IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024-099196
In the matter between:
KAMEELDRIFT VOERE (PTY) LTD Applicant
(REG NO.: 2010/023433/07)
and
BULEX GROUP (PTY) LTD Respondent
(REG NO.: 2022/705764/07)
DATE OF JUDGMENT: This judgment is issued by the Judge whose name is reflected herein
and is submitted electronically to the parties/their legal representatives by email. The judgment
is further uploaded to the electronic file of this matter on Caselines by the Judge’s secretary .
The date of the judgment is deemed to be 04 December 2025.
JUDGMENT
Khashane Manamela, AJ
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
04 December 2025
Date K. La M Manamela
2
Introduction
[1] The respondent, Bulex Group (Pty) Ltd (‘Bulex’), was provisionally liquidated on 11
September 2024 in terms of an order of this Division at the instance of the applicant,
Kameeldrift Voere (Pty) Ltd (‘Kameeldrift’). Bulex proclaims to be ‘an agent of business
funders’, locally and internationally, at the instance of ‘business people and companies in need
of funding’.1 The liquidation of Bulex is or was pursued on the bases which included that Bulex
is unable to repay or refund a deposit of R15 million paid into its bank account by Kameeldrift2
and, thus, is commercially insolvent. Kameeldrift declares its business to in the agricultural
business sector, primarily in establishing feed for feedlot and the distribution of red meat to
clients. The Court issued a rule nisi (‘an order of court to which a fixed period of validity has
been assigned’)3 with the return date of 1 November 2024. The return date was, subsequently,
extended a number of times until 18 August 2025, when the matter served before me.
[2] Bulex was absent from Court when the order for its provisional liquidation was made.
Kameeldrift had procured the order on an ex parte (‘on behalf of; from one side’)4 basis in an
urgent application. But Bulex subsequently signalled its opposition against confirmation of the
provisional liquidation order, primarily, on the ground that its role was that of an agent (in the
transaction in which the R15 million from Kameeldrift was received) and that the money was
transferred to an overseas to procure a loan for Kameeldrift. Bulex says it acted in good faith
at all material times and, besides, it is commercially solvent.
[3] The opposed motion came before me on 18 August 2025, which date was the extended
return date of the rule nisi. Mr MP van der Merwe SC appeared for Kameeldrift, whilst Mr LP
van der Merwe appeared for Bulex. The legal representatives of Bulex only attended the
1 Answering or opposing affidavit (‘AA’) par 4.1, CaseLines (‘CL’) 02-354.
1 Answering or opposing affidavit (‘AA’) par 4.1, CaseLines (‘CL’) 02-354.
2 Pars [66]-[70] below for more on the claim or debt relied upon by Kameeldrift.
3 RC Claassen and M Claassen, Claassen's Dictionary of Legal Words and Phrases (Juta 2025).
4 Claassen's Dictionary of Legal Words and Phrases.
3
hearing to seek postponement of the proceedings and after postponement was refused they
merely observed the remainder of the proceedings. I say more on the postponement below. It
was also indicated that the provisional liquidators, appointed by the Master of the High Court,
following the granting of the order for the provisional liquidation of Bulex, had prepared and
filed a report. They wanted the report to be admitted to form part of the papers before the Court
on the basis that they are jointly considered amicus or amici curiae (‘friend(s) of the court’).5
But they did not formally seek leave of the Court to participate in the proceedings , although
they had counsel observing the proceedings . For completeness, it ought to be mentioned that
the provisional liquidators had previously furnished an interim report which was incorporated
into Kameeldrift’s replying affidavit. 6 I reserve d this judgment after listening to oral
submissions by counsel for Kameeldrift and, out of caution, extended the rule nisi until the
handing down of this judgment.
Bulex’s application for postponement
General
[4] When the matter was called on 18 August 2025, counsel for Bulex indicated that his
client sought a postponement of th e liquidation application (‘the Postponement’). This would
have been through an extension of the rule nisi, again.
[5] The affidavit for the Postponement is deposed to by Mr Rudolf van Niekerk, who had
formally come on board, earlier that morning,7 as Bulex’s attorney of record and not (deposed
to) by any of the three directors of Bulex.8 The following are some of the reasons or grounds
5 Claassen's Dictionary of Legal Words and Phrases , where it is further stated that amicus curiae is ‘the
name given to a [person], who advises the court regarding a point of law or fact upon which information
is required’.
6 Par [68] below.
7 CL 31-1 to 31 -3. Bulex was repr esented by another law firm until 8 or 11 August 2025 and Rudolf van
Niekerk Attorneys were appointed as Bulex’s attorneys on 18 August 2025, the date of the hearing of this
application.
8 Generally, it is considered undesirable for attorneys to depose to affidavits on matters or issues where their
client is more appropriate or equally able to do so. See Mazibuko v Singer 1979 (3) SA 258 (W) at
264F; Samex Consulting (Pty) Ltd v Department of Roads and Public Works Northern Cape (2101/2021)
4
for the Postponement: (a) Bulex has recently changed attorneys of record; (b) a comprehensive
opposing affidavit has been filed raising substantial issues of fact and law, including an
explanation of Bulex’s business model and how the memorandum of understanding or MOU
with Kameeldrift came into being and denial of Bulex’s commercial insolvency; ( c) the
opposing affidavit is detailed, technical and voluminous and, thus, the new attorneys require a
reasonable time to consider the extensive paperwork, consult with Bulex’s representatives and
prepare heads of argument; (d) the hearing on 18 August 2025 is Bulex’s first opportunity to
fully ventilate its defences before the Court; (e) continuation of the hearing will be ‘on an
incomplete or ill-prepared basis’ with serious prejudice to Bulex and undermining the interests
of justice;9 (f) liquidation is final and drastic in effect with devastating consequences for the
business of Bulex, a solvent company; (g) the outcome of the matter has a direct bearing on the
rights of shareholders, employees and creditors; (h) the principle of audi alteram partem (‘hear
the other side’)10 dictates that Bulex be afforded a reasonable opportunity to be heard and its
legal representatives be given an opportunity to fully and effectively present Bulex’s case, lest
it is deprived of its constitutional right of access to the courts and fair hearing; (i) no prejudice
will be suffered by Kameeldrift from a short postponement; (j) the ‘dispute remains extant and
capable of determination once [Bulex’s attorneys] have had adequate opportunity to prepare’;11
(k) Bulex tenders the costs occasioned by the postponement inclusive of those of senior
counsel; ( l) postponement ought to be granted where its refusal would have an effect not
capable of being remedied through an order of costs; (m) the appointed provisional liquidators
– whose powers have been extended – would, in the meantime, preserve the estate and
– whose powers have been extended – would, in the meantime, preserve the estate and
safeguard Kameeldrift’s interests, and ( n) the timing of Bulex’s late service of the
[2022] ZANCHC 68 (28 October 2022) [7]. Also see DE van Loggerenberg, Erasmus: Superior Court
Practice (Service 26, Jutastat e -publications May 2025) (‘ Erasmus: Superior Court Practice ’) RS 26,
2025, D1 Rule 6-10.
9 Bulex Affidavit for postponement (‘Bulex AFP’) par 10, CL 32-5.
10 Claassen's Dictionary of Legal Words and Phrases.
11 Bulex AFP par 22, CL 32-9.
5
Postponement application (i.e. only on the morning of the hearing) ought to be condoned as it
has been occasioned by Bulex’s new attorneys devoting their attention to what is described as
‘the fallout of these warrants and preventing the unlawful arrest’ of Bulex’s directors in the
insolvency enquiry.12 The latter is reference to an enquiry in terms of sections 417 and 418 of
the Companies Act 61 of 1973 (‘the Enquiry’) as to the affairs of Bulex initiated by the
provisional liquidators.
