About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North West High Court, Mafikeng
You are here:
SAFLII
>>
Databases
>>
South Africa: North West High Court, Mafikeng
>>
2026
>>
[2026] ZANWHC 231
|
Noteup
|
LawCite
Keamogetswe Moumakwe Trading CC v E K Construction and all General Trading CC and Another (5160/2025) [2026] ZANWHC 231 (4 September 2026)
Download original files
PDF format
RTF format
IN THE HIGH COURT OF
SOUTH AFRICA
NORTH WEST DIVISION,
MAHIKENG
CASE
NO: 5160/2025
In the matter between:
KEAMOGETSWE
MOUMAKWE TRADING CC
APPLICANT
And
E K CONSTRUCTION AND
ALL GENERAL
TRADING
CC
FIRST RESPONDENT
MATHOBELA 2566 CIVILS
AND TRADING
(PTY)
LTD
SECOND RESPONDENT
Date heard: 7 August
2026
Delivered: 4 September
2026
Coram: Reddy J
Summary:
Opposed winding-up application —
applicant undertook to furnish a master’s certificate of
security and to serve the
Master, SARS, and the first respondent's
employees and trade union — none of this was done —
application dismissed
for non-compliance with section 346 of the
Companies Act 61 of 1973 — costs on Scale B —
locus
standi
and the statutory demand also
considered, in the alternative —
bona
fide
dispute not decided.
JUDGMENT
REDDY J
Introduction
[1]
On 7 August 2026, this application was dismissed, with the applicant
ordered to pay the costs
of the application on the party and party
scale, Scale B. On 11 August 2026, pursuant to this order, the
applicant filed a request
for reasons in terms of rule 49(1)(
c)
of the Uniform Rules of Court. In compliance with that request the
following reasons are furnished.
[2]
What previously served before this Court was an opposed application.
The applicant founded the
application on an alleged debt of
R4,327,753.50. It said this was due for sub-contracting work on
two municipal road projects.
The first respondent opposed the
application. As appears below, the application was dismissed for want
of compliance with the security
and service requirements of section
346 of the Companies Act 61 of 1973
[1]
.
It was not necessary to resolve the parties' further disputes.
The parties
[3]
For brevity, a concise description of the parties is fitting. The
applicant is Keamogetswe Moumakwe
Trading CC, a close corporation
(KMT). The first respondent is E K Construction and All General
Trading CC, a close corporation
(EK Construction). The second
respondent is Mathobela 2566 Civils and Trading (Pty) Ltd (Mathobela
Civils). Mathobela Civils is
cited as an interested party because of
its alleged joint venture with KMT, from which the disputed debt is
said to arise. No relief
is sought against Mathobela Civils. It did
not enter the fray.
Background facts
[4]
During 2024, EK Construction was appointed as the main contractor on
two municipal projects. The
first was the construction of the Vaaltyn
access road and stormwater system for the Greater Taung Local
Municipality (the Taung
Project). The second was the upgrading of a
road from Ikopoleng to Mogokgwane Ward 3 for the Mahikeng Local
Municipality (the Mahikeng
Project). KMT alleged an oral joint
venture with Mathobela Civils to accept sub-contractor appointment on
both projects. EK Construction
disputed the existence of any
contractual relationship with KMT, and disputed that the resulting
debt, claimed at R4,327,753.50,
was due.
[5]
KMT’s founding affidavit addressed security and service, under
the headings ‘
Certificate of the Master’
and
‘
Service of the Application’
. KMT undertook to
procure a master’s certificate of security before the hearing.
It undertook to serve the application on
the Master, the South
African Revenue Service, and EK Construction's employees and any
trade union.
[6]
The papers showed an email to the South African Revenue Service,
(SARS) dated 26 September 2025,
and two returns of service dated 6
October 2025. Both the latter reflected service on Ms Chantelle
Havenga, an administrator, at
EK Construction's business address. One
return was captioned to reflect service on EK Construction's
employees and any trade union.
It showed that Ms Havenga confirmed EK
Construction had employees and a notice board, and that there was no
trade union. What the
papers failed to show was that any notice was
affixed to that board. Significantly the papers contained no
certificate by the Master,
and no affidavit establishing service on
the Master or on SARS.
[7]
This application was disposed of on the points
in limine
raised. For ease of reading, I turn to set out same as raised by
Advocate Hitge for EK Construction and the retort by Advocate
Riley
for KMT.
Points
in limine
,
as raised by Advocate Hitge
[8]
Advocate Hitge submitted that the points
in limine
raised had
not been done so by way of ambush litigation. Advocate Hitge claimed
that EK Construction's heads of argument were filed
on 21 July 2026,
some two weeks before the hearing. Advocate Hitge continued that in
same, KMT had already been forewarned that
there was no compliance
with section 346. Notably Advocate Hitge states that EK
Construction's cautioned KMT that it reserved rights
to raise this
point.
