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Phahlamohlaka J
Introduction
[1] This is an application for the provisional winding-up of the Respondent, Alt Ener
Pro (Pty) Ltd, in terms of section 344(f) of the Companies Act 61 of 1973, read with
Item 9 of Schedule 5 to the Companies Act 71 of 2008, on the basis that the
Respondent is unable to pay its debts as they fall due.
[2] The application is opposed by the Respondent.
Factual Background
[3] The Applicant supplied goods and services to the Respondent, culminating in
the conclusion of a written Memorandum of Agreement (MOA) on 12 December 2024,
in terms of which the Respondent acknowledged its indebtedness in the capital sum
of R4 754 530.23, to be paid by instalments.
[4] The Respondent defaulted on the July and August 2025 instalments. The
Applicant invoked the acceleration clause, thereby making the full outstanding amount
immediately due and payable.
[5] A statutory demand in terms of section 345(1)(a) of the Companies Act 61 of
1973 was served on the Respondent on 28 August 2025. No payment, security, or
compromise was forthcoming within the prescribed period.
[6] The Respondent opposes the application, alleging , among others, that the
goods supplied were defective and that it has a counterclaim for damages.
Legal Position
[7] Section 344(f) of the Companies Act 61 of 1973 provides that a company may
be wound up by the court if it is unable to pay its debts.
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[8] Section 345(1)(a) sets out the circumstances in which a company is deemed
unable to pay its debts, including failure to pay a debt after statutory demand.
[9] Section 346(1)(b) entitles a creditor to bring a winding-up application.
[10] Section 347(1) gives the court discretion to grant, dismiss, or adjourn the
application, or make any interim order it deems just.
Evaluation
[11] The principles governing liquidation proceedings are well established. Winding-
up proceedings are not to be used to enforce payment of a debt that is bona fide
disputed on reasonable grounds. If such a dispute exists, the application should be
refused.1
[12] In resisting the application , the respondent contended that the applicant
resorted to the liquidation proceedings in lieu of issuing summons regarding the
disputed debt.
[13] The Respondent further contended that most, if not all, of the products delivered
by the applicant are defective, not fit for purpose, and fraught with latent defects. As a
result of those defects, the Respondent contends that it incurred penalties in the
amount of R1 500 000.00, and that its client is refusing to release retention monies to
the Respondent in the approximate amount of R1 000 000.00.
[14] From the answering affidavit and the submissions of counsel for the
Respondent, it is clear that the Respondent does not dispute indebtedness to the
Applicant. Instead, the Respondent disputes part of the debt. This was conceded by
counsel for the Respondent in an answer to the court’s question. That being so, the
Respondent is unable to show the amount of its indebtedness to the Applicant.
1 Badenhorst v Northern Construction Enterprises (Pty) Ltd 1956 (2) SA 346 (T).
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[15] Having said that, I am alive to the fact that the existence of a counterclaim or
unliquidated claim does not necessarily defeat a winding -up application unless it is
bona fide and reasonable.
[16] In Afgri Operations Ltd v Hamba Fleet (Pty) Ltd,2 the Supreme Court of Appeal
confirmed that the mere existence of a counterclaim does not, in itself, defeat a
winding-up application. The court stated:
“[13] As mentioned above, mere recourse to a counterclaim will not, in itself, enable a
respondent successfully to resist an application for its winding -up. Moreover, as set
out above, the discretion to refuse a winding-up order where it is common cause that
the respondent has not paid an admitted debt is, notwithstanding a counterclaim, a
narrow and not a broad one. In these respects the court a quo applied ‘the wrong
principle[s]’. There must be no room for any misunderstanding: the onus is not
discharged by the respondent merely by claiming the existence of a counterclaim. The
principle of which the court a quo lost sight of are: (a) as set out in Badenhorst and
Kalil, once respondent’s indebtedness has prima facie been established, the onus is
on it to show that this indebtedness is disputed on bona fide and reasonable grounds
and (b) the discretion of a court not to grant a winding-up order upon application of an
unpaid creditor is narrow and not wide.”
[17] Although the Respondent issued summons in respect of its alleged
counterclaim, the amount claimed is not clear from the particulars of claim. According
to the Respondent’s particulars of claim , the Respondent is seeking payment of the
sum of R700 000.00 in claim A and “an order declaring that the capital sum of
R4 754 530.23 acknowledged in the Memorandum of Agreement concluded between
the parties on 12 December 2024 is reduced by the amount so determined”.
[18] The Applicant has established the jurisdictional requirements for a provisional
[18] The Applicant has established the jurisdictional requirements for a provisional
winding-up order. The Respondent has failed to raise a bona fide dispute on
reasonable grounds. Its opposition is inconsistent with its prior written
acknowledgement of indebtedness and is unsupported by objective evidence. The
evidence demonstrates that the Respondent is unable to pay its debts as they fall due
2 Afgri Operations Ltd v Hamba Fleet (Pty) Ltd [2017] ZASCA 24; 2022 (1) SA 91 (SCA) at para 13.
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and is commercially insolvent within the meaning of section 344(f) of the Companies
Act 61 of 1973.
[19] In these proceedings , the Respondent's indebtedness is established by the
written MOA, which contains an unconditional acknowledg ement of debt and an
acceleration clause. The Respondent's defence of defective goods is therefore not
supported by contemporaneous documentation or expert evidence and was raised
only after the application was launched. Further, the Respondent continued to pay
instalments for several months after the alleged defects would have manifested,
undermining the genuineness of its defence.
[20] The applicant has not persisted with the just and equitable remedy. I am
therefore inclined to grant a provisional liquidation order.
Order
[21] In the result, I make the following order:
1. The Respondent is placed under provisional winding -up in the hands of the
Master of the High Court.
2. A rule nisi is issued calling upon all persons who have a legitimate interest to
put forward their reasons, if any, on 26 October 2026, why the court should not order
the final winding-up of the Respondent.
3. A copy of such provisional order is to be served on:
3.1 The Respondent, at its registered office;
3.2 The employees of the Respondent, if any;
3.3 Any trade union representing the employees of the Respondent, if any;
3.4 The South African Revenue Service; and
3.5 The Master of the High Court.
4. A copy of the provisional order is to be published forthwith once in the
Government Gazette.
5. A copy of such provisional order is to be published forthwith once in a national
English newspaper.
6. The costs of the application shall be costs in the liquidation.