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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024-009628
In the matter between:
MARALCO BUSINESS ADVISORS CC t/a Applicant
MARALCO PLANT SERVICES
And
GMK CIVILS (PTY) LTD Respondent
JUDGMENT
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
(4) Date: 20 April 2026
Signature:
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NYATHI J
A. Introduction
[1] This is an application in which the applicant seeks the final winding ‑up of the
respondent on the basis that the respondent is unable to pay its debts as
contemplated in s ection 344(f), read with s ection 345(1)(c), of the Companies
Act 61 of 1973. The claimed indebtedness is R817 994.50, arising from plant
rental provided on an alleged thirty ‑day facility supported by a certificate of
balance.
[2] The respondent opposes, contending inter alia that:
(a) there is no valid contract between the parties —its sole director did not
conclude nor authorise the facility relied upon;
(b) even on the applicant’s version the alleged facility is void for uncertainty
regarding an essential term (rental rates) and the invoices cannot found
indebtedness; and
(c) the applicant is abusing winding ‑up proceedings to collect a disputed debt,
contrary to the established Badenhorst1 rule.
1 Badenhorst v Northern Construction Enterprises (Pty) Ltd 1956 (2) SA 346 (T) held that liquidation proceedings
should not be used to enforce payment of a debt that is bona fide disputed on reasonable grounds. If a debtor
shows a genuine, reasonable dispute, the liquidation application should fail.
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[3] Two preliminary matters loom:
first, whether the respondent’s late answering affidavit should be entertained
(and by parity the applicant’s reply delivered late).
second, whether on the papers the applicant has established its entitlement to a
final order or any order at all.
B. Chronology
[4] A letter of demand was sent by the applicant on 29 September 2023, calling
upon the respondent to pay R817 994.50 within five days. The application was
issued around 5 February 2024; a notice of intention to oppose was delivered on
22 April 2024. The matte r was initially enrolled as unopposed for 30 October
2024, but by that stage the respondent had delivered an answering affidavit on
24 October 2024 accompanied by a prayer for condonation. The matter was
removed from the unopposed roll, with a wasted costs order against the
respondent. The applicant delivered its replying affidavit on 24 November
2024—also late, and without a discrete condonation application
C. Issues
[5] The issues for determination are:
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5.1 Whether condonation should be granted, expressly or tacitly, for
the late delivery of the respondent’s answering affidavit (and
correspondingly the applicant’s replying affidavit).
5.2 Whether the applicant has established that the respondent is
indebted and commercially insolvent, such that a final
winding‑up order should issue; or whether the debt is bona fide
disputed on reasonable grounds, in which event liquidation relief
should be refused.
5.3 Costs.
D. Condonation
[6] The applicant contends the respondent has “abused procedure” and failed to
provide a full, accurate account for its delay as contemplated in Uitenhage
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Transitional Local Council v SARS 2 and related authorities; hence,
condonation should be refused and the answering affidavit disregarded.
[7] The respondent answers that the applicant acquiesced to the lateness by filing
a substantive reply on the merits without moving to set aside the answering
affidavit as an irregular step, and that both sides have now filed all material
papers such that a formal condonation skirmish would be “pointless” and inimical
to expedition. It also points to the wasted costs order made when the matter was
removed from the unopposed roll.
E. Analysis
[8] The legal approach to condonation is trite: the defaulting party must provide a
satisfactory explanation for the delay, show prospects of success, and
demonstrate that the grant of condonation will not unduly prejudice the opponent.
The applicant is correct that the explanation must be full and frank. Condonation
is not there for the asking, an applicant must show good cause.
[9] However, litigation is not a game. Where, as here, the applicant elected to deliver
a substantive replying affidavit engaging the merits rather than promptly invoke
Rule 30 or insist upon striking the answering affidavit, that conduct is inconsistent
2 2004 (1) SA 292 (SCA)
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with a stance that the answering affidavit “does not exist”. The respondent’s
contention that the applicant thereby took a further step and acquiesced to late
delivery has force. The entire record is before me; no concrete prejudice from
considering the full set of affidavits is demonstrated beyond the ordinary burdens
of opposition, and the wasted costs of the aborted unopposed hearing have
already been addressed by order.
[10] In these circumstances, the interests of justice favour granting condonation (to
both parties, to the extent necessary) and deciding the matter on the merits.
Conclusion on condonation: Condonation is granted for the late delivery of the
respondent’s answering affidavit and the applicant’s replying affidavit.
F. The merits: is the debt established or bona fide disputed?
Applicant’s case
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[11] The applicant’s case is that a 30 ‑day rental facility was extended to the
respondent; plant was provided; payments were made from time to time; and a
certificate of balance reflects the amount due in the sum of R817 994.50.
Demand was made and not met. The applicant relies on the certificate clause as
prima facie proof of indebtedness and invokes s ection 344(f) read with s ection
345(1)(c) for an order ex debito justitiae.
[12] The applicant further argues that the respondent impermissibly approbates and
reprobates by both disputing the contract and seeking refuge in its terms, and
that, in any event, s 20(7) of the Companies Act 71 of 2008 permits a
counterparty dealing in good faith to presume compliance with internal
formalities.
