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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, PRETORIA
CASE NUMBER: 032520-2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE
SIGNATURE
In the matter between:
LOVE HEALTH PARTNERSHIP (PTY) LTD FIRST APPLICANT
and
CONVATEC SOUTH AFRICA (PTY) LTD FIRST RESPONDENT
JACQUES FISHER N.O SECOND RESPONDENT
BLAISE KOETSIE N.O THIRD RESPONDENT
THE MASTER OF THE HIGH COURT, PRETORIA FOURTH RESPONDENT
ALL KNOWN INTERESTED PARTIES FIFTH & FURTHER RESPONDENT
Heard: 31 October 2025
Delivered: 08 April 2026
2
This judgment is handed down electronically by circulating to the parties or their legal
representatives by email and by uploading the judgment onto CaseLines. The date
and time for hand down of the judgment are deemed to be 14:00 on 08 April 2026.
JUDGMENT
MATLAPENG A.J
INTRODUCTION
[1] This is an application for the rescission of a final winding -up order granted
on 5 September 20231 against Umsinsi Healthcare (Pty) Ltd (“Umsinsi”).
[2] The application is brought in terms of Uniform Rule 42 (1 )(a)2, in the
alternative, Section 354(1) of the Companies Act 61 of 1973 (“Companies
Act”).3
[3] The Applicant, being the sole shareholder of Umsinsi, seeks an order setting
aside the liquidation proceedings on the basis that the order was
erroneously sought and granted, alternatively that it falls to be set aside in
the exercise of this Court's discretion.
BRIEF BACKGROUND
1 CaseLines: Founding Affidavit 021-9 para 13
2 CaseLines: Founding Affidavit 021-9 para 14.1
3 CaseLines: Founding Affidavit 021-9 para 14.2
3
[4] The Founding Affidavit establishes that Umsinisi did not oppose the winding-
up application because, it was unaware of the proceedings.
[5] The gravamen of the Applicant’s case, is that the application was not served
at Umsinsi’s registered address but at its erstwhile principal place of
business.4
[6] The Applicant further contends that the alleged indebtedness, is disputed on
a bona fide and reasonable grounds, and that more pointed, the winding -up,
has not progressed in any material respect. The Applicant also contends
that there are special and exceptional circumstances that exist which impel
this Court to order the rescission of the order.
[7] The Answering Affidavit, does not meaningfully dispute the absence of
proper service but rather seeks to justify the liquidation based on the alleged
indebtedness.
[8] It is so that prior to the First Respondent issuing the liquidation application,
Umsinsi’s principal place of business and registered address was situated at
[...] M[...] Street, Founders Hill, Lethabong, Gauteng.5
[9] It is also so that during November 2022, Umsinsi closed its principal place of
business and relocated to the Western Cape with its registered address at
1[...] D[...] Street, Onrus River, Onrus, Western Cape where it continued with
4 CaseLines: Founding Affidavit 021-11 para 21
5 CaseLines: Founding Affidavit 021-10 para 16
4
its business.6
[10] It is also so that on 14 March 2023, Umsinsi registered address was
changed to 1[...] D[...] Street, Onrus River, Onrus, Western Cape with the
Companies and Intellectual Property Commission (“CIPC”). 7
[11] It is also so that the CIPC report attached to the Founding Affidavit in the
main application , which is dated 26 September 2022, had the previous
address mentioned above and not the current address which made the
information outdated as the Founding Affidavit, is dated 4 April 2023.8
[12] The above facts, are not seriously disputed by the First Respondent as can
be gleaned from the Answering Affidavit at paragraphs 5.3, 5.4. 9 well as
paragraphs 21, 22, 23 of the Answering Affidavit wherein the First
Respondent admits , and gives a ba re denials regarding the relocation of
Umsinsi and states that the relocation of the principal place of business, is
not tantamount to changing the company's registered address. 10
ISSUES FOR DETERMINATION
[13] This Honorable Court is called upon to decide on whether the winding -up
order was erroneously sought or granted as contemplated in Rule 42 (1 )(a)
and whether the requirements of Section 354 (1) have been satisfied and
6 CaseLines: Founding Affidavit 021-10 para 17
7 CaseLines: Founding Affidavit 021-10 para 18
8 CaseLines Founding Affidavit 021-10 para 19
9 CaseLines: Answering Affidavit 023-5
10 CaseLines 023-27 paras 21, 22 and 23
5
finally, whether it is just and equitable to rescind the order dated 5
September 2023.
