IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025-074701
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
In the matter between:
GARY DONOVAN WALLACE N.O.
MOTIMELE MABATHO SHIRLEY N.O.
and
RENEWONLINE (PTY) LTD
JUDGMENT
First Plaintiff
Second Plaintiff
Defendant
Summary: Application for summary judgment - section 341 (2) of the Companies Act
61 of 1973 - whether payments made after the commencement of the winding-up
constituted dispositions of the company's property - true disponee - agent or conduit
defence - validation discretion confined - effect of Blue Label Distribution (Pty) Ltd v
St Clair Cooper N.O. and Others [2026] ZASCA 61 - summary judgment granted in
(Claim B), with leave to defend (Claim A).
DE BEERAJ
Introduction
[1] This is an opposed application for summary judgment instituted by the
plaintiffs, the joint liquidators of Post Desk (Pty) Ltd (in liquidation), against the
defendant, RenewOnline (Pty) Ltd, for repayment of two sums constituting
void dispositions in terms of section 341 (2) of the Companies Act, 61 of 1973
("the Act"). In terms of Claim A, the plaintiffs seek repayment in the amount of
R232 355.90, and Claim B in the amount of R127 235.60, together with
interest and costs.
[2] The matter was heard in the opposed motion Court and allocated for Monday,
27 July 2026. Counsel for the plaintiffs referred the Court to a recent decision
of the Supreme Court of Appeal ("the SCA") in the Blue Label matter.1 The
heads of argument then before me referred only to the judgment of the court
a quo in that matter.2 During argument, mention was also made of an
agreement concluded between the defendant and the company in liquidation.
[3] At my request, the agreement was uploaded to ascertain whether it should be
considered as part of the judgment. The court heard full argument. I issued a
directive providing the parties an opportunity to supplement their then-existing
heads of argument in light of the SCA judgment referred to above, and, if
relevant, the agreement so produced. The directive indicated that, if the
parties so choose, they should file such supplementary heads on or before 17
August 2026. Judgment was reserved.
[4] [4] Both parties availed themselves of that opportunity and filed supplementary
heads of argument. I am indebted to both legal representatives for their
assistance to the Court.
[5] The plaintiffs' case, as pleaded and as elaborated in the affidavit filed in
support of the application, is that Post Desk made the payments in issue to
RenewOnline after the commencement of its winding-up, as determined
retrospectively in terms of section 348 of the Act, and that such payments are
accordingly void unless the Court otherwise orders.
accordingly void unless the Court otherwise orders.
1 Blue Label Distribution (Pty) Ltd v St Clair Cooper N. 0. and Others ( 1105/2024) [2026] ZASCA 61
{29 April 2026) ("Blue Laber).
2 Cooper N.O. and Others v Blue Label Distribution (Pty) Ltd 2024 JDR 2878 (GJ).
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[6] [6] RenewOnline resisted summary judgment on two grounds:
[6.1.] It contended that the payments were never dispositions of Post Desk's
own property, as Post Desk acted merely as its sub-agent, collecting
statutory licence fees, delivery fees and administrative fees from
registered vehicle owners for onward transmission to RenewOnline,
which in turn paid the relevant licensing authorities and couriers.
[6.2.] In the alternative, it contended that even if the payments constitute
dispositions, the Court should exercise its discretion under section
341(2), read with section 340(1), to validate them. In its
supplementary heads, RenewOnline no longer advances any defence
to Claim B. I will address that concession hereunder.
The factual matrix/common cause facts
[7] The following facts are either common cause or not genuinely disputed on the
papers. Post Desk was placed under provisional winding-up on 25 March 2024
and finally wound up on 28 March 2025. In terms of section 348 of the Act, the
winding-up is deemed to have commenced on 27 November 2023, the date
on which the application for Post Desk's winding-up was presented to this
Court under case number 2023-123698. The plaintiffs were appointed as joint
provisional liquidators on 4 June 2024, with their powers extended in terms of
section 386(5) of the Act on 21 June 2024 and took operational control of Post
Desk's two retail outlets at Sinoville and Zambezi on 24 June 2024. Those
outlets were closed on 30 July 2024.
