South Africa Case Law

Firstrand Bank Limited v Yenza Trading 519 CC t/a Masenkeng Marketing (5917/2022; 5772/2021)

Firstrand Bank Limited v Yenza Trading 519 CC t/a Masenkeng Marketing (5917/2022; 5772/2021) [2023] ZAFSHC 411 (23 October 2023)

Court

Free State High Court, Bloemfontein

Case number

5917/2022; 5772/2021

Judge

Opperman

The High Court confirmed the final liquidation of Yenza Trading 519 CC after finding it commercially and factually insolvent and unable to pay its debts.

• Winding Up Of Close Corporations
• Commercial Insolvency
• Just And Equitable Liquidation
• Failure To Satisfy Judgment Debt
• Commercial-insolvency
• Winding-up

Dry v Guest Village Little Dreams CC and Another (M255/21;M256/21)

Dry v Guest Village Little Dreams CC and Another (M255/21;M256/21) [2023] ZANWHC 131 (7 August 2023)

Court

North West High Court, Mafikeng

Case number

M255/21;M256/21

Judge

A Reddy

The court found that the applicants failed to ensure competent and effective service of the provisional liquidation orders on all employees and trade unions as required by section 346(4A) and section 346A of the Companies Act. The evidence presented, including supplementary affidavits and sheriff's returns, was insufficient to demonstrate strict compliance, particularly in relation to Juandry Eiendomme CC where employees were not properly notified. The court emphasized that it lacks inherent power to condone non-compliance with these statutory requirements. As a result, the final winding up o…

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• Winding Up Of Close Corporations
• Service Of Process
• Compliance With Companies Act
• Deadlock Between Members

Investec Bank Limited v Kulu Sand Distributors and Plant Hire CC (695/2021)

Investec Bank Limited v Kulu Sand Distributors and Plant Hire CC (695/2021) [2023] ZAMPMHC 17 (16 May 2023)

Court

Middelburg High Court, Mpumalanga

Case number

695/2021

Judge

Vukeya

Provisional winding-up application dismissed because the respondent raised a bona fide dispute about the debt, interest rate, and alleged overcharging.

• Winding Up Of Close Corporations
• Bona Fide Dispute Of Debt
• Misrepresentation
• Interest Rate Dispute
• Winding-up
• Bona-fide-dispute-of-debt

FA Konstruksie CC v Mhonyini Trading Enterprize CC In re Asphaltic (Pty) Ltd v Mhonyini Trading Enterprize CC (3182/2021)

FA Konstruksie CC v Mhonyini Trading Enterprize CC In re Asphaltic (Pty) Ltd v Mhonyini Trading Enterprize CC (3182/2021) [2022] ZAMPMBHC 59 (22 July 2022)

Court

Mbombela High Court, Mpumalanga

Case number

3182/2021

Judge

JH Roelofse

The court found that section 347(5) of the Companies Act prohibits the granting of a final winding-up order where a provisional order is already in force. The final order obtained by FA Konstruksie CC was granted while the provisional order in Asphaltic's application was still pending, rendering the final order a nullity. The winding-up is deemed to have commenced on 17 February 2021, the date of Asphaltic's application. The court exercised its discretion under section 354(1) of the Companies Act to set aside the proceedings in FA's application, as the final order should not have been granted…

Source excerpt

• Winding Up Of Close Corporations
• Setting Aside Orders
• Creditor Intervention
• Commencement Of Liquidation

Albaraka Bank Limited v Cecita CC (8771/2020)

Albaraka Bank Limited v Cecita CC (8771/2020) [2022] ZAKZDHC 25 (15 June 2022)

Court

Kwazulu-Natal High Court, Durban

Case number

8771/2020

Judge

Masipa

High Court dismissed a bank’s winding-up application against a close corporation, finding the debt was bona fide disputed and the application an abuse of process.

• Winding Up Of Close Corporations
• Disputed Debt
• Abuse Of Process
• Appropriation Of Payments
• Winding-up-of-close-corporations
• Disputed-debt

Imobrite (Pty) Ltd v DTL Boerdery CC (1007/2020)

Imobrite (Pty) Ltd v DTL Boerdery CC (1007/2020) [2022] ZASCA 67 (13 May 2022)

Court

Supreme Court of Appeal

Case number

1007/2020

Judges

Van der Merwe, Molemela, Makgoka, Carelse, Musi

The Supreme Court of Appeal upheld a creditor’s appeal and ordered provisional winding-up of a close corporation under s 69 of the Close Corporations Act.

• Winding Up Of Close Corporations
• Creditor Rights
• Abuse Of Process
• Statutory Demand
• Secured Creditor
• Judicial Discretion

Jonker and Others v Myobizi N.O and Others (3076/2021)

Jonker and Others v Myobizi N.O and Others (3076/2021) [2022] ZAFSHC 62 (30 March 2022)

Court

Free State High Court, Bloemfontein

Case number

3076/2021

Judges

Van Rhyn AJ, Reinders ADJP

The court confirmed a rule nisi, holding that the liquidators’ failure to convene meetings of creditors and members timeously was not a condonable formal defect.

• Winding Up Of Close Corporations
• Meeting Of Creditors
• Statutory Compliance
• Notice Requirements
• Liquidation Procedure
• Condonation Of Irregularities

Tshepang Electrical (Pty) Ltd v Mokgolokwane Civils CC (44188/2020)

Tshepang Electrical (Pty) Ltd v Mokgolokwane Civils CC (44188/2020) [2021] ZAGPPHC 348 (27 May 2021)

Court

North Gauteng High Court, Pretoria

Case number

44188/2020

Judge

JF Barnardt

The High Court granted a provisional winding-up order against a close corporation after finding the debt was sufficiently admitted and the disputes were not bona fide.

• Winding Up Of Close Corporations
• Commercial Insolvency
• Statutory Demand
• Acknowledgement Of Debt
• Condonation Of Late Filing
• Winding-up-of-close-corporations

Absa Bank Ltd v 57 Hyde Close Estate CC and Another (013319/17)

Absa Bank Ltd v 57 Hyde Close Estate CC and Another (013319/17) [2018] ZAGPJHC 689 (26 November 2018)

Court

South Gauteng High Court, Johannesburg

Case number

013319/17

Judge

Keightley

The High Court granted Absa’s final winding-up application against Hyde Close Estate CC after rejecting defences based on alleged invalidity and notice.

• Winding Up Of Close Corporations
• Suretyship Liability
• Facility Agreement Enforcement
• Bona Fide Dispute Of Debt
• Statutory Insolvency Presumption
• Winding-up

Slip Knot Investments 111 (Pty) Ltd v Martycel Properties CC (55059/2012)

Slip Knot Investments 111 (Pty) Ltd v Martycel Properties CC (55059/2012) [2013] ZAGPPHC 176 (14 June 2013)

Court

North Gauteng High Court, Pretoria

Case number

55059/2012

Judge

Prinsloo

The court found that the applicant failed to discharge the onus of proving that the respondent is either factually or commercially insolvent. The respondent presented credible evidence of substantial assets, income, and solvency, and the alleged indebtedness was bona fide and reasonably disputed. The court applied the Plascon-Evans test, considering the respondent's version, and found that the Badenhorst rule precluded winding-up in circumstances where the debt is genuinely disputed. The breakdown in the relationship and delay in selling the property did not constitute a just and equitable gr…

Source excerpt

• Winding Up Of Close Corporations
• Commercial Insolvency
• Just And Equitable Ground
• Badenhorst Rule
• Loan Agreement Dispute