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
KWAZULU-NATAL LOCAL DIVISION, DURBAN
Case no: D4690/2023
In the matter between:
KRISHNA NAIDOO APPLICANT
Identity Number: 6[...]
and
GAYREGINA INVESTMENTS CC FIRST RESPONDENT
Registration Number: CK 1999/50826/23
GOVINDSAMY NAIDOO SECOND RESPONDENT
Identity Number: 5[...]
Coram: MOSSOP J
Heard: 4 February 2026
Delivered: 4 February 2026
ORDER
The following order is granted:
1. The provisional order of liquidation granted by Sibiya AJ on 16 August 2024
is discharged.
2
2. The application is struck from the roll.
3. The attorneys representing the applicant, Bala Naidoo and Company, and
the second respondent’s legal representative, advocate Selvan Naidoo, trust account
advocate, are not entitled to derive any fees in respect of this application from their
respective clients and to the extent that fees have already been charged by them
and paid by their respective clients, those fees are to be refunded to their clients
within 30 days of the date of this order.
JUDGMENT
MOSSOP J:
Introduction
[1] This is the extended return day of an o pposed application in which the
applicant seeks the liquidation of the first respondent , a close corporation . A
provisional order of liquidation was previously granted by Sibiya AJ on 16 August
2024.
The parties
[2] The first respondent has two members who each own fifty percent of the
membership interest in it. The applicant is one of the members, and the other
member is the second respondent . Besides being linked to each other through their
membership of the first respondent, the applicant and the second respondent are
also linked to each other by familial ties: the applicant is married to the second
respondent’s sister, and they are thus brothers -in-law. They, and their respective
families, however, are presently in dispute with each other. As F. Scott Fitzgerald,
the acclaimed novelist, pointed out:
‘Family quarrels are bitter things. They don't go according to any rules. They're not like aches or
wounds, they're more like splits in the skin that won't heal because there's not enough
material.’1
It appears that this dispute is such a dispute and is incapable of being healed.
The history of the matter before this court
1 F. Scott Fitzgerald: ‘Short Stories of F. Scott Fitzgerald: Babylon Revisited’, 1989, page 630.
3
[3] This matter has a long history before this court. In compiling a chronology in
order to track that history fully , I have had to peruse an appallingly maintained
physical court file. That I have had to prepare a ch ronology is indicative of the fact
that neither party has complied with Practice Directive 9.4.1.2 An examination of the
papers reveals, further, that t he indexed record of proceedings has been
inadequately put together. None of the previous orders of this court have been
included in the indexed bundle of documents, bar the previously mentioned order of
16 August 2024. Orders, of which there are a number, are scattered randomly
throughout the court file in no proper sequence . After a tedious exercise of locating
them and placing them in date order, I am now satisfied that I can provide an
accurate narration of the journey of this matter through this court. I should , however,
not have had to spend my time performing this exercise: it is the function of the
applicant’s attorneys to ensure that the court file is in order. In the fulfilment of this
duty, they have spectacularly failed.
[4] On to the chronology. The application was first before this court on 13 July
2023. No order was granted on that date. It was then adjourned to 20 September
2023. On that date , it was adjourned sine die. Eleven months later, on 16 August
2024, i t was resurrected and reinstated for hearing when, as mentioned at the
commencement of this judgment , the provisional order of liquidation was granted by
Sibiya AJ. The rule granted was returnable on 6 November 2024.
[5] On 6 November 2024 , the matter was adjourned to 7 February 2025. On 7
February 2025, it was adjourned to 26 May 2025. On 26 May 2025, the application
was adjourned to 9 October 2025. On that date, the matter was adjourned to 17
October 2025. On 17 October 2025, the application was adjourned to the opposed
motion roll on 4 February 2026 . That explains how the matter comes before me
today.
motion roll on 4 February 2026 . That explains how the matter comes before me
today.
[6] The just described odyssey covers nine different dates when the matter has
appeared on this court’s roll. It is reasonabl y safe to conclude that a significant
2 ‘The heads of argument shall be delivered under cover of a typed note indicating:
(a) …
(j) in appropriate cases the applicant, excipient or plaintiff must annex to the note a chronology
table, duly cross-referenced, without argument;’
4
amount of this court’s time has been consumed by this matter. Certainly, the court
file needed to be read by the presiding judge every time the matter appeared on the
roll. But had the applicant’s attorneys paused and thought for a moment and
thoroughly researched the matter and considered the facts of the application, it
would immediately have become obvious to them that the application was moribund
and could never, no matter how many adjournments were granted, have led finally to
the result that the applicant desired , namely the liquidation of the first respondent .