[8] [8] Claim A comprises fifteen payments totalling R232 355.90, made from Post
Desk's Standard Bank current account (no. 203061969) to RenewOnline
between 27 November 2023 and 24 March 2024, that is, after the deemed
commencement of the winding-up but before the grant of the provisional order.
[9] Claim B comprises thirteen payments totalling R127 235.60 made from the
same account between 25 March 2024 and 24 June 2024 - that is, after the
grant of the provisional order but before the liquidators assumed control. It is
grant of the provisional order but before the liquidators assumed control. It is
recorded in the affidavit in support of the application that the final payment,
made on 24 June 2024, was not made by the liquidators or on their
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instruction.3
[1 O] The Standard Bank statements annexed to the founding affidavit show that
the account from which the payments were made was an ordinary business
current account in Post Desk's name, into which customer receipts, salary
payments, supplier payments, bank charges, insurance premiums and the
payments to RenewOnline were all processed indiscriminately. There is no
evidence that Post Desk maintained any separate or ring-fenced account for
customer receipts destined for RenewOnline.
[11] RenewOnline's defence, as pleaded in its amended plea and elaborated in the
affidavit resisting summary judgment, is that it operates as an appointed agent
of various local and provincial licensing authorities, and that Post Desk acted
as its sub-agent.4 On this version, registered vehicle owners paid Post Desk,
upfront, a statutory licensing fee, a delivery fee and an administrative fee; Post
Desk deposited those receipts with RenewOnline; and RenewOnline, in turn,
applied for the licences, paid the licensing authorities, arranged courier
delivery, and retained an administrative fee for its trouble. RenewOnline
received and retained an administrative fee in respect of the transactions
concluded through Post Desk. 5
[12] RenewOnline received each of the payments comprising Claim A and Claim
B, and that each was made after the deemed commencement of the winding
up.6 The dispute concerns the legal character of those payments.
The Agent Agreement
[13] At my request, the written Agent Agreement concluded between Post Desk
and RenewOnline ("the agreement") was uploaded to CaseLines and forms
part of the record.7 It is dated 11 August 2023, and was concluded between
Post Desk, described as "the Agent", represented by Ms Anna-Marie Nel and
Mr Johan Nel, and RenewOnline, described as "the Principal", represented by
3 Para 26 of the affidavit in support of the request for summary judgment, Caselines p 027-8.
3 Para 26 of the affidavit in support of the request for summary judgment, Caselines p 027-8.
4 Paras 2.1 to 2.9 of the affidavit resisting summary judgment, Caselines pp 011-3 to 011-4, read with
para 6.3 of the amended plea.
5 Paras 2.8 and 3.6 of the affidavit resisting summary judgment, Caselines pp 011-4 and 011-5.
6 Para 8.1 of the affidavit resisting summary judgment, Caselines p 011-8, read with para 5.2 of the
amended plea.
7 Caselines section 011 B, pocket 1, pp 011 B-1 to 011 B-6.
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Mr Engels.
[14] [14] Its material terms are, inter alia, as follows: RenewOnline is described as
a motor vehicle licence renewal company that provides licence renewal
services on behalf of customers ( clause 1.1 ). It appoints agents to take orders
and collect the monies payable by customers for the issue of licences ( clause
1.5). The agent is responsible for collecting the funds due from its client before
submitting a transaction ( clause 2.4 ), and "is responsible for the payment of
the debt incurred by vehicle licence renewals" ( clause 4.4 ). RenewOnline
provides the agent with a statement or invoice once a renewal has been
successfully processed (clause 4.5); the agent must pay the amount shown
on that invoice within 48 hours ( clause 4.6); accounts must be settled in full
before licence renewals are released and delivered (clause 4.8); and
RenewOnline reserves the right to block the agent's account if the agent fails
to pay, and to inform the customer where a licence disc is not processed
because of the agent's non-payment (clauses 4.9 and 4.11 ). The agent is
entitled to a commission of R125.00 for every licence issued (clause 3.3), and
is liable to pay R110.00 to RenewOnline over and above the licence fee and
the agent's commission ( clause 3.4 ). Where a renewal has been paid for, no
refund may be made, and it remains "at the sole discretion of the Agent"
whether to refund a customer (clause 2.12). The provision for a deposit to
create credit on account (clause 3.5) is marked "N/A".
