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REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, POLOKWANE


CASE NO: 13001/2024








In the matter between:
TEEMANE HEAVY HAULAGE (PTY) LTD Applicant
(Registration No: 2022/857173/07)
And
GEARS TECHNOLOGIES (PTY) LTD Respondent
(Registration No: 2004/027284/07)
REGISTERED HEAD OFFICE SITUATED AT
[…] V[…] W[…] STREET
PHALABORWA
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
…………………….
…………………….

DATE: 11 / 11 / 2025 SIGNATURE…………………

Delivered: This judgment is handed down electronically by circulation to the parties
through their legal representatives’ email addresses. The date for the hand -down is
deemed to be 11 November 2025.

JUDGMENT

Makoti AJ
Introduction
[1] The applicant i s Teemane Heavy Haulage (Pty) Ltd (Teemane). It has
approached the court for an order for the final winding up of the respondent,
Gears Technologies (Pty) Ltd (Gears). The essence of the application is
that the respondent has failed to heed or satisfy the demand that was issued
in terms of section 345 of the Companies Act . I will at a later stage deal with
the substance of the demand and the legislative provisions.
[2] Teemane is asking the court to grant it relief with a specific order that reads
as follows:
“This is an application for the winding up of the Respondents on the
grounds that is unable to pay its debts as is contemplated in sec
344(F), as read with sec 345(1)(A) and on the grounds that it is just an
equitable to do so, as envisaged in sec 344( H) of the Companies Act,
61 of 1973 (as amended) as read with clause 9 od schedule 5 of the
Companies Act, 71 of 2008 (the 2008 Companies Act).”
[3] Gears opposes the application on grounds that I shall traverse in the cou rse
of this judgment.
Issue for determination

[4] The sole question that stands for determination is whether the circumstances
that the parties find themselves in warrant Gears’ final winding up. To expand
briefly, the real issue is whether Gears is unable to pay its debt s and
therefore liable to be wound up.
[5] I have earlier indicated that Teem ane has indicated that it has served Gears
with a written demand in terms of section 345(1) of the C ompanies Act,1 and
that the latter has failed to satisfy the demand. Further, one will have to
decide whether Gears has a genuine or bona fide defense to the case made
by Teemane.
[6] Gears opposes the application on the grounds that:
[a] it w as not served with a notice in terms of section 345(1) (a) of the
Companies Act;
[b] Teemane has not establi shed a prima facie case for its final winding
up; and
[c] it has a bona fide defense to the claimed made by Teemane.
[7] The facts will reveal which of the parties’ case should succeed, bac ked by
the law of course.
Summary of the facts
[8] The parties a re companies in a contractual relationship in which Teemane
rents out heavy trucks and equipment to Gears. The agreement which
started on or about 15 M arch 2024 i s common cause. It terms of the
agreement Teemane rented three truc ks to Gears, and at determined and

1 Act No. 61 of 1973.

agreed rates. During or abou t 19 June 2024 Teemane claimed that it was
owed by Gears an amount of R1 157 684-08 for rental of trucks. It then
issued the demand in terms of section 345(1)(a) of the Companies Act
against Gears.
[9] Subsequent to the i ssuance of the written demand in terms of the statute,
Gears addressed a letter to Teemane to propose a settlement of t he debt
dispute. In its proposed settlement is dealt with the terms for payment t he
outstanding deb t. It also proposed continued terms fo r continued business
between the parties.
[10] In the letter Gears, duly represented by its then legal representatives, denied
liability for the debt claimed by Teemen e. It i nstead acknowledged
indebtedness for two of the tr ucks for the period of Ma y 2024. Despite the
denial of liability, Gears tendered payment for rent al of two of Teemane’s
trucks for the month on May 2024. At paragraph 9 of the letter of 8 June
2024 the following was stated:
“Our client is willing to pay what is owed to your client in terms of the agreement on
the following basis:-
9.1 Your client provides our client with the invoice for May 2024 for the rental of
two trucks as agreed upon.
9.2 Your client removes the 3 tr ucks immediately and release the good s loaded
on all its trucks.
9.3 Your client confirms in writing that the two trucks will be made available to
use for June 2024 and provide our client with th e invoice for June 2024
(minus the days that the trucks were not working), which will be paid on
receipt of the confirmation.
9.4 The parties proceed to work as per the original agreement from mo nth-to-
month payments to be made upfront per month and a written agreement to
be put in place.”
[11] What I deduce from this is an acknowledgement of debt, and willingness to
pay what the respondent has called ‘…what is owed to your client. ’ Both the

