South Africa: High Courts - Gauteng

In the matter between:

LOKASIA ENVIRONMENTAL

CONSULTING (EDMS) BPK

Applicant

and

PROJEX AFRISED (EDMS) BPK &

AFRISED TELECOM (EDMS) BPK

Respondent

JUDGMENT

ISMAIL AJ:

[1]

The applicant in this matter initiated two applications. Firstly

against Projex Afrised (Pty) Ltd (hereinafter referred to as

Projex) under case No 31108/06 and against Afrised

Telecom (Pty) Ltd ((hereinafter referred to as Projex) under

case No 31109/06.

2

[2]

The crux of the application being that the respondents were

unable to pay their respective debts, notwithstanding the

applicant having given notice in terms of section 345 of the

companies Act of 1973 (The Act).

[3]

I propose to deal with both applications in the course of this

judgment as the action is based on the same causa namely

that the applicant rendered services on behalf of both

respondents and for that reason the respondents were

indebted to it. The applicant submitted that despite demand

of payment in terms of section 345 of the Act the

respondents have failed to pay the debt which was due and

owing. It therefore sought an order in the following terms:

1. The respondents be liquidated and be placed in the hands

of the Master of the High Court Pretoria.

2. That the costs of the application be costs in the

liquidation.

[4]

The respondents opposed the application for their liquidation

on the grounds that they were not insolvent and in the

[6]

[7]

- -- -_u­

3

matter of Telecom submitted that MTN was indebted to it in

the sum of R3, 2 m. MTN undertook to pay the sum of R800

000 on the 7 December and a further sum of R800 000

during January 2007.

The respondents also submitted that they did not act as a

joint venture when they dealt with the applicant. Projex and

Telecom independently dealt with the applicant and never as

a Joint Venture.

In response to the notice in terms of section 345 which was

addressed by the applicant's attorneys on the 25 May 2004

demanding payment in the amount of R720 962, 03 against

the joint venture (projex & Telecom) together with interest

at a rate of 15, 5% calculated from 31 March 2006 until

payment of the debt.

The respondents through one of its employees Lynette Bruce

addressed an e-mail to christo

20 July 2006 stated:

4

"Subject: Lokasia v Projex Afrisedj Afrised Telecom

Reconcile this amount and concluded with the following:

''Due now R425, 067 172. "

Several letters were exchanged between the applicants'

attorneys, De Wet Du Plessis Inc and Lynette Bruce on

behalf of Projex. The gist of which was that the amount of

R425.067.72 was to be paid to the applicant which would be

held in trust as security until the issue of the capital amount

was resolved. It must be emphasized that the applicant

denied that this amount was due. It maintained that the

amount of R720 962,03 was outstanding and due by the

joi nt venture

A fax dated 15 August 2006 to applicants attorney from

Lynette Bruce reads as follows:

''Soos reeds aan u genoem is ons nie by magte om tans die

bedrag eenmalig aan u kliënt oor te betaal nie, en wens ons

u te versoek om met u kliënt te fasiliteer ten opsigte van 'n

5

gewysigde betalingsooreenkoms waarin 6 paaiemente ten

bedrae R72 045.28 by wyse van vooruitgedateerde tjeks,

waarvan die eerste betaalbaar op 31 Augustus 2006 te

aanvaar. "

[9]

The post-dated cheques alluded to above were not given to

the applicant. This culminated in the applicant launching

these applications during in August/September 2006.

[10] It was submitted on behalf of the applicant that the joint

venture (projex and Telecom) be liquidated in terms of the

provisions of s 344 (f) as it was the joint venture which was

incapable of paying its debts.

[11] It was submitted on behalf of the respondents that the

applicant was not entitled to liquidate the two companies as

the section 345 demand was not sent to the registered

address of the company. This point was conceded by Mr

Greyling appearing on behalf of the applicant, however, he

submitted that the court had discretion to condone such

service.

[12] Mr Pelser se submitted on behalf of the respondents that the

applicants accounts were not in order and in order to

overcome this problem the applicant maintained that Projex

and Telecom traded as a Joint Venture.

From the papers and particularly the minutes of meetings

held with Vodacom and MTN, Lynne Van Vuuren represented

the applicant at these meetings. She was aware that

Telecom dealt with MTN whereas Projex dealt with

Vodacom. These entities Telecom and Projex operated

independently even though the applicant rendered services

to both of them, for example on annexure GG7 ( page 91 of

the papers) on a letterhead of Telecom a minute is recorded

where Lynne Van Vuuren was present.

Furthermore the applicant invoiced Telecom separately (see

GG 11 and 12 -on page 104 and 105) and Projex

independently (see GG 13 on page 106). This clearly

indicates that the applicant knew that it was dealing with

two separate companies and had to account to each

independently.

Mr Pelser submitted that there is not a scintilla of evidence

whereby the court could infer that Telecom and Projex

operated as a Joint Venture when dealing with the applicant.

[13] Whilst it is true that monies are owing to the applicant it is

not clear what the amount outstanding is, and which

company owes what amount to the applicant. There is a

dispute regarding the outstanding debt. The applicant

maintained that an amount of R720 962, 03 is due to it

whilst Lynnette Bruce by means of reconciliation to of Projex

maintained that an amount of R425 067.72 is due.

[14] Mr Greyling submitted that the court should grant a final

order to the liquidation of the respondents alternatively a

provisional order with a return date, with a provision that the

provisional order be advertised in the Beeld Newspaper.

8

In Johnson v Hirotec (Pty) Ltd2000 (4) SA930 SCA at 934

Melunsky AJA stated:

"According to the practice manual of the Transvaal Provincial

Division, a judge of that Division appears to have a wide

discretion to grant a provisional or a final winding-up order,

as the case may require, and is under no constraint to issue

a provisional order as a matter of course. //

[15] On the facts before me it appears that monies are due to the

applicant. What the indebtedness is, is not clear. Whether

Projex is indebt on its own admissions in the sum of R425

067, 77 is also uncertain. Whether this amount is due by

Projex and Telecom is also uncertain.

[16] It appears that an amount of R3,2 m is owed to Telecom by

MTN of which R1.6 m ought to have been paid by 7 January

2007. This clearly indicates that Telecom is capable of paying

its debts.

9

[17] In the circumstances it would be inappropriate of me to

grant an order for the liquidation of the respondents on

these facts particularly where the accounting of the applicant

seem to be dubious.

If I were to liquidate Telecom for the debts of Projex I would

possibly put an end to a viable entity which is solvent.

[18] I am persuaded by the argument raised by Mr Pelser that

the applicant had not shown that Projex and Telecom traded

as a Joint Venture. On the contrary the papers seem to

indicate the contrary.

[19] For this reason I make the following order:

(1)

The application is dismissed with costs.

Judgment delivered on the 20 February 2007.