[6] Counsel for Kameeldrift submitted that the Postponement was not sought bona fide.13
Bulex or its directors had multiple opportunities to put its or their house in order , but failed to
do so. No explanation is given by the directors why heads of argument were not filed earlier.
This is so, despite Bulex having the necessary resources to do what it had wanted to do. Bulex’s
opposing affidavit was filed as far back as 18 October 2024. Th e Postponement is actually a
repeat of what occurred in respect of the Enquiry. Bulex launched an urgent application in
February 2025 for the review and setting aside or reconsideration of the provisional liquidation
order (‘the Interlocutory Application’) the Friday before the Enquiry was set to commence .
But, Bulex is yet to file a replying affidavit in the Interlocutory Application, which is opposed
by Kameeldrift. It appears Bulex has abandoned the Interlocutory Application , it is submitted
by Kameeldrift’s counsel. Bulex’s directors have stalled the proceedings and had appeared only
once at the Enquiry. Regarding the assertion that Bulex’s situation is the result of change in
attorneys, counsel for Kameeldrift submitted that, the current attorneys were already involved
in July 2025. But, t here was no word from them to Kameeldrift’s lawyers in this regard .
12 Bulex AFP pars 37-38, CL 32-13 to 32-14.
13 A postponement application ought to be bona fide and not be sought ‘as a tactical manoeuvre’ in order to
derive an advantage not legitimately possible for the particular applicant. See Erasmus: Superior Court
Practice’ RS 27, 2025, D1 Rule 41-7. See also Van Den Steen NO and Another v Khewija Engineering and
Construction Proprietary Limited (2021/12760) [2022] ZAGPJHC 780 (10 October 2022) (‘Van Den Steen
v Khewija’) [55]; Rabie v Cotterell N.O and Others (813/2017) [2023] ZAECELLC 1 (31 January 2023)
[19].
6
Overall, it is submitted that, Bulex is in no position to impeach the impugned transaction or the
case against it.14 For Kameeldrift’s funds have been siphoned off.
[7] During the hearing I remember asking counsel for Bulex as to the source of the funds
to make good the tender for the costs and his response was that the tender is from the directors.
Counsel for Kameeldrift submitted that the tender for costs seemed hollow. I agree that without
more, the tender seems to be of no detectable value.
[8] I also agree that from the papers in the Postponement application it is clear that Rudolf
van Niekerk Attorneys, Bulex’s new attorneys had been involved in the matter much earlier
than 18 August 2025, the date his law firm decided it was opportune to formally come on board.
This is borne by the letter the attorneys directed to the presiding officer or magistrate in the
Enquiry, dated 12 August 2025, in which the following, among others, appears:
Our predecessor in the matter, attorneys Mapekula Incorporated, addressed a letter to
yourself on 30 July 2025, which was also copied to the instructing attorney on behalf
of the liquidating creditor, together with the Master, in terms of which it was brought
to your attention that the persons summonsed to attend the enquiry had provided the
necessary information and as such the warrant of arrest should be uplifted.15
[9] But the change in attorneys in itself does not avail Bulex. For, the position of our law
is that a withdrawal from a matter by a legal practitioner or termination of a legal practitioner’s
mandate does not create a right or entitlement to a postponement to the party ultimately without
a legal practitioner.16 When viewed from its proper context, Bulex enjoyed legal representation
by its previous attorneys of record from 3 Oct ober 2024 to 11 August 2025 . Indeed the
opposing affidavit had been filed as far back as 18 October 2024. By then Kameeldrift had
opposing affidavit had been filed as far back as 18 October 2024. By then Kameeldrift had
14 Lekolwane and Another v Minister of Justice (CCT47/05) [2006] ZACC 19; 2007 (3) BCLR 280 (CC) (23
November 2006) [17] wherein the court enlarged the pool of factors worthy of a consideration in
applications for postponement, namely, the broader public interest and prospects of success on the merits
of the matter . See also Shilubana And Others v Nwamitwa (National Movement of Rural Women And
Commission for Gender Equality as Amici Curiae) 2007 (5) SA 620 (CC) (‘Shilubana v Nwamitwa ’)
[11]; Magistrate Pangarker v Botha And Another 2015 (1) SA 503 (SCA) [27].
15 Bulex AFP annexure ‘X’, CL 32-18.
16 Take and Save Trading CC and Others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA); [2004] 1 All SA
597) [3]; Magistrate Pangarker v Botha 2015 (1) SA 503 (SCA) [26].
7
filed its heads of argument in September 2024 , already, in preparation for the urgent sitting
where the provisional order was granted. Kameeldrift, subsequently, delivered a practice note
on Bulex’s attorneys on 21 February 2025. There is no explanation why Bulex did not attend
to all that was required during all this time when it was still represented by its previous
attorneys of record. In fact, by the time the current attorneys came on board it was already too
late to positively remedy the situation. There is no explanation why the previous attorneys did
not file the heads of argument. Equally, it is not explained why the new or current attorneys for
Bulex allowed a week to elapse, despite the urgency created by the imm inent hearing of the
matter. All that is mentioned is that it is due to ci rcumstances beyond the control of Bulex ,
including fending off warrants for the arrest of Bulex’s directors in the Enquiry. This too is
recent material. The explanation is not reasonable. Therefore, no one compelled Bulex to
proceed with the hearing of this opposed motion , as claimed by its attorneys . And
postponement is not there for the asking17 or taking, as it ought ‘to be properly motivated and
substantiated’.18
[10] A seeker of a postponement is after an indulgence from the court .19 To access
postponement, an applicant ought to proffer good and strong reasons.20 This is attained by the
applicant fully and satisfactorily explaining the circumstances giving rise to the application for
postponement.21 Further, postponement ought to be sought timeously, being the moment the
17 Ndamase v Commissioner: Private Inquiry into the affairs SNS Holdings (Pty) Ltd (In Liquidation) and
Others (2023/019694) [2024] ZAGPPHC 7 (17 January 2024) [11].
18 Psychological Society of South Africa v Qwelane and Others (CCT226/16) [2016] ZACC 48; 2017 (8)
BCLR 1039 (CC) (14 December 2016); Ndamase v Commissioner [2024] ZAGPPHC 7 [8].
BCLR 1039 (CC) (14 December 2016); Ndamase v Commissioner [2024] ZAGPPHC 7 [8].
19 Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 41 -7, relying on Isaacs v University of the
Western Cape 1974 (2) SA 409 (C) at 411H; Western Bank Ltd v Lester and McClean 1976 (3) SA 457
(SE) at 460A; Grootboom v National Prosecuting Authority 2014 (2) SA 68 (CC) at 75F –G; Van Den
Steen v Khewija [55].
20 Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 41 -7, relying on McCarthy Retail Ltd v
Shortdistance Carriers CC 2001 (3) SA 482 (SCA) at 494D; Grootboom v National Prosecuting
Authority 2014 (2) SA 68 (CC) at 76C–D. See also Bovungana v Road Accident Fund (2090/2007) [2009]
ZAECHC 22; 2009 (4) SA 123 (E) (27 February 2009) [13].
