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[2026] ZAGPJHC 233
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Roytech Global (Pty) Ltd v LMai (Pty) Ltd (2024/072740) [2026] ZAGPJHC 233 (6 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number: 2024-072740
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES/NO
In
the matter between:
ROYTEC
GLOBAL (PTY) LTD
Applicant
and
LMAI
(PTY)
LTD
Respondent
JUDGMENT
HORN AJ
Introduction
[1]
The applicant and the respondent each claim
to be a creditor of the other. During August 2023, the respondent
launched an application
for the winding-up of the applicant. The
applicant alleged, in that application, that it had a counter claim
against the respondent,
which is the subject matter of action
proceedings in this Court.
[2]
By agreement, the respondent withdrew its
winding-up application to pursue its claim as a counter claim in the
action proceedings.
This agreement is embodied in an order of Court
dated 24 November 2023.
[3]
During July 2024, the applicant launched
the present application for the winding-up of the respondent based
upon its claim which
is the subject of the aforesaid action
proceedings. On 24 October 2024, the respondent was finally wound-up
at the instance of
the applicant.
[4]
Thereafter, the respondent’s
director, Mr Padayachi, launched an urgent application for the
rescission of the final winding-up
order under section 354 (“the
section 354 application”) of the Companies Act, 1973 (“the
1973 Act”). The
respondent claimed that it had left its
registered address where the application was served and,
consequently, the application
did not come to its knowledge. The
matter was struck from the roll for lack of urgency.
[5]
In due course, the rescission application
was enrolled in the ordinary motion court. On 25 October 2025, the
final winding-up order
was set aside by De Beer AJ and substituted
with an order placing the respondent under provisional winding-up.
Interested parties
were called upon to show cause on 2 March 2026 why
the provisional order should not be made final. The matter was
allocated to
me for hearing during the week of 2 March 2026.
[6]
The order of De Beer AJ also reserved the
question of the costs of the section 354 application for
determination on the return day.
The Applicant’s
Claim
[7]
In the founding affidavit, the applicant
alleges that the parties had entered into an agreement pursuant to
which the respondent
accepted certain purchase orders from the
applicant. In terms thereof, the respondent would render services
related to the design,
supply, delivery, construction, installation,
testing, commissioning and remedying any defects of a “DMS
thickener”
at a plant of Mafube Coal Mining (Pty) Ltd
(“Mafube”) in Middelburg, Mpumalanga.
[8]
On 13 January 2023, says the applicant, the
respondent rendered an interim account in the amount of
R3 740 478.44. Upon
receipt thereof, the applicant recorded
that the agreement provided for services in terms thereof to be
provided at a fixed price.
According to the applicant, it adjusted
the amounts for services claimed in accordance with actual work
carried out.
[9]
The applicant then presented the respondent
with what it calls a corrected interim statement. It requested the
respondent to issue
a credit note in the amount of R4 931 852.42.
The applicant claims in its founding affidavit that it had been
impoverished
in this amount due to having paid for work that the
respondent had not performed and for additional costs of having had
to employ
another contractor to complete the work.
[10]
In reply, the applicant alleges that
certain misrepresentations by the respondent induced it to pay a
combined amount of R1 509 204.42.
This allegation is
followed by an allegation that there were overstated claims
pertaining to certain individual staff members of
the respondent in
the amount of R963 054.80. The latter allegation is made with
reference to “clock-in data” obtained
from Mafube.
[11]
It is unclear whether the amounts mentioned
in the preceding paragraph are included in the amount of R4 931
852.42 mention in the
founding affidavit or whether they are in
addition thereto. Be that as it may, an applicant should make out its
case in the founding
papers. I will therefore confine this judgment
to the claimed overpayment of as stated in the founding affidavit.
The Respondent’s
Answer
[12]
In its answering affidavit, the respondent
alleges that payment to it by the applicant was linked to payment to
the applicant by
Mafube. Elsewhere in its affidavit, the respondent
claims that it was consistently understood that payment to the
respondent would
follow payment to the applicant by Mafube.
[13]
The aforesaid allegations were met in reply
by the applicant stating the allegations are denied insofar as they
are inconsistent
with the contents of paragraphs 38.1 to 38.22 of the
replying affidavit. The allegation that the respondent would only be
paid
by the applicant once the applicant received payment from
Mafube, is not inconsistent with anything contained in paragraphs
38.1
to 38.22 of the replying affidavit. It therefore stands
uncontested on the papers.
[14]
In relation to the alleged overpayment by
the applicant to the respondent in the amount of R4 931 852.42, the
respondent denies
that there was any overpayment. The respondent
further alleges that, in any event, the applicant had been paid that
amount by Mafube
and, thereafter, made a corresponding payment to the
respondent.
[15]
The averment that the applicant has been
paid by Mafube in the amount of the alleged overpayment is repeated
elsewhere in the answering
affidavit. The allegations have been met
with the same qualified denial with reference to paragraphs 38.1 to
38.22 of the applicant’s
replying affidavit. There is nothing
inconsistent with the allegation of payment to the applicant in those
paragraphs.
Discussion
[16]
In
terms of section 346(1)(b) of the 1973 Act, an application for the
winding-up of a company may be made by one or more of its
creditors.
The onus is on the applicant to show, on a balance of probabilities,
that it is a creditor of the respondent.
