Bees Winkel (Pty) Ltd v Mkhulu Tshukudu Holdings (Pty) Ltd (UM252/2020) [2021] ZANWHC 13 (4 March 2021)

Bees Winkel (Pty) Ltd v Mkhulu Tshukudu Holdings (Pty) Ltd (UM252/2020) [2021] ZANWHC 13 (4 March 2021)

The court found that the applicant failed to comply with the peremptory requirements of section 346(4A) of the Companies Act 61 of 1973. The affidavit filed by Agenbag was not deposed to by the person who physically effected service on SARS, employees, or trade unions. The returns of service indicated non-service on employees and trade unions, and no alternative methods of service were attempted. The authorities are clear that only the person who effected service can depose to the required affidavit, and that compliance is mandatory except in cases of extreme urgency, which was not present here. The applicant had ample time to remedy the non-compliance but failed to do so. Consequently,...

Citation
[2021] ZANWHC 13
Parties
Applicant: Bees Winkel (Pty) Ltd; Respondent: Mkhulu Tshukudu Holdings (Pty) Ltd
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
4 March 2021
Case Number
UM252/2020
Procedural Posture
Urgent Application / Opposed Application for Urgent Provisional Winding Up; Point in Limine Raised and Adjudicated
Outcome
Application removed from the roll due to non-compliance with section 346(4A)(b) of the Companies Act 61 of 1973. Applicant directed to file proper affidavits before re-enrolment. Applicant to pay costs of opposing the point in limine.
Judges
Petersen
Legal Topics
Provisional Liquidation, Service of Process, Companies Act 1973, Affidavit Requirements, Urgent Applications
Civil Procedure Commercial and Corporate Provisional Liquidation Service of Process Companies Act 1973 Affidavit Requirements Urgent Applications

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Parties

Bees Winkel (Pty) Ltd

Applicant

Mkhulu Tshukudu Holdings (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Opposed Application for Urgent Provisional Winding Up; Point in Limine Raised and Adjudicated

Legal Issues

  1. 1 Whether the applicant complied with section 346(4A) of the Companies Act 61 of 1973 regarding service of the application on SARS, employees, and trade unions.
  2. 2 Whether an affidavit by the person who effected service was properly filed as required by section 346(4A)(b).
  3. 3 Whether non-compliance with section 346(4A) can be condoned in the circumstances of this urgent application.

Ratio Decidendi

The court found that the applicant failed to comply with the peremptory requirements of section 346(4A) of the Companies Act 61 of 1973. The affidavit filed by Agenbag was not deposed to by the person who physically effected service on SARS, employees, or trade unions. The returns of service indicated non-service on employees and trade unions, and no alternative methods of service were attempted. The authorities are clear that only the person who effected service can depose to the required affidavit, and that compliance is mandatory except in cases of extreme urgency, which was not present here. The applicant had ample time to remedy the non-compliance but failed to do so. Consequently,...

Court Disposition

Application removed from the roll due to non-compliance with section 346(4A)(b) of the Companies Act 61 of 1973. Applicant directed to file proper affidavits before re-enrolment. Applicant to pay costs of opposing the point in limine.

Orders

  • The application is removed from the roll.
  • The applicant is directed to file an affidavit or affidavits in compliance with section 346A(4)(b) of the Companies Act 61 of 1973 before re-enrolling the matter on the Opposed Roll.