Van Der Merwe and Associates Incorporated v Premax Trading 2 CC [2023] ZAGPPHC 509; 25368-2021 (5 June 2023)

Van Der Merwe and Associates Incorporated v Premax Trading 2 CC [2023] ZAGPPHC 509; 25368-2021 (5 June 2023)

The court found that the applicant's claim did not prescribe because the debt only became due after the amount was determined by agreement or taxation, in accordance with section 12(3) of the Prescription Act. The respondent accepted liability for the taxed amount on 13 April 2021, which interrupted prescription. The respondent failed to pay the agreed amount and is in the process of deregistration, indicating commercial insolvency. The applicant established locus standi as a creditor and proved the respondent's inability to pay its debts. The late filing of the applicant's replying affidavit was condoned, as the delay was caused by the respondent's business rescue application. The...

Citation
[2023] ZAGPPHC 509
Parties
Applicant: Van Der Merwe & Associates Incorporated; Respondent: Premax Trading 2 CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 June 2023
Case Number
25368-2021
Procedural Posture
Winding Up Application / Provisional Winding Up Order
Outcome
Provisional winding-up order granted against the respondent; condonation for late filing of replying affidavit granted; costs awarded against respondent and its attorneys on a punitive scale.
Judges
Baqwa
Legal Topics
Winding Up of Company, Prescription of Debt, Locus Standi, Condonation, Commercial Insolvency
Commercial and Corporate Civil Procedure Winding Up of Company Prescription of Debt Locus Standi Condonation Commercial Insolvency

Case Brief

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Parties

Van Der Merwe & Associates Incorporated

Applicant

Premax Trading 2 CC

Respondent

Procedural Posture

Winding Up Application / Provisional Winding Up Order

Legal Issues

  1. 1 Whether the applicant's claim against the respondent has prescribed under section 10(1) of the Prescription Act 68 of 1969.
  2. 2 Whether the applicant is a creditor with locus standi to bring the winding-up application under section 345 of the Companies Act 61 of 1973.
  3. 3 Whether the respondent is commercially insolvent and unable to pay its debts.

Ratio Decidendi

The court found that the applicant's claim did not prescribe because the debt only became due after the amount was determined by agreement or taxation, in accordance with section 12(3) of the Prescription Act. The respondent accepted liability for the taxed amount on 13 April 2021, which interrupted prescription. The respondent failed to pay the agreed amount and is in the process of deregistration, indicating commercial insolvency. The applicant established locus standi as a creditor and proved the respondent's inability to pay its debts. The late filing of the applicant's replying affidavit was condoned, as the delay was caused by the respondent's business rescue application. The...

Court Disposition

Provisional winding-up order granted against the respondent; condonation for late filing of replying affidavit granted; costs awarded against respondent and its attorneys on a punitive scale.

Orders

  • The late filing of the replying affidavit by the applicant is condoned.
  • The respondent and Morné Coetzee Attorneys are ordered to pay the applicant's costs for the condonation application jointly and severally on an attorney and client scale.