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[2010] ZAWCHC 119
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Welthagen v Rosmead Investment Consultants (Pty) Ltd (15902/2009) [2010] ZAWCHC 119 (14 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No. 15902/2009
In
the matter between:
NORMAN
WELTHAGEN
Applicant
and
ROSMEAD
INVESTMENT CONSULTANTS (PTY) LTD
Respondent
(Registration
No: 1994/006008/07)
JUDGMENT
DELIVERED ON 14 MAY 2010
CLOETE
, AJ:
[1]
This is an opposed application for the provisional winding up of the
Respondent. According to the Applicant, he is a creditor
of the
Respondent. He maintains that the Respondent is unable to pay its
debts (section 344 (f) read with section 345 of the Companies
Act, 61
of 1973), and also that it is just and equitable that the Respondent
should be wound up (section 344 (h) of the Act).
[2]
The Respondent disputes that it is indebted to the Applicant, and
accordingly the Applicant's
locus
standi to
present
an application to the Court as a creditor of the Respondent for its
winding up is in dispute.
[3]
It is common cause between the parties that during or about November
2006 they entered into an agreement with each other in
terms of which
the Applicant paid the sum of R 2 270 000 to the Respondent to invest
on his behalf. Furthermore, the Applicant
would be entitled to redeem
the capital amount of his investment on fourteen days notice to the
Respondent.
[4]
It is also not in dispute that in a letter dated 30 March 2009 by the
Applicant's attorneys to the Respondent, the Respondent
was informed
that the Applicant required the immediate repayment of the said sum
of R2 270 000. What is in dispute is whether the
Applicant was at
that stage still entitled to the repayment of the said sum on demand.
[5]
The Respondent's version is that subsequent to the conclusion of the
initial agreement, there was an express further agreement
between the
parties in terms whereof the Applicant agreed to the conversion of
his investment with the Respondent into an investment
in partnership
in the Sky Harrier Partnership and the Sky Hawker Partnership.
According to the Respondent it was, subsequent to
the conclusion of
this latter agreement, not liable on any basis to either the
Applicant personally or the partners in the partnership,
and that
once the Applicant had provided the mandate for his investment to be
placed in the partnerships, his investment with the
Respondent had
ceased. At that stage it was thus no longer open to the Applicant to
seek repayment of its investment, or the payment
of any other
amounts, from the Respondent. Accordingly, the Respondent denies that
it is indebted to the Applicant in any amount
whatsoever.
[6]
The Applicant's application is therefore opposed on the basis of a
dispute as to the existence of the alleged debt. Accordingly,
there
is therefore a duty on the Respondent to show that the alleged debt
is disputed on
bona
fide
and
reasonable grounds. (See:
Kalil
v Decotex (Pty) Ltd and Another
1988
(1) SA 943
(AD)). In
Helderberg
Laboratories CC v Sola Technologies
2008
(2) SA 627
(C) a full bench of this Division preferred to refer to
this duty as an evidential burden and not an
onus.
[7]
The
Applicant requested that this Court, in the event of it not being
disposed to grant a provisional winding up order, should refer
the
issue of the Applicant's
locus
standi
as
a creditor (i.e. whether the Respondent is indebted to him) for the
hearing of
viva
voce
evidence
. In exercising its discretion in this regard the Court should be
guided to a large extent by the prospects of
viva
voce
evidence
tipping the balance in favour of the Applicant. (See the
Kalil
case
at p 979 H).
[8]
In considering whether the Respondent has managed to show that the
alleged debt is disputed on
bona
fide
and
reasonable grounds, I have had regard to the caution expressed
inter
alia
in
Robson
v Wax Works (Pty) Ltd and Others
2001(3)
SA 1117 (C) at para 15 that a lack of
bona
fides
is
not readily inferred.
[9]
Having carefully considered the affidavits in this matter and the
arguments before me on behalf of the parties, I have arrived
at the
conclusion that I should in the exercise of my discretion in this
regard allow the matter to be referred for the hearing
of
viva
voce
evidence
on the disputed issue of whether or not the Applicant is a creditor
of the Respondent. I have decided to do so because
genuine questions
have been raised about the veracity of the versions of both the
Applicant and Mr Wells who deposed to the answering
affidavit on
behalf of the Respondent, and in my view the probabilities on the
disputed issue are at this stage evenly balanced.
[10]
I have decided against embarking in this judgment on an exposition of
what I regard as being contradictions, discrepancies
and
improbabilities in the versions of both the main deponents to
affidavits in this matter, in order to allow the judge who will
hear
the oral evidence to form his own views in this regard in due course.
[11]
Accordingly, it is ordered as follows:
1. The
application is postponed to a date on the semi-urgent roll to be
arranged with the Judge President, for the hearing of
viva
voce
evidence.
2. The
issue to be resolved at such hearing is whether or not the Applicant
is a creditor of the Respondent.
3. The
evidence to be adduced at the aforesaid hearing shall be that of any
witness whom the parties or either of them may elect
to call,
subject, however, to what is provided below.
4. Save
in the case of any persons who have already deposed to affidavits in
these proceedings, neither party shall be entitled
to call any person
as a witness unless -
4.1.
he or it has served on the other party, at least 14 days before the
date appointed for the hearing, a statement by such a person
wherein
the evidence to be given in chief by such person is set out; or
4.2.
the Court, at the hearing, permits such person to be called despite
the fact that no such statement has been so served in respect
of his
or her evidence.
5. Either
party may subpoena any person to give evidence at the hearing,
whether such person has consented to furnish a statement
or not.
6. The
fact that a party has served a statement or has subpoenaed a witness
shall not oblige such party to call the witness concerned.
7. Within
45 days of the making of this order, each of the parties shall made
discovery on oath, of all documents relating to the
issue referred to
above, which documents are, or have at any time been, in the
possession or under the control of such party.
8. Such
discovery shall be made in accordance with Rule 35 of the Uniform
Rules of Court and the provisions of that rule with regard
to the
inspection and production of documents discovered shall be operative.
The
costs of the hearing of the application before Cloete AJ stand over
for determination by the Court which hears the postponed
application.
CLOETE,
AJ