 Harams: opsit I at page B-58.
(b) …
(c) …
(d) …
(e) …
(f) the company is unable to pay its debts as described in section 345;”
Section 345 (h) also provides that a company may be liquidated if:
(h) it appears to the court that it is just and equitable that the company should be wound
up
Section 81(1)(c) of the new Companies Act provides as follows:
“(1) A court may order a solvent company should be wound up if-
(a) …
(b)
(c) one or more of the company’s creditors have applied to the court for an
order to wind up the company on the grounds that:
(i) …
(ii) it is otherwise just and equitable for the company to be wound up;”
60.3 It is clear from the reading of the three sections, and applicant’s
founding affidavit that the application is based on one of the two
grounds, the first ground is that the applicant is unable to pay its debts
(section 344(f) of the companies act 1973, and the second ground is
that it is just and equitable that the respondent be wound up 344(h) of
the 1973 companies act, read with section 81(1)(c)(ii) of the companies
act 2008. Section 344 is one of the sections of the 1973 act that has
survived the repeal of the 1973 companies act by the companies act
2008, this is in terms of schedule 5 item 8 (1) of the 2008 Act.
60.4 In this regard, the applicant has made the following allegations in
support of the relief sought, which are uncontested, that the respondent
is unable to pay its debts. The applicant states that an internal
investigation within the applicant finance department and in the e -
mail correspondence between two of the applicants employees, De
Lange and Windwaai and the respondent, has revealed that the
applicant was overcharged by the respondent to facilitate the payment
of kickbacks, by the respondent to De Lange and Windwaai and
accordingly the applicant was defrauded by the said employees and
the respondent for the amount R3 295 860.00.
60.5 The inves tigation further revealed that the applicant has between
December 2019 to August 2024 paid the respondent an amount of
R12 915 123 00 for services that were not rendered by the respondent
to the applicant, and accordingly the respondent must pay back the
these amounts back to the applicant.
60.6 The investigations were conducted by the applicant’s group
procurement manager, who is a deponent to the founding affidavit, and
were latter confirmed by a firm of forensic auditors O’ Sullivan Brosnan
& Associates. A confirmatory affidavit of Ashley Brosnan is attached to
the applicants founding affidavit which confirms that:
“3.1 OBAA (sic) (O’ Sullivan Brosnan & Associates) undertook investigations
and forensic audits into the suspected fraud committed against (sic) (the
applicant) through the respondent…
3.2 OBAA interviewed Enrico Windwaai and Charl De Lange and, during
those interviews, both of them confessed t o being part a scheme in terms
of which they allocated large quantities of sub -contracted work to (sic) (the
respondent), in return for monthly kick -back payment (i.e. corrupt
payments), as detailed in paragraph 26 of the founding affidavit; and
3.3 Paragraph 53 of the founding affidavit correctly records OBAA’s
involvement in uncovering the fraudulent scheme involving (sic)(the
respondent)”
60.7 The applicant further alleges that it is a creditor to the respondent, and
has the requisite locus standin g prosecute the liquidation application
against the respondent. The applicant further alleged that the
against the respondent. The applicant further alleged that the
respondent is indebted to the applicant for the amount of R12 915 123,
00 alternatively R3 295, 860, 00, the respondent own no immovable
properties. This was confirmed by a deed’s search, a copy of which
was annexed to the applicant’s founding affidavit, the applicant also
invited the respondent to disclose its balance sheet and list of it
unencumbered assets.
60.8 In relation to the second alternative gro und that it is just and equitable
that the respondent should be wound up the applicant the in terms of
section 344(h) of the 1973 Act read with section 81(1)(c)(ii) of the 2008
Act, the applicant details the fraud perpetrated against it, through the
second respondent, which in summary is that two of the applicants
employees De Lange and Windwaai, allocated large quantities of sub -
contracted work to the respondent, in return for monthly kick -back
payment (i.e. corrupt payments). applicant was overcharged by the
respondent to facilitate the payment of kickbacks, by the respondent to
De Lange and Windwaai and accordingly the applicant was defrauded
by the said employees for the amount R3 295 860.00. The
investigation further revealed that the applicant has between December
2019 to August 2024 paid the respondent an amount of R 12 915 123
00 for services that were not rendered by the respondent to the
applicant,
60.9 In addition, the forensic auditor (Ashley Brosnan) appointed by the
applicant to investigate the fraud that was discovered in the preliminary
investigation conducted by the applicant’s Group Risk and procurement
Manager, who is a deponent to the founding affidavit, states as follows
in relation to the respondent’s involvement in the fraudulent sch eme in
his confirmatory affidavit, which was filed in support of this application:
“3.3 Paragraph 53 of the founding affidavit correctly records OBAA’s involvement in
uncovering the fraudulent scheme involving Zitixo and the findings of its
investigation.”
