SAFLII Note: Certain personal/private det ails of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case no: 2025-064578
In the matter between:
HARALD MANFRED SEICK N.O. First Applicant
MATTHEW LAMONT WALTON N.O. Second Applicant
(co-trustees of Seick Property Trust)
HARALD MANFRED SEICK Third Applicant
And
PROUD HERITAGE PROPERTIES 60 (Pty) Ltd First Respondent
Farm 1[...], Portion 2, D[...] U[...] Street, Paarl,
Western Cape Province
JOANNE GLADYS LEFSON Second Respondent
Coram: BARENDSE J
Heard: 21 April 2026 and 11 August 2026
Delivered: 19 AUGUST 2026
Summary: Company-Winding Up -Just and Equitable to do –
Breakdown in relationship between shareholders - Court’s discretion
under s81 (1) (d) (iii) of Companies Act 71 of 2008 -Motion proceedings-
R6(7) of Uniform Rules -Whether separate supplementary counter
application legally competent.
ORDER
Application to strike out
1. paragraph 7 of the second -respondent’s answering affidavit in the
applicant’s rule 30 application is struck out;
2. the second respondent shall pay the costs of the applicants’
application to strike-out, with counsel’s fees to be taxed on Scale C.
Rule 30 application
3. the second respondent’s supplementary counter application dated 21
May 2026 is set aside as an irregular step;
4. the second respondent shall pay both the costs of the applicants’ rule
30 application and rule 30 notice dated 2 June 2026, on the attorney
and own client scale;
Application for leave and condonation
5. the second respondent’s application for leave and condonation dated
11 June 2026 is dismissed;
6. the second respondent shall pay the applicants’ costs of the
application for leave and condonation on the attorney and own client
scale;
Provisional liquidation of first respondent
7. the first respondent is placed under provisional liquidation;
8. a rule nisi is issued calling upon all interested persons to show
cause, if any, to this Court on 13 October 2026, at 10h00, or as
soon thereafter as this matter may be heard:
8.1. why the first respondent should not be placed under final
liquidation and;
8.2. why the costs of this application (including the costs of 21
April 2026) should not be costs in the liquidation;
9. service of this order shall be effected:
9.1. by the sheriff at the registered office of the first respondent at
Farm 1[...], Portion 2, D[...] U[...] Street, Paarl, Western Cape
Province;
9.2. by one publication in each of the Cape Times and Die Burger
newspapers;
9.3. on the first respondent’s employees in accordance with
section 346A of the Companies Act, 61 of 1973 (“the Act”);
9.4. on any trade union/s with which the first respondent’s
employees may be affiliated in accordance with section 346A
of the Act;
9.5. on the South African Revenue Service; and
9.6. by prepaid registered post on all known creditors of the first
respondent whose claims are in excess of R5,000.00.
JUDGMENT
BARENDSE J
Introduction
[1] The fo llowing quotation from William Shakespeare in Romeo and
Juliet (Act II Scene 2) reminds us of how profoundly love and romance can
impact the decisions of persons in a romantic relationship: ‘My bounty is as
boundless as the sea, My love as deep ; the more I give to thee , The more I
have, for both are infinite .’ Even when relationships do not transition into
marriage or life partnership, decisions taken during its existence can often
haunt the parties post termination thereof.
[2] This liquidation application has its genesis in a romantic relationship
between Third Applicant and Second Responde nt that spanned across ten
years, from circa 2014 to 2024. The romantic relationship gave rise to a
business relationship and in this process the First Respondent company ,
Proud Heritage Properties 60 (Pty) Ltd ( ‘Proud Heritage’ or ‘the company’)
was established.
Factual setting
[3] The issued shares in the company were held 50% by Second
Respondent and 50% by the Seick Property Trust ( ‘the trust’). First and
Second Applicants are the duly appointed trustees of the trust. Second
Applicant is also the legal representative of the trust. Second Respondent
(‘Ms Lefson’) was the only director of the company since its inception until
February 2025 when Third Applicant ( ‘Mr Seick ’) became the other
director.
[4] Proud Heritage was formed for the purpose of acquiring an
immovable property, Erf 1[...] at Franschoek (‘The Franschoek Farm’ or ‘the
Farm’). The Farm was sub -divided into Portions one and two. Portion one
was improved significantly by the upgrading of its hospitality
accommodation facilities into upmarket accommodation through a villa and
three cottages. A vineyard was also developed on this property. The property
is the only asset of the company.
