REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2024-070382
In the matter between:
In the matter between:
HOME FABRICS (PTY) LTD Applicant
and
FIONA’S FASHIONS (PTY) LTD Respondent
___________________________________________________________________
JUDGMENT
Johann Gautschi AJ
[1] This is an opposed application for the final winding up of the respondent in terms
of section 344 ( f) and section 345 (1) ( a) of the Companies Act 61 of 1973
Redworth item 9 of schedule 5 of the Companies Act 71 of 2008.
[2] The founding affidavit alleges that the respondent is indebted to the applicant in
the sum of R 6,107,244.78 comprising R452,727.34, R1,226,495.08 and
R4,428,022.36 all in respect of credit facilities granted to it by the applicant
pursuant to a written application for credit facilities, the original of which it could
not find, but instead, annexed a copy reflecting the same terms.
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
______________ _________________________
DATE SIGNATURE
-----
------
----
2 March 2026
JRG
2
[3] The applicant caused a statutory letter of demand in terms of section 345 of the
Companies Act to be served personally on a director of the respondent by the
sheriff of the High Court on 31 May 2024 (annexure FA 4). The amount claimed
was not paid and there was no response to the letter.
[4] The respondent’s answering affidavit was filed late but although the respondent’s
request for combination was opposed by the applicant, nothing further was made
of it in oral argument in the matter proceeded on the basis that the answering
affidavit and the replying affidavit of the applicant were before me.
[5] The respondent submitted that the credit application was governed by the
provisions of the National Credit Act. There was no substance in that submission
as the agreement is exempt in terms of section 4 ( 1) of the National Credit Act
because the consumer is a juristic person whose asset value or annual turnover
of the time of the agreement equalled or exceeded the threshold of R 1 million
and it is a large agreement for a principal debt exceeding R 250,000 where the
consumer is a juristic person whose asset value or annual turnover at the time of
the agreement was below the R1 million threshold.
[6] Ultimately, as submitted by the applicant, the respondent cannot escape the
reality that on its own version in the answering affidavit it owes the applicant a
liquidated debt of R270,883.84, being the balance which the respondent admits
owing in respect of goods sold and delivered by the applicant to the respondent.
That admission appears from paragraph 97.5 of the respondent ’s answering
affidavit.
[7] In paragraph 98 of its answering affidavit the respondent raise d a dispute in
regard to a large number of further 2022 invoices issued to it by the applicant
totalling in excess of R3.7 million. The respondent alleges that those invoices
refer to items which it received in bulk shipping containers from the applicant ’s
refer to items which it received in bulk shipping containers from the applicant ’s
parent company in Belgium with a request that it should store the contents of the
containers at the respondent ’s storage facility . The respondent further alleges
that the items delivered consisted of “discontinued ranges, end of rows and short
ends” which made the stock unsellable to the retail market and that despite a
request for it to be collected, this was not done. Instead, the respondent alleges
3
that the applicant in bad faith belatedly in November 2023 gave the respondent
permission to sell the items in storage “ to a market which had been saturated
with the same products in 2022, which were (by then) end of range of
discontinued or of limited supply ”. The respondent alleges that it has a
counterclaim for “costs associated with the continued storage of the Applicant’s
goods” in excess of the amount owed which it claims to set off against the
remaining balance owed to the applicant.
[8] The applicant submits in its replying affidavit that the amount admittedly owed by
the respondent is not contested on bona fide reasonable grounds and that there
is no genuine dispute of fact . The applicant refers in its founding affidavit , inter
alia, to an email, annexure FA 9 from the applicant addressed to the respondent
dated 12 November 2023 which records an undertaking for repayment of an
outstanding debt more than R 26 million which includes that owing to “ Bru
Textiles” in excess of R 18 million . The email followed a meeting held on 5
November 2023 between the chief operating officer of the applicant and the
respondent’s director Mr Darsot, the deponent to the respondent ’s answering
affidavit. The email states “I shared with you our feelings concerning the payment
situation. You shared with me the cash flow issues that you are faced due to
different scenarios and your current financial situation” . On the subject of
repayment it says:
• “Repayment of outstanding debt
o Minimum R200k a month starting in February will be paid by you.
o Once your financial situation stabilises further, this will be
exhilarated, and from 2025 we expect this acceleration.
o Until we see a steady payment of at least R200k per month you
will pay cash before delivery on all orders.
o Once we are happy that you are paying smoothly the monthly
amounts, we can discuss an easier way for the weekly cut length
orders. To be clear we expect at the very least 2 million reduction
orders. To be clear we expect at the very least 2 million reduction
in outstanding in 2024 and even more in the next years.”
4
[9] The respondent’s response was simply “thank you brothers”.
[10] The applicant in argument relied on the judgment in Afgri Operations Limited v
Hamba Fleet (Pty) Limited 2022 (1) SA 91 (SCA) in support of its submission that
the respondent should not by reason of the alleged counterclaim be able to resist
a winding up order where it is common cause that the respondent has not paid
an admitted debt. I agree, particularly as the respondent did not respond to the
statutory demand letter.
[11] Mindful of the Badenhorst rule1 that my discretion not to grant a winding up order
in such circumstances is narrow , I am of the view that in the circumstances of
the present case set out above, I should not exercise my discretion against the
granting of a final winding up order.
IT IS ORDERED THAT:
1. The respondent is placed under final winding up in the hands of the
Master
6. The cost of this application shall be cast in the winding up of the
respondent.
___________________________
Johann Gautschi AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
1 Badenhorst v Northern Construction Enterprises (Pty) Ltd 1956 (2) SA 346 (T)
5
For the Applicants: Adv L Matsiela
Instructed by: Cliffe Dekker Hofmeyr Inc
(011 562 1173)
For the Respondents: Adv. Deon M Pool
Instructed by: SOHAIL MANGA ATTORNEYS
(0104433945; 0836616556)
Hearing date: 19 June 2025
Judgment date: 2 March 2026