[15] The agreement contains no provision requiring Post Desk to hold customer
monies in a separate or ring-fenced account pending remittance to
RenewOnline, nor does it indicate that such funds were intended to remain
the property of the customers, or that of RenewOnline, pending remittance.
Clauses 1.2 and 1.3 record that RenewOnline "is in no way affiliated to any
provincial or local government department and does not in any way act as an
provincial or local government department and does not in any way act as an
agent for any such department", and that it "does not receive any payment
from any provincial or local government department". The contention that
RenewOnline "owns licenses and agreements enabling it to operate as agent
for various local and provincial government departments" and "acts as an
appointed agent for and on behalf of these local and provincial government
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licensing departments'f3 cannot be confirmed under the agreement.
[16] The plaintiffs refer to that discrepancy in their supplementary heads.9 They
submit that the terms of the agreement establish that RenewOnline was never
authorised to act as the licensing authority's agent, that the only contractual
nexus was between Post Desk and RenewOnline, that the relationship so
created was one of debtor and creditor, and that the agency or conduit defence
is thereby dispelled.
[17] Whichever way that discrepancy may ultimately be resolved, the Agent
Agreement does not take the matter any further than the common cause facts
already set out above. On the question whether the payments were
dispositions of Post Desk's property, the conclusion I reach below rests on the
undisputed character of the account out of which the payments were made
and on the benefit which RenewOnline derived from receiving them; neither of
those matters depends on the agreement. The agreement is silent as to
everything on which the exercise of that discretion turns. The agreement
confirms the commission-based character of the arrangement between the
parties, and it is not consistent with the existence of any ring-fencing. Still, it
does not alter the analysis that follows. I have, nonetheless, had regard to its
contents as part of the reasoning in this judgment, as I indicated at the hearing
that I would.
The judgment of the Supreme Court of Appeal in Blue Label
[18] In Blue Label, the SCA dismissed an appeal against the judgment of the
Gauteng Division, Johannesburg, on which the plaintiffs had relied in their
original heads of argument. The facts were materially similar to those in the
present matter: the liquidators of Cape Basic Products (Pty) Ltd ("CBP")
sought to recover eight payments made by CBP to Blue Label, its distributor,
after CB P's provisional liquidation. Blue Label resisted repayment on the basis
that it was a mere collecting agent or conduit for third-party suppliers, and that
that it was a mere collecting agent or conduit for third-party suppliers, and that
CB P's estate had in any event not been diminished by the payments.
8 Paras 2.1 and 2.3 of the affidavit resisting summary judgment, Caselines p 011-3; and see para
6.3.2 of the amended plea, Caselines p 031-9.
9 Paras 31 to 38 of the plaintiffs' supplementary heads of argument.
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[19] The propositions confirmed by the SCA bear directly on this application. They
are the following:
[19.1.] A disposition made after the commencement of the winding-up is void
ex lege ab initio nullity is the default position and validation the
exception; and the recipient acquires no right to retain the funds but
incurs an immediate restitutionary obligation upon receipt, irrespective
of any counter-performance or subsequent events.10
[19.2.] Once a provisional winding-up order has been granted, all the
property of the company is, in terms of section 361 (1) of the Act, in
the custody and under the control of the Master until a provisional
liquidator has been appointed and assumed office; the company is
incapable of giving effect to any prior contractual arrangement, such
arrangements having been suspended by the order; and dispositions
made after the grant of the provisional order cannot be validated by a
court.11 The validation discretion under the proviso to section 341(2)
is therefore available only in respect of payments made after
presentation of the winding-up application but before the grant of the
provisional order - the so-called twilight zone - and it is exercised
primarily by reference to the interests of the concursus creditorum.