[61] The respondent failed to deal with these specific allegations against it. In its
answering affidavit it merely states that:
“11. The large part of the founding affidavit is concerned with particulars relating to the
alleged fraudulent conduct of De Lange and Windwaai and their responses which led
to their respective resignations and the granting of provisional sequestration of their
estates.
12. It is worth nothing that:
12.1 There is no allegation that the respondent has been advised of this al leged
fraudulent conduct;
12.2 The respondent has not been questioned by the applicant or any law
enforcement agency regarding the allegations of fraud;
12.3 No demand has been made by the applicant to the respondent for the
payment of the money that forms the debt allegedly owed by the respondent
which is the basis for the relief now sought;
12.4 According to the applicant, the existence of the fraud is a suspicion as it has
clearly stated in its founding affidavit.
13. Given what is stated in paragraph 1 2 above, I am advised that it is not open to the
applicant to seek the order it is now pursuing when it has not made any demand to
me. Not only that, a clear reading of the founding affidavit confirms that the applicant
is still investigating the alleged f raud in respect of which the respondent has not been
informed.
14. I am also advised that the facts relied on by the applicant are equally inadequate for
the applicant to secure the relief it seeks as there is no case of fraud established
against me. For all the reasons given above, the applicant is equally not entitled to
the relief it seeks as it has failed to demonstrate that there are any just and equitable
grounds to justify the grant of the provisional winding up of the respondent. Therefore,
the app licant has equally failed to meet the requirements stipulated in both section
344(h) of the 1973 Companies Act read with section 81 of the 2008 Companies Act.
The allegation s made in support of this basis are speculative as they are based on
an untested a llegation of fraud that the respondent was never informed of and are
an untested a llegation of fraud that the respondent was never informed of and are
made without any demand made to it in respect thereof.
15. The applicant also proceeds boldly to allege that the respondent is unable to pay its
debt, yet no demand has been made to th e respondent in this regard. I am advised
that proceeding to lodge this application in these circumstances us fatal to the case of
the applicant as the Companies Act is quite clear in this regard.”
[62] It is clear from the paragraphs referred to above th at the respondent’s
defense to the allegations made against it by the applicant is that in respect of the
relief sought by the applicant that the respondent is unable to pay its debt in terms of
section 344(f) of the 1973 Companies Act, is that no demand h as been made by the
applicant for the payment of the money that forms the debt owed by the respondent,
which is the basis of the relief sought in these proceedings.
[63] There is no basis for this contention by the respondent in law, there is no
peremptory requirement in terms of section 344(f) of the Companies Act 1973, that
before an applicant can proceed with an application in terms of section 344(f) it must
have made demand of the amount that forms the basis of the debt referred to in
344(f). Section 345, which is a deeming provision, also does not require that such a
demand should be made, in terms of 345(1)(c) a company shall be deemed unable
to pay its debts if “(c) it is proved to the satisfaction of the Court that the company is
unable to pay its debts.” .The applicant has made all the essential allegations to
prove that the respondent is unable to pay its debts in this regard, the applicant has
stated that in paragraph 86 of its founding affidavit
“For the reasons explained earlier herein, Zitixo is indebted to Premier in the amount of
R12 915 123.00 alternatively, R3 295 860.000, excluding interest and cots. The debt is
immediately due and payable.