Respondent’s case
[13] The respondent avers that its sole director did not sign the facility nor authorise
anyone to do so. It says the purported agreement is prima facie invalid —
crucially, that it does not record an essential term (the rental rate or a method to
determine it), rendering it void for vagueness; and that no engagement ever took
place with the director regarding the rental rates. On this footing, the invoices are
not underpinned by a valid agreement and are contested. The respondent
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contends that liquidation is an abuse where the debt is genuinely disputed on
reasonable grounds (the Badenhorst principle as restated in Imobrite3).
G. Applicable principles
[14] It is well settled that winding‑up proceedings are not designed to resolve material
disputes about the existence of a debt. An applicant who invokes the company’s
inability to pay must show that the debt is undisputed or at least not bona fide
disputed on reasonable grounds; if it is, the application ordinarily fails, and the
creditor may pursue action proceedings.
[15] Where a certificate of balance exists, it constitutes prima facie proof according
to its terms; but it cannot, without more, conclusively establish liability if the
underlying contract is credibly impugned and the certificate’s authority is itself
dependent on the validity of that contract. Whether the debt is genuinely disputed
must be assessed on the papers as a whole.
3 Imobrite (Pty) Ltd v DTL Boerdery CC (1007/2020) [2022] ZASCA 67 (13 May 2022)
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H. Evaluation
(a) Contract formation and authority
[16] The respondent’s director’s denial of signature or authority is squarely raised.
The applicant’s answer is twofold:
(i) the documents emanated from the respondent’s offices; services were
rendered and accepted; and part‑payments were made;
(ii) section 20(7) permits the presumption of compliance with internal
requirements. These are weighty considerations at the level of
commercial probability, but —crucially—the director ’s authority (or lack
thereof) is a question of fact and law that is disputed on affidavit in a
manner that is neither far ‑fetched nor untenable. The respondent ’s
version cannot be rejected on the papers under the Plascon‑Evans4
approach.
(b) Essential terms/certainty of rental
[17] The respondent advances a further independent ground:
Even if an agreement existed, the instrument relied upon does not record a
fixed rental or an ascertainable mechanism for determining it, and the applicant
4 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) 1984.
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identifies no compliant variation reduced to writing. The applicant’s founding
reliance on an “agreed upon rentals” formulation does not answer the
complaint of voidness for vagueness where the document’s non‑variation
clause requires signed written terms. The debate is not contrived; it raises a
substantive contractual contest unsuited to motion liquidation proceedings.
[emphasis added].
(c) Certificate of balance
[18] The certificate clause, if operative, aids the applicant. But where the very
existence and enforceability of the facility is credibly contested, a certificate
cannot bootstrap validity. The respondent presents a case that the contractual
foundation for the certificate is absent or void, which—if proven in action—would
defeat reliance on the certificate. That, too, is a reasonable basis for dispute.
(d) Conduct and commercial reality
[19] The applicant emphasises that services were rendered and that payments were
made from time to time - indicia often consistent with a course of dealing. Yet
those considerations do not permit me, in motion proceedings for liquidation, to
resolve contested issues of authority, contract formation and essential
terms. The appropriate forum to ventilate such issues is action with oral
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evidence and discovery, not the blunt instrument of corporate death by
winding‑up. [emphasis added].
I. Conclusion on the merits
[20] I am satisfied that the respondent has raised a bona fide dispute on reasonable
grounds regarding (i) authority/signature, and (ii) certainty of essential terms. On
either ground, the debt cannot be treated as undisputed for purposes of final
liquidation. The application therefore falls to be dismissed. This is not to say the
applicant’s claim is without merit; only that liquidation is not the proper procedure
to determine it.
[21] The respondent asks for attorney ‑and‑client costs, contending abuse. The
threshold for punitive costs is conduct that is reprehensible or otherwise warrants
censure, so the successful party is not left out of pocket. While the applicant
chose an ill ‑suited procedure in the face of a genuine contractual dispute, I do
not consider its conduct vexatious or in bad faith. It relied on a documentary trail,
invoices, and a certificate often invoked in commerce. The justice of the case is
met by the usual rule that costs follow the result, on a party‑and‑party scale. The
earlier wasted costs order stands and needs no repetition.
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J. Order
[22] The following order is made:
22.1 Condonation is granted for the late delivery of the respondent’s
answering affidavit and the applicant’s replying affidavit.
22.2 The application for the final winding ‑up of the respondent is
dismissed.
22.3 The applicant is to pay the respondent’s costs on the
party‑and‑party scale, including the costs of counsel taxable at
scale B.
22.4 This order does not preclude the applicant from pursuing its
alleged claim by way of action proceedings.
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J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
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Date of hearing: 19 August 2025
Date of Judgment: 20 April 2026
Appearances:
On behalf of the Applicant: Mr. DE Bruwer
Applicant’s attorneys: Inc. D.E. Bruwer Attorneys, Pretoria
On behalf of the Respondent: Adv. MC Malatji
Attorneys for the Respondent: Rudolph Baloyi Inc.
Delivery: This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand-
down is deemed to be 20 April 2026.