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[2026] ZAKZPHC 63
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Firstrand Bank Limited v Lamour Industries Proprietary Limited (914/25P) [2026] ZAKZPHC 63 (26 May 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER: 914/25P
In
the matter between:
FIRSTRAND
BANK LIMITED
APPLICANT
Versus
LAMOUR INDUSTRIES PROPRIETARY
LIMITED
RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
At the commencement of the hearing an application for condonation of
the late
filing of heads of argument was handed in and heads of
argument on behalf of Respondent. It was not opposed by
Applicant
and the matter proceeded.
[2]
Applicant is seeking an order for the provisional liquidation of
Respondent.
It is opposed by Respondent.
[3]
The basis for the application is that Applicant alleges that
Respondent is unable
to pay its debt in terms of section 334(1) read
with 345(1)(c) of the Companies Act 1973 read with Schedule III and
item 9 of Schedule
IV of the 2008 Companies Act. It contends
that Respondent owes R16 530 042.12 plus interest and
costs.
[4]
There is a signed master agreement that was entered into on 10
January 2023
for the sale agreement with WesBank in respect of the
purchase of certain goods. In terms thereof Applicant remained
owner
of the goods until the full purchase price had been paid.
[5]
On 25 March 2024 an instalment sale agreement was entered into
incorporating
the terms of the master sales agreement and certain
industrial equipment were sold to Respondent for the price of
R15 724 507.66.
In terms of the sale agreement
various payments had to be made and the instalments sale agreement
would have expired on 20 March
2029.
[6]
Respondent defaulted and did not make any monthly payments.
[7]
On 3 July 2024 Applicant advised Respondent that it was in arrears in
the sum
of R5 630 846.13 and that the agreement was being
cancelled. A written settlement agreement was then entered into
between various parties including Respondent on 30 August 2024,
regulating the amount that has to be repaid.
[8]
In the said settlement agreement Respondent acknowledged its
indebtedness to
Applicant in the sum of R16 115 475.75 plus
interest and costs. It agreed to pay the said amount before 7
February
2025 and to provide a guarantee for such payment by 31
October 2024. If it breached any of the terms then the full
amount
will immediately become payable.
[9]
Respondent breached the settlement agreement by failing to provide a
guarantee
by 30 November 2024. The debt was also not paid by 7
October 2024. Demand for payment was made by letter on 9
December
2024 but still no payment was received.
[10]
It was submitted that as a result of this conduct Respondent was
unable to pay its debt
and that it could not even pay the arrears.
Applicant held no security and it was therefore contended that the
requirements
of the Companies Act had been complied with in that
Respondent was a creditor who was unable to pay its debt and
accordingly could
to be liquidated.
[11]
Respondent, in its answering affidavit, first challenged the
authority of the deponent
to Applicant’s founding affidavit.
There is no substance in this submission as it is not the deponent to
an affidavit
that needs to have the necessary authority but the
institution of proceedings must be authorised. See Ganes &
Another
v Telecom Namibia
2004 (3) SA 615
(SCA). There were
further various allegations of copying and posting which were all
without basis and without real substance.
[12]
Respondent submitted that the affidavit of the deponent to
Applicant’s affidavit
contained hearsay. The deponent
clearly set out that she had the documents relating to this case,
that she had perused them,
that she acquainted herself and at a
certain stage was directly involved and so by perusing all the
documents and having access
thereto she indeed has the necessary
knowledge.
[13]
It was further submitted that Applicant was not entitled to use
liquidation proceedings
to force payment. It was also contended
that Respondent had 58 employees who were not served. It was
admitted that
there was no trade union. However it appears from
the papers that the notice of motion and all the necessary documents
were
indeed posted on the notice board at Respondent’s
premises. It was therefore done correctly in terms of the
Companies
Act in respect of notice to the employees.
[14]
It was further contended that there was no agreement as the
settlement agreement was never
signed by Applicant. It was
signed by Respondent’s representative. However in the
replying affidavit the signed
settlement agreement was attached and
it appears that the incorrect one was attached to the founding
papers. The master agreement
was signed on behalf of Respondent
and also the settlement agreement was singed. It was admitted
in letters to Applicant
by attorneys of Respondent that the guarantee
had to be supplied and therefore it is clear that it was an admission
of the debt
which was owed.
[15]
It challenged the price paid but it had agreed to that price and
therefore this was also
no defence. The machine they refer to
at a lower price is not the same as the one that had been financed.
Accordingly
there is nothing on the papers to indicate that the
amount which is claimed has been settled in any way by Respondent.
The
settlement agreement has been breached there is nothing in the
papers by Respondent to indicate to the contrary. There was
also no basis for Respondent to choose not to make the required
payments.
[16]
I am accordingly satisfied that from the papers it is indeed apparent
that Respondent is
a creditor in the amount of approximately
R16 000 000.00, that it is in arrears with R5 000 000.00.
It
has not made any payments, it signed the settlement agreement
which it breached and accordingly that there is no defence to the
claim Applicant has shown that it is entitled to liquidate Respondent
as it has complied with the provisions of the Companies Act.
Order:
I
accordingly grant a rule
nisi
returnable on 21 July 2026
as set out in paragraphs 1, 2 and 3 of the notice of motion.
P
C BEZUIDENHOUT J.
JUDGMENT
RESERVED:
19 FEBRUARY
2026
JUDGMENT HANDED
DOWN:
26 MAY 2026
COUNSEL FOR
APPLICANT:
R M VAN ROOYEN
Instructed by:
Edward Nathan
Sonnebergs Inc
Umhlanga
Tel:
031 536 8616
Email:
[email protected]
Ref: A
Khan/054/0542225
C/O:
Stowell
Pietermaritzburg
Email:
[email protected]
Ref: S
Myhill
COUNSEL FOR
RESPONDENT:
N LALLA
Instructed by:
Bilal Malani &
Associates
Durban
Tel:
031 100 1281 / 083 786 6203
Email:
[email protected]
Ref: Mr
Malani/Lidcor
C/O:
Vathers Attorneys
Pietermaritzburg
Tel:
033 342 4099