IN THE HIGH COURT OF SOUTH AFRICA

                         
                     GAUTENGLOCAL DIVISION, JOHANNESBURG   

Delete whichever is not applicable  
(1)	  Reportable     Yes / No
(2)	  Of interest to other Judges  Yes / No
(3)	  Revised.

Date:                              _______________________________               

Signature…………..

Not 

                                                                                 Case No: 0017/2015.
In the matter between:
SCANIA FINANCE SOUTHERN 
AFRICA (PTY) LTD                                                   Applicant
And
THE SHERIFF JOHANNESBURG                          First     Respondent
ZINANDI TRADING 1009 (PTY) LTD                      Second Respondent

________________________________________________
                                  J U D G M E N T
_______________________________________________

Ismail J:

[1]	An application was launched in this court in two parts. Part A which was brought by way of urgency. In that application the applicant sought an order that the Sheriff, first respondent, be interdicted from executing an order of a magistrate.  Part B entails an application for the winding up of the second respondent. This matter relates to part B

[2]	The application relating to Part A was struck of the roll for lack of 
urgency. I will not deal with that portion of the application which was sought 
in the urgent court and will only confine this judgment to the order sought in 
terms of Part B.

[3]	This application relates to an order which the applicant seeks against 
the second respondent in the following terms: 
(i)	that the second respondent be finally wound- up;

(ii)	the costs of part B of this application be costs in the liquidation;

(iii)	the applicant be granted further and or alternative relief.   

[4]	The applicant avers that the second respondent has not paid its 
contributions in terms of a lease agreement and is indebted to it in the 
amount of R7 919 625.10, for six buses which were leased.  

[5]	The applicant avers that the second respondent filed its answering 
affidavit out of time, almost a year late, and had not made out a case 
for condonation for the late filing of its answering affidavit. To this the 
second respondent submitted that there was a reasonable explanation for 
the delay and that the prospects of success in its favour were strong. In 
addition thereto that the matter was in both parties interest to be decided 
and determined by a Court. 

[6]	Second respondent raised several points in limine amongst 
others, that the first respondent has been joined as a party to the 
application when the first respondent had no interest in the matter 
whatsoever. It also contended that the applicant failed to prove that the 
second respondent was unable to pay its debts in terms of section 344 
read with section 345 (1) ( c)  and (2) of the Companies Act. Thirdly that   
the applicant failed to furnish the Court with a certificate from the Master 
for security.

[7]	As far as the formalities of service on the Master, South African 
Revenue Service, employees of the second respondent and security for 
costs are concerned, the applicant had complied with those requirements.
A candidate attorney, Charl Francois Sieberhagen, deposed to an affidavit 
wherein he stated that he attended to service on the persons and 
institutions mentioned, above.

[8]	The second respondent contended that the applicant failed to satisfy 
the court that it is trading under such conditions that would warrant that it 
be wound up. It was submitted that the second respondent is in a position 
to pay its debts and that the applicant had not shown anything to the 
contrary. It maintained that no factual or legal basis existed for submitting 
that the second respondent is in liquidation.  

[9]	The second respondent does not dispute that it owes the applicant 
money, however it alleges that the amount claimed is incorrect, without 
stating what it alleges the outstanding amount is. At page 182, of 
the paginated papers, at para 102 it sated:
“ Apart from bringing to the court’s attention that this information was never presented to 
court at the hearing of the ex parte application, it is further submitted that the 
information has been incorrectly calculated and I dispute the level of indebtedness as 
alleged.”

[10]	The applicant submitted that the second respondent failed to give any 
plausible explanation for its failure to settle its indebtedness to the 
applicant. Mr Freedman, acting on behalf of the applicant, submitted that 
apart from disclosing the amount which the second respondent alleges it 
owed, it failed to provide a reason why that amount was not paid. The 
second respondent also failed to demonstrate by means of financial 
statements or management accounts that it was able to pay its debts. It 
was contended by the applicants that this omission on the part of the 
second respondent led to the inescapable inference that it was both 
factually and commercially insolvent.