Why this should be so is discussed next
The insuperable problem
[7] The applicant, ironically, himself mentions the insuperable problem that he
faces but does not appear to recognise its consequences. At paragraph 22 of his
replying affidavit, when dealing with allegations made by the second respondent at
paragraph 18 of his answering affidavit, the applicant states:
‘I am not surprised at Second Respondents allegations made in this paragraph as I have
since established Second Respondent as the Principal member failed to:
22.2.1 Submit the financials to the South African Revenue Services.
22.2.2 Pay the annual returns.
22.2.3 Prevent the deregistration of the First Respondent.’
[8] In support of th e submission in paragraph 22.2.3 mentioned above, the
applicant attached to his replying affidavit a Windeed report, which was apparently
compiled from the very latest data supplied by the Companies and Intellectual
Property Commission (CIPC). That report confirmed that the first respondent had
been finally deregistered by CIPC for failing to file annual financial returns.
Notwithstanding this document, and this revelation, the applicant went on to
conclude the replying affidavit with the following prayer:
‘Wherefore I humbly pray this application to be granted with costs.’
[9] The applicant identified the insuperable problem facing him but was not able
[9] The applicant identified the insuperable problem facing him but was not able
to comprehend its effect. A document from CIPC put up by the second respondent in
a further affidavit that he delivered , I might add without seeking leave of this court to
do so, indicates that the final de -registration of the first respondent occurred on 24
5
February 2011, nearly 15 years ago and long before the liquidation application was
launched.
Deregistration and its consequences
[10] The promulgation of the Companies Act 71 of 2008 (the Companies Act) had
significant consequences for the Close Corporations Act 69 of 1984 (the CCA) .
Certain of the CCA’s provisions were repealed and others were amended. One of
the sections of the CCA that was repealed was s 26, which entitled the registrar of
close corporations to deregister a close corporation on certain grounds, including
failing to deliver its annual financial statements. Notwithstanding this, t he power to
deregister a close corporation still exists, but it resides now in s 82(3) of the
Companies Act, which reads:
‘In addition to the duty to deregister a company contemplated in subsection (2)(b), the
Commission may otherwise remove a company from the companies register only if -
(a) …
(i) has failed to file an annual return in terms of section 33 for two or more years in
succession; and
(ii) on demand by the Commission, has failed to -
(aa) give satisfactory reasons for the failure to file the required annual returns;
or (bb) show satisfactory cause for the company to remain registered; or …’3
[11] Section 83(1) of the Companies Act is of equal importance on this issue and
reads:
‘A company is dissolved as of the date its name is removed from the companies register
unless the reason for the removal is that the company's registration has been transferred to
a foreign jurisdiction, as contemplated in section 82(5).’
[12] There is no suggestion here of a transfer to a foreign jurisdiction. The effect
of this section is that upon being finally deregistered, a close corporation's existence
as a legal person terminates. This was confirmed by the Supreme Court of Appeal in
3 The reference to a ‘company’ is deemed to also be a reference to a close corporation in terms of s
26 of the Close Corporation Act.
6
Miller and Others v Nafcoc Investment Holding Company Ltd and Others ,4 where
Cloete JA observed that:
‘Deregistration, on the other hand, puts an end to the existence of the company. Its
corporate personality ends in the same way that a natural person ceases to exist on death.
Once there has been deregistration there is obviously no purpose in a corporate post
mortem and no-one would have the authority to conduct one.’
[13] As a consequence of deregistration , ownership of all the assets of the close
corporation, both movable and immovable, because they are now considered to be
bona vacantia ,5 passes automatically to the State without any formalities being
required.6 It is common cause that the principal, indeed, the only asset owned by the
first respondent, is an immovable property. It has the formal description of;
‘Portion 412 (of 362) of Erf 49 No. 862, Registration Division FU, Province of KwaZulu -Natal,
in extent 2.0234 (two comma nought two three four) hectares.’
The applicant brought the liquidation application in the first instance because he
wished to sell a dwelling that h e had constructed on his portion of the first
respondent’s immovable propert y. For the applicant, the unpleasant fact is that
ownership of that immovable property has passed to the State as a consequence of
the final deregistration of the first respondent.
[14] By virtue of its final deregistration, the first respondent no longer exists. 7 It
has not existed for the past 15 years . It cannot therefore be wound up, as the
applicant entreats the court to do, for there is nothing to wind up.
[15] Because the deregistration of the first respondent preceded the formulation
and bringing of this application, it appears to me that there is, in truth, no valid
application before me. As was observed in similar circumstances in Silver Sands
4 Miller and Others v Nafcoc Investment Holding Company Ltd and Others [2010] ZASCA 25; [2010] 4
All SA 44 (SCA); 2010 (6) SA 390 (SCA) para 11.