[19.3.] "Disposition" bears the wide meaning assigned to it by section 2 of the
Insolvency Act and it is "of little, if any, significance to what extent the
payments diminished CBP's asset base, or to what extent its
diminished asset base was replenished".12
[19.4.] The enquiry into who the true disponee is turns on the contractual
nexus between the parties, whether there was privity between the
disponor and any third-party supplier, and whether the recipient in fact
benefited from the payment as opposed to acting as a genuine
conduit.13
10 Blue Label supra at paras 19 to 22; and see Eravin Construction CC v Bekker N.O. and Others
[2016] ZASCA 30; 2016 (6) SA 589 (SCA) at para 21.
11 Blue Label supra at paras 4 and 30.
[2016] ZASCA 30; 2016 (6) SA 589 (SCA) at para 21.
11 Blue Label supra at paras 4 and 30.
12 Blue Label supra at paras 16 to 18 and 23.
13 Blue Label supra at paras 25 to 27.
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[19.5.] Reliance on Van Wyk Van Heerden Attorneys v Gore N. 0. and
Another 2023 (1) SA 80 (SCA) is misplaced in this context; section
26(1)(b) of the Insolvency Act cannot be equated to section 341(2) of
the Act, and a commercial account does not accord with an attorney's
trust account.14
The supplementary submissions
[20] The plaintiffs submit that Blue Label is dispositive. Claim B is unassailable,
since the payments were made after the provisional order and can never be
validated. Claim A, although falling within the twilight zone, remains void by
default, and RenewOnline has neither brought a counter-application for
validation nor disclosed facts which would permit the discretion to be
exercised in its favour. The agreement destroys the conduit defence.15
[21] The defendant addressed the SCA judgment candidly. It accepts that, in the
light of paragraphs 3 to 5 and 30 of Blue Label, this Court has no discretion to
validate the Claim B payments, and it does not persist with any defence to
Claim B, without prejudice to its right to prove a concurrent claim for that
amount in Post Desk's insolvent estate.16 In respect of Claim A, it submits that
the payments fall squarely within the twilight zone and so remain capable of
validation; that whether validation would serve the concursus creditorum is an
inherently factual enquiry; that whether the funds were ring-fenced, and
whether Post Desk exercised any right of disposal over them for its own
account, are likewise disputed questions of fact; and that Blue Label itself,
having been decided only upon a full evidentiary record developed on motion,
demonstrates that these are not enquiries suited to summary determination.17
[22] I accept the test which the defendant contends.18 Summary judgment is no
longer the extraordinary remedy once described to be, but it remains a remedy
to be granted only where the plaintiff's claim is unanswerable, and the
defendant has failed to disclose a bona fide defence with reasonable
defendant has failed to disclose a bona fide defence with reasonable
14 Blue Label supra at paras 28 and 29.
15 Paras 10 to 15 and 33 to 41 of the plaintiffs' supplementary heads of argument.
16 Paras 6 to 8 and 21 .1 of the defendant's supplementary heads of argument.
17 Paras 9 to 20 of the defendant's supplementary heads of argument.
18 Maharaj v Barclays National Bank Ltd 1976 ( 1) SA 418 (A) at 426A-E; Joob Joob Investments (Pty)
Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at para 32.
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prospects of success. The question is not whether the defendant will succeed
at trial. Applying that test, I am satisfied that the two enquiries which arise in
this matter must be answered differently: the first is capable of resolution on
the common cause facts; the second is not.
Whether the payments constituted dispositions of Post Desk's property
[23] Section 341 (2) of the Act renders void "every disposition of its property" made
by a company being wound up and unable to pay its debts, after the
commencement of the winding-up, "unless the Court otherwise orders".
"Disposition" bears the wide meaning assigned to it in section 2 of the
Insolvency Act, namely any transfer or abandonment of rights to property,
including a payment.
