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
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-038772
(1) REPORTABLE NO
(2) OF INTREST TO OTHER JUDGES NO
(3) REVISED YES
In the matter between
K[…] S[…] S[…]
Applicant
and
FIRE FANATIX CC
First Respondent
W[…] A[…] S[…] Second Respondent
JUDGMENT
[1] This is the return day of a provisional winding-up order, granted by Dippenaar J,
winding-up the first respondent, a close corporation, on the basis that it is just
and equitable to do so.
[2] The applicant and the second respondent are husband and wife, apparently in
the throes of an acrimonious divorce, and each a 50% registered member of
the first respondent.
2
[3] The second respondent raised various defences to the winding- up application
brought by the applicant, the main ones being:
[3.1] The applicant is not in fact a 50% member, but holds her 50% interest
as the second respondent’s nominee.
[3.2] The first respondent is not unable to pay its debts.
[3.3] The applicant has not approached the court with clean hands , which is
necessary when seeking a winding-up on just and equitable grounds.
[4] Dippenaar J gave a careful and reasoned judgment, the main findings of which
are the following:
[4.1] The respondents to a large extent left the applicant’s version
unchallenged (para 14).
[4.2] It was not meaningfully disputed on the papers that the business of the
first respondent has been subsumed into Facility Fire1 (para 15).
[4.3] The respondents’ version that the applicant holds her 50% interest in
the first respondent as the second respondent’s nominee does not
create a bona fide irresoluble dispute of fact, and it would serve no
purpose to refer that issue to oral evidence (para 25).
[4.4] The applicant manifestly failed to make out any case that the first
respondent is commercially insolvent or unable to pay its debts (para
27).
1 The relevance of this entity to this matter is explained below.
3
[4.5] The applicant’s behaviour does not bar her from obtaining a winding- up
order on the just and equitable ground (para 35).
[4.6] The evidence establishes at least prima facie that the deadlock
principle is applicable (para 38).
[4.7] It cannot be concluded that there are alternative remedies at the
disposal of the parties (para 39).
[4.8] A winding-up order is appropriate and necessary so that all the
irregularities can be properly investigated (para 39).
[4.9] The applicant has “ established a case on a prima facie basis and a provisional
order is appropriate. Importantly, there may well be interested parties, such as
creditors of the first respondent, who may wish to participate in the proceedings who
should be afforded an opportunity to do so. It is further open to the respondents to
seek to persuade a court on the return of the order that no final order should be
granted.” (para 40).
[5] The respondents delivered no further affidavits after the provisional order was
granted, and have done nothing to disturb the prima facie case found by
Dippenaar J. To the extent that it was incumbent on the respondents to show
cause why the provisional order should not be made final, they have done
nothing to do so. Instead, counsel for the respondents, Mr W Coetzee, sought
to argue that the applicant’s case as made out in the founding papers did not
pass muster and was insufficient to justify a final order. Whereas the test at the
stage of provisional winding- up is whether the applicant has adduced prima
4
facie proof of its case, when a final order is sought, the relief sought must be
proved on a balance of probabilities2
[6] Mr Coetzee submitted that, on the strength of the case of Jaft e v Ilifu Trading
330 CC3, that it is an extreme stance to wind up a solvent entity. That case is
however distinguishable. There were four members in the respondent close
corporation, and the court found that the winding -up of the respondent would
bear extremely harshly on the applicant’s co -members who had contributed
their effort and expertise to the respondent and grown it into a successful and
flourishing concern against the applicant ’s minimal contribution and deliberate
lack of participation since a particular event.
[7] The applicant and second respondent are in the throes of an acrimonious
divorce. That makes co- operation difficult if not impossible, and a deadlock
probable.
