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[2026] ZAGPJHC 596
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Muziweni Holdings (Pty) Limited v Reva Trading (Pty) Limited (2024-089311) [2026] ZAGPJHC 596 (5 May 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case Number:
2024-089311
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: Yes
DATE
05/05/26
SIGNATURE
In
the matter between:
MUZIWENI
HOLDINGS (PTY) LIMITED
Applicant
and
REVA
TRADING (PTY) LIMITED
Respondent
Heard:
20 March 2026
Delivered:
05 May 2026
JUDGEMENT
NOTSHE
AJ
A.
INTRODUCTION
[1]
In this matter, the applicant applies for the confirmation of the
provisional liquidation
order granted by Rome J against the
respondent.
[2]
The respondent opposes the application.
[3]
The question on the return date is whether the respondent has shown
sufficient cause why
the provisional order should not be granted. The
question is whether the respondent presents genuine new material that
displaces
Rome AJ’s finding.
B.
BACKGROUND
[4]
The applicant seeks the winding-up of the respondent in terms of
sections 344(f) and 345
of the Companies Act 61 of 1973, as preserved
by item 9 of Schedule 5 to the
Companies Act 71 of 2008
.
[5]
The undisputed facts as they appear on the papers are the following:
5.1 On 1 October 2020,
the parties concluded the written “Kongoni Manganese Mandate”
(“mandate agreement”).
5.2 In terms of that
agreement, the applicant undertook to render services to assist the
respondent to recover agency fees from
Amari Resources (Pty) Ltd and
Mr Mike Nunn. The services included negotiations, assistance
and legal proceedings, consultations
concerning enforcement of a
proposed settlement, and weekly progress reports.
5.3 The agreement was to
endure for four years;
5.4 It provided that the
applicant would be entitled to 50% of any settlement amount paid to
the respondent by Amari Resources or
Mr Nunn, payable within two
business days of receipt.
5.5 A settlement
agreement was signed on 28 December 2023 between the respondent, Mr
Paul Ekon, Mr Nunn and ERG Manganese (Pty)
Ltd.
5.6 In terms of that
settlement, Mr Nunn undertook to pay US$1,000,000 in instalments and
ERG Manganese US$250,000.
5.7 By 4 March 2024 the
respondent had received US$650,000, comprising US$400,000 from Mr
Nunn and US$250,000 from ERG.
5.8 On the applicant’
s
50%
entitlement, US$325,000 became due within two business days of
receipt. The respondent paid only US$260,000, leaving a balance of
US$65,000.
5.9 On 20 June 2024 the
applicant served a statutory demand in terms of
section 345(1)(a)
,
demanding payment within 21 days.
5.10
The respondent did not pay, secure or compound for the debt within
the statutory period.
5.11
The respondent’s contemporaneous communications, including
those of 7 June 2024, 12 June
2024 and 14 July 2024, did not dispute
the debt. They sought indulgence and promised payment.
[6]
The provisional winding-up order was granted on these facts. Rome A J
held that the applicant
had established a
prima facie
case
that the debt owed by the respondent was not bona fide disputed on
reasonable grounds and that the
section 345
presumption of commercial
insolvency had arisen and had not been rebutted.
[7]
On the return date, the respondent bears a duty to lead evidence
rebutting the
prima facie
case established by the applicant;
otherwise, the
prima facie
case becomes a conclusive case.
[8]
The applicant alleges that the respondent breached the agreement and
failed to pay the agreed
amount.
[9]
Despite the duty to lead evidence that is borne by the respondent,
the applicant still bears
the overall onus of proving, on a balance
of probabilities, that the final winding-up order should be granted.
[10].
The respondent is now opposing the granting of the final liquidation
order. It alleges that the applicant
has not satisfied the
requirements for the granting of a final liquidation order. It
alleges the applicant has no
locus standi
because it is not
its creditor. It alleges that there is a bona fide and reasonable
dispute of indebtedness.
C.
DISCUSSION
[11]
An applicant for winding up has to satisfy the following
requirements:
11.1 that it is a
creditor of the respondent and therefore has
locus standi
to
institute the proceedings;
11.2 that the respondent
is the debtor because it owes the amount claimed;
11.3 that the respondent
falls within one or more of the grounds laid down in
section 344
[1]
read with 345
[2]
of the
Companies Act 1973 (“
the
Old Act
”).
[12]
In this case, the applicant relies on the provisions of both sections
344(f) and 344(h) read with section
345 of the Old Act. It alleges
that the respondent company “…
is
unable to pay its debts as described in section 345.”
It also alleges that “ …
it
is just and equitable that the company should be wound up.”
[13]
It avers that on 20 June 2024, it issued a statutory demand for
payment of the outstanding US $65 000
within 21 calendar days.
Despite the demand, no payment was made within the stipulated period.
[14]
As stated above, the respondent opposes the application on the
grounds that the applicant is not a
creditor because there is no debt
owed to it by the respondent.
[15]
It is now trite law that winding-up proceedings should not be
resorted to as a means of enforcing payment
of a debt, the existence
of which is
bona fide
disputed on reasonable grounds. This is
part of the broader principle that the court's processes should not
be abused. Liquidation
proceedings are not intended as a means of
deciding claims which are genuinely and reasonably disputed. The
decisions are legion.
[16]
Where, as in this case, the applicant, at the provisional stage,
shows that the debt
prima
facie
exists and is granted the provisional liquidation order, the onus is
on the respondent to show that the claim is
bona
fide
disputed on reasonable grounds. A creditor cannot obtain a
liquidation order if there is a
bona
fide
dispute
of the claim. The
onus
on the respondent is not to show that it is not indebted to the
applicant. It merely has to show that the indebtedness is disputed
on
bona
fide
and
reasonable grounds
[3]
.