[24] This Court recently had occasion to consider the argument advanced by
RenewOnline. In Blue Label, the SCA dismissed an appeal against a finding
that payments made by an insolvent retailer to its distributor, out of funds
deposited by the retailer's customers, constituted void dispositions of the
retailer's own property, notwithstanding the distributor's contention that it
acted merely as an intermediary or conduit for onward payment to suppliers.19
[25] The enquiry is who the true disponee is, and that depends on whether the
funds, once received, formed part of the paying company's own property -
which in turn depends on whether they were ring-fenced for a specific purpose,
or were instead deposited into a general account and commingled with the
company's other funds. Where funds are paid into a general account without
being ring-fenced, they become the property of the recipient company by
virtue of the principle of commixtio, and any subsequent payment out of that
account is a disposition of that company's own property, regardless of the
commercial arrangement which may have motivated the payment.20
[26] A party who receives such a disposition cannot escape liability by
characterising itself as a mere conduit or intermediary unless it derived no
characterising itself as a mere conduit or intermediary unless it derived no
benefit whatsoever from the payment. Where the recipient earns a fee or
19 Blue Label supra at paras 13 to 24.
2° Cooper supra at paras 39 to 42; and see De Villiers v Kaplan 1960 (4) SA 476 (C) at 478-479 and
Herrigel N.O. v Bon Roads Construction (Pty) Ltd 1980 (4) SA 669 (SWA) at 674.
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commission which depends upon its having received and applied the funds, it
has benefited from the payment and is the disponee, even if it ultimately pays
most of the money over to a third party.21
[27] Applying that reasoning to the present facts, RenewOnline's conduit defence
cannot succeed. Post Desk received the relevant customer monies into its
ordinary business current account, where they were commingled with its
general trading funds, salaries, supplier payments and bank charges. Based
on the authority of Blue Label, those funds became Post Desk's own property
upon receipt, and the subsequent payments to RenewOnline were, in each
instance, dispositions of Post Desk's own property within the meaning of
section 341 (2).
[28] The defendant's answer, developed in its supplementary heads, is that
whether the receiving accounts were undifferentiated general trading accounts
is disputed, upon which no evidence has been placed before the Court, and
which requires discovery of Post Desk's banking records.22 In this regard, the
following:
[28.1.] The contention is not supported by any allegation of fact on affidavit.
Uniform Rule 32(3)(b) requires a defendant to satisfy the Court by
affidavit disclosing fully the nature and grounds of the defence and the
material facts relied upon. Its affidavit does not allege that Post Desk
held customer receipts in a separate or dedicated account, or that any
ring-fencing arrangement existed. It asserts a legal conclusion - that
the money "belonged to" the customers - without disclosing the facts
from which that conclusion is said to follow. A bare assertion of a legal
characterisation is not a disclosure of material facts.
[28.2.] Evidence has in fact been placed before the Court. The bank
statements annexed to the affidavit in support of the application, in
respect of the account from which the payments in issue were made,
show an ordinary business current account through which Post Desk's
show an ordinary business current account through which Post Desk's
trading activity was conducted.23 The defendant admits receipt of the
21 Cooper supra at paras 42 and 44; Blue Label supra at paras 25 to 27 and 31.
22 Paras 14 to 17 of the defendant's supplementary heads of argument.
23 Annexure "E" to the affidavit in support of the request for summary judgment.
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payments and that they emanated from that account. No discovery on
this aspect is necessitated, which is not already before Court.
[28.3.] The agreement contains no ring-fencing provision of any kind, and
records that Post Desk was itself ''responsible for the payment of the
debt incurred by vehicle licence renewals", was invoiced by
RenewOnline for those renewals, was obliged to settle those invoices
within 48 hours, failing which its account could be blocked, and
enjoyed sole discretion whether or not to refund a customer.24 Those
are the incidents of a debtor-creditor relationship, not of a trust or of
an agency in which the funds remain the property of another. The
agreement does not take the matter further; but it certainly does not
support the ring-fencing contention advanced.
[28.4.] The SCA held in Blue Label that it is of little significance to what extent
the payments diminished the paying company's asset base, orto what
extent that base was replenished.25 What cannot be disputed is that
the payments were made by Post Desk, out of Post Desk's account
after the institution of liquidation proceedings and while it was being
wound up.
