Barnard N.O and Another v Dikopane Project Management CC (M 112/2023; M 113/2023) [2024] ZANWHC 87 (25 March 2024)

Barnard N.O and Another v Dikopane Project Management CC (M 112/2023; M 113/2023) [2024] ZANWHC 87 (25 March 2024)

The court found that the applicants failed to comply with the peremptory requirements of section 346(4A) of the Companies Act 61 of 1973. The affidavit filed by the applicants was not deposed to by the person who physically effected service on the employees, trade unions, or SARS, but rather by a candidate attorney relying on returns of service. Prevailing authority requires that the person who actually furnished the application must depose to the affidavit, and failure to do so is fatal to applications for final winding-up. The court distinguished between provisional and final winding-up orders, noting that while non-compliance may be condoned in exceptional circumstances for provisional...

Citation
[2024] ZANWHC 87
Parties
Applicant: Jacolien Frieda Barnard N.O; Applicant: Ignatius Abraham Temane N.O; Respondent: Dikopane Project Management CC
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
25 March 2024
Case Number
M 112/2023; M 113/2023
Procedural Posture
Civil Application / Hearing and Judgment
Outcome
Application for final winding-up removed from the roll due to non-compliance with section 346(4A) of the Companies Act. Related application postponed sine die. Wasted costs to be costs in the application.
Judges
R D Hendricks
Legal Topics
Winding Up, Service of Process, Companies Act Compliance, Affidavit Requirements
Commercial and Corporate Civil Procedure Winding Up Service of Process Companies Act Compliance Affidavit Requirements

Case Brief

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Parties

Jacolien Frieda Barnard N.O

Applicant

Ignatius Abraham Temane N.O

Applicant

Dikopane Project Management CC

Respondent

Procedural Posture

Civil Application / Hearing and Judgment

Legal Issues

  1. 1 Whether the applicants complied with the peremptory requirements of section 346(4A) of the Companies Act 61 of 1973 regarding service of the application on employees, trade unions, and SARS.
  2. 2 Whether the absence of affidavits from the persons who physically effected service is fatal to the application for final winding-up.
  3. 3 Whether the court may condone non-compliance with section 346(4A)(b) in applications for final winding-up.

Ratio Decidendi

The court found that the applicants failed to comply with the peremptory requirements of section 346(4A) of the Companies Act 61 of 1973. The affidavit filed by the applicants was not deposed to by the person who physically effected service on the employees, trade unions, or SARS, but rather by a candidate attorney relying on returns of service. Prevailing authority requires that the person who actually furnished the application must depose to the affidavit, and failure to do so is fatal to applications for final winding-up. The court distinguished between provisional and final winding-up orders, noting that while non-compliance may be condoned in exceptional circumstances for provisional...

Court Disposition

Application for final winding-up removed from the roll due to non-compliance with section 346(4A) of the Companies Act. Related application postponed sine die. Wasted costs to be costs in the application.

Orders

  • The application in case number M112/2023 is removed from the roll.
  • The application in case number M113/2023 is postponed sine die.