FA Konstruksie CC v Mhonyini Trading Enterprise CC
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | JH Roelofse AJ |
| Judgment Date | 22 July 2022 |
| Court | Mpumalanga Division (Main Seat) |
| Hearing Date | 19 July 2022 |
| Docket Number | 3182/2021; 554/2021 |
Roelofse AJ:
The respondent, Mhonyini Trading Enterprises CC (Mhonyini) is being wound-up by virtue of a provisional winding-up order of this court and in liquidation by another final winding-up order, also granted by this court. The orders were granted by this court under different proceedings at the instance of two separate creditors on the basis that Mhonyini is unable to pay its debts.
It must be immediately apparent that this is a rare circumstance which raise challenges in the process of liquidation. These challenges include whether it is at all possible for a company (or close corporation) to be in liquidation and in the process of being wound-up by virtue of two orders that operate at the same time; when is it deemed that the winding up commenced; what order leads to the appointment of a liquidator.
Background:
On 19 July 2022 I granted a final winding-up order of Mhonyini after hearing counsel for FA Konstruksie CC (FA), the applicant in case number 3182/2021 and counsel for Asphaltic (Pty) Ltd (Asphaltic), the applicant under case number 554/2021. There was no appearance on behalf of Mhonyini.
I gave no reasons for my order. I have resolved to furnish reasons for the in order to pronounce the difficulties that arise in this application. In addition, after reflection, I supplement the order that I have granted in order to address
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Roelofse AJ
FA's winding-up proceedings. This I do in order to clear away any doubt that may remain despite my order.
The course of the litigation up to 19 July 2022
On 17 February 2021, Asphaltic launched an application for the winding- up of Mhonyini under case number 554/2021 (the Asphaltic application). On 10 August 2021 a provisional winding-up order was granted (the provisional order). The return day of the provisional order was on 19 November 2021. The rule nisi that was issued when the provisional order was granted was extendedon 19 November 2021 to 19 July 2022. When the matter was before me, it was therefore the return day of the rule nisi in Asphaltic's application.
On 26 August 2021, FA issued an application for the final winding-up of Mhonyini under case number 3182/2021 (the FA application). A final winding up order was granted by this court on 25 October 2021 (the final order).
Therefore, Mhonyini was finally wound-up by an order of this court upon the application of FA that was instituted while the provisional order was still pending.
On 11 March 2022, FA delivered an "Amended Notice of Motion" (motion) ostensibly seeking to amend the relief it sought in the FA application.
In essence, FA sought the following relief in the motion: that FA be granted leave to file a supplementary affidavit in the FA application; a declaratory that Mhoyini is in final winding-up by virtue of the final order; that the effective date of the winding-up of Mhonyini is 17 February 2021 (i.e., when the Asphaltic application was issued); that costs of both FA and Asphaltic be costs in the
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Roelofse AJ
liquidation; alternatively, that FA be granted leave to intervene in the Asphaltic application; and, that unless the provisional order if favour of Asphaltic is made final, that the Asphaltic order be discharged and a final winding-up order be granted.
Asphaltic delivered a notice of intention to oppose the motion. No answering affidavit was delivered by Asphaltic or Mhonyini.
The hearing on 19 July 2022
At the hearing, FA persisted with the relief it sought in the motion while Asphaltic...
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