[29] RenewOnline cannot contend that it was a mere conduit. It is common cause
that it received an administrative fee in respect of every transaction concluded
through Post Desk, and the Agent Agreement fixes that fee at R110.00 per
licence. On its own version, it exercised sole control over the funds once
received - applying them, at its own election, to licensing authorities and
couriers in the ordinary course of its business - and derived a direct
commercial benefit from having done so. The recipient who says it benefited
only from its commission advances an argument in sophistry: without the
payment, there would be no commission and no benefit.26 That is
indistinguishable from the legal position confirmed in Blue Label, and the
defence must fail for the same reasons.
defence must fail for the same reasons.
[30] The suggestion, in paragraph 4.2 of the opposing affidavit, that the plaintiffs
24 Clauses 2.12, 4.4, 4.5, 4.6, 4.8 and 4.9 of the Agent Agreement, Caselines pp 011 B-3 to 011 B-5.
25 Blue Label supra at para 23.
26 Cooper supra at para 44.
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accepted at a creditors' meeting that the funds were in fact paid over to the
authorities and couriers does not assist the defendant.27 Even taken at its
highest, and assuming such an acceptance to have been made, what
RenewOnline did with the funds after it received them is, on the authority of
Blue Label, irrelevant to whether their receipt constituted a disposition of Post
Desk's property.
[31] It follows that the payments comprising both Claim A and Claim B constitute
dispositions of Post Desk's property, made after the commencement of its
winding-up, and are void unless validated by this Court.
Claim B: payments made after the provisional winding-up order
[32] The payments comprising Claim B were made between 25 March 2024, the
date of the provisional winding-up order, and 24 June 2024, the date on which
the liquidators assumed operational control. It is now settled that the proviso
to section 341 (2), which confers on a court a discretion to validate an
otherwise void disposition, is available only in respect of dispositions made in
the twilight period between the presentation of the winding-up application and
the grant of a provisional order. Once a provisional order has been granted,
all the property of the company is, by operation of section 361 (1) of the Act,
deemed to be in the custody and under the control of the Master, and
dispositions made thereafter cannot be validated by a court.28
[33] Having reconsidered its position in light of Blue Label, the defendant, in its
supplementary heads, correctly accepts that this Court has no discretion to
validate the Claim B payments. It does not persist with any defence to Claim
B and does not oppose summary judgment in that respect. The concession is
made without prejudice to its right to prove a concurrent claim for that amount
in Post Desk's insolvent estate. That concession was proper. The defendant's
primary defence that the payments were not dispositions of Post Desk's
property would have failed in respect of Claim B.
property would have failed in respect of Claim B.
[34] The defendant's bona tides, the value it says it gave, and the absence of any
27 Para 4.2 of the affidavit resisting summary judgment, Caselines p 011-6.
28 Pride Milling Company (Pty) Ltd v Bekker N.O. and Another [2021] ZASCA 127; 2022 (2) SA 410
(SCA) at para 18; Blue Label supra at paras 4 and 5.
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intention to prefer a creditor are all, on the authorities, irrelevant to a
disposition made after the grant of a provisional order. The general body of
creditors of Post Desk suffered the loss of that amount from the insolvent
estate the moment it was disposed of. RenewOnline received full payment,
while Post Desk's other creditors must now prove their claims and share in a
dividend under section 341 (2). RenewOnline is entitled ex lege to prove a
claim in the estate in the ordinary course.
[35] Summary judgment must accordingly be granted in respect of Claim B.
Claim A: payments made between institution and provisional winding-up
[36] The position in respect of Claim A is different. Those payments were made
between 27 November 2023, the deemed date of commencement of the
winding-up, and 24 March 2024, the day before the grant of the provisional
order - that is, within the so-called twilight period recognised in Pride Milling
and confirmed in Blue Label.29 In respect of dispositions made during that
period, a court retains a discretion under section 341 (2) to "otherwise order",
that is, to validate the disposition.