21 Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 41 -7 relying, among others, on National Police
Service Union and Others v Minister of Safety and Security 2000 (4) SA 1110 (CC) at 1112C–F; McCarthy
Retail v Shortdistance Carriers 2001 (3) SA 482 (SCA) at 494D –H; Shilubana v Nwamitwa at 624B –
8
applicant gains knowledge of the circumstances capable of justifying an application for
postponement.22 However, the court retains its capacious discretion to grant postponement
where this is justified by fundamental fairness and justice (rendered appropriate by the facts in
a matter) even where postponement was not sought timeously.23
[11] I dismissed the Postponement application by way of an extemporaneous ruling when
this main application was heard . C ounsel for Bulex informed the Court that he had no
instructions to take part in the hearing beyond the Postponement application. There was no way
he can argue the matter under the given circumstances , it was submitted. But he remained in
Court for the entirety of the proceedings , either in keeping with the necessary decorum or his
brief morphed to a ‘watching brief’. Despite, the adverse ruling against Bulex in respect of the
Postponement, I will consider the contents of Bulex’s opposing affidavit, as they constitute
evidence before the Court.
Background facts
[12] A brief narration of the facts in the background to this matter is necessary in order to
provide context to the issues to be determined . I will do so on the basis of the facts that are
common cause between the parties or, else, the points of divergence would be indicated.
[13] As indicated above, I will also have regard of Bulex’s opposing affidavit for purposes
of the determination of the relevant issues, even though no written argument was filed and no
oral argument was advanced on behalf of Bulex.
C; Magistrate Pangarker v Botha 2015 (1) SA 503 (SCA) at 509E –F; Van Den Steen v Khewija
[55]; Imperial Logistics Advance (Pty) Ltd v Remnant Wealth Holdings (Pty) Ltd (326/2021) [2022]
ZASCA 143 (24 October 2022) [6].
22 Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 41-7 relying, among others, on National Police
Service Union v Minister of Safety and Security 2000 (4) SA 1110 (CC) at 1112E; Shilubana v
Service Union v Minister of Safety and Security 2000 (4) SA 1110 (CC) at 1112E; Shilubana v
Nwamitwa at 624B; Van Den Steen v Khewija [55]; Rabie v Cotterell (813/2017) [2023] ZAECELLC 1 at
[16] and [18].
23 Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 41-7. See also Van Den Steen v Khewija [55].
9
[14] Kameeldrift was introduced to Bulex by Mr Fritz Setzkorn. Mr Setzkorn is a
representative of a Namibian related company to Kameeldrift, called Kameeldrift Fresh Meats
(Pty) Ltd and is a brother in law of one of the directors of Kameeldrift. The Kameeldrift entities
are involved in business in the agricultural sector. Bulex was told that Kameeldrift seeks
funding for the expansion or funding of the Namibian business or operations into the red meat
industry with another Namibian company or parastatal. Bulex, also, has presence in Namibia.
Bulex informed Kameeldrift that Bulex can assist them in securing funding from international
funders at low interest rate s. Kameeldrift was informed that it needed to conclude a
memorandum of understanding (‘MOU’) with Bulex labelled Joint Private Project Funding
Program (‘JPPFP’). According to Bulex, Mr Setzkorn also wanted to participate in the JPPFP
as he sought to qualify for his own funding, but he was persuaded to combine his funds with
those of Kameeldrift in order to secure or qualify for a higher amount. The latter assertions are
denied by Kameeldrift.
[15] On 13 March 2024 , Mr Schalk Jakobus Swart, in his c apacity as finance manager of
Kameeldrift and as a representative of the Namibian entity , met with the directors of Bulex,
namely Messrs Dawid Schalk van Eck; Robert van Doorn and Markus van den Berg, at Bulex’s
offices in Menlyn Maine, Pretoria. Mr Swart is also the deponent to both the founding and
replying affidavits. The parties met again including in Cullinan (home of Kameeldrift , with
both Kameeldrift’s directors joining Mr Swart) to discuss the JPPFP.
[16] According to Mr Van Eck, a Bulex’s director and deponent to its opposing affidavit, on
18 March 2024 Kameeldrift informed him that it had a ‘large loan’ with the Landbank and that
Bulex intended to utilise part of the funding secured from the international funders to settle the
Landbank loan or debt. The remainder of the loan was to be used for Kameeldrift’s expansion
Landbank loan or debt. The remainder of the loan was to be used for Kameeldrift’s expansion
costs relating to its Namibian business.
10
[17] Around 25 March 2024, the representatives of Kameeldrift received a typed version of
the MOU. The document was signed by representatives of Kameeldrift on 25 March 2024.
[18] On 9 April 2024, Kameeldrift paid an amount of R15 million into Bulex’s bank account
as the so-called ‘project owner contribution’ (‘POC’) . Elsewhere, the POC is referred to as a
‘performance guarantee deposit'.24 According to Bulex or a document obtained by Kameeldrift
through the mechanism of Rule 35(12) , the international funder is said to hav e received
Kameeldrift’s R15 million on 30 April 2024.25 On 10 April 2024, Bulex furnished or issued to
Kameeldrift a document purporting to be a ‘corporate guarantee’ in favour of Kameeldrift.
[19] On 16 April 2024, the parties are said to have met at Cullinan to discuss funding by
Bulex of Kameeldrift’s acquisition of ‘cheap weaners’ or calves. The amount of the funding
sought was also R15 million and was to be made available from Bulex’s own funding. It is
emphasised on behalf of Kameeldrift that this meeting and oral agreement were not intended
to amend the MOU between the partners. Bulex has a different recollection of this meeting,
particularly its purpose.26
[20] According to Bulex, a draft bank guarantee was received from the funders on 17 April
2024 and passed on to Kameeldrift and ABSA bank on 18 April 2024. On 18 April 2024, Bulex
received the signed draft guarantee from Kameeldrift. Bulex says it assumed that ABSA had
approved same.
[21] On 3 M ay 2024 , a guarantee was issued , as opposed t o 29 April 2024 , due to the
celebrations during the Muslim holy month of Ramadan. According to Bulex, ABSA received
a ‘MT760’ message from Asia Pacific Investment Bank in Malaysia (‘Asia Pacific’).
24 Bulex AFP par 5, CL 32-3.
25 AA pars 8 and 9, CL 02-4 to 02-7.
26 Pars [35], [39] and [48] below.
11
[22] Around 8 May 2024 , Kameeldrift received a document purporting to be a ‘bank
guarantee’ by WhatsApp from one of Bulex’s directors . For a variety of reasons Kameeldrift
disputes the veracity of the bank guarantee, and denies that it is a genuine bank guarantee.
[23] On 15 May 2024 , Mr Van Eck of Bulex says he received a call from Mr M arais of
Kameeldrift requesting repayment of the R15 million or the POC, as Kameeldrift had borrowed
same from a third party who required it back.
[24] According to Kameeldrift the time period for t he loan fund s to have been made
available lapsed on 14 June 2024 . This was 45 banking days from the date on which the
contribution by Kameeldrift reflected in the designated bank account. It is common cause that
no loan funds have yet materialised. And the parties held other meetings in June and July 2025
to discuss the offshore funding and Bulex’s own funding of Kameeldrift. They also exchanged
correspondences towards these ends. The meeting of the parties held on 31 July 2025 ended
acrimoniously and, thereafter, the attorneys took over . The last letter in the correspondence
was on 6 August 2025 in the form of a demand for performance by Kameeldrift’s attorneys.
According to Kameeldrift, this is where the request for the refund of the R15 million was made
for the first time.
[25] On 3 September 2024, Kameeldrift launched this application as an urgent application
enrolled for hearing on 10 September 2024. On 11 September 2024 , my brother, Mooki J
ordered the provisional liquidation o f Bulex. On 18 October 202 4, Bulex filed its opposing
affidavit. And Kameeldrift filed its replying affidavit on 19 November 2024.
[26] In October 2024, the Master of the High Court appointed provisional liquidators for
Bulex.
12
[27] On 7 February 2025 , Bulex launched – on an urgent basis – the Interlocutory
Application, which was to be heard on 4 March 2025. It sought the review and setting aside of
the provisional liquidation order or its suspension, pending a busin ess rescue process .