[5] Portion two has been improved by the construction of the barn which
is the only permanent structure on it. That upgrading includes the
construction of an upmarket upstairs apartment in the barn (‘the Barn
Apartment’). Portion 2 has been used by Second Respondent to carry on a
variety of projects, mostly animal -related, certain of which are conducted in
the name of two non -profit trusts, the Farm Sanctuary SA Trust, and the
Oscar’s Arc Trust. On Portion two there is also a container, and a
prefabricated removable accommodation pod called ‘the Cube’
[6] After Proud Heritage was acquired in 2014, a memorandum of
incorporation (“Mol”) was adopted for the company . In the Founding
Affidavit ( ‘FA’) the Applicants drew attention to the following provisions
contained in the MoI:
.
1. Article 23 entitles shareholders, at the request of the board of directors,
to lend money to Proud Heritage; however, no shareholder is compelled
to lend, or continue lending, to Proud Heritage, whether on loan
account or otherwise;
2. In terms of article 25.1.2 Proud Heritage is entitled to repay shareholder
loan accounts only with the approval of a special Board resolution,
namely a resolution adopted with the support of at least 75% of the
directors;
3. In terms of article 28 .4, Proud Heritage may make a distribution to
shareholders only with the approval of an ordinary Board resolution,
namely a resolution supported by 55% of the directors.
4. In terms of article 29.2 every shareholder is entitled to appoint any
qualified person of its choice as director ; And to remove and replace
that director from time to time, in its absolute discretion;
5. In terms of article 33.2.6 every director will be entitle d to exercise that
number of votes which is equal to the number of ordinary shares of the
company held by the shareholder who appointed the director;
6. In terms of article 29.5, if there are two or more directors on the board
of Proud Heritage, the board must elect one of the directors as the
chairperson;
7. In terms of article 33.2.10, the chairperson (if one has been elected)
does not have a casting or deciding vote in the case of a tied or
deadlocked vote at a board meeting.
[7] A Shareholders Agreement (‘SHA’) was concluded between Proud
Heritage, the trust and Second Respondent on 17 March 2021 . The
Applicants d rew attention to the provision in clause 15 thereof. This
provides that notwithstanding anything to the contrary contained therein, any
party is entitled, in its absolute discretion, to apply to court for an order for
the winding up of the company on the basis that such winding up is just and
equitable.
[8] Ms Lefson , in her Answering Affidavit ( ‘AA’) submitted that the
SHA was intended to protect her in a universal partnership between her and
Mr Seick for her lifetime. She also brought a counter application for
enforcement of her rights under the SHA. She referred extensively to the
provisions of the SHA and the following provisions are in summary
recorded:
1. Clause 2 .1 that records that she lent and advanced monies to the
company, on loan account ( ‘the Lefson account’) the amount of which
was to be quantified and recorded in the financial statements by the
auditors;
2. Clause 2.2 that identifies the Lefson account as a special account that is
to be repaid in full before any part of any other loan account owed to
another shareholder is paid or dividends declared by the company;
3. The parties must cause the company to repay the whole of the Lefson
account as soon as the financial position of the company permits but on
condition that the company satisfies the solvency and liquidity test
referred to in s4 of the Companies Act of 2008;
4. If the company has not repaid the Lefson account in full by 31
December 2022, the Seick Trust must lend and advance money to the
company to enable it to do so and to satisfy the solvency and liquidity
test at that point;
5. Clause 2.3.2 that affords Ms Lefson a right over Mr Se ick’s loan
account for as long as she is alive and capable of managing her own
affairs;
6. That for as long as Ms Lefson owns her shares and Mr Seick’s loan
account remains unpaid, to preclude an y sale, cession, assignment
transfer or other disposal of, pledge or other encumbrance thereof
without her written consent;
7. Clause 3 thereof that provides that Mr Seick’s loan s to the company
would be long term loans with no fixed date for repayment;
8. Clause 4 thereof that forbids the sale of the Farm property for as long as
Ms Lefson is alive and capable of managing her own affairs without her
written consent;
9. Clause 9 thereof that entitles Ms Lefson to let the three cottages on the
Farm property out and to retain the net revenue so generated.
[9] Ms Lefson submits that her loan account in the company amounts to
R4, 608, 913.02 and that no part thereof has been repaid to her. Mr Seick
alleges that he advanced long term loans to Proud Heritage to the tune of
R70,000,000.00 through payment for the improvement to the Farm and
payment of the company’s operational costs. According to him, the company
never traded profitably.