[37] That discretion should not be lightly exercised. It falls to be exercised having
regard to the underlying purpose of section 341 (2), which is to protect the
interests of the concursus creditorum as a whole, and a court must guard
against a result that would undermine that purpose by, in effect, preferring one
creditor over the general body.30 Relevant considerations include the bona
tides of the recipient, whether value was given, whether the disposition was
made in the ordinary course of business, and whether validating the
disposition would benefit or prejudice the general body of creditors. The SCA
noted in Blue Label that factors such as bona tides, honest intentions and
prejudice to the defendant have largely been subsumed by the question
whether the disposition would benefit the collective interest of the concursus
whether the disposition would benefit the collective interest of the concursus
creditorum.31 They are not, however, irrelevant.
[38] RenewOnline has pleaded, in its amended plea and in the affidavit resisting
29 Pride Milling supra at paras 18 to 20; Blue Label supra at para 4.
30 Rosseau en Andere v Malan en 'n Ander 1989 (2) SA 451 (C) at 459; Pride Milling supra at paras
25 and 31 .
31 Blue Label supra at para 4 and fn 5 thereto.
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summary judgment, that the Claim A payments were made for full value, in
the ordinary course of an established arrangement, without any knowledge of
the pending winding-up application, and without any intention to prefer itself
over other creditors.32 In its supplementary heads it develops the contention
that the funds were substantially applied in discharging the licence fees and
delivery costs for which they were paid, for the benefit of identified customers,
and that the payments preferred it over other creditors only as an incident of
the ordinary and continued discharge of services pending the outcome of the
winding-up application.33 Those averments, if established, are capable of
seeking relief that the Court exercise the section 341 (2) discretion in
RenewOnline's favour.
[39) The plaintiffs point out that RenewOnline has not brought a formal counter
application for validation, and rely on that omission as disposing of the point.34
I do not consider that to be decisive at this stage. A request that the Court
"otherwise order" under section 341 (2) may properly be raised by way of
defence in a plea, provided the material facts and grounds are disclosed with
sufficient particularity to enable the Court to assess it.35 RenewOnline has
disclosed such facts and grounds in its amended plea,
[40) The exercise of the discretion cannot be undertaken on the papers before me.
There is no evidence as to the likely dividend, if any, payable to Post Desk's
concurrent creditors; as to the extent to which the general body of creditors
would be prejudiced, or benefited, by validation; as to what was in truth done
with the Claim A funds and what, if anything, Post Desk's estate received in
return; or as to whether RenewOnline in truth had no knowledge, actual or
constructive, of the pending winding-up application when the Claim A
payments were received. Those are matters that should properly be resolved
after the hearing of evidence. I am mindful of the caution expressed in
after the hearing of evidence. I am mindful of the caution expressed in
Rosseau that the discretion to validate an otherwise void disposition ought not
readily to be exercised.36
[41) Leave to defend is limited to the exercise of discretion under Rule 32(3). The
32 Paras 6.2, 6.4, 6.5 and 6.7 of the amended plea, Caselines pp 031-5 to 031-9.
33 Paras 12 and 13 of the defendant's supplementary heads of argument.
34 Para 38 of the plaintiffs' heads of argument dated 28 November 2025.
35 Herrigel N.O. v Bon Roads Construction (Pty) Ltd 1980 (4) SA 669 (SWA) at 678.
36 Rosseau supra at 459.
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trial court will in due course decide to exercise its discretion under section
341 (2), to validate the payments comprising Claim A.
[42] In these circumstances, the Court finds that RenewOnline has disclosed a
bona fide defence to Claim A, limited to the question whether the Court should
exercise its discretion under the proviso to section 341 (2), read with section
340(1 ), to validate the payments comprising that claim. Rule 32(3) and (5)
permit summary judgment to be granted on part of a claim, with leave to
defend on the balance, and that course is appropriate here. It also accords
with the alternative submission advanced by the plaintiffs in paragraph 42 of
their supplementary heads.
The insolvency of Post Desk
[43] RenewOnline further contends that the plaintiffs have failed to prove that Post
Desk was unable to pay its debts at the time the several payments were made,
and that the letter from Post Desk's accountant is inadequate proof of this.37 I
do not consider this to raise a triable issue independent of those already
identified. The provisional and final winding-up orders granted by this Court,
on the basis (among others) of section 344(f) read with section 345(1 )(a) and
(c) of the Act, already establish that Post Desk was unable to pay its debts as
at the date those orders were sought and granted. Renewonline has not
sought to impeach or overturn those orders. The defendant records in its
affidavit that the appointment of the liquidators and the liquidation order are
noted and not disputed.38 The papers do not suggest or raise a genuine
dispute as to Post Desk's inability to pay its debts during the relevant period
sufficient to resist summary judgment on either claim.