A DISCUSSION
[14] Rule 42 (1)(a) empowers a Court to res cind an Order that was erroneously
sought or erroneously granted in the absence of a party affected by thereby.
This was neatly summari sed in the matter of Colyn v. Tiger Food Industries
Ltd t/a Meadow Feeds Mills (Cape) where the Supreme Court of Appeal
held that:
During the course of argument counsel drew our attention to conflicting
approaches of the courts to the proper application of rule 42(1)(a).
Bakoven Ltd v GJ Howes (Pty) Ltd, 11 and Tom v Minister of Safety and
Security12 hold that the ‘error’ must be patent from the record of
proceedings and that the court is confined to the four corners of the
record to determine whether or not rule 42(1)(a) is applicable. Stander
v ABSA Bank Bpk13 on the other hand permits external evidence of the
‘error’. The conflict seems to me to obscure the real issue, which is to
determine the nature of the error in question. This judgment concludes
that what happened in this case did not amount to an error in terms of
the rule, regardless of whether or not it manifested itself in the record of
proceedings. It is consequently unnecessary for present purposes to
say anything more about the conflict.
[15] Section 345 states:
11 1992 (2) SA 466 (E).
12 [1998] 1 All SA 629 (E).
13 1997 (4) SA 873 (E).
6
“345 When a company deemed unable to pay its debts.
(1) A company or body corporate shall be deemed to be unable to
pay its debts if-
(a) A creditor, by cession or otherwise, to whom the company is
indebted in a sum of not less than one hundred rand then due-
(i) Has served on the company, by leaving the same at its
registered office, a demand requiring the company to
pay the sum so due; or
(ii) …”
[16] Similarly, in Lodhi 2 Property Investment (CC) vs Bondev Developments
(Pty) Ltd.14
Nepgen J found support for his conclusion in Theron NO v United
Democratic Front (Western Cape Region) 1984 (2) SA 532 (C). In that
case an order had been granted against Theron in his absence after
short notice of the application and although no papers of any kind had
been filed and no papers had been served on him. 15 The order was
nevertheless granted on the basis of an assumption on the part of the
judge that Theron had been given sufficient notice and that he had
deliberately decided not to appear at the hearing of the application. In
the application for rescission Vivier J found, on the facts placed before
him, that these assumptions were wrong 16 and that the order had for
14 2007 (6) SA 87 ( SCA)
15 At 533G-H and 534A.
16 At 536C.
7
that reason been granted erroneously. In my view the judgment cannot
be faulted. Regard was had to evidence external to the record of
proceedings as it existed at the time the order was granted in order to
determine whether proper notice had been given. Whether Theron
wanted to appear at the hearing was a relevant consideration in
determining whether sufficient notice had been given. Vivier J in effect
found that proper notice had not been given. 17 As a result the UDF was
procedurally not entitled to the order sought when it was granted. The
order was for that reason erroneously granted. In Stander the plaintiffs
who obtained an order in their favour was, unlike the UDF in Theron,
procedurally entitled to the order when it was granted and the fact that
it subsequently transpired that the defendants were not in wilful default
could not transform that order, which had validly been obtained, into an
erroneous order.”
[17] The undisputed facts established that the winding -up application was not
served at Umsinsi’s registered address.
[18] It is so that proper service , is foundational to the exercise of jurisdiction and
to the observance of the audi alteram pattern principle.
[19] The absence of proper service, constitutes a material fact which, had it been
known to the Court, would have precluded the granting of the winding -up
order.
17 At 535G and 536C.
8
[20] In Rossiter v Nedbank Ltd 18 the Supreme Court of Appeal neatly
summarised the consequences of non-service and held thus:
[16] The law governing an application for rescission under Uniform
rule 42(1)(a) is trite. The applicant must show that the default
judgment or order had been erroneously sought or granted. If the
default judgment was erroneously sought or granted, a court should,
without more, grant the order for rescission. It is not necessary for a
party to show good cause under the subrule. Generally a judgment is
erroneously granted if there existed at the time of its issue a fact
which the court was unaware of, which would have precluded the
granting of the judgment and which would have induced the court, if
aware of it, not to grant the judgment. There can be no doubt that if
the registrar had been made aware of the procedural defect in the
rule 31(5)(a) notice, default judgment would not have been granted.
