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[2026] ZAGPJHC 190
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Bell-Form (Pty) Ltd v Buchburg Engineering (Pty) Ltd (2024/090208) [2026] ZAGPJHC 190 (2 March 2026)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NUMBER:
2024-090208
(1)
REPORTABLE: NO
(2) OF
INTEREST TO OTHER JUDGES:
(3) NO
REVISED: NO
In
the matter between:
BELL-FORM
(PTY) LTD
Applicant
And
BUCHBURG
ENGINEERING (PTY) LTD
Respondent
JUDGMENT
FINE
AJ
:
INTRODUCTION
[1]
On 14
November 2025 this Court granted a provisional order placing the
respondent under provisional winding up in terms of sections
344(f)
read with section 345(1)(a) and (c) of the Companies Act
[1]
on the basis that the respondent was unable to pay its debts.
[2]
The matter now serves before me on the return date.
[3]
The cause of action advanced in the winding-up application arises
from services rendered pursuant to a written agreement
of letting and
hiring concluded between during September 2020. The existence of that
agreement and the rendering of services contemplated
therein are not
genuinely disputed. The court granting the provisional order was
satisfied that the applicant had established a
prima facie
indebtedness and that no
bona fide
dispute had been raised
sufficient to resist the granting of provisional relief.
[4]
Some brief
background is necessary as the application presents certain
unsatisfactory and curious features. The founding affidavit
dated 12
August 2024 was deposed to by the attorney or record for the
applicant who asserted both that he was duly authorised to
depose to
the affidavit and the facts contained therein fell within his
personal knowledge. Even on a cursory reading, the latter
assertion
is unsustainable. Many of the material averments plainly concern
matters falling within the knowledge of the applicant’s
directors rather than the legal representative. Notwithstanding this
difficulty
[2]
,
the same approach was perpetuated in the replying affidavit. The
attorney persisted in engaging directly with factual disputes
raised
in the answering affidavit and ventured to characterise the
respondent’s defences as lacking
bona
fides
.
[5]
Ultimately, only after heads of argument had been filed and raised
the hearsay objection in clear terms, a confirmatory
affidavit by the
director of the applicant was filed during August 2025.
[6]
The court granting the provisional order considered the challenge to
authority to have been misdirected, correctly observing
that
challenges to authority must ordinarily be raised in terms of rule
7(1). However, the question of authority and admissibility
of hearsay
appear to have been conflated. Whilst the procedural route to
challenge authority may be governed by rule 7, that does
not cure the
difficulty created where an attorney purports to depose to facts or
matters beyond his personal knowledge.
[7]
In response to the provisional order, the respondent filed an
answering affidavit. No further affidavits were filed by
the
applicant. Neither the answering affidavit nor the further
supplementary affidavit raise any serious disputes in relation to
the
debt and the inability of the respondent to pay the debt.
[8]
It appears to be common cause that pursuant to a contract of letting
and hiring, equipment was supplied by the applicant
to the respondent
and that the amount of R332 000 claimed as due, owing and
payable remains unpaid.
[9]
The respondent does not, in substance, dispute that the goods and
services were rendered. Only in the supplementary affidavit
filed –
in response to the rule nisi – is a portion of the indebtedness
challenged, namely, an amount of approximately
R100 000 said to
relate to the “sale by lost portion”. Even on the
respondent’s own version, however, the
balance of approximately
R200 000 remains effectively unanswered and undisputed. The
attempt to isolate the limited component
of the claim does not engage
with, nor does it neutralise the bulk of the admitted indebtedness.
Equally significant is the respondent’s
failure to engage
meaningfully with the statutory demand served in terms of section
345(1)(a) of the Companies Act on 22 November
2023. That failure,
viewed in its proper context, is consistent with an inability to meet
its obligations as they fall due.
[10]
In order to overcome this difficulty, during the course of argument
it was stated that an amount of R200 000 had
been paid in trust
by Mr. Buchner, a director of the respondent, to his attorneys of
record. Payment was made in order to demonstrate
the respondent’s
bona fides
. Whilst that conduct may reflect the willingness to
engage with the applicant, it does not establish solvency or an
ability to
meet debts as they fall due. Coupled with the fact that
the respondent is not trading and intends to await the outcome of a
dispute
between Mr. Buchner and Mr. Burger before resuming
operations, does not assist. The commercial reality is that the
respondent is
not trading and cannot pay its debts and lacks an
active revenue stream to pay its debts.
[11]
The
principle defence advanced in relation to the indebtedness to the
applicant concerns an internal dispute between the respondent’s
current directors, Mr. Burger, whom it is alleged engaged in unlawful
conduct in relation to the applicant’s indebtedness,
an ongoing
investigation by Mr. Buchner into the conduct of Mr. Burger.
There is also litigation pending between Mr. Buchner
and Mr. Burger.
Mr. Buchner seeks to have Mr. Burger declared a delinquent director
in terms of section 165(5)(c) of the Companies
Act
[3]
.
But that dispute is in my view irrelevant in relation to the present
proceedings.
[12]
The difficulty for the respondent is compounded by its reliance on
unaudited financial statements tendered in an attempt
to demonstrate
solvency. Considered cumulatively, the document lacks reliability or
the evidential weight required to demonstrate
the respondent’s
ability to meet its debts. Rather than displacing the inference of
commercial insolvency, the “financial
statements”
underscores the absence of any cogent answer to the statutory demand
for payment reinforces the applicant’s
case for winding up.
[13]
It is neither proper nor desirable for an attorney of record to
depose to affidavits asserting personal knowledge where
such
knowledge relies elsewhere. Notwithstanding these procedural
shortcomings in the present matter, they do not detract from
the
substance of the applicant’s claim for the respondent’s
failure to establish a
bona fide
dispute and an ability to pay
at least the admitted portion of the debt and that the respondent is
insolvent and unable to pay its
debts within the meaning of sections
344(f) read with section 345(1)(a) and (c).
[14]
In these circumstances, and bearing in mind that the jurisdictional
requirements of section 344(f) and 345(1) have been
met, I am
satisfied that the respondent is unable to pay its debts and a final
order of liquidation should be issued.
[15]
In the circumstances, I make the following order, namely: the
respondent is placed under final winding up under the hands
of the
master and the costs of the application are to be costs in the
liquidation .
DM
FINE
ACTING
JUDGE OF THE HIGH COURT
JOHANNESBURG
DATE
OF HEARING
:
30 January 2026
DATE
OF JUDGMENT
:
02 March 2026
APPLICANT’S
COUNSEL
:
Mr. Van der Meer
APPLICANT’S
ATTORNEYS
:
Van der Meer and Partners
RESPONDENT’S
COUNSEL
:
Mr. Van Wyk
RESPONDENT’S
ATTORNEYS
:
C & A Friedlander Inc.
[1]
61 of 1973, as amended. In terms of item 9(1) of Schedule 5 of the
Companies Act, 71 of 2008
, Chapter 14 of the
Companies Act continues
to apply to the winding up of insolvent companies including
sections
344
and
345
.
[2]
Authority of the attorney was challenged in the answering affidavit
[3]
71 of 2008