Kameeldrift opposed the Interlocutory Application and Bulex is yet to file a replying affidavit
or to set down the application for hearing.
Bulex’s point in limine
[28] In its affidavit opposing this application, Bulex raised a preliminary objection or point
in limine (‘at the outset of the suit ’).27 The preliminary point con cerned the authority of the
deponent to the founding affidavit to depose to the founding affidavit without a resolution or
special resolution of the board of directors of Kameeldrift . The affidavit was signed by Mr
Schalk Jakobus Swart, a financial manager of Kameeldrift. Evidently, Mr Swart is not a
director. But the founding affidavit included confirmatory affidavits by Kameeldrift’s
directors, namely Messrs Burger Marais and Johan Kritzinger. Bulex sought the dismissal of
the application on this ground.
[29] The challenge to the authority of Mr Swart to depose to the affidavit is of no
consequence, as a deponent does not require such authority. What is required in terms of the
durable authority afforded by the Supreme Court of Appeal through the decision in Ganes v
Telecom Namibia Ltd,28 is the authority to institute and prosecute proceedings.29 Besides the
authority of the deponent is confirmed under oath by both of directors in terms of confirmatory
affidavits. To reject this unequivocal form of authority – and insist on a resolution of the board
comprising the same directors who confirmed Mr Swart’s authority - would be to unreasonably
27 Claassen's Dictionary of Legal Words and Phrases.
28 Ganes v Telecom Namibia Ltd 2004 (3) SA 615 (SCA).
29 Ganes v Telecom Namibia 2004 (3) SA 615 (SCA) at 624G–H; PM v MM And Another 2022 (3) SA 403
(SCA) [10]; Multiflat Residential Properties (Pty) Ltd – Eikehof (M) v Ali (011335/2024) [2025]
ZAGPPHC 222 (11 March 2025) [27]. See also Erasmus: Superior Court Practice RS 26, 2025, D1 Rule
6-10.
13
elevate form over substance. Bulex hasn’t shown any palpable prejudice and neither did I detect
any in this regard. Besides, Kameeldrift subsequently did file a formal resolution as part of its
replying affidavit. Therefore, the point in limine is without merit and it is dismissed.
Kameeldrift’s case and submissions
[30] Kameeldrift obtained the provisional winding-up of Bulex on 11 September 2024, after
launching this application on an urgent basis and without notice (i.e. ex parte ) to Bulex .
According to Kameeldrift the absence of notice to Bulex was justified by, among others, the
fact that Bulex had defrauded Kameeldrift and any notice given to Bulex, would have defeated
the purpose of the application. As stated above, the Court issued a rule nisi and the return date
has since been extended a number of times.
[31] The crux of Kameeldrift’s averments against Bulex or submissions by Kameeldrift’s
counsel towards that end , include what is mentioned next. Kameeldrift, on the basis of the
claim in the amount of R15 million, is a substantial creditor of Bulex. It is common cause that
Kameeldrift paid that amount into a bank account controlled by Bulex as the so-called ‘project
owner contribution’ ( i.e. POC). Kameeldrift’s claim is based upon a contract, alternatively
delict. Bulex was part of a gargantuan fraud perpetrated upon Kameeldrift. Bulex was an
instrument utilised in the furtherance of an unlawful scheme. As Bulex is an incorporated entity
or company, those who controlled it at the material times , have consequently attracted joint
and several liability to Kameeldrift, as they acted in concert, as a group of wrongdoers. Bulex
is clearly unable to pay its debts, and, thus, it is just and equitable for Bulex to be liquidated.
[32] The background facts, further to what is stated above, which culminated in Kameeldrift
making the aforementioned payment into a bank account of Bulex can be summarised as
making the aforementioned payment into a bank account of Bulex can be summarised as
follows. Kameeldrift became aware of the opportunity to make an investment in Namibia, with
reference to a feedlot. In order to finance the Namibian venture , Kameeldrift required
14
substantial capital. It was represented to Kameeldrift that Bulex might be of assistance, and
may help Kameeldrift to procure the funding. Representatives of Kameeldrift and
representatives of Bulex met, and discussed the possible assistance which Bulex may give
Kameeldrift in this regard. It was then represented to Kameeldrift by Bulex’s representatives
that if Kameeldrift pays an amount of R15 million into a bank account of Bulex, then that R15
million would be instrumental in, and would be utilised in order to create a platform from which
an overseas funder would then make available to Kameeldrift a loan of R100 million. In this
context it was explained that Kameeldrift would receive R100 million from the funder, but
would only have an obligation to repay, as a loan, R85 million plus interest, and in that way
Kameeldrift’s initial ‘deposit’ of R15 million would be repaid. In order to implement the
aforementioned deal , Kameeldrift was presented by Bulex’s representatives with a
memorandum of understanding (‘MOU’).
[33] On 25 March 2024 , the representatives of Kameeldrift received the MOU and t he
document was subsequently signed by representatives of Kameeldrift. In terms of the MOU,
once Kameeldrift pays the R15 million ‘project owner contribution’ (i.e. the POC), Bulex
would issue a corporate guarantee to Kameeldrift. Within 14 days from date of receipt of the
POC, a bank guarantee would be issued to Kameeldrift denominated in US dollars. This would
facilitate receipt - within 45 banking days from the date when the POC reflects in the nominated
account - of the R100 million by Kameeldrift, as project funding.
[34] It is common cause that Kameeldrift paid the POC of R15 million into the designated
bank account on 9 April 2024 in compliance with the MOU. On 10 April 2024, Bulex (as the
‘guarantor’) issued to Kameeldrift a ‘corporate guarantee ’, irrevocably and unconditionally
guaranteeing to pay Kameeldrift (as the ‘beneficiary’) an amount of US$790 000 (then
guaranteeing to pay Kameeldrift (as the ‘beneficiary’) an amount of US$790 000 (then
equivalent to R15 million). Around 8 May 2024, Kameeldrift received a ‘bank guarantee’, a
document which is considered by Kameeldrift not genuine. This means that the loan or project
15
funding was to be received by Kameeldrift on 14 June 2024 , but it hasn’t been received by
Kameeldrift. The latter is common cause.
[35] Whist waiting for the bank guarantee and, consequently, the receipt of the loan funds,
Bulex and Kameeldrift, according to the latter, concluded a further arrangement in terms of
which Bulex was to p rovide Kameeldrift with an amount of R15 million. Th is too, has not
materialised, despite undertakings by Mr Van Eck, on behalf of Bulex. Kameeldrift denies that
this was its cancellation of the previous loan funding transaction from the funder ,
coincidentally also in the amount of R15 million.
[36] On consideration of what it stated above, Kameeldrift launched the application for the
liquidation of Bulex. It is submitted that this was done without Kameeldrift being privy to
Bulex’s bank statements of the account into which it paid the R15 million. This would have
informed Kameeldrift what Bulex did with the money. Kameeldrift says it suspected that Bulex
never applied for the loan funding agreed upon, but rather misappropriated the R15 million. In
these circumstances, Kameeldrift’s claim in its founding papers was based on contract or the
MOU. A lternatively to the aforesaid, the claim is premised on delict in th e form of
misrepresentation by Bulex to Kameeldrift that the latter’s R15 million would be used to secure
loan funding, but then Bulex went on and misappropriated the money or used it for a different
purpose.
[37] Bulex’s case put forward in the opposing affidavit – given th e lack of access by
Kameeldrift to the statements of the nominated bank account – was, incessantly, that the R15
million has been transferred or paid out to the overseas funder in compli ance with Bulex’s
obligations, it is pointed out by Kameeldrift.