[10] The Applicants launched these liquidation proceedings during 2025
seeking the liquidation of the c ompany on the basis that : (1) it is unable to
pay its debts; (2) that such an order is just and equitable. Ms Lefson is
opposing this relief and filed a counte r application in which she is seeking
enforcement of her rights under the SHA.
[11] During 2024 Ms Lefson ended the romantic relationship with Mr
Seick. What followed was a turbulent cycle of events which culminated into
much correspondence between the legal representatives of the parties and
triggered various proceedings in the magistrate’s court and in this court. It is
not necessary to summarise all such events in this judgment.
[12] As mentioned earlier, Ms Lefson was initially the only director of
Proud Heritage. During February 2025 the Seick Trust exercised its right
under article 29.2 of the MoI and Mr Seick was appointed as a director with
Ms Lefson. Prior thereto, and on 22 Janu ary 2025 Mr Seick through his
attorneys, demanded from Ms Lefson the return of property , alleged to be
owned by the company. This included a Porsche vehicle and the repayment
of company monies allegedly misappropriated by her. It was alleged that Ms
Lefson paid over R1million out of company funds for furniture for her
apartment in Clifton. It was also alleged that she used company funds to pay
for the use and occupation of the container on Portion 2 of the Farm.
[13] Ms Lefson ’s attorneys replied by recording her umbrage at the
allegations made by Mr Seick, labelled his conduct as harassment,
intimidation and an abuse. Mr Seick was called upon to desist from direct
contact with Ms Lefson and was directed to only communicate with her
through her attorneys. He was notified that failing to heed the demands
made, a Protection Order would be obtained against him.
[14] Around the middle of February 2025 Ms Lefson obtained an Interim
Protection Order in terms of the Domestic Violence Act 1 against Mr Seick.
A Final Protection Order was obtained on 9 April 2025. Mr Seick did not
oppose these proceedings as his attorneys informed Ms Lefson’s attorneys
that the Interim Protection Order was not valid as it was never served on Mr
Seick. This notwi thstanding, a Final Protection Order was sought and
obtained. This prohibited Mr Seick from communicating with Ms Lefson.
[15] According to Mr Seick, Proud Heritage did not have sufficient funds
to pay salaries to employees during April 2025. Mr Seick asked his assistant,
Ms Waschnik to communicate by email a request to Ms Lefson to deposit
funds into the company’s account. This was met with a reply by Ms
Lefson’s attorneys that Proud Heritage’s inability to pay staff salaries due to
lack of funds constitutes financial abuse by Mr Seick in violation of the
Protection Order. This Mr Seick regarded as the use of the Protection Order
to extort payments from him that he was not obliged to make.
[16] The Protection Order also featured in incidents between Ms Lefson
and some of the employees of Proud Heritage. According to Mr Seick the
general manager of the hospitality business, Ms Michelle Cronje suspended
an employee, one Ms Fortuin with the intention of holding a disciplinary
hearing. When Ms Cronje informed Mr Seick and Ms Lefson of this, the
latter regarded this as a breach of the Protection Order and she cancelled Ms
Fortuin’s suspension. A thread of emails exchanged between Ms Cronje and
Ms Lefson was attached as ‘FA13’ in confirmation.
1 Act 116 of 1998
[17] The Applicants further averred that the complete breakdown , (and
therefore deadlock) in the relationship between the two directors and
shareholders of Proud Heritage result ed into an inability by its auditors,
Accuity, to finalise its Annual Financial Statements (AFS’) . The auditors
indicated that the most recent signed AFS’ were those for the year ending
February 2022. They further informed Mr Walton in an email dated 23 April
2025 that the AFS’ for the year ending February 2023 were sent to Ms
Lefson for approval but that she did not respond thereto. In the same email
Accuity indicated that due to a dispute regarding the treatment of certai n
income and allocation of loan account transactions they were unable to sign
off on any audited AFS’.
[18] In her AA Ms Lefson took issue with the value of Mr Seick’s loan
account in Proud Heritage . This she stated, varied from R55, 201, 411 .00
and R67, 262, 994.00 between 2022 and 2025. She regarded the dispute over
the value of the loan account as the main reason why the AFS’ for the
financial years 2023, 2024 and 2025 could not be signed off.