acknowledgement and willingness to pay belie the d enial by Gears that it is
not indebted to Teemane. It follows then that Gears need ed to have shown
that it has settled what in promised to do.
[12] The letter was not the last document in which Gears had acknowledged its
indebtedness to Teemane. On 19 June 2024 a demand was made in a letter
to Gears’ lawyers in which it was indicated that Teemane was not willing to
hold further negotiations unless payment o f two amounts were made to the
latter. The amounts in question were R726 434-08 (for May 2024 invoice)
and R431 250-00 (for June 2024 invoice). The May invoice had still not been
paid on the date in question even th ough Gears had called fo r it in the letter
that I have quoted above.
[13] In a letter dated 28 June 2024 Gears made a ‘without prejudice offer’ stating
amongst others that:
“3.1 Our client pays the amounts as set out in Annexure “A” and “B” of your
letter dated 19 June 2024 as w ell as attorney and own client costs in the
amount of R45 000-00 with immediate effect. Moneys will be paid directly to
your client in the usual account.”
[14] Resultant f rom the said payment offer, th e parties on the same date of 28
June 2024 concluded agreement. At paragraph 1 of the document the parties
agreed about Gears ’ indebtedness and that the amounts as mentioned in
paragraph 12 above were to be settled immediately. They also agreed about
the continued relationship in terms of which Gears hired tw o lowbed trucks
from Teemane for the months of July, August and September 2024 and at the
monthly rental of R171 000-00 excluding VAT. The settlement was signed by
representatives of the parties.
[15] On 17 October 2024 Teemane addressed a letter to Gears, through legal
representatives, demanding payme nt of an a mount of R433 325-00. This

amount was accounted for in accordance with the terms of the settlement
agreement that the parties had reached. In the letter it was specifically made
known to Gears that a n application for its liquidation will be instituted should
it persist with its failure to make the payment of the said amount. The threat
of this litigation was made again on 21 October 2024.
[16] Payment of the said amount was not done as at 21 October 2024 hence this
application was ultimately initiated. In its answering papers Gears denies
indebtedness. Not only that, it alleges that it was not served with a demand
as contemplate d in section 345 (1) of the Companies Act. Even b y 28
October 2024 there wa s still no payment and no response from Gears ’ legal
representatives.
[17] The facts canvassed above are largely common cause between the parties.
Legislative framework
[18] The grounds for the final winding -up of a company are regulated in terms of
statute. A party seeking forced winding -up of a company may rely on the
provisions of section 345 of the 1973 Companies Act. It is the same i n this
case in that Teemane relies on a demand that was issued in terms of section
345(1)(a) of the Companies Act, which is dated 30 May 2024. Based on the
demand and the discussions which followed in the weeks after, a settlement
agreement was concluded on 28 June 2024 which set out full contractual
terms to govern the parties relationship.
[19] The statutory provision reads:
“(1) A company or body corporate shall be deemed to be unable to pay its debts
if-
(a) a creditor, by cession or otherwise, to whom the company is indebted in
a sum not less than one hundred rand then due-

(i) has served on the company, by leavi ng the same at its registered
office, a demand requiring the company to pay the sum so due; or
(ii) in the case of any body corporate not incorporated under this Act, has
served such demand by leaving it at its main office or delivering it to
the secretar y or some director, manager or principal officer of such
body corporate or in such other manner as the Court may direct, and
the company or body corporate has for three weeks thereafter
neglected to pay the sum, or to secure or compound for it to the
reasonable satisfaction of the creditor;”
[20] An unpaid creditor has a right to a winding -up order against the company
that has failed to honour its debt obligations. 2 How the provisions of section
345(1) of the Companies Act operate was explained by Malan J (as he then
was) in Body Corporate of Fish Eagle v Group Twelve Investments 3 as
follows:
"The deeming provision of s 345(1)(a) of the Companies Act creates a
rebuttable presumption to the effect that the respondent is unable to pay its
debts (Ter Beek's case supra at 331F). If the respondent admits a debt over
R100, even though the respondent's indebtedness is less than the amount
the applicant demanded in terms of s 345(1)(a) of the Companies Act, then
on the respondent's own version, the applicant is entitled to succeed in its
liquidation application and the conclusion of law is that the respondent is
unable to pay its debts."
[21] On the facts that I have considered Gears is i ndebted to Teemane in t he
amount of R433 325-00. I have also dealt with facts wh ich revealed where
that amount of indebtedness came from. Despite the unequivocal terms of
the settlement agreement, which terms were proposed by Gears, it has not
complied with its obligations. It remains indebted to Teemane.
Was a letter in terms of section 345(1) of the Companies Act was served?
[22] This is a fact based inquiry. And the facts are not difficult to decode. On 19