[38] But, once the order for the provisional liquidation of Bulex was secured by Kameeldrift
and the Master had appointed the provisional liquidators, Kameeldrift gained access to Bulex’s
16
impugned bank statements of March and April 2024. The provisional liquidators also filed an
interim report incorporating th e bank statements. These revealed that - contrary to Bulex’s
assertions - the R15 million was never paid out to an offshore funder, but substantially paid
out to other entities or persons within South Africa which had nothing to do with the agreement
between Bulex and Kameeldrift. But, Bulex steadfastly persisted with its position that the
money was properly transferred offshore, even producing (in response to Kameeldrift’s Rule
35(12) notice) a document purporting to be an email from a representative of the offshore
funder confirming receipt by the funder of the R15 million on 30 April 2024. This was in stark
contrast to the contents of the statements from the nominated bank account and is rejected by
Kameeldrift.
[39] Bulex, also, obfuscated the true facts of the ‘second deal’ between the parties in terms
of which Bulex had agreed to make an amount of R15 million to Kameeldrift, it is further
submitted. Bulex, falsely and as an excuse, contended that the second deal was actually
Kameeldrift demanding a refund of its R15 million . Bulex says it requested a written
cancellation of the loan funding to secure the refund . This was incorrect and denied by
Kameeldrift in its reply, as the second deal had nothing to do with the first one consummated
by the MOU between the parties.
[40] Against the backdrop of its case and submissions on its behalf , as summarised above,
Kameeldrift says it has met the requirements for the provisional liquidation order to be made
final. I turn to the case put forward by Bulex, next.
Bulex’s case (garnered from its opposing affidavit)
[41] As indicated above, Bulex did not actively participate in the proceedings after its
request for a postponement was refused, although its legal representatives remained in Court
17
for the remainder of the proceedings. But , as appearing above, I am considering the case put
forward in Bulex’s answering affidavit.
[42] Bulex’s opposition to the application beg ins with criticism of Kameeldrift having
approached the Court on an urgent and ex part e bases. Bulex says this deprived it of an
opportunity to respond prior to the granting of the provisional order.
[43] Bulex, essentially, denies that it - in any way - acted fraudulently or criticises
Kameeldrift for creating that impression. Bulex says its business is to act as an agent of business
funders. It does business in this regard with local-based and international funders. The target
market of potential clients comprises natural persons and companies. But, it is neither a bank,
registered credit provider nor a financial advisor. Kameeldrift is being mischievous by giving
Bulex the tags ‘financial advisor’ or ‘commercial bank’ in order to buffer it s application for
liquidation. Bulex’s letters and letterhead do not reflect these.
[44] Starting with the conclusion of the MOU. Bulex says Kameeldrift’s representatives
where given a copy of the MOU to go through, earlier, before it was signed. They read it and
considered its terms, before agreeing thereto. This included getting legal advice on its terms.
There was no coercing or trickery by Bulex to induce Kameeldrift to sign the MOU. It ought
to be pointed out that Kameeldrift’s representatives say that they did not get any legal or expert
advice at the time due to their trust in the bona fides of their counterpart from Bulex. Bulex’s
role included its conduct of an inspection of Kameeldrift’s premises to determine whether there
was a need for the R85 million loan funding and Kameeldrift’s viability in repaying same. This
is a requirement of the international funders and Bulex was merely acting on their instructions.
But, Kameeldrift pointed out that Bulex failed to include a confirmatory affidavit from the
international funders.
18
[45] Bulex confirmed the terms of the MOU. It says that it explained to Kameeldrift’s
directors that at deposit amount of R15 million was required for the ‘huge loan’ of R85 million.
The deposit was to be paid over to the funders against Bulex’s corporate guarantee issued to
Kameeldrift. This entailed Bulex acting as a guarantor on the transaction and Kameeldrift as
the beneficiary. The guarantee was a temporary measure or security and only valid while the
funds were in the hands of Bulex. It ceased to exist once the funds were paid over to the funders.
As with the MOU, Kameeldrift’s representatives were provided with the guarantee in time for
them to go through it and seek legal advice , if necessary . Th ey also signed the guarantee
without demur. They were not coerced or tricked into doing so.
[46] The deposit of R15 million paid by Kameeldrift was paid over to a Dubai based
international funder, named, Oxford Group Limited (‘Oxford’), it is asserted by Bulex. Oxford
comprises a group of companies with offices in Dubai, United Kingdom and Thailand. Oxford
applied for a bank guarantee from Asia Pacific Investment Bank (‘Asia Pacific’) in Malaysia.
And for the reason that Asia Pacific does not have a trading agreement with ABSA, it used its
correspondent bank called Guaranty Trust Bank (Kenya) Limited, to provide the guarantee.
But what remains is that Oxford is Bulex’s funder and Asia Pacific provided the funding or
guarantee on behalf of Oxford. The Kenyan bank was merely an intermediary who passed on
the guarantee to ABSA. Kameeldrift says there is contradiction in this regard as in some
instance Bulex has said Asia Pacific provided the guarantee directly to ABSA.
[47] The guarantee was issued on 3 M ay 2024 , instead of 29 April 2024 . Bulex
acknowledges that there was delay in the furnishing of the guarantee and attributes this to the
Muslim holy month of Ramadan. Bulex considers the three days delay to be reasonable. It says
Muslim holy month of Ramadan. Bulex considers the three days delay to be reasonable. It says
that the original guarantee was given to ABSA and with Kameeldrift only given a copy on 8
May 2024. A draft guarantee had been sent earlier in April 2024 to Kameeldrift and ABSA for
approval as to its contents. Kameeldrift then signed the draft and returned it to Bulex. The latter
19
considers this a confirmation that Kameeldrift had no problems with the draft guarantee and
also assumed ABSA was in the same position and ABSA expressed no concern.
[48] On 15 May 2024 - Bulex’s deponent states - a call was received from Mr M arais of
Kameeldrift requesting repayment of the R15 million. The reason given was that Kameeldrift
had borrowed the equivalent thereof from a third party who required it back . This, Bulex
contends, was prior to the maturity date of the loan funding transaction linked to the MOU .
Although, Bulex’s directors undertook to engage with the funder to request for repayment of
the deposit prior to the maturity date , the funder, Oxford, was dissatisfied with the request as
the monies where locked up in the funding program. It is stated that Bulex directors even went
to Dubai to have discussions with Oxford, but in vain. Oxford requested for a cancellation letter
of the MOU in order to pass it onto Asia Pacific for cancellation of the guarantee , but
Kameeldrift has not furnished the cancellation letter. This persists despite requests and formal
engagements by Bulex. But, according to Kameeldrift, it wasn’t seeking to canc el the MOU
but to secure funding from Bulex for other purposes, coincidentally, also in the amount of the
R15 million (i.e. the second deal).30
[49] Bulex, further, states that because it did not want to spoil the good relationship it has
with the funder , it undertook to repay Kameeldrift from its own monies generated by other
projects in three instalments of R5 million each, with effect from 31 May 2024. But the money
could not materialise on time due to unforeseeable circumstances. It would also be difficult for
the money to be paid into Bulex’s bank account as it is frozen . Bulex is unable to conduct
business due to this . Kameeldrift, as indicated, disputes that the transaction in which these
30 Pars [35], [39], [48] above.
20
instalments were to be made related to the MOU, but for the ‘second deal’ (i.e. different funding
transaction for Kameeldrift’s acquisition of young cattle).31
[50] Kameeldrift, it is lamented by Bulex, persistently refused to furnish a cancellation letter
for the MOU. This is ‘the basic requirement’ due to the guarantee containing an ‘expiry date’
and has to be furnished before the monies are refunded. Instead, Kameeldrift opted to unfairly
rush to Court for relief instead of acceding to the request, Bulex further laments.