[64] In addition, the applicant invited the respon dent to file its balance sheet
reflecting its unencumbered assets, at paragraph 88 of its founding affidavit, the
respondent has not responded to any of these allegations. It is important to note that
the conclusion reached by the applicant in paragraph 86 of its founding affidavit is
reached after a thorough investigation by the applicant’s Group Risk and
Procurement Manager, who is the deponent of the founding affidavit and is
Procurement Manager, who is the deponent of the founding affidavit and is
conformed by the forensic auditors appointed by the applicant.
[65] In respect of the allegation of fraud, the defense of the respondent is that the
existence of fraud is a suspicion, this is not correct , for the same reasons as stated
above , that on applicant’s version, that has not been contradicted by the
respondent, applicant’ s Group Risk and Procurement Manager conducted an
investigation which revealed that respondent has been involved in fraud against the
applicant and as a result, the applicant was defrauded for the amount R3 295
860.00. The investigation further revealed th at the applicant has between December
2019 to August 2024 paid the respondent an amount of R 12 915 123 00 for services
that were not rendered by the respondent.
[66] In Thunder Cats Investments 92 (Pty) Ltd and another v Nkonjane
Economic Prospecting and Investment (Pty) Ltd and Others13 it was held that:
“Section 344(h) of the 1973 Act provides that a company may be wound up by the court when
it is ‘just and equitable’ to do so. A winding up on this basis ‘postulated not facts but only a
broad conclusion of the law, justice and equity, as a ground for winding -up’….There is no
fixed category of circumstance which may provide a basis for winding -up on the just and
equitable ground…
…some of the categories that have been identified are the disappearance of a company’s
substratum; illegality of the objects of the company and fraud in relation to it ….No doubt
these categories remain under the new Act and may be extended” (emphasis added)
[67] I am accordingly satisfied that the applicant has made out a case f or the relief
sought in terms of section 344(h) read with section 81(1)(c) of the 2008 act ,
especially in view of the fact that the fraud against the applicant in terms of the
investigations conducted by the group risk and procurement manager and confirme d
by the forensic audit and the facts of this case which are not disputed by the
respondent, the fraud commenced immediately after the registration of the
respondent as a service provider to the applicant. It is accordingly clear that the
respondent form ed the relationship with the applicant with the intention to defraud
the applicant, and accordingly inline with the principles as set out in Thunder Cats
Investments 92 (Pty) Ltd and another v Nkonjane Economic Prospecting and
Investment (Pty) Ltd and Othe rs14. It is just and equitable that the respondent
should be wound-up (emphasis added).
[68] During argument, Mr. Voster SC sought the final order of liquidation against
[68] During argument, Mr. Voster SC sought the final order of liquidation against
the respondent, Ms. Msizi correctly made no submissions to the contrary. I am also
of the view that this matter has been fully ventilated before this court and it would
serve no purpose to issue and interim order. In respect to costs, I see no reason why
a usual order in liquidation should not be made, and I am also of the view that this
13 2014 (5) SA 1 (SCA).
14 Supra para 66 of this judgment
matter is sufficiently complex, especially taking into account the facts and the
quantum involved, which ranges from R4 000 000.00 to R12 000 000.000.
[69] Accordingly, the following order shall issue:
1. ZITIXO TRADING (PTY) LTD (registration number: 2015/043655/07) is
placed in final liquidation
2. The costs occasioned by this application is costs in the liquidation, to be
paid on a scale as between attorney -and -client, including the costs
occasioned by the employment of the two counsel.
_________________________________
M NOBATANA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the APPLICANTS : ADV VOSTER
ADV STORM
Instructed by : ADAMS & ADAMS ATTORNEYS
Tel: 012 432 6000
EMAIL: Gregor.Wplter@adams.africa
Demi.Pretorius@adams.africa
REF: GWW/DJP/MHL/LT3183
c/o : AUKETT ATTORNEYS
40 Worraker Street
Newton Park, Gqeberha
TEL: 082 377 2599
EMAIL: attorneys@auckettlaw.co.za
For the RESPONDENTS : ADV W. MSIZI
Instructed by : ZITIXO TRADING (PTY) LTD
202 Booysens Park Drive
Gqeberha
Matter heard on : 19 JUNE 2025
Judgment delivered on : 16 OCTOBER 2025