Firstrand Bank Ltd trading inter alia as First National Bank v Dr Bongani Investments 066 CC (2037/2023) [2025] ZALMPPHC 69 (2 April 2025)

Firstrand Bank Ltd trading inter alia as First National Bank v Dr Bongani Investments 066 CC (2037/2023) [2025] ZALMPPHC 69 (2 April 2025)

The court found that the respondent was commercially insolvent, unable to pay its debts as they became due, as evidenced by its own admissions and intermittent payments. The statutory requirements for service on SARS and employees were satisfied, and the points in limine raised by the respondent, including lis alibi pendens and abuse of process, were dismissed as lacking merit. The repeal of section 68 of the Close Corporations Act does not preclude liquidation for insolvency, as the relevant provisions of the old Companies Act continue to apply via Schedule 5(9) of the new Companies Act. The applicant, as an unpaid creditor, is entitled to a final liquidation order, and no business...

Citation
[2025] ZALMPPHC 69
Parties
Applicant: Firstrand Bank Ltd trading inter alia as First National Bank; Respondent: Dr Bongani Investments 066 CC
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
2 April 2025
Case Number
2037/2023
Procedural Posture
Winding Up Application / Final Judgment
Outcome
Application granted; respondent placed under final liquidation.
Judges
Makoti
Legal Topics
Close Corporation Liquidation, Commercial Insolvency, Just and Equitable Winding Up, Service Requirements, Lis Alibi Pendens
Commercial and Corporate Civil Procedure Close Corporation Liquidation Commercial Insolvency Just and Equitable Winding Up Service Requirements Lis Alibi Pendens

Case Brief

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Parties

Firstrand Bank Ltd trading inter alia as First National Bank

Applicant

Dr Bongani Investments 066 CC

Respondent

Procedural Posture

Winding Up Application / Final Judgment

Legal Issues

  1. 1 Whether the respondent is commercially insolvent and unable to pay its debts as they become due.
  2. 2 Whether the applicant complied with statutory service requirements for winding up proceedings.
  3. 3 Whether the application is barred by lis alibi pendens or constitutes an abuse of process.

Ratio Decidendi

The court found that the respondent was commercially insolvent, unable to pay its debts as they became due, as evidenced by its own admissions and intermittent payments. The statutory requirements for service on SARS and employees were satisfied, and the points in limine raised by the respondent, including lis alibi pendens and abuse of process, were dismissed as lacking merit. The repeal of section 68 of the Close Corporations Act does not preclude liquidation for insolvency, as the relevant provisions of the old Companies Act continue to apply via Schedule 5(9) of the new Companies Act. The applicant, as an unpaid creditor, is entitled to a final liquidation order, and no business...

Court Disposition

Application granted; respondent placed under final liquidation.

Orders

  • The respondent is placed under final liquidation.
  • The applicant's costs are to be costs in the liquidation of the respondent.