All SA 44 (SCA); 2010 (6) SA 390 (SCA) para 11.
5 Garner: Black’s Law Dictionary, 9th Ed, West Reuters: Ownerless property; goods without an owner.
Bona vacantia often resulted when a deceased person died without an heir willing and able to make a
claim. The property either belonged to the finder or escheated to the Crown ; See also Rainbow
Diamonds (Edms) Bpk en Andere v Suid -Afrikaanse Nasionale Lewensassuransiemaatskappy 1984
(3) SA 1 (AD).
6 Walker Engineering CC t/a Atlantic Steam Services v First Garment Rental (Pty) Ltd 2011 (5) SA 14
(WCC) para 6.
7 Miller and Others v NAFCOC Investment Holding Co Ltd and Others, supra, para 11.
7
Transport (Pty) Ltd v SA Linde (Pty) Ltd ,8 the proceedings in that matter had been
null and void from their very inception. So too in this matter. The court in Silver
Sands therefore held, correctly in my view, that the appropriate order in the
circumstances was to strike the matter from the roll. There is, however, a provisional
order of liquidation in this matter. It, too, is a nullity , for as the Latin maxim goes, ex
nihilo nihil fit.9 For the avoidance of any doubt, it is probably prudent to discharge the
provisional order notwithstanding that it is a nullity.
Costs
[16] As a consequence of what the papers revealed, I wrote to both sides legal
representatives on 30 January 2026, several days before the matter was due to be
argued on 4 February 2026. In my letter, I requested both sets of legal
representatives to be prepared to deal with the question of whether they should be
personally required to pay the costs of the application de bonis propriis.
[17] That the applicant’s attorneys are at fault for bringing a n entirely pointless
application is not difficult to comprehend. They conceptualised the application and
fed and sustained it for several years. So much is plain. Why should the applicant
have to pay for such ineptitude? Does this release the respondent’s legal
representatives from the possibility of any costs order being made against him ? I
think not. I t may, however, at first blush seem to be harsh to paint he second
respondent’s legal representatives with the same brush used to paint the applicant’s
legal representatives. After all, did the second respondent not simply meet the case
that he was required to meet? I do not believe that it is as simple as that. I explain
why I have that view next.
[18] The second respondent has delivered three answering affidavits in this
application. The first was attested to on 12 July 2023 (the first affidavit). The second
was attested to on 14 October 2024 and, significantly, was identified as being the
was attested to on 14 October 2024 and, significantly, was identified as being the
‘First and Second Respondents’ Answering Affidavit’ (the second affidavit). The third
was deposed to on 15 October 2025 (the third a ffidavit). The latter two affidavits
were simply delivered, bereft of any application in terms of the provisions of Uniform
8 Silver Sands Transport (Pty) Ltd v SA Linde (Pty) Ltd 1973 (3) SA 548 (W) at 549C and E.
9 Nothing comes from nothing.
8
Rule 6(5)(e).10 The Uniform Rules are in place to provide structure and certainty in
the busy sphere of litigation, and they are to be observed lest what was designed to
be an orderly process descends into a free for all with parties delivering documents
as and when they please.
[19] In the second answering affidavit, the second respondent states the
following:
‘I am duly authorised to depose to this affidavit on behalf of the First Respondent, being a
member of the First Respondent. (See Annexure “GN1”).’
That, of course, cannot be correct, because a further consequence of deregistration
is that any person who previously was the lawful agent of the deregistered entity
loses that authority. It follows that a ny person, including a legal representative, who
continues to act for the deregistered entity after deregistration may consequently be
held personally liable for the costs of the application from the date of deregistration.
[20] As has already been established earlier, the act of deregistration preceded
the bringing of the liquidation application. Perhaps appreciating this at the eleventh
hour, the second respondent state d in his third answering affidavit that he wished to
correct an ‘omission’ that appeared in the second answering affidavit, namely:
‘Paragraph 2 of the Answering Affidavit is hereby retracted as I am a member of the First
Respondent, and do not represent the First Respondent.’
The paragraph 2 referred to is the paragraph mentioned in paragraph 19 above. I do
not detect the presence of any omission. The statement sough to be retracted is a
positive assertion. The answering affidavit is, in any event, styled as the answering
affidavit of both respondents.
