IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 111230/2025
( l ) REPORTABLE: ~NO
(2) O F INTEREST TO OTHER JUDGES: ~ /NO
(3) REVISED.
18 FEBRUARY 2026
SIGNATURE DATE
IGNATIUS LEON DE VILLIERS
and
AQUATIC BREEDER SA (PTY) LTD
(Registration Number: 2022/860996/07)
JUDGMENT
LABUSCHAGNE J:
Applicant
Respondent
[1 ] The applicant applies for the liquidation of the respondent based on a money
debt.
Page 2
THE DEBT
[2] The applicant advanced an amount of R631 000.00 to the business of the
respondent for the import of aquatic stock. The applicant contends that the
payment of the aforesaid amount was made in two tranches , on the
understanding that the amount would be repaid 45 days after the stock arrived
in South Africa.
[3] The applicant contends that despite the passing of the aforesaid period the
amount remains unpaid. He brings an application in terms of section 344(f) of
the Companies Act, 61 of 1973, read together with section 345(1) and section
346(1)(b) for the winding-up of the respondent.
[4] The respondent has repaid a small amount, but an amount of R613 800.00
still remains due and payable, according to the plaintiff.
[5] The aforesaid transaction took place in May 2024. The stock was purchased
from Weifang Yipin Pet Products Co. Ltd, being the Chinese supplier of the
stock.
[6] The applicant contends that Mr Swanepoel, of the respondent assured the
applicant that at least 50% of the purchased stock had already been sold on
pre-orders to prospective clients. He paid the amounts due to the respondent
in a few tranches during August and September 2024. The stock arrived on
15 September 2024 in Durban Harbour but was placed under detention in
terms of a detention notice issued by the National Regulator for Compulsory
Specifications. On 03 October 2024 the stock was released under embargo
Page 3
in terms of an embargo notice. Despite the lapsing of the 45 day period since
the arrival of the stock in Durban, the amount remains unpaid.
[7] On 24 January 2025 a letter of demand was sent to the respondent, informing
the respondent that it had repudiated the agreement between the parties, that
the applicant had accepted its repudiation and that the agreement had been
cancelled. As a result, the respondent was placed on terms to make payment
of R631 800.00 within 7 (seven) days.
[8] As there was no response, the applicant sent a section 345 notice on 19
February 2025, which was served by the sheriff on the respondent at its
registered address. In terms of the statutory demand the respondent was
advised that it is indebted to the applicant in the amount of R631 800.00, which
was due and owing. Despite the demand, no payment was forthcoming within
the period of 21 days provided for in the notice.
[9] The applicant contends that the respondent is commercially insolvent as it is
not able to pay its debts in the ordinary course of business as and when they
are due and owing.
[10] The applicant also points out that Mr Swanepoel has registered a new
company with the name of Pet O h Natix (Registration Number:
2025/081936/07) which has as its registered address the same address at
which the imported stock is being stored. The applicant contends that the
respondent has closed its doors and has ceased trading and that the
respondent is now making dispositions without value to Pet Oh Natix.
Page 4
THE DEFENCE
[11] In the answering affidavit, Swanepoel expresses concern that the applicant is
presenting a false version of events to the Court. He contends that the
agreement between the applicant and the respondent was that the applicant
would invest in the respondent and that the proceeds of his investment would
be recouped from the sale of the imported stock. A small portion was sold,
and the applicant was reimbursed for R18 000.00 pertaining to that sale. As
the remaining stock could not be sold, the amount claimed is not due and
payable. The respondent blames the applicant for the stock not being sold.
[12] The respondent contends that the applicant was enr aged when the applicant
refused to release stock to the applicant without proof of payment. This
resulted in threats of violence and the obtaining of protection orders in the
Magistrates’ Court against the applicant. The matter was however resolved,
and the protection orders were withdrawn. The applicant however created a
WhatsApp group with all of the respondent’s clients, and he has been making
defamatory and insulting statements about Mr Swanepoel and the
respondent, resulting therein that clients of the respondent no longer want to
buy stock from the respondent. This has caused the respondent harm, and
the respondent has a damages claim against the applicant. The respondent’s
inability to sell the st ock has therefore been brought about by the applicant,
according to Mr Swanepoel.
Page 5
[13] The respondent does not deny that the amount of R613 800.00 was lent to the
respondent. However, without being able to sell the stock, the amount claimed
is not due and payable.
[14] The respondent has not been able to make sales due to the applicant’s
conduct. It has however not ceased to trading. The stock in question remains
the property of the respondent and is in the respondent’s possession. The
respondent contends that the incorporation of Pet Oh Natix is not related to
the respondent.
[15] It is against this backdrop that the Court needs to assess whether the applicant
has made out a case for the winding-up of the respondent.