[9]
Advocate Hitge further averred that KMT had also failed to furnish
the master’s certificate
of security required by section
346(3). Counsel reasoned that was not disputed. Advocate Hitge argued
that the email to SARS, unsupported
by any affidavit of service, did
not satisfy section 346(4A)(b).Advocate Hitge further contended that
the return relied upon for
service on EK Construction's employees in
truth recorded service on Ms Chantelle Havenga, an administrator and
representative of
EK Construction, and not on any employee or trade
union as section 346(4A)(a)
requires.
Advocate Hitge sought a dismissal of the application with costs on
Scale B or C given KMT’s material non-compliance
with
peremptory statutory requirements.
Response to points
in
limine
by Advocate Riley
[10]
Advocate Riley submitted that there had been proper service. Advocate
Riley pointed to the return of service
captioned for EK
Construction's employees and any trade union, and submitted that it
was, at least,
prima facie
proof of compliance. Advocate Riley
argued that, under this Division's practice directives, proof of
service by affidavit need
only be filed by the return date of the
rule
nisi
. That being so Advocate Riley claimed that KMT was
not yet in default in that regard. Advocate Riley proposed that any
shortfall
was in any event a minor and curable omission, and that KMT
had at all times intended to prosecute the application. Advocate
Riley
did not dispute that no master's certificate of security had
been furnished. In the alternative to dismissal, Advocate Riley
requested
that the application be postponed or removed, with costs
reserved.
Findings on points
in
limine
[11] To
my mind each point
in limine
raised must be addressed. Where
one point
in limine
disposes of the application by reason of a
material irregularity, it may not be necessary to address the others.
Adopting wide
consideration of the matter Given, I consider it
prudent to address, in the alternative, the further points raised, so
that this
Court's reasoning on them is not left outstanding should
that finding not survive appeal. This Court proceeds accordingly.
Non-compliance with
section 346 of the Companies Act 61 of 1973
The law
[12]
Section 66(1)
of the
Close Corporations Act 69 of 1984
applies
Chapter XIV of the Companies Act 61 of 1973 to the winding-up of a
close corporation unable to pay its debts.
[2]
Section
346(3) of that Chapter requires every application for winding-up,
save one brought by the Master, to be accompanied by a
certificate by
the Master. That certificate must confirm that sufficient security
has been given for the costs of the winding-up.
[3]
The section reads:
‘
Every
application to the Court referred to in subsection (1), except an
application by the Master in terms of paragraph (e) of that
subsection, shall be accompanied by a certificate by the Master,
issued not more than ten days before the date of the application,
to
the effect that sufficient security has been given for the payment of
all fees and charges necessary for the prosecution of
all winding-up
proceedings and of all costs of administering the company in
liquidation until a provisional liquidator has been
appointed, or, if
no provisional liquidator is appointed, of all fees and charges
necessary for the discharge of the company from
the winding-up.’
[13]
Section 346(4A) (a)further requires an applicant, when the
application is presented, to furnish a copy of
it to every registered
trade union representing the company's employees, to the employees
themselves by affixing a copy at the
company's premises, to the SARS,
and to the company. Section 346(4A)(b) requires the applicant to
file, before or during the hearing,
an affidavit setting out how this
was done.
[4]
The section reads:
‘
(a)
When an application is presented to the court in terms of this
section, the applicant must furnish a copy of the application—
(i) to every registered
trade union that, as far as the applicant can reasonably ascertain,
represents any of the employees of the
company; and
(ii) to the employees
themselves—
(aa) by affixing a copy
of the application to any notice board to which the applicant and the
employees have access inside the premises
of the company; or
(bb) if there is no
access to the premises by the applicant and the employees, by
affixing a copy of the application to the front
gate of the premises,
where applicable, failing which to the front door of the premises
from which the company conducted any business
at the time of the
application;
(iii) to the South
African Revenue Service; and
(iv) to the company,
unless the application is made by the company, or the court, at its
discretion, dispenses with the furnishing
of a copy where the court
is satisfied that it would be in the interests of the company or of
the creditors to dispense with it.
(b) The applicant must,
before or during the hearing, file an affidavit by the person who
furnished a copy of the application which
sets out the manner in
which paragraph (a) was complied with.’
Discussion
[14]
KMT acknowledged the applicability of these legislative requirements.
Simply put, KMT undertook that a master’s
certificate of
security would be made available at the hearing. Further it confirmed
that the application would be served on the
master, SARS, and EK
Construction's employees and any trade union.
[15] To this
end, there was no certificate by the master in the papers, and
Advocate Riley did not suggest otherwise.