Costs
[44] The plaintiffs have succeeded in obtaining summary judgment on Claim B,
and in establishing, as a matter of law and on the common cause and
undisputed facts, that the payments comprising both claims were dispositions
of Post Desk's property. RenewOnline has, however, succeeded in resisting
of Post Desk's property. RenewOnline has, however, succeeded in resisting
37 Paras 7.2 and 7.3 of the affidavit resisting summary judgment, Caselines p 011-8; paras 25 and 26
of the defendant's heads of argument.
38 Para 1.8 of the affidavit resisting summary judgment, Caselines p 011-2.
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summary judgment on Claim A, albeit on a narrow basis.
[45] In the affidavit resisting summary judgment, the defendant sought a punitive
costs order, alternatively an order de bonis propriis against the plaintiffs'
attorney, on the footing that the application was pursued vexatiously in the
face of known facts. 39 I also refer to a judgment of this Court regarding the
requirement to provide notice before de bonis costs would be considered,
which notice requirement was not complied with.40 There is no basis for such
an order. The plaintiffs were substantially correct in their principal contention;
they have succeeded on Claim B, and the manner in which the application
was prosecuted and conducted was proper. That relief is refused.
[46] [46] The matter involves intricate issues and turns on the SCA authorities
relied upon. In these circumstances, the High Court tariff scale of costs is
appropriate, regardless of the quantum. Accordingly, the plaintiffs should be
awarded the costs of the application insofar as they relate to Claim B on the
High Court tariff, and the costs of the application insofar as they relate to Claim
A should be costs in the cause of the action. In accordance with Uniform Rule
67A(3), I direct that the costs awarded to the plaintiffs be taxed on scale B.
Order
[47] The following order is granted:
1. Summary judgment is granted in favour of the plaintiffs against the
defendant in respect of Claim B, in the amount of R127 235.60,
together with interest thereon at the rate of 10.25% per annum from 3
April 2025 to date of final payment.
2. The defendant is granted leave to defend the action in respect of
Claim A, on the question whether the payments comprising Claim A
should be validated by this Court in terms of section 341 (2), read with
39 Para 10.7 of the affidavit resisting summary judgment, Caselines p 011-10, read with the prayer at
the foot of that page and with para 4.6 thereof at Caselines p 011-6, where a punitive costs order
alone is sought. No such relief is sought in the defendant's heads of argument: the prayer in para
34 of the original heads, persisted with in para 22 of the supplementary heads, is confined to
dismissal of the application, leave to defend and costs.
40 Nethavhani v Nuwe SA Eiendomme en Verhuring CC and Others (2023] ZAGPPHC 2150;
20709/2022 (23 May 2023).
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section 340(1 ), of the Companies Act 61 of 1973.
3. To the extent that it may be necessary, the defendant is to deliver any
further pleading required to place the validation issue in Claim A
before the trial court, within 20 (twenty) days of the date of this order.
4. The plaintiffs' costs of the application, insofar as they relate to Claim
B, are to be paid by the defendant, such costs to be taxed on the High
Court tariff scale B.
5. The costs of the application, insofar as they relate to Claim A, are to
be costs in the cause.
Date of hearing:
Supplementary heads filed:
Judgment delivered:
Counsel for the plaintiffs:
Attorneys for the plaintiffs:
For the defendant:
Attorneys for the defendant:
27 July 2026
17 August 2026
1 0 September 2026
J DE BEER
Acting Judge of the High Court
Gauteng Division
This judgment was handed down electronically,
circulated to the parties' legal representatives, and
released on Caselines.
Adv E Ward (Group 33 Advocates)
Fernandes Attorneys
Mr S Bester
Steve Bester Attorneys
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