[19] According to Ms Lefson the company is solvent. Importantly, in her
AA she admits that after the romantic relationship ended, the tone and
atmosphere between her and Mr Seick became contentious and
acrimonious.2 This she ascribed to a deadlock designed to intimidate and
force her hand and as a stratagem for the winding-up application.
[20] During 2023 a property in Clifton was purchased for Ms Lefson. By
agreement an application was made by her in the name of Proud Heritage for
2 Record p005-37 para 48
a loan of R28 ,500,000.00 secured by a mortgage bond over the Farm
property. The arrangement was that Ms Lefson would contribute
R3,000,000.00 to the purchase price. This she did trough her loan account in
Proud Heritage. She also sold a property owned by another company of hers
and contributed a further R13,000,000 .00 towards the Clifton property. The
balance of R12, 500,000.00 was to be an interest free loan by Mr Seick to
her. Ms Lefson takes issue with the fact that the interest effect of this loan is
apparently charged to Proud Heritage. She complains that the interest on the
Investec loan is being charged as an expense to Proud Heritage while she
was promised an interest free loan by Mr Seick . The expense charged to
Proud Heritage is to her prejudice as a 50% shareholder of Proud Heritage.
This she submits, is indicative of ‘dirty hands’ on the part of Mr Seick.
[21] Yet another dispute raised in the papers relates to the purchase of
Roche Bobois furniture by Ms Lefson for her Clifton property. Ms Lefson
averred in her AA that during August 2022 the trust lent and advanced
R300,000 to her as an interest free loan to purchase the furniture. According
to her she then p urchased the furniture and paid for it herself, not using the
loan. She attached a purported tax invoice as ‘AA19’ to back this up. 3 This
document however relates to something other than furniture. On the other
hand, the Replying Affidavit (“RA”) has as annexure ‘RA4’ an invoice
which confirms that the furniture was purchased by Proud Heritage for
R919, 565.00. In a letter of demand dated 22 January 2025 Mr Walton
demanded from Ms Lefson repayment of the amount of R1,000,000 .00. The
furniture was apparently returned to the Franschoek property during May
2025 in such a poor condition that it had to be ‘written off’.
3 Record p006-120
[22] During May 2025 there was another incident when a member of the
South African Police Service attended at the Franschoek farm to interview
company employees in search for evidence of economic abuse of Ms Lefson
by Mr Seick. It appears that this criminal investigation came to nought.
[23] During June 2025, and after these proceedings were instituted, Ms
Lefson appointed her new romantic partner, Mr Douglas Stevenson as a
director of Proud Heritage in her stead. Subsequent thereto ongoing disputes
resulted into at least three applications in the High Court. It is not for
purposes of this judgment necessary to go into the details of those
proceedings.
[24] Following the appointment of Mr Stevenson as director and the events
that ensued th ereafter, the Applicants made application in terms of Rule
6(5)(e) for the filing of a further affidavit to address th ose events. When the
matter was on the roll for hearing on 21 April 2026, Second Respondent
applied for a postponement. This Court granted the Applicants’ Rule 6(5)(e)
application and a postponement to allow Ms Lefson to answer to the further
affidavit.
[25] This affidavit dealt with inter alia the appointment of Mr S tevenson
as director of the company, the three High Court applications that were
instituted since the commencement of these proceedings and a subdivision
application for the Franschoek Farm at the behest of Mr Stevenson. One of
the court applications concerned an eviction resulting from Ms Lefson’s
decision to take occupation of one of the luxury villas on the Farm. Prior to
the inst itution of the court application Mr Walton as proxy for Mr Seick
requested an urgent meeting with Mt Stevenson to address this development.
The request was refused on the basis of Mr Stevenson’s reply that him and
Walton ‘were both conflicted ’, making a meeting impossible. This was
because Mr Stevenson acted for Ms Lefson and Mr Walton acted for Mr
Seick. In his email reply dated 28 August 2025 Mr Stevenson also
mentioned that ‘This is not about a company, it is about the breakdown of a
universal partnership and it should be managed like this towards a
settlement.’4
[26] I have mentioned earlier that Ms Lefson instituted a counter
application at the time when she filed her AA. After the matter was
postponed on 21 April 2026, she filed a Supplementary Counter Application,
then followed by an application for leave and for condonation. In response,
Applicants filed an Application in t erms of Rule 30 (and 6(11)) and an
Application to Strike-Out. I shall return to this later.