Moreover, the email to
SARS, though sent well in advance of the hearing, was not accompanied
by any affidavit of service, as section
346(4A)(b) requires. The
return captioned for service on EK Construction's employees and any
trade union recorded only that Ms
Havenga, an administrator,
confirmed the existence of a notice board and the absence of a trade
union. It did not record that a
notice was ever affixed to that
board. Personal service on one individual is not the affixing of a
notice for the general attention
of a company's employees that
section 346(4A)(a)
contemplates.
Significantly there was no proof that any notice reached, or was
displayed for, EK Construction's employees generally,
still less any
trade union. There was no proof that the application was ever served
on the master.
[16]
Advocate Riley posited that KMT was not yet in default of section
346(4A)(b) because proof of service could
still be filed by the
return date of the rule
nisi
. Even if that were correct as to
the timing of the compliance affidavit, it does not answer the
absence of the master's certificate
required by section 346(3), which
must accompany the application itself. As it stood it fails to cure
the underlying failure to
affix notice for EK Construction's
employees in the first place. As noted in the finding an affidavit
filed later could not attest
to service that had not occurred.
[17] To
my mind a postponement or removal was the not appropriate remedy . EK
Construction's heads of argument,
filed some two weeks before the
hearing, had already recorded this precise objection and reserved EK
Construction's rights to raise
it. It follows that given the timeline
of the warning KMT accordingly had ample notice , and ample time, to
remedy or explain the
defects. KMT of its own accord elected to do
neither.
Finding
[18] In the
premises, this point
in limine
succeeded. KMT had not shown,
on a bundle that it evinced as complete, that it complied with the
security and service requirements
of section 346(3) and (4A).
Locus standi
The law
[19]
It is trite that in motion proceedings the founding
affidavit constitutes both the pleadings and the evidence.
[5]
A litigant must therefore set out,
ex
facie
that affidavit, the facts necessary to establish its standing to
claim the relief sought.
[20]
Where a debt is said to be owed to an unincorporated
joint venture, a question arises. May one member enforce
the claim
alone, or must all members act jointly? This turns on the intention
of the parties, as recorded in the venture's constitutive
agreement.
[6]
In
Lephalale
Local Municipality
v
Nanza
Amamiya Ndlovu Joined
Venture
the
court declined to accept a bare assertion of standing, absent
evidence of the joint venture's
essentialia
.
It stands to reason that where the founding affidavit fails to
identify the terms of the venture, or the rights of its members
inter
se
,
a court cannot determine the nature of the arrangement or the
standing of the party before it.
Discussion
[21]
KMT's case was that it and Mathobela Civils formed an oral joint
venture to accept appointment as sub-contractor
on the two projects.
That being said, KMT contended that the debt sued for was accordingly
owed to that joint venture. Surprisingly
the founding affidavit
disclosed nothing of the venture's terms. The founding affidavit was
terse on the following four substantive
issues. Firstly, it did not
mention whether the venture was a partnership. Secondly it did not
disclose the parties' respective
contributions or profit-sharing
ratios. Thirdly and crucially, it failed to aver who had authority to
bind the venture, or to litigate
on its behalf. Fourthly and equal
critical no averment was made as to whether the right to claim
payment could be exercised by
one member alone.
[22] In
lieu
of making essential averments, KMT proceeded on an
all-encompassing phrase in the founding affidavit that stated only
that the
application was brought ‘
in its own right and not
as a joint venture’
. This was grounded on the allegation
that it had ‘
become apparent’
that Mathobela
Civils was “
in
cahoots
” with EK
Construction in refusing to pay. That assertion was devoid of
evidentiary support and was no other than blind speculation.
It did
not explain why Mathobela Civils, a co-venturer with a direct and
substantial interest in the debt and in the outcome of
this
application, was neither joined nor accounted for. Conclusively, it
failed to cite any authority, cession, or agreement entitling
KMT to
claim the whole of the debt in its sole name.
[23] This
key omission could be overlooked. KMT's own heads of argument were
extensive on the question of a
bona fide
dispute. It is silent
on this objection altogether. It went unanswered on the papers. The
essential jurisdictional facts required
to found KMT's
locus
standi
were accordingly absent.
Finding
[24] Had it
been necessary to decide, I would have found that KMT had failed to
establish,
ex facie
its founding affidavit, that it had the
requisite
locus standi
to bring this application in its own
name.
The section 69(1)(a)
Close Corporations Act 69 of 1984
The law
[25]
Section 69(1)(a)
of the
Close Corporations Act 69 of 1984
deems a
corporation unable to pay its debts in certain circumstances. A
creditor must serve a demand on the corporation by delivering
it at
its registered office. The corporation must then neglect, for 21 days
thereafter, to pay, secure, or compound the debt.
