About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Middelburg
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Middelburg
>>
2026
>>
[2026] ZAMPMHC 16
|
|
Thusanyo Project Services (Pty) Ltd v Botenko Business Enterprises (Pty) Ltd (2135/2025) [2026] ZAMPMHC 16 (22 April 2026)
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION,
(MIDDELBURG LOCAL SEAT)
CASE NUMBER: 2135/2025
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED
YES/NO
DATE
22 APRIL 2026
SIGNATURE
In
the application between:
THUSANYO
PROJECT SERVICES (PTY) LTD
APPLICANT
(Registration
Number: 2022/881446/07)
and
BOTENKO
BUSINESS ENTERPRISES (PTY) LTD
RESPONDENT
(Registration
Number: 2014/148985/07)
JUDGMENT
FOURIE
AJ
INTRODUCTION:
[1]
In the current application, the Applicant seeks the provisional
winding up of the Respondent, a private company.
[2]
The application is brought under the auspices of Section
345 of the
Companies Act, 61 of 1973, ”the Act”, alternatively on
the basis that the Respondent is unable to pay its
debts and that it
is just and equitable as contemplated in Section 344(f) and (h) read
with Sections 345(1)(a) and 345(1)(c) of
the Act, for the
Respondent so to be provisionally wound up.
[3]
This Court is satisfied that the relevant statutory compliance
specifically pertaining to service, as set out in Section
346(4)(h)(b) of the Act, and the setting of security as per
Section
346(4)(a) of the Act, has been met.
RELEVANT
BACKGROUND FACTS:
[4]
Pursuant to the Applicant purchasing the entity known
as Thusanyo
Investments, the Respondent, who was, at the time and specifically on
1 March 2024, a debtor of Thusanyo Investments became a debtor of
the Applicant, on the Applicant's contentions.
[5]
The indebtedness of the Respondent is claimed in the
amount of
R
5 625 624.95.
[6]
On 4 March 2022, the Respondent entered into a process
of business
rescue, and on 27 March 2023, an order was granted against the
Respondent, terminating the business rescue proceedings
and finally
winding up the Respondent in the hands of the Master.
[7]
Pursuant to being persuaded by the Respondent, the Applicant
agreed
to the setting aside of the final winding-up order obtained under the
promise that the indebtedness of the Respondent would
be settled in
totality within a period of 12 months.
[8]
The winding up of the Respondent was consequently set
aside.
[9]
What transpired thereafter, and since that date, has
been several
exchanges of correspondence between the respective parties, in which
the indebtedness has been discussed and the parties
have attempted to
facilitate its repayment. It is a common cause between the
parties that, during this period, the Respondent
has not made any
payments to the Applicant, and that the Respondent has endeavoured to
repay its other debts owed to other individuals
and companies.
[10]
From the correspondence exchanged between the parties, the
Respondent's
indebtedness has not been seriously challenged
throughout; rather, the Respondent attempted repayment on certain
terms that were
not acceptable to the Applicant.
[11]
What followed was the service of a Section 345(1)(a) Notice in terms
of the Act, which led to the current application.
[12]
The Applicant relies on, specifically, correspondence received from
the
Respondent dated 9 April 2025, in which the debt owed is admitted
as
R 5 625 624.95, and a proposed repayment schedule is
advanced, as well as an acknowledgement of debt in the amount of R
5 914 374.96, which was entered into and signed as far back
as 16 November 2021.
[13]
The Respondent’s opposition seems to consist of a request for
the
indebtedness as claimed to be separated into an amount of R 3 946
375.62, which, according to the Respondent, forms part and parcel
of
an internal dispute pertaining to the repayment of unpaid salaries,
an amount of
R 1 679 249.33 that was utilised for
operational requirements.
[14]
The Court finds it peculiar that the Respondent raised issues in the
current application with any portion of the debt owed under
circumstances where the outstanding debt has, on several occasions,
been admitted. Had it not been for the current application, it seems
as if the only real dispute that was raised between the parties
would
have been the manner in which the debt was to be repaid.
[15]
The Respondent, however, avers that the amount of R 3 946 375.62
must be deducted from the debt as it does not form part of the SLA
that forms the subject matter of the debt.
[16]
The aforesaid, even if the Court accepts the challenge to the amount
of
R 3 946 375.62 leaves an indebtedness of R
1 679 249.33. On the papers before the Court, it has not
been denied
that at least this amount is challenged, and if there is
a notion of a challenge to this amount, the Court cannot accept that
such
a challenge is disputed on
bona fide
grounds. The
submissions at the hearing of the matter by the Respondent’s
legal representatives were that the admitted
amount was not being
repaid as the Respondent would only make payment once the amount owed
had been formally agreed to by the parties
and a suitable repayment
plan was set up. The Respondent fails to address why no
payment, at the very least, towards the
indebted amount of
R
1 679 249.33 has been made.
[17]
The Respondent, for instance, in its answering papers stated as per
paragraph 8.6 thereof that the Respondent is willing to make
payment of the owed amount of R 1 679 249.33.
[18]
At the hearing of the matter, the Court allowed the Respondent the
opportunity
to make submissions on, if the Court allowed such an
opportunity to the Respondent, whether, at the very least, the
admitted amount
would be paid by the Respondent to the Applicant if
the Court so orders. The Court was informed that the Respondent
would
not be in a position to make payment of this amount, and should
it be so ordered, the Respondent would need to enter into some sort
of payment arrangement with the Applicant.