Applicants’ case
[27] The Applicants seek an order for the winding up of the company on
the basis that:
1. The company’s business cannot be conducted to the advantage of its
shareholders as a result of the deadlock and falls to be wound up in
terms of s81(1)(d)(i)(aa) and or (bb) of the Companies Act, 71 of 2008
(“the 2008 Companies Act”);
2. It would be just and equitable t o do so in terms of s81(1)( c) (ii) or
s81(1)(d)(iii) of the 2008 Companies Act or s 344 of Act 61 of
4 Record p 013-32.
1973(“the 1973 Companies Act”) , depending on whether the court
finds that the company is solvent or insolvent;
3. It is unable to pay its debts as contemplated in ss344(f) read with
s345(1)(c) of the 1973 Companies Act.
Applicants submit that the company in unable to repay the loans of more
than R69million that Mr Seick made to it, which loans were called up during
2025.
[28] Applicants further submit that a deadlock developed between Mr
Seick and Ms Lefson as directors and between the co-shareholders being the
trust and Ms Lefson. They submit that a deadlock equally exists between
Mr Seick and Mr Stevenson who replaced Ms Lefson as director. On behalf
of the Applicants it was also submitted that a counter application for the
enforcement of private shareholder relief is no defence to a liquidation
application.
[29] Applicants acknowledge that clause 2.2 of the SHA obliges the Seick
Property Trust to lend Proud Heritage funds to repay Ms Lefson’s loan
account, but only if her loan account has a credit balance. While Ms Lefson
claims a value of around R4.6million for her loan account, Applicants say
that on her own version, she used the loan account to fund her R3 ,000,000
contribution towards the purchase price of her Clifton property. In addition,
Applicants claim that Ms Lefson owes Proud Heritage money that exceeds
any remaining balance of her loan account. She also has in her possession a
Porsche motor vehicle worth more than R2million which she refuses to
return and which Proud Heritage pays for.
[30] Applicants further contend that clause 2.2 of the SHA provides that if
Ms Lefson loan account was not repaid in full by 31 December 2022, Mr
Seick would be obliged to lend the company sufficient funds to repay her
loan account and , at the time of repayment, satisfy the solvency test as
envisaged in s4 of the 2008 Companies Act. This test entails an assessment
of whether a company will be able to pay its debts as they fall due for a
period of 12 months after the test is performed. This Mr Seick s ays he did,
by keeping the company afloat until 30 December 2023 by injecting millions
of Rands.
[31] While conceding that the MoI cannot trump the provisions of the
SHA, Applicants rely on the former that provides that no shareholder is
obliged to make loans to the company.
[32] Applicants deny that a universal partnership ever came into existence
between Ms Lefson and Mr Seick. In the RA it was specifical ly stated that
they never coha bited, never had a common household and that each carried
their own living expenses.
Second Respondent’s case
[33] In her papers Ms Lefson made repeated reference to the existence of a
universal partnership. This she says, is why the SHA extended various rights
and protections to her. She seeks to enforce these rights.
[34] While not denying the company’s indebtedness to Mr Seick or that he
funded the company ove r the years , she disputes the amount of his loan
account. She also disputes that the loan account constitutes a debt that is
currently payable.
[35] Ms Lefson submits that the company’s profit and loss account (as at
28 February 2026) reflects a nett loss of R1,430.000. This she says, must be
reworked to remove the effect of the Investec loan interest and legal
expenses. This exercise she says, yields a profit of around R1.1million for
the year ending 28 February 2026. She admits that this will be the first year
that the company on a ‘normalised basis ’ has produced a positive trading
result.
[36] She accordingly submits that the company is not commercially
insolvent and that the drastic consequences of a liquidation are not justified.
[37] Ms Lefson denies that the directors are deadlocked and allege that any
governance issues were caused by Mr Seick . Further, she submits that less
drastic alter native remedies are available such as a buy -out of one
shareholder, relief under s163 of the 2008 Companies Act or the regulatio n
of the parties’ conduct. Needless to say, a ny such measures will necessar ily
require a functional level of co-operation between her and Mr Seick.