[51] As indicated above, Bulex denies that the bank guarantee furnished to Kameeldrift is
fraudulent or defective. It disputes that ABSA considered it that way. What ABSA did,
according to Bulex, was merely to refuse to participate in the transaction due to it s view that
the guarantee or instrument involved did not accord to banking practice. ABSA received a
message from Asia Pacific on 3 May 2024 via the interbank Swift system only accessible to
banks and not by individuals, it is pointed out by Bulex.
[52] Overall, Bulex denies that it is commercially insolvent or that it is just and equitable
for it to be liquidated at the instance of Kameeldrift. It considers t he application for its
liquidation an abuse of the court process and is prejudicial to Bulex and its operations ,
employees and servic e providers. And the primary cause of this is Kameeldrift’s persistent
refusal to furnish a written cancellation letter for early repayment of the POC. The MOU does
not allow verbal variations, including verbal cancellation.
Issues requiring determination
[53] The main primary issue to be determined is whether Kameeldrift, as the applicant in
whose favour the provisional liquidation of Bulex was ordered, has satisfied the Court that
Bulex ought to be placed under final liquidation.
31 Par [19] above.
21
[54] Determining the main or primary issue above is a composite enquiry. It involves a
number of ancillary or secondary issues. The latter issues ought to be dealt with before arrival
at the outcome on the main issue. But some of the ancillary issues are of such force that a ruling
on one or more of them may dispose of the entire application. The ancillary or secondary issues
include: (a) memorandum of understanding (i.e. MOU); (b) cancellation of the MOU and/or
the guarantee ; (c) i s Kameeldrift a creditor of Bulex or not (or Kameeldrift ’s locus standi
(standing in court)32); (d) is Bulex commercially insolvent or not; (e) is it just and equitable for
Bulex to be liquidated; (f) formal requirements for a final liquidation or winding-up; and (g)
costs of the application.
[55] More issues may arise for determination in addition to the primary and secondary issues
identified above. Other issues, including Bulex’s request of a postponement and its point in
limine on the deposition of the founding affidavit, have already been dealt with above. I will
deal with the issues requiring determination after reflecting some of the legal principles
applicable to the issues.
Applicable legal principles
[56] The liquidation application by Kameeldrift is premised on the basis that Bulex is unable
to pay its debts as and when they become due and, therefore, is commercially insolvent. And
that it is just and equitable for Bulex to be wound up.
[57] Despite its rep eal by the Companies Act 71 of 2008 (‘CA 2008’),33 the statutory
provisions grounding the liquidation of insolvent companies are still in terms of Chapter XIV
of the Companies Act 61 of 1973 (‘CA 1973’).34
32 The full phrase is locus standi in iudicio and it refers to ‘a right of appearance (in court as a party); standing
in court’. See Hiemstra VG and Gonin HL, Trilingual Legal Dictionary (3rd edn, Juta 1992).
33 Preamble and section 224(1) of the CA 2008.
33 Preamble and section 224(1) of the CA 2008.
34 Item 9 of Schedule 5 of the CA 2008 retains – as a transitional measure effective from 1 May 2011 –
Chapter XIV of the CA 1973, despite the repeal of the latter legislation. Winding-up commercially solvent
22
[58] Section 344 of the CA 1973 provides for circumstances under which a company may
be wound up by the court, including if ‘the company is unable to pay its debts as described in
section 345’35 and ‘it appears to the Court that it is just and equitable that the company should
be wound up ’.36 Section 344 is the only source of the power of the court to wind up a
company.37
[59] Section 345 of the CA 1973 provides for when company may rebuttably be deemed or
presumed to be commercially insolvent or unable to pay its debts as and when they become
due, premised on section 344(f), as follows: and a creditor serving a letter of demand on the
company at its registered office address by giving the company three weeks ‘to pay the sum,
or to secure or compound for it to the reasonable satisfaction of the creditor’;38 where the sheriff
has issued a nulla bona (no goods (upon which to execute))39 return stating that he or she ‘has
not found sufficient disposable property to satisfy the judgment, decree or order or that any
disposable property found did not upon sale satisfy such process’ 40 and by producing
satisfactory proof to the court that a company is unable to pay its debts.41
[60] Section 345(2) of the CA 1973 provides that when determining a company’s inability
to pay debts under section 345(1), ‘the Court shall also take into account the contingent and
prospective liabilities of the company’.
companies is in terms of the CA 2008. See Chapter 2 Part G (ss 79–83) CA 2008 read with item 9 Schedule
5 CA 2008; Boschpoort Ondernemings (Pty) Ltd v ABSA Bank Ltd [2013] ZASCA 173; 2014 (2) SA
518 (SCA); [2014] 1 All SA 507 (SCA) [20]-[22]; Superior Macadamias (Pty) Ltd and Others v Emvest
Agricultural Corporation (Mauritius) Ltd and Another (865/2022) [2024] ZASCA 182 (24 December
2024) [5]. See also Eberhard Bertelsmann and others, Mars: The Law of Insolvency (Juta 10th Ed, 2019)
at 10th Ed, 2019, p 747.
35 Section 344(f) of CA 1973.
36 Section 344(h) of CA 1973.
at 10th Ed, 2019, p 747.
35 Section 344(f) of CA 1973.
36 Section 344(h) of CA 1973.
37 Ex parte Muller: In re PL Myburgh (Edms) Bpk 1979 (2) SA 339 (N) 340. See also M S Blackman and
others, Commentary on the Companies Act (Juta Revision Service 9, 2012 ) (‘Blackman Commentary on
the Companies Act) OS, 2002 ch14-p74.
38 Section 345(1)(a) of the CA 1973.
39 Hiemstra and Gonin, Trilingual Legal Dictionary.
40 Section 345(1)(b) of the CA 1973.
41 Section 345(1)(c) of the CA 1973.
23
[61] An application for the winding up of a company may be made in terms of section 346
of the CA 1973, including by one or more of a company’s creditors, including contingent or
prospective creditors. 42
[62] The court seized with a winding-up application is empowered – at the hearing of such
application to ‘ grant or dismiss any application under section 346, or adjourn the hearing
thereof, conditionally or unconditionally, or make any interim order or any other order it may
deem just …’43 In this matter the Court granted an order incorporating a rule nisi and
provisional winding-up. It is said that a rule nisi is aimed at providing interested persons an
opportunity to be heard whilst a provisional order of winding-up affords interim protection to
persons with interest.44
[63] A petition or application for winding-up cannot serve as a legitimate means to enforce
payment of a debt disputed bona fide by a company. Such application, ostensibly made for a
winding-up order when it is actually meant to exert pressure will be dismissed by the Court
and constitutes a scandalous abuse of the process of the Court.45
[64] Section 339 of the CA 1973 states that the provisions of the law relating to insolvency
apply mutatis mutandis (with the necessary changes)46 to the winding-up of a company unable
to pay its debts, ‘in respect of any matter not specially provided’ for by the CA 1973.47
[65] For completeness, I reflect some principles relating to the adjudication of applications
for post ponements, as eloquently summarised by the learned author of Erasmus: Superior
42 Section 346(1)(b) of the CA 1973.
43 Section 347 of CA 1973.
44 Blackman Commentary on the Companies Act RS 2, 2005 ch14-p178, relying on Ex parte Beach Hotel
Amanzimtoti (Pty) Ltd 1988 (3) SA 435 (W) 439.
45 Badenhorst v Northern Construction Enterprises (Pty) Ltd 1956 (2) SA 346 (T) at 348A -B. See also
Uniqon Wonings (Pty) Limited v Brooklyn and Eastern Areas Citizen Association (A253/2022) [2024]
ZAGPPHC 105 (7 February 2024) [10].