THE RELEVANCE OF THE QUESTION WHETHER THE DEBT IS
PAYABLE
[16] It is trite that a creditor with an admitted but unpaid debt is ex debito iustitiae
entitled to a winding up order.
[17] The issues relating to the exercise of a judicial discretion in circumstances
where an unpaid creditor approaches a court for a winding-up order, has been
considered in Afgri Operations Ltd v Hamba Fleet (Pty) Ltd 2022 (1) SA 91
(SCA) at paragraph 12. There it was reiterated that an unpaid creditor had a
right ex debito iustitiae to a winding -up order and that a court has a very
narrow discretion “that is rarely exercised and then in special and unusual
circumstances”. Examples of consideration of such circumstances can be
found in Service Trade Supplies (Pty) Ltd v Dasco & Sons 1962 (3) SA 424
Page 6
(T) at 428B, Firstrand Bank Ltd v Evans 2011 (4) SA 597 (KZD) paragraph
27, Oretisolve (Pty) Ltd t/a Essa Investments v NDFT Investment Holdings
(Pty) Ltd and Another 2015 (4) SA 449 (WCC) paragraph 18 and Victory
Parade Trading 74 Proprietary t/a Agri -Best SA v Tropical Paradise 93 (Pty)
Ltd t/a Vari Foods [2007] ZAWCHC 31 paragraph 28.
[18] The defence in this matter relates to an admitted debt which is due but is
alleged not to be payable.
[19] In EVZ Industriële Dienste 2 CC v Early Moon Trading 361 CC 2020 JDR 0565
(GP), such a defence was upheld. T he applicant brought an application
against the respondent based on the respondent’s inability to pay its debts. In
the answering affidavit the respondent contended that it is commercially
solvent and undertook to repay an admitted amount into its attorneys’ trust
account. It however disputed that the amounts are due and payable . It
contended that this stance was conveyed to its attorneys in response to a
section 345 letter, conveying the message that the money will be paid to the
applicant only after an arbitration process between the Tshwane Municipality
and its sister company called Misty Blue Trading CC was finalised. The sole
member of the respondent was also the sole member of Misty Blue Trading
CC.
[20] Whether a company is able or not to pay its debts, liquidation proceedings are
not meant for the enforcement of a debt that the debtor company disputes on
bona fide and reasonable grounds ( Badenhorst v Northern Construction
Enterprises (Pty) Ltd [1956] 2 SA 346 (T) at 347 H to 348 C).
Page 7
[21] The fact that a party is factually unable to pay its debts or is commercially
insolvent is not a bar to raising a defence if it is bona fide and based on
reasonable grounds. The respondent will have to show on a balance of
probabilities that its indebtedness to the applicant is disputed on bona fide and
reasonable grounds. The Court will thereupon refuse the winding -up order.
The respondent does not have to establish, even on probabilities, that the
respondent will as a matter of fact succeed in an action which may be brought
against it by the applicant to enforce the disputed claim. It must just show that
the alleged facts, if proved at trial, would con stitute a good defence to the
claims against it (see paragraph [21] – see also Hulse-Reutter and Another v
Heg Consulting Enterprises (Pty) Ltd (Lane and Fey NNO Intervening ) 1998
(2) SA 208 (C) at 218 D to 219 C.
[22] At paragraph [19] Khumalo J states:
“The liquidation proceedings are therefore not for determining if the amount
owing or due is payable. The proceedings are not for settling disputes
between the parties. However, the dispute must be genuine and raised on
reasonable grounds. ETM will have to show on a balance of probabilities that
the defence raised is genuine and reasonable.”
[23] The aforesaid issue lies at the heart of the dispute between the parties. The
respondent denies that the amount is payable as the source of repayment
would be the sale of stock. As the applicant has prevented such sales, the
respondent has a damages claim. Further, it is not liable to repay unless sales
are made.
Page 8
[24] In motion proceedings the respondent's version is to be preferred unless it
falls to be rejected as far-fetched. My assessment of this defence is that it is
bona fide and based on reasonable grounds. In light of the aforesaid, the
applicant has not established a case for the winding-up of the respondent. It
is apparent that the parties need to resolve their disputes in other proceedings.
Liquidation is not a remedy available to the applicant in light of these disputes
pertaining to the repayment of the amount advanced .
[25] In the premises I make the following order:
1. The application is dismissed with costs, such costs to be on Scale 8.
LABUSCHAGNE J
JUDGE OF THE HIGH COURT
APPEARANCES:
COUNSEL FOR APPLICANT: ADV LOIBNER
INSTRUCTED BY : DU PLESSIS AND KRUYSHAAR INC
COUNSEL FOR RESPONDENT: ADV MARQUES
INSTRUCTED BY : KG TSERKEZIS INC