Reasoning and findings
[38] At the hearing of these proceedings this Court was called upon to rule
on the following:
1. The Second Respondent’s application for leave to file a Supplementary
Counter-Application;
2. The Rule 30 and Strike Out applications filed by Applicants;
3. The liquidation (main) application.
[39] It is apposite to first deal with the proceedings under 1 and 2 above. In
a Supplementary Counter Application, filed around 21 May 2026 the Second
Respondent is asking for a number of company resolutions adopted by Mr
Seick and or Walton (as proxy for Mr Seick) to the exclusion of Mr
Stevenson be set aside and that the LPC (Legal Practice Council) or the CEO
of the IRBA (Independent Regulatory Board) be directed to appoint an
independent third-party director to the board of directors of Proud Heritage.
[40] In addition to having filed the aforesaid application, Second
Respondent is seeking leave to do so, and to the extent necessary,
condonation. The Applicants filed a R30 application in response to the
above.
[41] Rule 6(7) of the Uniform Rules allows a party in motion proceeding to
file a counterclaim. The crisp issue is whether the said Rule contemplates
more than one counter claim in the same proceedings by the same party.
This is so, in the back drop of Second Respondent already having filed a
counter application in these proceedings.
[42] Both parties made extensive submissions on this issue. Second
Respondent referred the Court to a judgment in Paulsen and Another v JP
Markets SA (Pty) Ltd and Another 5 (“Paulsen”) where, in action
proceedings a defendant was granted leave to file a counterclaim after it had
filed a plea , instead of simultaneously with the plea as required. Paulsen is
therefore clearly distinguishable.
5 [2025] ZAWCHC 428
[43] Applicants argued that the text of R6 (7) is clear. It makes provision
for ‘a’ counter application, denoting one and no more. To this, the Second
Respondent countered that under s 6(b) of the Interpretation Act6 ‘words in the
singular number include the plural and words in the plural include the singular ’. The
Interpretation Act also provides that its provisions apply to ‘…the
interpretation of all laws, by-laws, rules, regulations or orders made under the authority
of such law, unless there i s something in the language or context of the law… repugnant
to such provisions or unless the contrary intention appears therein.’7
[44] I agree with the Applicants that I am not empowered to read
provisions into R6(7) that are not there. The correct procedural step that the
Second Respondent should have followed, was to apply for leave to amend
the counter application under Rule 28. This was not done and it is not
permissible for this Court to condone the adoption of a procedure that is not
competent in law.
[45] The Court also accepts the submission on behalf of Applicants that to
allow a party to do what the rules do not allow, would lead to an ‘intolerable
level of legal uncertainty’ as stated in Potgieter.8
[46] To allow this step, will be to allow these proceedings to be dragged
out impermissibly and to create bad precedent.
[47] The Second Respondent’s Notice of Motion dated 21 May 2026 is
accordingly set aside in terms of Rule 30 as an irregular step.
6 Act 33 of 1957
7 s1 of the Interpretation Act supra.
8 Potgieter v Potgieter NO 2012 (1) SA 637 (SCA)
[48] Having found that the application to introduce a Supplementary
Counter Application is an irregular step, it is not necessary to deal with the
relief sought in the application for leave/condonation pertaining thereto.
[49] Applicants applied for the striking out of paragraph 7 of Second
Respondent’s AA in the Rule 30 proceedings. In this paragraph she stated
that her condonation application is a full answer to the Rule 30 Application
and she asked that the FA in the condonation application be read as if
incorporated into he r AA. The Applicants protested that this is not
permissible and relied on the following passage in Minister of Land Affairs
& Agriculture v D&F Wevell Trust 9:‘It is not proper for a party in motion
proceedings to base an argument on passages in documents which have been annexed to
the papers when the conclusions sought to be drawn from such passages have not been
canvassed in the affidavits. The reason is manifest - the other party may well be
prejudiced because evidence may have been available to it to refute the new case on the
facts. The position is worse where the arguments are advanced for the first time on
appeal. In motion proceedings, the affidavits constitute both the pleadings and the
evidence: Transnet Ltd v Rubenstein, and the issues and averments in support of the
parties' cases should appear clearly therefrom. A party cannot be expected to trawl
through lengthy annexures to the opponent's affidavit and to speculate on the possible
relevance of facts therein contained. Trial by ambush cannot be permitted.’
[50] The Second Respondent was obliged to specifically answer to the
allegations made by Applicants in the R30 application. I agree that it was
impermissible for her to refer the other parties and the Court to her
condonation application for such an answer. In the circumstances the
application to strike out is granted.
