SB Guarantee Company (Pty) Ltd v TS Tshantsha Attorneys (Pty) Ltd (04586/2022) [2023] ZAGPJHC 784 (10 July 2023)

SB Guarantee Company (Pty) Ltd v TS Tshantsha Attorneys (Pty) Ltd (04586/2022) [2023] ZAGPJHC 784 (10 July 2023)

The court found that the respondent's explanation for the late filing of its opposing affidavit lacked particularity and was not bona fide, but rather intended to delay proceedings. The respondent failed to establish any bona fide defence to the winding-up application, as its allegations regarding solvency, arrears, and joinder of a surety were unsubstantiated and unsupported by evidence. The notice of motion's procedural defect was an irregularity capable of condonation, but no prejudice was suffered by the respondent, who had the opportunity to oppose. The requirements for condonation were not met, and the respondent did not show good cause. Consequently, condonation was refused, and...

Citation
[2023] ZAGPJHC 784
Parties
Applicant: SB Guarantee Company (RF) Ltd; Respondent: TS Tshantsha Attorneys (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 July 2023
Case Number
04586/2022
Procedural Posture
Winding Up Application / Provisional Winding Up Order
Outcome
Application for condonation refused; respondent placed under provisional winding-up.
Judges
Aucamp
Legal Topics
Company Liquidation, Condonation of Late Filing, Notice of Motion Irregularity, Joinder of Surety, Certificate of Balance, Bona Fide Dispute of Debt
Commercial and Corporate Civil Procedure Company Liquidation Condonation of Late Filing Notice of Motion Irregularity Joinder of Surety Certificate of Balance Bona Fide Dispute of Debt

Case Brief

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Parties

SB Guarantee Company (RF) Ltd

Applicant

TS Tshantsha Attorneys (Pty) Ltd

Respondent

Procedural Posture

Winding Up Application / Provisional Winding Up Order

Legal Issues

  1. 1 Whether the respondent's late opposing affidavit should be condoned.
  2. 2 Whether the notice of motion's failure to comply with Rule 6(5)(b)(iii) renders the application a nullity or an irregularity capable of condonation.
  3. 3 Whether the respondent is factually or deemed insolvent under section 344(f) read with section 345(1) of the Companies Act 61 of 1973.

Ratio Decidendi

The court found that the respondent's explanation for the late filing of its opposing affidavit lacked particularity and was not bona fide, but rather intended to delay proceedings. The respondent failed to establish any bona fide defence to the winding-up application, as its allegations regarding solvency, arrears, and joinder of a surety were unsubstantiated and unsupported by evidence. The notice of motion's procedural defect was an irregularity capable of condonation, but no prejudice was suffered by the respondent, who had the opportunity to oppose. The requirements for condonation were not met, and the respondent did not show good cause. Consequently, condonation was refused, and...

Court Disposition

Application for condonation refused; respondent placed under provisional winding-up.

Orders

  • The respondent is placed under provisional winding-up and placed in the hands of the Master of the High Court.
  • All persons with a legitimate interest are called upon to show cause why a final winding-up order should not be granted at 10:00 on 16 August 2023.