In ABSA Bank Ltd v Rhhebokskoof (Pty) Ltd and Others 1993 (4) SA 436 
( C) at 440 F-I where the court stated:
“ The concept of commercial insolvency as a ground for winding up a company is eminently practical and 
commercially sensible. The primary question which a Court IS called upon to answer in deciding whether 
or not a company carrying on business should be wound up as commercially insolvent is whether or not it 
has liquid assets or readily realizable assets available to meet its liabilities as they fall due to be met in 
the ordinary course of business and thereafter to be in a position to carry on normal trading- in other 
words, can the company meet current demands on it and remain buoyant? It matters not that the
company’s assets fairly valued, far exceeds its liabilities: once the Court finds that it cannot do this, it 
follows that it is entitled to, and should hold that the company is unable to pay its debts within the
 meaning of s 345 (1) ( c) as read with s 344 (f) of the Companies Act 61 of 1973 and is accordingly liable 
to be wound up..”  
see also: Service and Trade Suppliers (Pty) Ltd v Dasco & Sons ( Pty) Ltd 
1962 (3) SA 424 (T) at 429. 

[11]	In this regard the applicant avers that the logical inference to be 
drawn is that the second respondent is commercially insolvent. It relied on 
the judgments of Boschpoort Ondernemings (Pty) Ltd v ABSA Bank Ltd. 
and Rosenbach & Co (Pty) Ltd v Singh Bazaars (Pty) Ltd for holding this 
view. 

[12]	During argument before me I posed a question to second 
respondent’s counsel, to the effect why did the second respondent not pay 
the amount it alleges it owed, alternatively pay the amount of R137 778. 86  
which the applicant claims is due to it into a trust account pending the 
determination of the amount due, or even provide security for the alleged 
amount owing. To this end there was no reasonable explanation tendered. 			

[13]	Mr Ford submitted that the issue is lis pendens as the same reasons 
were provided in the magistrates court when magistrate Banks ordered the 
return of the buses to the second respondent. He expanded on 
the submission that the applicant appealed magistrates Banks order, 
however they failed to proceed with the appeal and therefore the appeal 
has lapsed. The issue before the Magistrate related to the buses being
returned whereas this application deals with the question of whether the 
second respondent is able to pay its debts in terms of the Companies Act

[14]	Mr Freedman submitted that the second respondent is clearly 
commercially insolvent as it had not paid two months instalments in respect 
of the six lease agreements and in addition thereto it owed Standard Bank 
monies for another bus in terms of an agreement with that bank
He pointed out that any creditor who is owed monies may launch an 
application against the second respondent if it did not pay its 
indebtedness to the creditor. Furthermore, the second respondent could 
have provided a simple income and expenditure account of its business 
which would have indicated that it was not commercially insolvent, however 
Mr Mansingh gave some obscure explanation that it owns a filing station 
which sells 300 000 liters of petrol per month. The filling station in any 
event is not owned by the second respondent. 

[15]	During his address Mr Freedman addressed the court on the points 
that were raised in limine relating to the NCA , the formalities relating to 
service for winding up, such as service on the Master, employees of the 
second respondent and security for costs. Mr Ford advised that he was not 
persisting with those points, as there was due compliance with the 
formalities.

[16]	In its heads of argument, the second respondent, avered that the 
main creditors confirmed that it settled its debts on time. This with the 
utmost respect is not a suitable defence which would sustain an application 
to fail and be dismissed. The court is after all called upon to examine the 
facts of the case before it and would not be swayed by the opinion of a 
creditor which is ‘favoured’ by a debtor above others.

[17]	The argument that the first respondent ought not to have been joined 
in this application , once again has no merit, as part B, of the papers merely 
seeks a winding up of the second respondent. The first respondent was 
merely cited as an original party to the papers. No order was sought 
against the first respondent.

[18]	Having heard the arguments presented by both parties I am of the 
considered view that it would be just and equitable to make the following 
order:
1.	 That the second respondent be finally wound up;

2.	  The costs of this application be costs in the liquidation.	

                                                                          _________________
                                                                              Ismail  J
                                                                               Dated: 31 / v / 2016

APPEARANCES:
For the Applicant :                            Adv Freedman instructed by 
                                                                             Senekal  SImmonds Inc, Attorneys Bedfordview     

For the second Respondent:            Adv Ford instructed by Amiraj Bachoo Attorneys 
                                                          91 Harry Road, Robertsham, Johannesburg

Date of hearing:                               10 May 2016

Date of judgment:                             31May 2016