9 2008 (2) SA 184 (SCA) para [43]
[51] This brings me to the liquidation application. At the outset it is
mentioned that not all the details of dissent and strife between Ms Seick and
Ms Lefson which appeared from the prolix papers filed on behalf of Ms
Lefson were included in the summary of the factual setting . What the details
thereof demonstrate is a n irretrievable breakdown in the relationship
between Mr Seick and Ms Lefson. This permeated all the spheres of their
personal and business relationship s. In paragraph 51 of her AA Ms Lefson
submitted that no deadlock existed in that Mr Seick can communicate with
her trough her attorneys or that Mr Walton could meet with her. This
amounts to an admission of deadlock. The history shows that matters did not
improve since Mr Stevenson replaced Ms Lefson as director of the company.
[52] One of the submissions on behalf of Ms Lefson was that a material
dispute of fact was raised in the papers, rendering the matter incapable of
determination on motion. I disagree. The disputes and fallouts between the
two shareholders and the two directors prior to and after Seick’s
appointment as director, do no more than illuminate the strife and hostility
between them.
[53] Things did not improve after Mr Stevenson was appointed to replace
Ms Lefson as a director. This is hardly surprising given his status as Ms
Lefson’s new boyfriend.
[54] The erstwhile romantic relationship between Mr Seick and Ms Lefson
was without a doubt the substratum of Proud Heritage. This also explains the
provisions contained in the SHA.
[55] Ms Lefson does not deny that the company is indebted to Mr Seick.
What she disputes is the extent of the indebtedness and that the debt has
fallen due. In the report prepared by Mr Stevenson 10 he used a value of
R66million for Mr Seick’s loan account. If a liquidation order is granted, it
will in any event be incumbent on the liquidator /s to quantify the loan
account.
[56] If Mr Seick is entitled to call up the amount owing to him, as he has
done, the company will not be able to pay its debts as envisaged in s344 of
the 1973 Companies Act. If he is under no obligation to continue financing
the company, it will be unable to meet its operational expenses as they fall
due. Further, the last audited AFS’ reflect accumulated losses of over R16m.
[57] However, this Court does not have to make findings regarding
whether Proud Heritage is commercially insolvent. The Applicants are also
placing reliance upon s 81(1)(d)(iii) of the 2008 Companies Act. This
provision empowers a court to order the winding -up of a solvent company
on the basis that it is just and equitable to do so.
[58] The discretion granted in s81 (and its predecessors under the 1926 and
1973 Companies Acts) is a wide one but it has to be judicially exercised. It
is trite law that where a deadlock has arisen in relation to the management of
the affairs of a company, it is just and equitable to order the winding up
thereof.
10 Record p18-96
[59] In Moosa N.O. v Mavjee Bhawan (Pty) Ltd and Another 11 a case
decided under the 1926 Companies Act the court, with reference to Yenidje
Tobacco Co,12 an English case, said the following: ‘The other principle derived
from the Yenidje Tobacco Co. case , usually called the deadlock principle, is founded on
the analogy of partnership and is strictly confined to those small domestic companies in
which because of some arrangement, express , tacit or implied, there exists between the
members in regard to the company’s affairs, a particular personal relationship of
confidence and trust similar to that existing between partners in a partnership business.
Usually that relationship is such that it requires the members to act reasonably and
honestly toward one another and with friendly co -operation in running the company’s
affairs. If by conduct which is either wrongful or not contemplated b y the arrangement ,
one or more of the members destroys that relationship, the other member or members are
entitled to claim that it is just and equitable that the company should be wound up in the
same way as, i f they were partners, they could claim dissolution of the partnership .’
(emphasis added).
[60] In the above case it was the constant quarrelling, disputes and
animosity between the two members which irretrievably destroyed the
personal relationship of confidence and co -operation that their arrangement
contemplated would prevail between them. A winding up order was deemed
to be just and equitable.
[61] In Thunder Cats v Nkonjane Economic Prospecting13 it was confirmed
that the discretion under s 344 of the 19 73 Companies Act and s81(1)(d)(iii)
of the 2008 Companies Act is a wide one. The company, although solvent,
was liquidated because a breakdown in the relationship between the
11 1967 (3) SA 131 TPD at p137
12 (1916) 2 Ch. 426 (Court of Appeal)
13 2014 (5) SA 1 (SCA)
shareholders resulted into deadlock. At paragraph [20] of this judgment the
court quoted the following from Ebrahimi v Westbourne Galleries Ltd14 ‘The
just and equitable provision does not …entitle one party to disregard the obligation he
assumes by entering a company, nor the court to dispense him from it. It does, as equity
always does, enable to court to subject the exercise of legal rights to equitable
consideration: considerations that is , of a personal character arising between one
individual and another, which may make it unjust, or inequitable to insist on legal rights ,
or to exercise them in a particular way’.
