Rooth and Wessels INC T/A RW Attorneys v Gundo Wealth Solutions (PTY) Ltd (4105/2019) [2022] ZAGPJHC 925 (18 November 2022)
The court found that the applicant, a firm of attorneys, failed to comply with essential procedural requirements for a winding up application, including the filing of the security bond and service on relevant parties as required by the Companies Act. The applicant provided no satisfactory explanation for these...
Source-derived case information.
- Citation
- [2022] ZAGPJHC 925
- Parties
- Applicant: Rooth and Wessels INC T/A RW Attorneys; Respondent: Gundo Wealth Solutions (PTY) Ltd
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 4105/2019
- Procedural Posture
- Winding Up Application / Final Hearing
- Outcome
- Application dismissed with costs on an attorney-and-client scale.
- Judges
- H M Viljoen
- Legal Topics
- Winding Up of Company, Costs Order, Non Compliance With Companies Act
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rooth and Wessels INC T/A RW Attorneys
Applicant
Gundo Wealth Solutions (PTY) Ltd
Respondent
Procedural Posture
Winding Up Application / Final Hearing
Legal Issues
- 1 Whether the application for winding up should be dismissed due to procedural defects.
- 2 Whether the respondent is entitled to costs on an attorney-and-client scale.
Ratio Decidendi
The court found that the applicant, a firm of attorneys, failed to comply with essential procedural requirements for a winding up application, including the filing of the security bond and service on relevant parties as required by the Companies Act. The applicant provided no satisfactory explanation for these omissions over a period of more than two years. The respondent was justified in seeking dismissal of the application and an attorney-and-client costs order, as it would be unfair for the respondent to bear costs resulting from the applicant's procedural failures. The application was therefore dismissed with costs on an attorney-and-client scale.
Court Disposition
Application dismissed with costs on an attorney-and-client scale.
Orders
- The application is dismissed with costs on a scale as between attorney and client.
Full Case Text
Judgment text and source record
38 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 4105/2019
DATE: 2022-10-12
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
REVISED: YES
18 NOVEMBER 2022
In the matter between
ROOTH AND WESSELS INC T/A RW ATTORNEYS Applicant
And
GUNDO WEALTH SOLUTIONS (PTY) LTD
Respondent
J U D G M E N T
VILJOEN, AJ:
This is an application in which the applicant seeks the final, alternatively provisional winding up of the respondent. The application, on the face of it, was launched in February 2019 and for reasons unknown to me was only set down for today.
The applicant applies for the matter to be removed from the roll on account of the fact that the security bond from the Master that is required was not uploaded to CaseLines. There is no explanation before me for this situation, apart from the submission that is made from the bar that the matter had been passed between various attorneys in the same firm and that somewhere between the various attorneys the documents were lost.
On further enquiry from the applicant’s counsel, it appears that there is also no indication whether service of the application was effected on the Master, the South African Revenue Service or the employees of the respondent, as is required by section 346(4A) of the Companies Act, 1973. There is no explanation for why this aspect of the application has not been clarified in the two and a half years since the matter had been launched.
The respondent opposes the removal of the matter from the roll. The respondent contends that the application is fatally defective and that it should therefore be dismissed, and be dismissed with costs on the scale as between attorney and client.
I am in agreement that little purpose would be served in postponing this application any further. It would be, in my view, unduly
prejudicial to the parties involved to prolong this saga any further. The question then is whether the respondent is entitled to the costs of the application on an attorney-and-client scale.
I am inclined to agree with the respondent. The applicant in the matter is a firm of attorneys. It ought to know the requirements for liquidation applications and it ought to know what is required to have a matter set down and successfully argued. The applicant appears not to have taken any heed of any of the rules of court or the practice manual or indeed the Companies Act. And in so far as that is the case, it is the author of its own misfortune.
Under these circumstances, to allow the respondent to be out of pocket because of an application that never got off the ground appears to me unfair and without justification; and in those circumstances, I am of the view that the respondent should be compensated as fully as possible for costs incurred in this application. In the circumstances, therefore, I make the following order:
ORDER
The application is dismissed with costs on a scale as between attorney and client.
H M VILJOEN, AJ
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
APPEARANCE FOR THE APPLICANT: ADV P BALOYI
APPEARANCE FOR THE RESPONDENT: MR M B MHANGO
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