[8] But more importantly, the applicant alleges t hat the business of the first
respondent, Fire Fanatix, has over a number of years been transferred to and
subsumed into another entity owned by the second respondent and later by his
father, namely Facility Fire (Pty) Ltd, which is in the same line of business as
the first respondent. The financial statements of the first respondent reflect that
from the financial year ending 28 February 2020 until the financial year ended
28 February 2023, the turnover from its operations has progressively dwindled
from (in round figures) R 12.6 million to R 3.7 million in the next year, to
R 48 000 in the next year, to nothing in 2023. There is no proper denial of the
2 Braithwaite v Gilbert (Volkskas Bpk intervening) 1984 (4) SA 717 (W) 718B -C; Wackrill v
Sandton International Removals (Pty) Ltd 1984 (1) SA 282 (W) at 285A-286B
3 Jafte v Ilifu Trading 330 CC (EL 1259/11, ECD 2092/11) [2012] ZAECELLC 6 (5 April 2012)
5
allegation of diversion of business or explanation for this state of affairs, save
for the second respondent’s insistence that the applicant held her 50%
member’s interest in the first respondent as his nominee, and that his father
started Facility Fire “pursuant to the Applicant’s continued abuse of the
member’s interest in the First Respondent ”. However, on the applicant ’s
version, not denied by the second respondent, the applicant played no role in
the business for at least the last seven years , and has had no access to the
bank accounts or the premises of the first respondent in that period. There was
accordingly apparently no obstacle to him running the business as he saw fit,
and the diversion of business to another company is clearly aimed at
prejudicing the applicant. It is therefore not surprising that Dippenaar J found
that the deadlock principle was at least prima facie established to be applicable,
and that it was just and equitable to wind -up the first respondent. Dippenaar J
had to go no further than a prima facie case, but it is clear to me that this has
been established on a balance of probabilities.
[9] Dippenaar J found that there was no purpose in referring the question of the
applicant’s 50% interest in the first respondent to oral evidence. I agree with
that finding. The applicant and the first respondent are both reflected as 50%
members of the first respondent in the annual financial statements to which I
referred above. That is certainly the picture presented to the world at large. If
the second respondent was indeed the beneficial 100% member of the first
respondent, I would have expected him to seek to establish that in a court of
law, rather than diverting business from what is, on his version, entirely his own
close corporation to another company . That would be cutting his nose to spite
his face. But diverting business to another entity makes sense if he believes
6
that the applicant is a 50% beneficial member of the first respondent. I therefore
find on a balance of probabilities that the applicant is indeed a 50% beneficial
member of the first respondent.
[10] Mr Coetzee also submitted that the applicant did not come to court with clean
hands. That was dealt with by Dippenaar J, who found that the conduct of the
applicant was not causative of the breakdown of the parties’ business
relationship, and that in any event the second respondent was also not without
blame. That finding is in my view well justified on the facts, and has not been
disturbed by any new facts.
[11] The applicant is therefore in my opinion entitled to a final order.
[12] The applicant, in a supplementary affidavit, sought further relief , namely to
convene a section 417/418 enquiry . I have two difficulties with this. The first is
that it is simply requested in a supplementary affidavit, without a notice of
motion. The second is that there is no commissioner identified and suggested,
but it is left to the court to appoint a commissioner. That is in my view
undesirable, and contrary to the usual position which is that the party seeking
the order would have approached a potential commissioner, obtained their
agreement and suggested their name to the court. I am therefore not prepared
to grant this order. The applicant is free to approach the court after the final
winding-up order is granted.
[13] In the result, I make the following order:
[1] The first respondent is placed under final winding- up in the hands of the
Master of this Court.
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[2] The costs of this application are to be costs in the winding- up of the first
respondent.
ANDRÉ GAUTSCHI
Acting Judge of the High Court
10 November 2025
Date of hearing: 28 October 2025
Date of judgment: 10 November 2025
For the applicant: Adv N Riley
(Instructed by Fairbridges Wertheim Becker Inc)
For the respondent: Adv W Coetzee
(Instructed by Jurgens Bekker Attorneys Inc)
https://d.docs.live.net/517111468de856d3/documents/acting judgments/firefanatix.docx