[62] The Second Respondent’s counter application seeks to enforce her
rights under the SHA in circumstances where by reason of deadlock, it is
just and equitable to wind up the company. The counter application cannot
therefore stand. The provisions of a SHA cannot trump the provisions of
statute and the powers so conferred upon a court.
[63] The Second Respondent also suggested that Mr Seick has ‘dirty
hands’ and is precluded from seeking the relief that he is seeking. What we
have seen is that acrimony followed the termination of the romantic
relationship. There is no evidence that assist s this court in assessing the
reasons for the breakup. The protestations by both Ms Lefson and Mr Seicke
relate to events post the said breakup. What we do know is that it is Ms
Lefson who terminated the romantic relationship and by so doing removing
the substratum of Proud Heritage.
[64] In Thundercats it was stated that if the breakdown in the relationship
resulted from the applicant’s misconduct, he/she cannot insist on the
14 [1973] AC 360 (HL) ([1972] 2 All ER 492) at 379 B-380 B
liquidation of the company. The court added that lack of clean hands is no t
an absolute bar and a party’s fault should not necessarily deter a court from
winding-up.
[65] The Court is accordingly satisfied that the winding -up of Pro ud
Heritage is just and equitable as envisaged in s81(1)(d)(iii) of the 2008
Companies Act.
[66] This brings me to the question of costs. The Applicants argued for
punitive costs in relation to the application to strike -out, the Rule 30
application and the application for leave and condonation.
[67] In exercising my discretion as to costs, I am not satisfied that the
Second Respondent’s conduct in relation to the strike -out application
warrants a punitive cost order. The same cannot be said for the
‘supplementary counter application’ which triggered the R30 application and
the application for leave and condonation. The supplementary counter
application was completely irregular and in the Courts view, aimed at
delaying and frustrating the liquidation application. As such, it constitutes an
abuse of process. A punitive costs order in relation thereto is justified.
Order
[68] In the result the following order is made:
Application to strike out
1. paragraph 7 of the second -respondent’s answering affidavit in the
applicant’s rule 30 application is struck out;
2. the second respondent shall pay the costs of the applicants ’
application to strike-out, with counsel’s fees to be taxed on Scale C.
Rule 30 application
3. the second respondent’s supplementary counter application dated 21
May 2026 is set aside as an irregular step;
4. the second respondent shall pay both the costs the applicants’ rule
30 application and rule 30 notice dated 2 June 2026, on the attorney
and own client scale;
Application for leave and condonation
5. the second respondent’s application for leave and condonation dated
11 June 2026 is dismissed;
6. the second respondent shall pay the applicants’ costs of the
application for leave and condonation on the attorney and own client
scale;
Provisional liquidation of first respondent
7. the first respondent is placed under provisional liquidation;
8. a rule nisi is issued calling upon all interested persons to show
cause, if any, to this Court on 13 October 2026, at 10h00, or as
soon thereafter as this matter may be heard:
8.1 why the first respondent should not be placed under final
liquidation and;
8.2 why the costs of this application (including the costs of 21
April 2026) should not be costs in the liquidation;
9. service of this order shall be effected:
9.1 by the sheriff at the registered office of the first respondent at
Farm 1[...], Portion 2, D[...] U[...] Street, Paarl, Western Cape
Province;
9.2 by one publication in each of the Cape Times and Die Burger
newspapers;
9.3 on the first respondent’s employees in accordance with section
346A of the Companies Act, 61 of 1973 (“the Act”);
9.4 on any trade union/s with which the first respondent’s
employees may be affiliated in accordance with section 346A
of the Act;
9.5 on the South African Revenue Service; and
9.6 by prepaid registered post on all known creditors of the first
respondent whose claims are in excess of R5,000.00.
_____________________________________
R BARENDSE
JUDGE OF THE HIGH COURT
Appearances
For the Applicant : RJ Howie
Instructed by Matthew Walton Attorneys
For the 2nd Respondent : J Berlowtitz and M van der Berg
Instructed by Aarons Attorneys