[1]
[17]
Winding-up
proceedings should not be employed where there is a bona fide dispute
on reasonable grounds in respect of the claimed
indebtedness.
[2]
This is known as the
Badenhorst
rule.
[18]
When
an application for winding-up reaches the stage where a final order
is sought, the test is different. Where there is a dispute
of fact,
the court is not permitted to determine the balance of probabilities
on the affidavits. Instead, it must apply the
Plascon-Evans
rule.
[3]
This entails that final
relief in motion proceedings will be granted only if the facts stated
by the applicant and admitted by
the respondent, together with the
facts stated by the respondent, justify final relief. An exception is
where the respondent’s
denials are so far-fetched or untenable
that a court will be justified to reject them on the papers.
[4]
[19]
During argument, Mr van Staden, for the
applicant, at first conceded that the claim contended for by the
applicant constitutes an
enrichment claim but did not commit to any
of the traditional
condictiones
upon which such a claim may be founded. Later, Mr van Staden
intimated that the applicant’s claim may also be premised on
breach of contract, although this was not expressly pleaded.
[20]
The
elements common to all enrichment claims are that the defendant must
have been enriched, the plaintiff must have been impoverished,
the
defendant’s enrichment must have occurred at the plaintiff’s
expense and the enrichment must have been unjustified.
[5]
The quantum of an enrichment claim is the amount in which the
plaintiff has been impoverished or by which the defendant has been
enriched, whichever is the lesser.
[6]
[21]
The applicant claims to have been
impoverished in the amount of R4 931 852.42. The difficulty with that
contention is the respondent’s
averment that the applicant only
made payment to it once the applicant had received payment from
Mafube. The respondent also expressly
alleges that Mafube had, in
fact, made payment of the amount of R4 931 852.42 to the
applicant. As stated, the applicant
did not deny these allegations by
the respondent. Therefore, even if the respondent were enriched (I
make no finding on this issue),
it does not follow, on the papers,
that the applicant was impoverished or that the respondent’s
enrichment occurred at the
expense of the applicant.
[22]
The respondent’s case is not premised
on a bare denial of the applicant’s alleged impoverishment. It
made positive allegations
that the applicant had not been
impoverished. It cannot be said that the respondent’s
allegations on this score are far-fetched,
and the applicant did not
contend that they were.
[23]
Even if the matter were to be approached on
the basis that the applicant’s claim is founded in breach of
contract, no damages
have been pleaded in the founding affidavit
other that the alleged impoverishment referred to above. If that
amount had been paid
to the applicant by Mafube, as I must accept
based on the
Plascon-Evans
rule, the applicant has not established that the alleged breach has
caused it to suffer any damages.
[24]
The inescapable conclusion is that the
applicant has failed to establish a claim against the respondent
which justifies final relief
in motion proceedings. The provisional
winding-up order therefore stands to be discharged.
Costs
[25]
There is no reason why the costs of the
present application should not follow the result.
[26]
The reserved costs of the section 354
application stand to be determined. The final winding-up order that
was set aside came about
as result of the application having been
served at the respondent’s registered address after it had
departed from that address.
The respondent did not update the records
of the Companies and Intellectual Property Commission, as it should
have done. The applicant
was therefore at liberty to serve the
winding-up application at that address.
[27]
On the other hand, the respondent achieved
some measure of success in the section 354 application, in that the
final winding-up
order was set aside and a return date fixed for it
to argue its case. Mr Steyn, for the respondent, submitted that, in
these circumstances,
each party should pay its own costs in the
section 354 application. Taking the outcome of the present
application into account
too, I agree with Mr Steyn’s
submission.
[28]
Counsel for the parties both contended for
costs of counsel on scale C. In my view the matter was not of
sufficient complexity to
warrant costs on that scale. Costs of
counsel will be awarded on scale B.
Order
[1] The provisional
winding-up order of the respondent dated 25 October 2025 is
discharged.
[2] The application
for the winding-up of the respondent is dismissed.
[3] The applicant
is ordered to pay the costs of the application (excluding the costs
of the section 354 application), including
the costs of counsel on
scale B.
N J HORN
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
For the
Applicant:
M M van Staden
Instructed
by Van Zyl Johnson Inc
For the Respondent:
G Steyn
Instructed
by DLBM Attorneys Inc
Date of
hearing:
3 March 2026
Date of
judgment:
6 March 2026
[1]
Commonwealth
Shippers Ltd v Mayland Properties (Pty) Ltd (United Dress Fabrics
(Pty) Ltd and Another intervening)
1978 (1) SA 70
(D) at 72E-F.
[2]
Badenhorst
v Northern Construction Enterprises (Pty) Ltd
1956 (2) SA 346
(T) at
347-348.
[3]
Orestisolve
(Pty) Ltd t/a Essa Investments v NDTF Investment Holdings (Pty) Ltd
and Another
2015 (4) SA 449
(WCC) at para [8] to [10]. See also
Afgri Opertations Ltd v Hamba Fleet (Pty) Ltd
2022 (1) SA 91
(SCA)
at para [9].
[4]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634H-635C.
[5]
Kudu
Granite Operations (Pty) Ltd v Caterna Ltd
2003 (5) SA 193
(SCA) at
para [17].
[6]
Glenrand
MIB Financial Services (Pty) Ltd v Van den Heever NO 2012 JDR 2303
(SCA) at para [38].