In Lodhi 2 Properties Investments CC v Bondev Development (Pty)
Ltd 2007 (6) SA 87 (SCA), Streicher JA held that if notice of
proceedings to a party was required but was lacking and judgment
was given against that party such judgment would have been
erroneously granted. The following appears in par 24:
‘Where notice of proceedings to a party is required and
judgment is granted against such party in his absence without
notice of the proceedings having been given to him such
18 (96/2014) [2015] ZASCA 196 (1 December 2015) at para 16
9
judgment is granted erroneously. That is so not only if the
absence of proper notice appears from the record of the
proceedings as it exists when judgment is granted but also if,
contrary to what appears from such record, proper notice of
the proceedings has in fact not been given…’
[21] It is so that in the present matter, the Applicant’s registered address as per
the official records of the CIPC, is 1[...] D[...] Street Onrus River, Western
Cape.19
[22] It is also common cause that service of the impugned application, was
affected at Founders Hill, Lethabong, a different address.20
[23] It is also so that the Sheriff expressly and unambiguously recorded that no
one was present at the premises. 21 The return of service, does not establish
that the address was the Applicant’s registered office and that the process,
came to the attention of the Applicant.
[24] The effect of defective service, was discussed in the matter of Colyn v Tiger
Food Industries above where the Court correctly stated that an Order
granted in the absence of proper notice, is erroneously granted and falls to
be rescinded.
19 CaseLines: 021-34 Annexure “AJW3”
20 CaseLines: 015-4
21 Ibid
10
[25] The failure to serve at the correct registered address, renders the
proceedings fatally defective.
[26] It is so that jurisdiction in respect of companies is determined by the
registered office and in the alternative the principal place of business. It is
common cause that the winding -up application was served in Gauteng
therefore brought without proper regard to the Applicant’s registered
address.
[27] This raises serious concerns regarding the competence of the Court that
granted the Order. The Respondent on the other hand, contends that it
complied with section 3 54 of the Companies Act by sending the demand to
the Applicant’s address as provided for in the CIPC 22 as well as the
Applicant’s legal representatives.23
[28] However, Section 3 54 requires service at the company’s registered office
and not at the company’s legal representatives who may or may not have
instructions to represent the company.
[29] As at 14 March 2023 when the Section 3 54 demand was dispatched, the
Applicant’s principal place of business, was not at [...] M[...] Street, Founders
Hill, Lethabong, Gauteng but at 1[...] D[...] Street, Onrus River , Western
22 CaseLines: Answering Affidavit 023-6 para 5.4
23 CaseLines: Answering Affidavit 023-6 para 5.5
11
Cape as per the change history of the Applicant.24
[30] It is so that a notice sent to attorneys, does not constitute service on the
company and does not satisfy the statutory requirements impelled by
Section 3 54 of the Company’s Act. The Respondent’s reliance on such
notice, is therefore misplaced and legally insufficient.
[31] The evidence establishes that the Respondent knew, or reasonably ought to
have known the Applicant’s registered address. In those circumstances, the
failure to effect proper service is not merely procedural, but indicative of a
disregard for due process.
[32] In sum, the order was accordingly erroneously granted within the meaning of
Rule 42 (1)(a).
[33] It is also so that a party seeking a winding -up order, bears a duty to ensure
that the affected party receives proper notice of the proceedings. In the
circumstances where the First Respondent knew (or was unaware of the
change of address) that Umsinsi had changed its registered and/or principal
place of business , it was incumbent upon it to verify the correct registered
address before effecting service.
[34] The failure to do so, reflects a lack of diligence inconsistent with the gravity
of liquidation proceedings.
24 CaseLines: 021-37 Annexure “AJW3”
12
[35] It is so that S ection 354 (1) confers a discretion upon the Court to set aside
winding-up proceedings where it is satisfied that they ought to be stayed or
set aside.
[36] In Ward and Other vs Suit and Others on In Re: Gurr vs Zambia Airways
Corporation Ltd 25 the Court held:
The language of the section is wide enough to afford the Court a
discretion to set aside a winding -up order both on the basis that it
ought not to have been granted at all and on the basis that it falls to
be set aside by reason of subsequent events. (Meskin: Henochsberg
on the Companies Act 747; see also Joubert: LAWSA vol 4 First
Reissue par 185 (M S Blackman).) In the case of the former, the onus
on an applicant is such that generally speaking the order will be set
aside only in exceptional circumstances. This has been emphasised
by the courts of various Provincial and Local Divisions not only in
relation to s 354 and its predecessor (s 120 of Act 46 of 1926) but
also in relation to s 149 (2) of the Insolvency Act 24 of 1936 which
affords a similar discretion to a Court to rescind or vary a
sequestration order.
