Scania Finance Southern Africa (Pty) Ltd v Mathafeng Investment Holdings (Pty) Ltd (Leave to Appeal) (65023/2020) [2024] ZAGPPHC 1162 (12 November 2024)
The court found that the provisional winding up order granted on 14 November 2022 is not appealable in terms of Section 150(5) of the Insolvency Act as read with Section 339 of the Companies Act, unless expressly provided for, which the applicant failed to demonstrate. The court was not persuaded that another court...
Source-derived case information.
- Citation
- [2024] ZAGPPHC 1162
- Parties
- Applicant: Scania Finance Southern Africa (Pty) Ltd; Respondent: Mathafeng Investment Holdings (Pty) Ltd
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 65023/2020
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Against Provisional Winding Up Order
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- Ally
- Legal Topics
- Leave to Appeal, Provisional Winding Up, Appealability of Orders, Insolvency Act Section 150, Companies Act Section 339
Source-derived case record
Summary, issues, holding and outcome
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Parties
Scania Finance Southern Africa (Pty) Ltd
Applicant
Mathafeng Investment Holdings (Pty) Ltd
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Provisional Winding Up Order
Legal Issues
- 1 Whether the provisional winding up order granted on 14 November 2022 is appealable under Section 150(5) of the Insolvency Act as read with Section 339 of the Companies Act.
- 2 Whether there are reasonable prospects that another court would reach a different conclusion regarding the provisional winding up order.
- 3 Whether the issues of lis alibi pendens and service on employees warrant leave to appeal.
Ratio Decidendi
The court found that the provisional winding up order granted on 14 November 2022 is not appealable in terms of Section 150(5) of the Insolvency Act as read with Section 339 of the Companies Act, unless expressly provided for, which the applicant failed to demonstrate. The court was not persuaded that another court would reach a different conclusion on the issues of lis alibi pendens or service on employees, as these were adequately addressed in the main judgment. Applying the heightened test for leave to appeal, the court concluded that there are no reasonable prospects of success and no compelling reasons to grant leave to appeal. Accordingly, the application for leave to appeal was...
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal by the Respondent is dismissed with costs.
Full Case Text
Judgment text and source record
39 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 65023/2020
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
Date: 12 November 2024
In the matter between:
SCANIA FINANCE SOUTHERN AFRICA (PTY) LTD
APPLICANT
and
MATHAFENG INVESTMENT HOLDINGS (PTY) LTD
RESPONDENT
JUDGMENT
LEAVE TO APPEAL
ALLY AJ
INTRODUCTION
[1] This is an application for leave to appeal my judgment dated 14 November 2022. On this date an order was granted placing Respondent under provisional winding up. The parties will be referred to as in the main application for convenience.
[2] The parties were represented as in the main application, namely, Adv. G. Jacobs for the Applicant for leave to appeal and Adv. C. Gibson for the Respondent in the application for leave to appeal.
[3] It is not clear why this application for leave to appeal has only now been set down for hearing but I indicated to Mr Jacobs that it would seem that this was water under the bridge and he should proceed with his submissions as there was no case of condonation, the application for leave to appeal having been timeously filed.
[4] The grounds for leave to appeal[1] are contained in the application and will not be repeated here.
[5] Mr Gibson raised the point that, in his view, was fatal to this application, namely, the appealability of the provisional order. In this regard Mr Gibson argued, that the order dated 14 November 2022 is a provisional order and in terms of Section 150 (5) of the Insolvency Act 24 of 1936, as amended, as read with Section 339 of the Companies Act 73 of 1971, cannot be appealed unless provision has been made for same in Section 150. Mr Gibson submits, that the applicant has not shown why Section 150 does not apply to them and accordingly the application must fail on this ground alone.
[6] In relation to the issue regarding /is alibi pendens, I remain unconvinced that another Court would find differently. Furthermore, I align myself with the judgment in Standard Bank of South Africa Limited v Tsheola Dinare Tour and Transport Brokers (Pty) Limited[2], wherein it is made clear that a winding up application and an application for the return of a motor vehicle are two separate actions and a Court still has a discretion whether to grant a winding up order.
[7] The issue regarding the service on the employees was dealt with extensively in the main judgment and will not be repeated here save to state that I remain unconvinced that another would come to a different conclusion.
[8] It has now become trite that the test in applications for leave to appeal has changed to one which is heightened[3]. The Applicant is accordingly required to convince this Court that another Court 'would' come to another conclusion.
[9] I remain unconvinced that another court would come to a different conclusion and accordingly I am of the view that there are no reasonable prospects of success and there are no compelling reasons to grant this application for leave to appeal. Accordingly, the application must fail and costs must follow the result.
[10] Accordingly, the following Order shall issue:
a). The application for leave to appeal by the Respondent is dismissed with costs.
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
Electronically submitted therefore unsigned
Delivered: This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 12 November 2024.
Date of virtual hearing: 5 November 2024
Date of judgment: 12 November 2024
Appearances:
Attorneys for the Applicant: SENEKAL SIMMONDS INC devon@sesi.co.za Counsel for the Applicant: Adv. C. Gibson Attorneys for the Respondent: KMG & ASSOCIATES INC rudi@kmgattorneys.co.za Counsel for the Respondent: Adv. G. Jacobs
[1] Caselines: Section 035-1 - 035-2
[2] 2022 GPJHC
[3] The Mont Chevaux Trust v Tina Goosen 3 November 2014 (unreported judgement LCC Case No: LCC14R/2014; The Acting National Director of Public Prosecution v Democratic Alliance (unreported case no: 19577/09 dated 24 June 2016); First Reality (Pty) Ltd v Mitchell & Others 2021 ZALCC 21 dated 23 August 2021 @ para 2