[7]
Service at the corporation's registered office is not incidental to
the subsection. It is the very act by which the deeming provision
is
triggered. The section reads:
‘
A
corporation shall be deemed to be unable to pay its debts, if-
(a)
a creditor, by cession or otherwise, to
whom the corporation is indebted in a sum of not less than two
hundred rand then due
has served on the corporation, by
delivering it at its registered office, a demand requiring the
corporation to pay the sum so due,
and the corporation has for 21
days thereafter neglected to pay the sum
or to secure or compound for it to
the reasonable satisfaction of the creditor.’
Discussion
[26]
KMT's founding affidavit conceded, in terms, that the
statutory demand was served at EK Construction's business
address,
not its registered address. KMT sought to overcome this by contending
that the defect was immaterial. It said the demand
in fact came to EK
Construction's attention and was responded to. It relied for this
proposition on an unreported judgment.
[8]
[27] The
subsection is peremptory in its terms. It is the mechanism by which
KMT sought to invoke the statutory
presumption of commercial
insolvency, rather than proving actual inability to pay on ordinary
principles. KMT elected to found
its case on the deeming provision.
KMT conceded non-compliance with the manner of service the provision
peremptorily prescribes.
It could not have invoked the presumption
that provision was designed to create.
Finding
[28] Had it
been necessary to decide, I would have found that the statutory
demand relied upon did not give rise to
the deeming provision in
section 69(1)(a)
of the Close Corporations Act.
Conclusion
[29]
The finding on section 346 was dispositive of the
application. Even had it not been, the alternative findings
on
locus
standi
and the statutory demand would independently have disposed of it. It
was accordingly not necessary to determine the substantially
disputed
question whether the underlying debt was
bona
fide
disputed within the meaning of the well-established rule in
Badenhorst
v
Northern
Construction
Enterprises
.
[9]
That question, on the papers, turned on mutually destructive and
seriously contested factual allegations. Each side accused the
other
of fabrication. Those were matters more properly resolved, if at all,
in action proceedings.
[30] It
followed that the application had to fail. EK Construction had given
fair and timeous warning of the very defect
on which the application
failed. There was no reason why costs should not follow the result.
Costs
[31] Costs follow the
result. This matter required consideration of the statutory
formalities under section 346 of the Companies
Act, and the
complexity of the issues raised and argued takes it beyond the ambit
of Scale A. The applicant was to pay the costs
of the application on
the party and party scale, Scale B.
Order
[32] In the
result, the following order was made:
1.
The application is dismissed for want of
compliance with the requirements of section 346 of the Companies Act
61 of 1973.
2.
The applicant is to pay the costs of the
application, on the party and party scale, Scale B.
REDDY J
JUDGE OF THE HIGH
COURT, SOUTH AFRICA,
NORTH WEST DIVISION
Appearances
For the
Applicant:
Advocate B Riley
Instructed
by:
Modiboa Attorneys Inc, Klerksdorp c/o Mahikeng
For the First
Respondent: Advocate MG Hitge
Instructed by:
Imraan Kaka Attorneys c/o Nienaber & Wissing Attorneys, Mahikeng
[1]
Schedule 5 to the
Companies Act 71 of 2008
provides that despite the
repeal of the Companies Act 71 of 1973 Chapter XIV of the 1973
Act continues to apply to the
winding -up and the liquidation of
insolvent companies until a date to be determined by the Minister,
read with section 66(1)
of the Close Corporations 69 of 1984. These
provisions apply
mutatis
mutandis
to liquidation of close corporations unable to pay their
debts.
[2]
Section
66(1)
of the
Close Corporations Act 69 of 1984
applies Chapter XIV
of the Companies Act 61 of 1973 mutatis mutandis to the winding-up
of a close corporation unable to pay its
debts.
[3]
Section
346(3) of the Companies Act 61 of 1973.
[4]
Section
346(4A) (a) and (b) of the Companies Act 61 of 1973.
[5]
Lephalale
Local Municipality v Nanza Amamiya Ndlovu Joined Venture
[2022] ZALMPPHC 28 paras [13] and [16] ;
Minister
of Land Affairs and Agriculture and Others v D & F Wevell Trust
and Others
2008 (2) SA 184
(SCA) at 200.
[6]
Christie's
Law of Contract in South Africa 7th ed at 299, citing
BHT
Water Treatment (Pty) Ltd v Leslie
[1993] 3 ALL SA 126
at 129.
[7]
Section
69(1)(a)
of the
Close Corporations Act 69 of 1984
.
[8]
Coetzee
N.O. v Solar Africa Energy (Pty) Ltd
[2025]
ZAGPPHC 929 para 64
.
[9]
Badenhorst
v Northern Construction Enterprises (Pty) Ltd
1956 (2) SA 346
(T) NNHJ at 347H.