[21] It is a notorious fact that litigation in the High Court is expensive. In the light
of that t he least that the clients of legal representatives can expect is that the
attorney that they have instructed properly and soberly considers the facts of the
attorney that they have instructed properly and soberly considers the facts of the
case in respect of which the instruction has been given, performs the necessary
research where knowledge is lacking, knows and understands the law relating to that
matter and is familiar with the requirements of the Uniform Rules of Court . In my
view, when litigating over incorporated entities, especially where the issue of status
10 Uniform Rule 6(5)( e) reads as follows: ‘Within 10 days of the service upon the respondent of the
affidavit and documents referred to in subparagraph (ii) of paragraph (d) of sub -rule (5) the applicant
may deliver a replying affidavit. The court may in its discretion permit the filing of further affidavits.’
9
is in issue, the very first step that a legal practitioner should take is to ascertain that
the incorporated entity factually exists. I would go so far as to state that there is a
duty upon them to do so. To ascertain this is not a difficult thing to do: the CIPC
website provides information online at the click of a mouse to registered users .
Checking the CIPC records as a first step is such an elementary proposition that it
hardly bears mentioning. Yet, in this instance, that elementary step was not taken.
By either side. As a consequence of this failure, this court has been required to deal
with this application over a period of two years when it could have spent that time on
matters of true legal merit.
[22] An aggravating feature insofar as the applicant’s legal representative ’s
conduct is concerned, is that once it finally dawned upon them that the first
respondent had been deregistered (this was first mentioned in the replying affidavit) ,
the applicant still demanded at the end of that affidavit that the first respondent be
liquidated. In other word s, not only did the applicant’s legal representatives not
research the matter adequately, they also did not know the law. Such conduct is
simply intolerable.
[23] After my letter to both legal representatives, I received replies from both.
Neither now appeared enthusiastic to have the matter argued. Understandably so.
But the disturbing aspect of the applicant’s reply was the following paragraph:
‘Further to our client not persisting in having the matter argued on 4 February 2026, our
client is hopeful that the parties can agree on the further conduct of the matter, failing which
it may be necessary for our client to seek the necessary relief from the Court, regarding the
further conduct of the matter.'
It would appear that the applicant’s attorneys still do not realise the legal position:
there can be no further conduct of the matter because of the final deregistration of
the first respondent.
the first respondent.
[24] The conduct of the second respondent’s legal representative is scarcely
better. When delivering the second respondent’s first and second answering
affidavits, there was no suggestion of CIPC’s records having been consulted.
Indeed, as previously mentioned, the second respondent stated in the second
answering affidavit that he was authorised to represent the first respondent and he
10
purported to deliver an answering affidavit on its behalf. The liquidation application
was opposed on a number of factual grounds, but never on the grounds that the first
respondent no longer existed. The second respondent ought to have been aware of
this as according to the applicant, he was t he dominant member of the first
respondent and would have received all communications from CIPC concerning its
threatened, and then its final, deregistration.
[25] This matter has been poorly and slovenly handled from inception by both
sides. This type of approach will no longer be tolerated. All of this has been to the
financial detriment of the parties and to the detriment of the court, whose diminishing
resources, already under severe strain , have been needlessly consumed . It seems
to me that there must be consequences for this conduct, but I do not see the clients
of the legal representatives as having to bear such consequences, for they have not
been well served by those that they have paid to properly represent them. In my
view, it is the legal representatives who should bear the consequences.
[26] I have heard this morning from those legal representatives regarding what
they say should occur. After consideration , I have concluded that they should not be
entitled to benefit financially from what they have done or failed to do.
Order
[27] I accordingly order that:
1. The provisional order of liquidation granted by Sibiya AJ on 16 August 2024
is discharged.
2. The application is struck from the roll.
3. The attorneys representing the applicant, Bala Naidoo and Company, and
the second respondent’s legal representative, advocate Selvan Naidoo, trust account
advocate, are not entitled to derive any fees in respect of this application from their
respective clients and to the extent that fees have already been charged by them
and paid by their respective clients, those fees are to be refunded to their clients
within 30 days of the date of this order.
11
_____________________________
MOSSOP J
12
APPEARANCES
Counsel for the applicant: Mr K Chetty
Instructed by: Bala Naidoo and Company
Suite 1, Ashanti Centre
19 Arbee Drive
Tongaat
Locally represented by:
Messenger King
The Centenary
30 Meridian Drive
Quadrant 1, Level 3 unit 27.
Counsel for the second respondent: Mr S Naidoo
Instructed by: Advocate Selvan Naidoo
Trust account advocate
1st Floor
400 Palmview Drive
Palmview
Phoenix
Locally represented by:
Messenger King
Care of Neeraj Ghazi Attorney
6th Floor, The Royal Towers
30 Dorothy Nyembe Street
Durban