[17].
In
GAP
Merchant Recycling CC v Goal Reach Trading 55 CC
[4]
the Court held that:
“
Bona
fides relates to the respondent's subjective state of mind, while
reasonableness has to do with whether, objectively speaking,
the
facts alleged by the respondent constitute in law a defence. The two
elements are nevertheless interrelated because inadequacies
in the
statement of the facts underlying the alleged defence may indicate
that the respondent is not bona fide in asserting those
facts. …
the objective requirement of reasonable grounds for a defence is not
met by bald allegations lacking in particularity;
…bald
allegations lacking in particularity are unlikely to be sufficient to
persuade a court that the respondent is bona
fide.
”
[5]
[18]
In this case, the respondent raises new defences that were not raised
in opposition to the provisional
winding-up application. It now
alleges that the applicant did not perform its obligations in terms
of the Mandate Agreement.
[19]
The issue of raising new defences to oppose the granting of a final
winding-up order is crucial to
the respondent's version. The
respondent is required to lead evidence rebutting the
prima facie
case established by the applicant. It has to lead evidence to show
that the claim is
bona fide
disputed on reasonable grounds.
[20]
The applicant’s claim cannot be said to be
bona fide
disputed on reasonable grounds where the respondent changes its
versions on a number of occasions.
[21]
In the latest answering affidavit, the deponent, on behalf of the
respondent, merely says that it became
clear when new legal
representatives were appointed that certain material evidence
supporting the respondent’s version was
not placed before the
Court. There is no explanation why that was the case. The deponent
does not say whether he gave the information
to the previous legal
representatives, but the latter excluded it. He does not explain the
reason for deposing to the previous
affidavits without the relevant
material evidence. I am left to guess.
[22]
I now have to balance the probabilities of the two versions of the
applicant and the respondent. Probabilities
do not concern the
credibility of witnesses but the credit to be given to the version by
reason of its inherent probabilities or
improbabilities. Where a
version is regarded as improbable, belief is slow and difficult.
[23]
In a nutshell, the applicant says that there is a debt owing by the
respondent, the respondent admitted
it, and the latter is unable to
pay it despite an undertaking to pay. The respondent’s version
is that it
bona fide
disputes the applicant’s claim on
reasonable grounds.
[24]
In this case, the denial by the respondent of the facts alleged by
the applicant is not such as to
raise a real, genuine or bona fide
dispute of fact. I am satisfied as to the inherent credibility of the
applicant's factual averments.
The denials of the respondent and its
version are rendered improbable by the admissions made by the
respondents and the change
of versions as the case progressed.
C.
CONCLUSION
[25]
I find that the applicant has proved its case on a balance of
probabilities. The respondent has failed
to rebut the prima facie
case established by the applicant.
[26]
In the circumstances, I make the following order:
(a)
The provisional order granted on 19 November 2025 is hereby
confirmed, and the estate of the respondent
is placed under final
liquidation.
(b)
The costs of this application are costs in the administration of the
respondent’s insolvent
estate.
V
S Notshe
Acting
Judge of the High Court
APPEARANCES:
For
the Applicant: Counsel:
R
Raubenstein
J
Steyn
Attorneys:
Messrs
Wright Rose Innes Inc
For
the Respondent:
Counsel:
L
Hollander
Attorneys:
Messrs Schindlers Attorneys
[1]
Section
344 provides as follows:
“
A
company may be wound up by the Court if-
(a)
the company has by special resolution resolved that it be wound
up
by the Court;
(b)
the company commenced business before the Registrar certified that
it was entitled to commence business;
(c)
the company has not commenced its business within a year from its
incorporation, or has suspended its business for a whole year;
(d)
in the case of a public company, the number of members has been
reduced below seven;
(e)
seventy-five per cent of the issued share capital of the company
has
been lost or has become useless for the business of the company;
(f)
the company is unable to pay its debts as described in section
345;
(g)
in the case of an external company, that company is dissolved in
the
country in which it has been incorporated, or has ceased to carry on
business or is carrying on business only for the purpose
of winding
up its affairs;
(h)
it appears to the Court that it is just and equitable that the
company should be wound up.”
[2]
Section
345( reads as follows:
“
(1)
(a) a
creditor,
by cession or otherwise, to whom the company is indebted
in a sum 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)
in the case of any body corporate not incorporated under this Act,
has served such demand by leaving it at its main office or
delivering it to the secretary or some director, manager or
principal
officer of such body corporate or in such other manner as
the Court may direct,
and the company or body
corporate has for three weeks thereafter neglected to pay the sum,
or to secure or compound for it to
the reasonable satisfaction of
the creditor; or
(b)
any process issued on a judgment, decree or order of any court in
favour of a creditor of the company is returned by the sheriff or
the messenger with an endorsement that he has not found sufficient
disposable property to satisfy the judgment, decree or order or that
any disposable property found did not upon sale satisfy
such
process; or
[Para. (b) substituted
by s. 26 of Act 59 of 1978 (wef 17 May 1978).]
(c)
it is proved to the satisfaction of the Court that the company is
unable to pay its debts.
(2) In determining for
the purpose of subsection (1) whether a company is unable to pay its
debts, the Court shall also take into
account the contingent and
prospective liabilities of the company.
[3]
Kahil v Decotex (Pty) Ltd and Another1988 (1) SA 943 (A) of 980;
Exploitatie- en
Beleggingsmaatschappij Argonauten 11 BV and Another v Honig
2012
(1) SA 247
(SCA) [11] – [12].
[4]
2016 (1) SA 261 (WCC).
[5]
At
[26].