IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-070404
In the matter between:
BRU TEXTILES N.V.
Applicant
and
CAPITOL ENERGY (PTY) LTD
Respondent
Coram: Johann Gautschi AJ
Heard: 12 and 19 June 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date and time for hand-down
is deemed to be 10h00 on 3 March 2026
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
................................... ……………………
SIGNATURE DATE
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JOHANN GAUTSCHI AJ
[1] This is an opposed application for the final winding up of the Respondent in which
the Applicant relies on the inability of the Respondent to pay its debts in terms of
section 344 (f) and 345 (1) ( a) of the Companies Act 61 of 1973 (the Act) read
with item 9 of schedule 5 of the Companies Act 71 of 2008.
[2] The claimant is a company registered in Inc in accordance with the company
laws of the Republic of South Africa with registration number 0453835284 which
has its principal place of business in Belgium.
[3] The claimant’s locus standi as a creditor of the respondent is based on the
amounts outstanding and due and payable in respect of capital and interest in
terms of two written loan agreements, one dated 27 October 2021 for R5 million
together with interest and the other dated 26 August 2022 for R5 million together
with interest thereon.
[4] The claimant relies on a statutory letter of demand served on the respondent by
the applicant’s attorneys of record in terms of Section 345 of the Act. Service by
the sheriff of the High Court took place on 31 May 2024 by handing a copy of the
Letter of Demand personally to Mr Darsot, a director of the respondent. The letter
was not responded to.
[5] The respondent’s answering affidavit submitted in limine that the jurisdiction of
the South African courts is ousted by reason of clause 8 of each of the loan
agreements which provide as follows:
“All issues and questions concerning the construction, validity, enforcement and
interpretation of this Agreement – – – shall be governed by and construed in
accordance with the laws of Belgium. Only the courts of Antwerp have jurisdiction in
the event of a dispute regarding this agreement.”
[6] That in limine objection was pursued in oral argument, but without reference to
any authorities. Allied to that, a new defence not raised in the answering affidavit
was argued in oral argument on behalf of the respondent, namely, that the loan
was argued in oral argument on behalf of the respondent, namely, that the loan
agreements could not be relied upon because they constitute credit agreements
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within the meaning of the National Credit Act 34 of 2005 and they are void
because the applicant failed to register as a credit provider in terms of section
40(1) of that Act.
[7] The main defences raised in the answering affidavit were stated as follows.
[8] First, that the R5 million which the respondent received from the applicant was
not received in terms of that loan agreement, but was instead an investment by
the applicant in terms of a verbal agreement, concluded in the context of a familial
relationship, to fund the respondent, which it said was an “empty shell”, in the
setting up and operations of a covid facemask manufacturing plant, that
containers of obsolete facemasks were delivered.
[9] There is no substance in that defence. Suffice it to say that the answering affidavit
made no attempt to lay any foundation for rectification of the written loan
agreement and the respondent’s version in the answering affidavit was rambling,
incoherent and contradictory.
[10] Second, the respondent alleged that “the amount of R 5.4 million was repaid to
the Applicant, albeit into the account of Home Fabrics, being the South African
company of the Deponent, as per the proof of payment attached as annexure
“CE 4””. There is also no substance in that defence. As pointed out in the
applicant’s replying affidavit: “The reference on the proof of payment “CE 4”
substantiates that the payment was made to Home Fabrics on behalf of Fiona
Fashions. These are separate juristic entities, which although linked to both
parties are not to be conflated with either the applicant or the respondent in the
current matter.”
[11] I granted leave to the parties to submit supplementary heads of argument on the
Belgian law jurisdiction al objection and the National Credit Act defence to be
argued at a postponed hearing. At the postponed hearing on 19 June 2025 the
respondent sought to introduce a supplementary affidavit. The applicant
respondent sought to introduce a supplementary affidavit. The applicant
objected and I refused the application as in all circumstances it was quite
inappropriate at that late stage to try and introduce new matter.
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[12] The respondent’s supplementary heads of argument contained no submissions
on alleged non- compliance with the National Credit Act and as to jurisdiction,
merely referred to an SCA judgment on forum convenience 1 and conceded that
I have jurisdiction, submitting that it was clear in terms of section 149 of the
Insolvency Act.
[13] In the result it follows that is unable to pay its debts as contemplated by section
344 (f) of the Act and that the defences raised by the r espondent are without
merit. In the circumstances the Applicant is, in my view, entitled to an order for
the final winding up of the Respondent.
IT ISORDERED THAT:
1. The estate of the Respondent is placed under final liquidation in the hands of
the Master of the High Court;
2. The costs of this application are costs in the liquidation of the Respondent’s
estate.
___________________________
JOHANN GAUTSCHI AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
1 Cordiant TrainingCC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA)
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For the Applicant: Adv L Matsiela
Instructed by: Cliffe Dekker Hofmeyr Inc
(011 562 1173)
For the Respondent: Adv. Deon M Pool
Instructed by: SOHAIL MANGA ATTORNEYS
(0104433945; 0836616556)
Hearing dates: 11 and 19 June 2025
Judgment date: 3 March 2026