[22] This is a fact based inquiry. And the facts are not difficult to decode. On 19
June 2024 a statutory letter was sent to Gears demanding payment of the

2 Afgri Operations Limited v Hamba Fleet (Pty) Ltd [2017] ZASCA 24; 2022 (1) SA 91 (SCA) at para 12.
3 2003 (5) SA 414 (W) at 428B-C.

amount contained in it. Gears denied liability for any indebtedness. The latter
then proposed a settlement of the debt . Not only did it propose terms for
payment of the debt, it also proposed terms for continuing the relationship
with Teemane.
[23] The question is whether, upon the settlement agreement being rea ched and
new debt arising due to new invoices, Teemane ought to have issued
another letter or updated its demand. It will be recalled that when the
demand was first made in June 2024 the amounts involved were different to
what is being demanded at this sta ge. The amounts in question totaled
R1 157 684-08. In the present instance Teemane is claiming for new deb t
which arose after the settlement agreement was rea ched. It is for invoices
which were issued for the continued rental of the trucks.
[24] The amount of debt that Teemane i s pursuing came as a result of the
settlement that was proposed by Gears. It cannot deny that it was part of the
demand which formed part of the section 345(1) letter of 19 June 2024. In
Nathaniël & Efthymakis Properties v H aartebeestspruit Landgoed CC4 it was
said that service of the demand in terms of section 345(1) of the Companies
Act was peremptory, but not the form of service.
[25] In my mind, service intended in the statutory provision should disclose the
nature and value of the debt claimed. It will afford a n alleged debtor an
opportunity to consider its position in relation to the debt and to either make
payment or to dispute it. I find that to be the purpose of the provision, which
is to tell the alleged debtor what the debt is about . That can hardly be
achieved if the debt is not spelt out.

4 [1996] 2 All SA 317 (T).

[26] As I indicated, Teemane has based this application on new debt , not the one
that was owed when demand was made on 19 June 2024. The debt cam e
about as a result of Gears renting two trucks from Teemane for the months of
July to September. I accept that the settlement agreement lay the ground for
continued contractual relationship. But Teeman e would not have issued the
invoices had the rucks not been rented out to Gears for those m onths. I
therefore find that Teemane ought to have issued a new section letter of
demand as contemplated in section 345(1) of the Companies Act.
[27] On 17 and 28 October 2024 Teemane issued dema nds for payment of the
new debt. In the letters issued on those dates it was indicated that liquidation
proceedings may follow should Gears fail to set tle the amount of R433 325-
00, which figure is based on the new invoices that were issued. At paragraph
3 of the letter it was written:
“Given the above, our ins tructions are, that if the amount of 433 325-00 is
not paid into our trust account by close of business, on the 21 st of October
2024, we will file the liquidation application against your client.”
[28] Before getting to that paragraph Teemane ha d indicated to Gears that it was
in breach of the settlement agreement that the parties had reached on 28
June 2024. The said amount was based on an invoice that was issued on 02
September 2024. To rely on section 345 (1) the applicant must show that it
has issued the demand which set out the claim and has allowed the
respondent a period of 21 days to pay the debt.
[29] In Imobrite (Pty) Ltd v DTL Boerdery CC ,5 in which the Supreme Court of
Appeal summarized the principles to be applied in cases where a debt is
disputed, as follows:

