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JUDGMENT
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GUMEDE AJ
1. The applicant seeks an o rder for the final winding -up of the respondent, a
private company of which Mr Surprise Thabo Lukhele is the sole director, on
the grounds of deemed inability to pay its debts following a notice given in terms
of section 345 of the Companies Act 61 of 1973, read with item 9 of Schedule
5 to the Companies Act 71 of 2008.
2. There is a related application under case number 525/2025, in which the
applicant seeks a money judgment against Mr Lukhele personally as surety and
co-principal debtor for the same underlying indebtedness. That application was
enrolled and argued together with this matter. I have dealt with that application
in a separate judgment.
Background
3. In October 2018 the applicant and the respondent concluded a written loan
agreement in terms of which the applicant advanced R980,000.00 to the
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respondent. This loan was secured by a registered mortgage bond over three
sectional title units of the respondent.
4. When the r espondent fell into arrears , the applicant gave notice in terms of
section 345 of the Companies Act 61 of 1973 demanding payment . The
respondent failed to honour the demand. It is on that basis the applicant
contends that the respondent is deemed unable to pay its debts and should be
wound up.
5. The Respondent opposes the application on the following grounds:
(i) that the applicant was obliged to pursue mediation under Rule
41A before proceeding;
(ii) that the debt relied upon by the application in terms of section 345
notice was not due as there was not outstanding arrears at the
date the notice was given;
(iii) that the debt is bona fide disputed on reasonable grounds that a
winding-up order should not be granted (the rule in Badenhorst v
Northern Construction Enterprises (Pty) Ltd 1956 (2) SA 346 (T));
(iv) that the Applicant, being a secured creditor with adequate security
over three units, is abusing the winding -up process as a debt -
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collection mechanism in circumstances where ordinary
enforcement of its security was available to it; and
(v) that this court should exercise its residual discretion to refuse the
order as the full settlement is imminent through a pending
property sale.
6. The papers contain a notice of motion which re fers to a supplementary
answering affidavit.1 I could not find the said affidavit , however, I have had
regard to the suppl ementary affidavit filed in the related application , which
contends that the respondent had sold one of the units secured by a mortgage
bond for R725,000.00 and that the applicant's conveyancing attorneys
received, a guarantee from The Standard Bank of South Africa Limited in the
sum of R477,719.23 which is the full amount owing on the loan account. This
amount is payable to the applicant on registration of transfer .
Rule 41A
7. I concluded in the related judgment in case 525/2025 that Rule 41A does not,
as a matter of law, impose mediation as a jurisdictional precondition to the
institution of legal proceedings.
1 Section 048, caselines
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8. In fact, the applicant did file its Rule 41A n otice which stated that it does not
agree to referral of this matter to mediation for reasons that the respondent had
made undertakings to pay which the respondent fail ed to do.
9. This point in limine is dismissed.
Section 345 of the Companies Act 61 of 1973
10. The deemed inability to pay debts under section 345(1)(a) requires proof that
the company was, at the relevant time, indebted in a sum then due, that a
written demand for that sum was served, and that the company thereafter failed,
within three weeks, to pay, secure, or compound the debt to the creditor's
reasonable satisfaction.
11. The court retains a wide discretion to grant or refuse an order even where a
prima facie case has been made out .2
12. The respondent urged this court to apply the rule in Badenhorst, 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
being part of the broader principle that the court's processes should not be
abused
2 Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A)
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13. Where the applicant shows a prima facie case, the onus shifts to the company
to show that the debt is bona fide disputed on reasonable grounds; but even
absent such a dispute, the Court's discretion under Kalil v Decotex is not
excluded, particularly where winding -up is sought for a purpose other than a
genuine inability to pay.
14. I am inclined to exer cise my discretion in refusing the order sough t for the
following reasons:
15. The Respondent contends that its account was not in arrears as of 11
December 2024, the day on which the section 345 notice was given because a
payment of R55,485.10 had been made on 7 December 2024 .3
16. Moreover, the applicant holds a registered mortgage bond over three sectional
title units of the respondent as security for this debt. The applicant can enforce
this security but even more persuasive for the benefit of the respondent is the
fact that the applicant has already accepted a guarantee for the precise amount
presently claimed as owing.
17. Simply stated, the applicant is using the winding-up of the respondent to collect
a debt that is already in the course of being paid through alternative means to
which the applicant has consented.
3 Answering affidavit, para 13.5
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18. A winding -up order granted at this stage would suspend or terminate that
process pending the appointment of a liquidator, to the detriment of the general
body of creditors it is intended to benefit .
19. I am not persuaded that this is an appropriate case for a final winding -up but I
also keep in mind that the underlying debt remains outstanding.
20. Should the anticipated settlement not materialise, the applicant should not be
left without recourse.
21. In the premises, I make the following order:
1. The point in limine based on alleged non -compliance with Rule 41A of the
Uniform Rules of Court is dismissed.
2. The application for winding up is postponed sine die.
3. The applicant is granted leave to re -enrol the application on the same
papers, duly supplemented if necessary on notice to the respondent, in the
event that the sum of R477,719.23, or such other sum as may then be
properly due, is not paid to the applicant within 90 (ninety) days of this order.
4. The costs of the application to date are reserved for determination by the
court hearing the application upon its re -enrolment, alternatively by
agreement between the parties.