Kenton on Sea Ratepayers Association and Others v Ndlambe Local Municipality and Others (1796/2011) [2016] ZAECGHC 86 (8 September 2016)
The court found that AN Gadi Property Investments (Pty) Ltd is hopelessly insolvent, as evidenced by the long-standing and unsatisfied judgment debt owed to Absa Bank, which has escalated over the years with no prospect of payment. The applicant's submissions did not raise any new or substantial grounds that would...
Source-derived case information.
- Citation
- [2016] ZAECGHC 86
- Parties
- Applicant: Benjamin Mzuvukile Mfazwe; Respondent: A.N. Gadi Property Investments (Pty) Ltd; Respondent: Absa Bank
- Court
- Eastern Cape High Court, Grahamstown
- Jurisdiction
- South Africa
- Case Number
- 1796/2011
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Confirmation of Provisional Winding Up Order
- Outcome
- Application for leave to appeal dismissed with costs, including costs of the condonation application.
- Judges
- C. Plasket
- Legal Topics
- Winding Up, Insolvency, Leave to Appeal, Judgment Debt
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Benjamin Mzuvukile Mfazwe
Applicant
A.N. Gadi Property Investments (Pty) Ltd
Respondent
Absa Bank
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Confirmation of Provisional Winding Up Order
Legal Issues
- 1 Whether there is merit in granting leave to appeal against the confirmation of the provisional winding-up order.
- 2 Whether AN Gadi Property Investments (Pty) Ltd is insolvent and unable to pay its debts.
- 3 Whether the application for condonation for late filing of the leave to appeal should be granted.
Ratio Decidendi
The court found that AN Gadi Property Investments (Pty) Ltd is hopelessly insolvent, as evidenced by the long-standing and unsatisfied judgment debt owed to Absa Bank, which has escalated over the years with no prospect of payment. The applicant's submissions did not raise any new or substantial grounds that would justify granting leave to appeal. The application for condonation was inadequately motivated and did not warrant consideration. Consequently, there is no merit in the application for leave to appeal, and it must be dismissed.
Court Disposition
Application for leave to appeal dismissed with costs, including costs of the condonation application.
Orders
- The application for leave to appeal is dismissed with costs, such costs to include the costs of the application for condonation.
Full Case Text
Judgment text and source record
34 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN
CASE NO: 1796/2011
DATE HEARD: 7/9/2016
DATE DELIVERED: 8/9/2016
NOT REPORTABLE
In the matter between:
BENJAMIN MZUVUKILE MFAZWE
APPLICANT
and
A.N. GADI PROPERTY INVESTMENTS
(PTY) LTD
RESPONDENT
ABSA BANK
INTERVENING CREDITOR
JUDGMENT
PLASKET J
[1] As I noted in the judgment against which leave to appeal is sought, this matter has ‘a long and troubled history’. It relates to a judgment, taken by Absa Bank against AN Gadi Property Investments (Pty) Ltd (AN Gadi) in the amount of R3 051 196,33
plus interest. That judgment, as I noted in my judgment, ‘remains unsatisfied despite Absa’s best efforts’. See Mfazwe v AN Gadi Property Investments (Pty) Ltd (Absa Bank as intervening creditor) ECG 8 September 2015 (case no 1796/11) unreported, para 1.
[2] In my judgment I confirmed the provisional winding up of AN Gadi. Leave to appeal is now sought by Mr. BM Mfazwe, who described himself in the papers as an employee and creditor of AN Gadi.
[3] Mr. Mfazwe brought what purports to be an application for condonation in respect of ‘the late application for the date of hearing the leave to appeal’. The less said about this document the better. I prefer to deal with the application for leave to appeal on its merits.
[4] The winding-up of AN Gadi was based on the fact that AN Gadi has not paid Absa what was due to it in terms of the judgment in Absa’s favour. In this regard, I said in paragraphs 28 to 30 of my judgment:
‘[28] The solvency of AN Gadi and the reasons for its chaotic, dysfunctional state have been dealt with in detail in the judgment of Sandi J when he granted the provisional winding-up order and of Pickering J in the appeal against Sandi J’s order. Little purpose would be served in rehashing in any detail what was said in those judgments.
[29] Suffice it to say that ABSA’s judgment debt remains unsatisfied and the prospect of AN Gadi paying it are non-existent. The closest that the company appears to have come to paying its debt was a suggestion, some years ago, that it would pay the interest, a proposal that, not surprisingly, was rejected by ABSA. When the counter-application was launched on 3 February 2012, the amount owed to ABSA had escalated to more than R4.5 million. It can safely be assumed that now, more than three and a half years later, the debt has grown to somewhere approaching R6 million.
[30] It is clear from the papers that AN Gadi is hopelessly insolvent and should be wound-up.’
[5] My conclusions are borne out by the papers. A judgment debt in favour of ABSA Bank remains unpaid more than five years later and there is no prospect f payment. That affords adequate evidence of AN Gadi’s insolvency. There is, in the light of the overwhelming evidence of AN Gadi’s insolvency, no merit in the application for leave to appeal.
[6] As a result I make the following order:
The application for leave to appeal is dismissed with costs, such costs to include the costs of the application for condonation.
_________________
C. PLASKET
JUDGE OF THE HIGH COURT
Appearing on behalf of Applicant: In person
Appearing on behalf of Absa Bank: D. De la Harpe
Instructed by: Wheeldon, Rushmere and Cole