5 Imobrite (Pty) Ltd v DTL Boerdery CC (1007/20) [2020] ZASCA 67 (SCA) at para 14.

"It is trite that, by their very nature, winding -up proceedings are not
designed to resolve disputes about the existence or non-existence of a debt.
Thus, winding-up proceedings should not be resorted to enforce a debt that
is bona fide (ge nuinely) disputed on reasonable grounds. That approach is
part of the broader principle that the court's processes should not be
abused.”
[30] The trite principle that liquidation may not be used to enforce disputed debt
payments was repeated in a number o f authori ties. Also that a liquidation
application is not suitable to resolve complex factual disputes. 6 Based on the
full facts that I have already canvassed, t he purported dispute of
indebtedness is not genuine. It is contrived. I am of the view that Gears
attempted to create a factual disputes with the intention to defeat the
winding-up application.
[31] It will be recalled that w hen it was confronted with the new demand Gears’
new lawyers promised to revert upon taking instructions. Gears failed to
dispute the debt and to provide the reasons for doing so. I therefore find that
a demand was indeed submitted which unequivocally detailed the debt and
the details for it.
Whether Gears should be wound-up
[32] I have reflected on the fact that the claim for payment was for an amount that
was invoiced to Gears on 02 September 2024. It was for rental of two truc ks
for that month, meaning that the debt had not arisen when the parties
concluded a settlement agreement on 28 June 2024. What the parties
agreed about in that case w ere the terms for their continued relationship ,
most importantly the rate applicable for hiring of the trucks.

6 Trinity Asset Management (Pty) Ltd v Grindstone Investments (Pty) Ltd 2017 (12) BCLR 1562 (CC);
2018 (1) SA 94 (CC) at para 154.

[33] Then, also, there is a question whether Teemane was entitled to levy fees for
the month of September 2024, given the messages exchanged via
WhatsApp between the companies’ representatives, Riaan and Daisy. Gears
attempted to terminate the agreement, a step which was not accepted by
Teemane which sought to hold the for mer to the terms of the agreement. In
Imorbrite, supra, the court held further that:
“[16] In this matter, it can hardly be disputed that the respondent had no valid
defence against the appellant’s claim. First, not a single instalment had been
paid in repayment of the debt. Second, the indebtedness in respect o f the
capital amount was not disputed at any stage; instead, the respondent’s
claim that the debt was incorrectly calculated was based on the alleged
miscalculation of interest and the facility fee. Notably, despite remaining in
default beyond the 21 -day p eriod stipulated in the statutory demand, the
respondent failed to tender to pay what is considered to be the correct
amount, nor did it make any suggestions regarding how to discharge its
indebtedness, …, there can be no merit in the suggestion that the a ppellant
was attempting to enforce payment of a debt which was bona fide disputed.
That being the case, it cannot be accepted that the appellant’s application
was predicated on any reason other than the bona fide bringing of winding -
up proceedings. Therefore, the respondent has not shown that the winding -
up proceedings constituted an abuse of the court’s process. Counsel for the
respondent’s concession on this aspect was therefore correctly made .”
[Emphasis added]
[34] On the facts , the indebtedness that ex isted on 28 June 2024 appears to
have been discharged. There is no indication as to when that was done. My
view in this regard is fortified by the fact that the debt that Teemane has
raised for this application is new and arose in September 2024, after
passage of two months. The dispute now between the parties is whether that

passage of two months. The dispute now between the parties is whether that
amount of R433 325-00 was due and payable.
[35] Bokako AJ had the following to say in Van Veluw Beheer BV v Maxxliving
(Pty) Ltd and Another:7

7

“20. A winding -up order will not be grant ed where the sole or predominant
motive or purpose of seeking the winding -up order is something other than
the bona fide bringing about of the company's liquidation. It would also
constitute an abuse of process if there is an attempt to enforce payment of a
debt that is bona fide disputed or where the motive is to oppress or defraud
the company or frustrate its rights.”
[36] It is also trite that where the court finds that a debt is disputed bona fide, it
may not grant liquidation order. On the facts Gears disputes the debt on the
basis that Teemane ought not to have charged fees for the month of
September 2024. The parties should go to battle ove r that question in my
view.
[37] I find that liquidation is not appropriate in this case, also because the
demand in terms of section 345(1) of the Companies Act did not afford
Gears a period of 21 days to discharge the debt.
Order
[38] I make the following order:
[a] The application for the winding-up of the respondent is dismissed with
costs.
_______________________
M. Z. MAKOTI
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION

APPEARANCES:
FOR APPLICANT : JF MOOLMAN
N BARNASCHONE ATTORNEYS
C/O PRATT LUYT & DE LANGE ATT
POLOKWANE

FOR RESPONDENT : ADV K MAGAGULA
THOMSON WILKS INC
C/O DDKK ATTORNEYS
POLOKWANE

DATE HEARD: 03 JULY 2025
JUDGMENT DELIVERED: 11 NOVEMBER 2025