46 Hiemstra and Gonin, Trilingual Legal Dictionary.
47 Cooper and Others v Miftah Ul Junainah CC 2023 (1) SA 523 (WCC) [35].
24
Court Practice as follows: (a) postponement is at the discretion of the court; (b) the discretion
ought to be exercised in a judicial manner and for substantial reasons, without any element of
caprice or based on wrong principles; (c) postponement is an indulgence and, thus, its seeker
ought to show good and solid reasons, by furnishing an explanation of the circumstances giving
rise to the application in a full and satisfactory manner (not amounting to delaying tactics and
dictated by th e interest of justice); (d) postponement ought to be sought timeously and
immediately when the circumstances justify ing an application for postponement became
known to the applicant , albeit that fundamental fairness and justice – based on the facts in a
matter - may justify the granting of postponement even if the application was not made
timeously; (e) postponement ought to be always sought bona fide and not for purposes of
gaining an advantage not legitimately befitting an applicant through tactical manoeuvring; (f)
considerations as to prejudice to a party due to the postpon ement would predominate the
exercise of the discretion of the court , including whether such prejudice (caused by a
postponement) may be fairly compensated by an appropriate order as to costs or other ancillary
means; (g) balance of convenience or inconvenience to th e parties (i.e. prejudice to the
respondent if the matter is postponed or prejudice to the applicant if postponement is refused),
and (h) withdrawal of a practitioner or termination of his or her mandate (an old trick in the
book to force postponement on the basis of lack of representation) does not create a right to
postponement and, in fact, constitutes abuse of the court system.48
Is Kameeldrift or the applicant a creditor with locus standi?
General
[66] In order to qualify to apply for the winding of Bulex, Kameeldrift ought to be a person
stated in section 346(1) of the CA 1973.49 Kameeldrift considers itself to be a creditor of Bulex
48 Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 41-6 to RS 22, 2023, D1 Rule 41-9.
49 Blackman Commentary on the Companies Act RS 1, 2004 ch14-p148 to p150.
25
on the basis of the R15 million paid into a bank account nominated by Bulex in terms of the
MOU.50 Kameeldrift says its claim against Bulex, based on the MOU and ancillary documents,
is contractual in nature. But it also asserts that given the fraud perpetuated by Bulex, the
agreements will not be enforceable. Therefore, the amount may be recovered on the basis of
fraud or condictio (condiction: an action for reclaiming something which has been obtained
from the plaintiff without lawful cause or from a mistaken or immoral motive ),51 especially
condictio sine causa (suit for repayment of a sum of money paid without (valid)
consideration).52
[67] As may be the case with the other requirements, Kameeldrift would have convinced the
Court, at least on the prima facie (on the face of it)53 basis, that it has locus standi to apply for
the winding up of Bulex, when the provisional order was granted. 54 But, the test elevates to a
balance of probabilities at this stage when a final winding up is sought.55
[68] It is common cause that Kameeldrift paid R15 million to Bulex in terms of the MOU.
But, Bulex disputes that this money is due and payable by it in terms of the MOU. According
to Bulex, the money has been paid to Oxford, the offshore funder, on 30 April 2024 . But the
objective facts from the joint provisional liquidators and, subsequently, incorporated in
Kameeldrift’s replying affidavit establishes that the money or most of it , probably, had been
transferred to other recipients, seemingly Bulex’s directors, on 9 and 10 April 2024. I am
satisfied that the location of this material in Kameeldrift’s replying affidavit, as opposed to its
50 Pars [18], [23], [31]-[32 ] above. See Blackman Commentary on the Companies Act RS 1, 2004 ch14-p150
to p156, generally, on who constitutes a creditor.
51 Hiemstra and Gonin, Trilingual Legal Dictionary.
52 Hiemstra and Gonin, Trilingual Legal Dictionary.
53 Hiemstra and Gonin, Trilingual Legal Dictionary.
53 Hiemstra and Gonin, Trilingual Legal Dictionary.
54 Kalil v Decotex (Pty) Ltd 1988 (1) SA 943 (A) 976C et seq. See Blackman Commentary on the Companies
Act RS 6, 2009 ch14-p179 to p180; p186 to p186 -1 and the authorities cited there . See section 10 of the
Insolvency Act 24 of 1936, which refers to a ‘prima facie’ opinion of the court on a debtor’s insolvency
for the granting of an order provisional sequestration of a debtor’s estate, which wording is absent from s
347 of the CA 1973.
55 Blackman Commentary on the Companies Act RS 6, 2009 ch14-p179 to p180 relying, among others, on
Kalil v Decotex (Pty) Ltd 1988 (1) SA 943 (A) 979-980.
26
founding affidavit, was rendered permissible as a special circumstance by Bulex’s baseless
assertions (in the opposing affidavit and in the Rule 35(12) process)56 that the R15 million was
paid out to the offshore lender.57 As already mentioned, documentary evidence clearly revealed
that the money left the impugned bank account immediately it was received therein. 58 There
was clearly no delay before the money or most of it was paid out of Bulex’s account. I agree
with Kameeldrift that an offshore transfer of R15 million would have required the approval of
the South African Reserve Bank 59 and attracted hefty bank charges as an international
transaction. There is a radio silence from Bulex with regard to how these hurdles were cleared
when it made the offshore payment, but I will let nothing turn on it.
[69] Although doing its best to distance itself from the repayment of the R15 million, Bulex
says the money could be repaid if Kameeldrift could furnish a written cancellation of the MOU
so that Bulex can pass it on to Asia Pacific for cancellation of the guarantee . Kameeldrift
disputes that such cancellation is necessary. I agree. Without there be ing a compliant
cancellation in written form (which is Bulex’s case) the loan funding ought to have been
advanced by now, but it hasn’t. All these clearly confirm that the dispute about the repayment
of the R15 million debt is not bona fide60 and genuine (i.e. ‘disputed on good, reasonable or
substantial grounds’).61 I am satisfied that Bulex’s denials or allegations are ‘so farfetched or
clearly untenable that the Court is justified in rejecting them merely on the papers’.62
56 Blackman Commentary on the Companies Act RS 3, 2006 ch14-p1661 and the authorities cited there.
57 Replying Affidavit (‘RA’) par 8, CL 02-4 to 02-6.
58 RA pars 9 to 16, CL 02-6 to 02-9.
59 Exchange Control Regulations, promulgated in terms of section 9 of the Currency and Exchanges Act 9 of
1933.
1933.
60 Blackman Commentary on the Companies Act RS 2, 2005 ch14-p87 and the authorities cited there.
61 Blackman Commentary on the Companies Act RS 2, 2005 ch14-p87, relying on Badenhorst v Northern
Construction Enterprises 1956 (2) SA 346 (T) at 348A-B.; Kalil v Decotex (Pty) Ltd 1988 (1) SA 943 (A)
980 at 980B-D. See, generally, Blackman Commentary on the Companies Act RS 5, 2008 ch14-p80 to OS,
2002 ch14-p91. See also Boraine, Kunst and Burdette (eds), Meskin’s Insolvency Law par 2.1.1 and the
authorities relied upon by the learned authors.
62 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 635C; National Director
of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) [26]; Mtolo and Another v Lombard and Others
(CCT 269/21) [2021] ZACC 39; 2022 (9) BCLR 1148 (CC) (8 November 2021) [38]; African National
27
[70] The above clearly establishes that Kameeldrift is a creditor. I can also add that its claim
is based on a liquidated debt in the amount of R15 million. And Bulex’s assertions as to written
cancellation of the MOU – taken at face value, given my rejection thereof - may at most render
Kameeldrift a contingent or prospective creditor .63 Kameeldrift was alive to this probability.