[37] It is so that th at discretion, must be exercised judicially, having regard to all
the relevant circumstances.
25 1998 (3) SA 75 (SCA) at para 11
13
[38] Indeed, there are special and exceptional circumstances that exist on these
facts which cumulatively constitute circumstances which are firstly, the
absence of proper service, second the lack of knowledge of the proceedings
on the part of the Applicant, thirdly the absence of opposition by the
liquidators or the creditors of Umsinsi fifth the lack of progress in the
winding-up and finally, the existence of a bona fide dispute regarding the
alleged indebtedness on the part of Umsinsi, which have been
demonstrated inter alia in the Founding Affidavit 26 and not seriously
challenged by the First Respondent in the Answering Affidavit.27
[39] It is so that winding -up proceedings, are inappropriate where the
indebtedness is disputed on a bona fide and reasonable grounds. It is also
so that the Answering Affidavit, does not resolve the dispute conclusively
and this dispute, cannot be characterised as illusory or contrived.
[40] It is also so that the evidence indicates that the winding -up has not
progressed in any material respect and that no liquidator, creditor, or
interested party opposes the relief sought by the Applicant in rescinding the
order. In sum, there is no evidence of prejudice that would result from the
rescission.
[41] Had the Court been aware that the Applicant was not served at its registered
address and that the Section 35 4(1) notice was defective, it would not have
granted the winding-up Order.
26 CaseLines: Founding Affidavit 021-13 -paras 30-32 as well as Annexure “AJW5”
27 CaseLines: Answering Affidavit 023-30 paras 27-28
14
[42] The Applicant has demonstrated a bona fide defence namely the lack of
proper service, the absence of jurisdiction and the non -compliance with
statutory requirements. These defences, are not merely technical, but go to
the root of the proceedings.
CONCLUSION
[43] The Applicant has established that the winding -up order was erroneously
granted within the meaning of Rule 42 (1(a) and that there are special
circumstances that exists within the meaning of Section 354 (1) and that it is
just and equitable to rescind the order.
[44] The cumulative effect of the defective service coupled with the jurisdictional
defects as to whether the Order was sought and granted and the non -
compliance with Section 3 54(1) of the Companies Act, renders the winding -
up Order erroneously granted.
[45] In sum, the Applicant has established both the grounds under Rule
42(1)(a).
[46] The First Respondent contends that the rescission application was brought
out of time. The Court must consider the length of the delay, the explanation
for the delay and the prospects of success.
[47] The Applicant’s explanation is that upon becoming aware of the proceedings
15
due to the defective service, the Applicant acted promptly by investigating
the matter and reached out to the First Respondent.28
[48] The Applicant further contends that there is no real prejudice in bringing
these proceedings as the liquidation has not progressed and there are no
real creditors.29
[49] In challenging the reasons for the delay, the First Respondent contend that
they brought the impugned Order to the attention of the Applicant on 7
November 202330 and agreed to hold discussions with the Applicant.31
[50] The delay of six months from becoming aware of the impugned Order to the
launching of the rescission application, is not excessive and reasonably
explained by the Applicant. Moreover, as explained above, the impugned
Order was granted in the incorrect Court as the Court having jurisdiction was
the Western Cape High Court.
ORDER
[51] The following order is made:
31.1 The final winding-up order granted on 5 September 2023
against Umsinsi Healthcare (Pty) Ltd is rescinded and
28 CaseLines: Founding Affidavit 021-20 paras 52-55
29 CaseLines: Founding Affidavit 021-21 para 57
30 CaseLines:: Answering Affidavit 023-15 para 8.3
31 Caselines: Answering Affidavit 023-16 paras 8.9-8.13
16
set aside.
31.2 The First Respondent is ordered to pay the cost of this
application on Scale A.
_______________________________
MT Matlapeng
Acting Judge of the High Court, Gauteng
Division, Pretoria
17
Appearances
Applicant’s Counsel: Adv M De Olivier
Applicant’s Attorneys: Strauss Daly Inc
First Respondent’s Counsel: Adv M Jacobs
First Respondent’s Attorneys: Coombe Commercial Incorporated
Attorneys