FA Konstruksie CC v Mhonyini Trading Enterprize CC In re Asphaltic (Pty) Ltd v Mhonyini Trading Enterprize CC (3182/2021) [2022] ZAMPMBHC 59 (22 July 2022)

FA Konstruksie CC v Mhonyini Trading Enterprize CC In re Asphaltic (Pty) Ltd v Mhonyini Trading Enterprize CC (3182/2021) [2022] ZAMPMBHC 59 (22 July 2022)

The court found that section 347(5) of the Companies Act prohibits the granting of a final winding-up order where a provisional order is already in force. The final order obtained by FA Konstruksie CC was granted while the provisional order in Asphaltic's application was still pending, rendering the final order a nullity. The winding-up is deemed to have commenced on 17 February 2021, the date of Asphaltic's application. The court exercised its discretion under section 354(1) of the Companies Act to set aside the proceedings in FA's application, as the final order should not have been granted. FA's attempt to amend its notice of motion after a final order had been granted was procedurally...

Citation
[2022] ZAMPMBHC 59
Parties
Applicant: FA Konstruksie CC; Respondent: Mhonyini Trading Enterprise CC; Applicant: Asphaltic (Pty) Ltd
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
22 July 2022
Case Number
3182/2021
Procedural Posture
Liquidation Application / Final Winding Up and Setting Aside of Prior Order
Outcome
The proceedings under case number 3182/2021 are set aside. Mhonyini Trading Enterprise CC is finally wound up in the hands of the Master. Costs in respect of both applications are costs in the liquidation.
Judges
JH Roelofse
Legal Topics
Winding Up of Close Corporations, Setting Aside Orders, Creditor Intervention, Commencement of Liquidation
Commercial and Corporate Civil Procedure Winding Up of Close Corporations Setting Aside Orders Creditor Intervention Commencement of Liquidation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 4 Party arguments 2
Sign in to unlock

Parties

FA Konstruksie CC

Applicant

Mhonyini Trading Enterprise CC

Respondent

Asphaltic (Pty) Ltd

Applicant

Procedural Posture

Liquidation Application / Final Winding Up and Setting Aside of Prior Order

Legal Issues

  1. 1 Is it legally permissible for a close corporation to be subject to two simultaneous winding-up orders?
  2. 2 Does section 347(5) of the Companies Act bar the granting of a final winding-up order when a provisional order is pending?
  3. 3 What is the effective date of commencement of winding-up proceedings?

Ratio Decidendi

The court found that section 347(5) of the Companies Act prohibits the granting of a final winding-up order where a provisional order is already in force. The final order obtained by FA Konstruksie CC was granted while the provisional order in Asphaltic's application was still pending, rendering the final order a nullity. The winding-up is deemed to have commenced on 17 February 2021, the date of Asphaltic's application. The court exercised its discretion under section 354(1) of the Companies Act to set aside the proceedings in FA's application, as the final order should not have been granted. FA's attempt to amend its notice of motion after a final order had been granted was procedurally...

Court Disposition

The proceedings under case number 3182/2021 are set aside. Mhonyini Trading Enterprise CC is finally wound up in the hands of the Master. Costs in respect of both applications are costs in the liquidation.

Orders

  • The proceedings under case number 3182/2021 are hereby set aside.
  • Mhonyini Trading Enterprise CC is finally wound up in the hands of the Master.