Therefore, Kameeldrift will - at least - be a contingent or prospective creditor in respect of the
repayment of R15 million debt paid to Bulex. Kameeldrift, thus, was accordingly cloaked with
the necessary standing or locus standi, envisaged by section 346 of the CA 1973 ,64 when it
applied for the liquidation of Bulex.
Is Bulex commercially insolvent?
[71] Kameeldrift says Bulex ought to be wound up due to its commercial insolvency or
inability to pay its debts .65 It is Bulex's case that Kameeldrift failed to address the issue of
commercial insolvency. I partially agree that Kameeldrift did not specify under which of the
three instances indicated in section 345(1) of the CA 1973 Bulex should be deemed to be unable
to pay its debts.66 But, such explicitness – although of some benefit to the Court – is not decisive
of the issue of commercial insolvency, which is assessed from all the facts before the Court.
[72] From the facts or evidence before the Court in this matter, I am able to conclude or be
satisfied that Bulex is unable to pay its debts, as contemplated by section 345(1)(c) of the CA
1973.67 Bulex has siphoned off the R15 million received from Kameeldrift and now Bulex
finds itself unable to repay same. It wasn’t even able to raise money from its ‘other projects’
Congress v Ezulweni Investments (Pty) Ltd (979/2022) [2023] ZASCA 159 (24 November 2023) [20]. See
also Erasmus: Superior Court Practice RS 27, 2025, D1 Rule 6-33 to 6-34.
63 Section 346(1)(b) . A contingent or prospective creditor is a person with a claim against the company -
premised on a vinculum iuris (bond of law or obligation: Trilingual Legal Dictionary) between such person
and the company - which may become an enforceable debt in the future or upon occurrence of a future
event. See Blackman Commentary on the Companies Act RS 6, 2009 ch14-p151; Choice Holdings Ltd and
Others v Yabeng Investment Holding Co Ltd 2001 (3) SA 1350 (W) 1357B ; Wilde and Another v Wadolf
Investments (Pty) Ltd and Others 2005 (1) SA 354 (WLD) [10].
64 Section 346(1)(b) of the CA 1973. See pars [60]-[61] above.
65 Section 344(f), read with s 345, both of the CA 1973. See pars [58]-[60] above.
66 Section 345(1)(a)-(c) of the CA 1973. See pars [58]-[60] above.
67 Blackman Commentary on the Companies Act RS 3, 2006 ch14-p165.
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when it tried to pay the three instalments of R5 million required in May 2024. I does really
matter that the parties attach different meanings to the latter transaction or activity.68 Bulex is,
indeed, commercially insolvent.
Is it just and equitable for Bulex to be wound up
[73] It is also contended that, Bulex be wound up on the basis that it is just and equitable to
do so. This is provided for under section 344(h) of the CA 1973, which, ordinarily, is applicable
to winding-up of insolvent companies.69 And to the extent that Bulex is a solvent company,70
its winding-up on just and equitable ground is also possible under Part G of Chapter 2 of the
CA 2008.71 But it ought to be borne in mind that just and equitable ground is not a somewhat
‘catch-all’ ground, but ‘rather a special ground under which only certain features of the way in
which a company is being run or conducted can be questioned to the point of requesting the
Court to wind it up’.72
[74] Kameeldrift alleges ‘unconscionable fraud’ of a ‘gargantuan’ proportion on the part of
Bulex and that Bulex – as a juristic entity - was used by its functionaries to further an unlawful
scheme. This to some extent correlate s with one of the five – but extendable into more -
categories of just and equitable ground under section 344(h) of the CA 1973.73 The categories
are not to be considered to constitute numerus clausus (restricted number),74 in any way .75
68 Pars [35]; [39] and [48] above.
69 Item 9(2)of Schedule 5 of the CA 2008. See Piet Delport, Henochsberg on the Companies Act 71 of 2008
(LexisNexis October 2025) at 324 and 332(7).
70 Henochsberg on the Companies Act 71 of 2008 at 324, 328 for a detailed discussion.
71 Section 81(1)(c)(ii) of the CA 2008. See also …
72 Rand Air (Pty) Ltd v Ray Bester Investments (Pty) Ltd 1985 (2) SA 345 (W) at 350C-H. See also Delport,
Henochsberg on the Companies Act 71 of 2008 at 330.
Henochsberg on the Companies Act 71 of 2008 at 330.
73 The categories of just and equitable ground are: (a) disappearance of a company’s substratum; (b) illegality
of the objects of a company and fraud committed in connection therewith; (c) deadlock; (d) ground
analogous to those for the dissolution of the partnerships, and (e) oppression. See Rand Air v Ray Bester
Investments 1985 (2) SA 345 (W) 350C -H; Ferreira v Executors of Estate Late Halse NO and Others
(1461/2009, 1200/2010) [2010] ZAKZDHC 62 (25 June 2010) [34]; Lidino Trading 580 CC v Cross Point
Trading (Pty) Ltd , In re: Mabe v Cross Point Trading 215 (Pty) Ltd (2130/2012) [2012] ZAFSHC 155
(23 August 2012) [28]. See also Delport, Henochsberg on the Companies Act 71 of 2008 at 330.
74 Hiemstra and Gonin, Trilingual Legal Dictionary the phrase ‘ numerus -i m. clausus ’ is explained as
meaning ‘restricted number’.
75 Delport, Henochsberg on the Companies Act 71 of 2008 at 330-332.
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Therefore, there may be merit in Kameeldrift’s assertions that the Court may wind up Bulex
on the just and equitable ground on the basis that Bulex or its functionaries breached various
statutory provisions, such as those of the Banks Act 94 of 1990 and the Financial Advisory and
Intermediary Services Act 37 of 2002. But it is not necessary to render a firm ruling on this.
Formal requirements for a final liquidation or winding-up
[75] A representative of the attorneys of record for Kameeldrift deposed to an affidavit on 4
September 2024 confirming that the application was served on the Master of the High Court
and the South African Revenue S ervice on 3 September 2024. 76 At that stage no service had
been effected on the respondent, Bulex, and its employees and their trade union(s), as the matter
proceeded before the Court on an ex parte basis.
[76] My brother, Mooki J, directed in terms of the provisional order that service be effected
on the latter interest bearers and be published in the government gazette and a local newspaper.
There is now before the Court evidence by Kameeldrift’s attorneys of record that this was
done.77 And, the tendering of security for costs was confirmed in terms of certificate issued by
the Master on 7 August 2025.78
Conclusion and costs
[77] On the basis of what appears above, the Court is satisfied that the substantive and formal
or procedural requirements for final liquidation or winding up of Bulex have been met.
Therefore, the rule nisi, previously, issued by the Court - and, subsequently extended a number
of times up to when the application came before me - will be confirmed and Bulex placed in
final liquidation.
76 CL 02-333 to 338.
77 CL 01-1 to 6.
78 CL 01-22.
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[78] The order made below will reflect that costs of the application will be costs in the
winding-up of Bulex.
Order
[79] In the result, I make an order in the following terms:
1. the rule nisi is confirmed and an order for the final winding -up of the
respondent, Bulex Group (Pty) Ltd, registration number 2022/705764/07, is
granted, and
2. costs of the application shall be costs in the winding-up of the respondent.
_________ ____________
Khashane La M. Manamela
Acting Judge of the High Court
Date of Hearing : 18 August 2025
Date of Judgment : 04 December 2025
Appearances :
For Applicant : Mr MP van der Merwe SC
Instructed by : Dawie Beyers Attorneys Inc, Pretoria
For Respondent : Mr LP van der Merwe
Instructed by : Rudolf van Niekerk Attorneys, Johannesburg
c/o Cawood Attorneys Inc, Pretoria