Luvon Investments (Pty) Ltd and Another v Thabong Good Health Pharmacy CC (Leave to Appeal) (2023-033874) [2024] ZAGPPHC 1063 (23 October 2024)
- Citation
- [2024] ZAGPPHC 1063
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Mooki
- Case number
- 2023-033874
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Mooki
- Case number
- 2023-033874
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the respondent is not entitled to seek leave to appeal on grounds that were not pleaded in the original proceedings. The respondent's counsel conceded that the grounds for leave to appeal were not raised previously, and the applicants were not given an opportunity to address these new issues. Accordingly, the application for leave to appeal was dismissed.
Court disposition
Application for leave to appeal dismissed.
Orders
- The application for leave to appeal is dismissed.
- Costs are in the winding-up.
02
Material facts
Parties
Luvon Investments (Pty) Ltd
Applicant Counsel: Mr JMT TlokanaTwin City Trading (Pty) Ltd
Applicant Counsel: Mr JMT TlokanaThabong Good Health Pharmacy CC
Respondent Counsel: Mr H P Wessels03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Final Winding Up Order
04
Questions and positions
Legal issues
- 01
Whether the respondent may seek leave to appeal on grounds not pleaded in the original proceedings.
- 02
Whether the applicants complied with section 346(4A)(a) and (b) of the Companies Act, 61 of 1973.
- 03
Whether the applicants proved the respondent's indebtedness or inability to pay debts.
Party arguments
- Applicant
- The applicants argued that the respondent is not permitted to seek leave to appeal on new issues that were not raised in the original proceedings, as they were not afforded an opportunity to address these issues. They maintained that all procedural requirements were met and the respondent's indebtedness was established.
- Respondent
- The respondent contended that the final winding-up order should not have been granted because the applicants allegedly failed to comply with section 346(4A)(a) and (b) of the Companies Act, 61 of 1973, and did not prove the respondent's indebtedness or inability to pay debts. However, counsel for the respondent conceded that these grounds were not pleaded in the original proceedings.
05
Court’s reasoning
Legal principles
- 01
General principle of South African civil procedure
A party may not seek leave to appeal on grounds that were not raised in the original proceedings, as this deprives the opposing party of the opportunity to address such issues.
- 02
Companies Act, 61 of 1973
Compliance with section 346(4A)(a) and (b) of the Companies Act, 61 of 1973 is required for a winding-up application, including proper service and proof of indebtedness.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the respondent is not entitled to seek leave to appeal on grounds that were not pleaded in the original proceedings. The respondent's counsel conceded that the grounds for leave to appeal were not raised previously, and the applicants were not given an opportunity to address these new issues. Accordingly, the application for leave to appeal was dismissed.
Obiter and limits
- The respondent did not file papers in relation to the return date for the final winding-up order.
- Costs are to be included in the winding-up proceedings.
Court disposition
Application for leave to appeal dismissed.
- The application for leave to appeal is dismissed.
- Costs are in the winding-up.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case No: 2023 - 033874
Reportable: No
Of interest to other Judges: No
Revised: No
SIGNATURE
Date: 23/10/2024
In the matter between:
LUVON INVESTMENTS (PTY)
LTD
First Applicant
TWIN CITY TRADING (PTY)
LTD
Second Applicant
and
THABONG GOOD HEALTH
PHARMACY CC
Respondent
JUDGEMENT - APPLICATION FOR LEAVE TO APPEAL
MOOKI J
1
The respondent was placed under provisional winding-up on 22 February 2024. The return date to consider whether the order be made final was set for 27 May 2024. The court granted a final winding-up order on 27 May 2024.
2
The respondent seeks leave to appeal the order of 27 May 2024. The application is made on the following grounds. The respondent contends that a final order ought not to have been granted because:
2.1 The applicants did not comply with section 346 (4A) (a) and (b) of the Companies Act, 61 of 1973; and
2.2 The applicants had failed to prove the respondent’s indebtedness, or that amounts were due or payable, or show the respondent’s inability to pay debts.
3
The respondent filed opposing papers in proceedings leading to the order on 22 February 2024. The respondent did not file papers in relation to the return date.
4
Counsel for the respondent accepted that the listed grounds for the application were not pleaded. Counsel for the applicants submitted that the respondent is not permitted to make an application on new issues, because the applicants never had the opportunity to address the new issues.
5
I agree that the respondent may not seek leave on issues that were never raised.
6
I make the following order:
6.1 The application for leave to appeal is dismissed.
6.2 Costs are in the winding-up.
O
MOOKI
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Counsel for the applicant (leave to appeal): Mr JMT Tlokana Instructed by: Ngengebule Attorneys Inc. Counsel for the respondents (leave to appeal) Mr H P Wessels Instructed by: Van Der Merwe & Associates Heard: 21 October 2024 Delivered: 23 October 2024
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