[19]
This concession, together with the admission of significant
indebtedness,
moves the Court to the ruling it ultimately issues.
APPLICABLE
LEGAL PRINCIPLES:
[20]
Where a creditor has a debt which a debtor cannot pay, the creditor
is
entitled,
ex debito justitiae,
to a winding-up order.
[1]
[21]
In terms of the Act referenced
supra
, the Applicant would have
the required
locus standi
to institute these proceedings upon
proving that it holds a claim of not less than R 100.00 against the
Respondent. The indebtedness
in at least this amount is not
seriously contested.
[22]
The issue whether the total amount as claimed by the Applicant, in
this
case the amount of R 5 625 624.95 needing to be proven for the
Applicant to succeed in its application has been dealt with by our
Courts on several occasions, and it is trite Law that the Applicant,
in order to proceed, needs to prove, on the evidence available
to
Court, a liquid debt exceeding R 100.00 even thought that amount
might not be the total claim amount of the Applicant.
[2]
[23]
During argument the Court was referred to the matters of Kalil v
Decotex
(Pty) Ltd and Another
[3]
, as well as the matter of
Badenhorst v Northen Construction Enterprises (Pty) Ltd
[4]
,
both of which generally get referred to when matters for the
liquidation of a company is argued. This Court is satisfied
that, in
order to overcome an application for the winding-up of the
Respondent, the Respondent had an evidential burden to prove
either
that the debt has been settled in total, alternatively that the total
of the debt is disputed on
bona fide
grounds. If a
Respondent is unable to dispute its indebtedness and is unable to
prove that an Applicant’s claim is
meritless to the degree that
a Court will not find an indebtedness of at least R100.00, all that
remains is to answer the question,
whether the Respondent is able to
repay such amount, and if the question is answered in the negative,
surely an Applicant is entitled
to the relief it seeks in respect of
the winding-up of the Respondent.
[24]
In the current matter, all that remains to be answered is whether or
not there is some other compelling reason why the Court ought not to
order, at the very least, a provisional winding-up. The
high-water mark for the Respondent in this regard was that the
Respondent employed several employees, and that the provisional
winding-up Order would negatively impact their employment. Although
the impact on the employees will be a harsh reality, it is
one caused
by the Respondent.
[25]
A diligent employer has a duty not only to their creditors but also
their
employees to ensure the financial existence of their company.
If an employer does not do so, they cannot hide behind the obvious
effects of liquidation unless exceptional circumstances dictate it to
be just. In the current matter it does not.
DISCUSSION:
[26]
The Respondent seems to have, rather belatedly, taken issue with a
portion
of the debt which it previously acknowledged to be owed to
the Applicant.
[27]
Irrespective of the aforesaid, a considerable amount of money is
admitted
to be owed by the Respondent to the Applicant, at least in
the amount of
R 1 679 249.33. Despite the
Respondent’s acknowledgement of its indebtedness towards the
Applicant, the Respondent
has blatantly refused to make any sort of
payment towards the Applicant in this regard.
[28]
At the very least, the Respondent would have shown some sort of
bona
fides
if the amount they admitted to owe to the Applicant was
settled or partially settled by way of monthly repayments.
[29]
The Court further needs to consider the fact that the Respondent was
previously wound up, and it seems, at the very least on the papers,
that had it not been for the grace of the Applicant in agreeing
to
set aside the winding-up previously obtained, that position would in
all likelihood have remained the position. With the
aforesaid
as backdrop, there is simply no justification for why the Respondent
has not honoured its commitments towards the Applicant.
[30]
Whether the Applicant ultimately proves its total claim with the
liquidator
is an aspect that this Court does not need to evaluate,
but at the very least, this Court is satisfied that an admitted debt
has
been proven and conceded, which debt the Respondent is unable to
repay as it became due. For such reason, there can be no alternative
to the provisional winding-up of the Respondent.
ORDER:
[31]
For all the aforesaid reasons, the following Order is made:
[31.1]
The Respondent Company is placed under provisional winding-up.
[31.2]
All persons who have a legitimate interest are called upon to put
forward their reasons why this Court
should not order the final
winding-up of the Respondent on _____________ at 10:00 or as soon
thereafter as the matter may be heard.
[31.3]
A copy of this Order shall be served upon the Respondent Company at
its registered office and upon the
employees and their registered
trade unions, if any.
[31.4]
A copy of this Order shall be served on the South African Revenue
Services.
[31.5]
A copy of this Order shall be served on the Master of the High Court.
[31.6]
A copy of this Order shall be forwarded to each known creditor by
preregistered post.
[31.7]
A copy of this Order shall be published in the Government Gazette and
at least one local newspaper within
the area of the Respondent’s
registered address.
[31.8]
The costs of the application shall be costs in the liquidation of the
Respondent.
H
F FOURIE AJ
ACTING
JUDGE OF HIGH COURT, MIDDELBURG
Counsel
for the Applicant:
Adv R
de Leeuw
Counsel
for the Respondent:
Mr
Nsibande
Judgment
reserved on:
16
April 2026
Date
of delivery:
22
April 2026
[1]
ABSA Bank v Rhebokskloof (Pty) Ltd and Others
1993 (4) SA 436
(C) at
440
[2]
Moodley v Cassim
1953 (4) SA 516
(M)
See Also
Body
Corporate of Fish Eagle v Group 12 Investments (Pty) Ltd
2003 (5) SA
414
(W) at 528 B
[3]
1988 (1) SA 943
(AD)
[4]
1956 (2) SA 346
(2)