K2016507276 (South AFrica) Proprietarty) v Mahikeng Property Investments (Proprietary) Limited
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Samkelo Gura J |
| Judgment Date | 07 September 2023 |
| Citation | 2023 JDR 3312 (NWM) |
| Hearing Date | 26 August 2022 |
| Docket Number | M 621/2021 |
| Court | North West Division, Mahikeng |
Samkelo Gura J:
Introduction
The applicant prays for an order in the following terms:
The respondent is placed in provisional liquidation.
A rule nisi issues calling upon the respondent and any interested parties to show cause, if any, on a date to be determined by the Court:
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Why a final order of liquidation should not be granted; and
Why the costs of this application, on the scale as between attorney and client, should be ordered to be a cost of administration in the liquidation.
Service of the rule nisi is to be effected not less than 10 (ten) days before the return date thereof:
On the respondent at 55 Von Willigh Street, Rustenburg;
On the Master of the Court at University Drive, Mmabtho.
On the South African Revenue Service at 2493 Batlaping Street, Mmabatho Unit, 14 Mmabatho.
By one publication in the Star News newspaper.
Granting the applicant such further and/or alternative relief as to the Court may seem fit.
The Applicant’s case.
What follows is the version of the applicant. The winding up of the respondent is sought on the grounds that it is unable to pay its debts as contemplated in s 344(f) of the Companies Act 61 of 1973 read with s 345(1) and s 345(3) of that Act and item 9 of Schedule 5 to the Companies Act 71 of 2008, and that it is just and equitable that the respondent be would up as contemplated in s 344(h) of the Companies Act 61 of 1973 read with item 9 of Schedule 5 to the Companies Act 71 of 2008.The respondent is indebted to the
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applicant in an amount of R 55,842,859.94 plus interest thereon calculated daily and compounded monthly from 1 June 2021 at the publicly quoted rate of interest per annum published by First National Bank from time to time as being its prime overdraft rate plus 17.5%.
The said amount and interest are owing, due and payable by the respondent to the applicant in terms of a written Loan Agreement concluded at Cape Town on 5 December 2016 between the applicant, represented by Kevin Clench and the respondent, represented by Sarel van Niekerk, a copy of which is annexure “FA2” to the founding affidavit read with a written Addendum to Agreement concluded at Stellenbosch on 6 December 2019 between the applicant, represented by Kevin Clench and the respondent, represented by Sarel van Niekerk, a copy of which, without attachments, is annexure “FA3”, and a Certificate of Indebtedness dated 20 September 2021 by Kevin Clench, as contemplated in clause 15 of annexure “FA2”, attached to the founding affidavit as annexure “FA4”. No payment has been made by or on behalf of the respondent to or for the benefit of the applicant since the conclusion of annexure “FA3”.
Annexure “FA5” is a copy of a letter dated 31 May 2021 addressed by the applicant’s attorneys, Strauss Daly, to the respondent at its registered address, in which payment is demanded of the amount then owing, due and payable by the respondent to the applicant under
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annexure “FA2” read with annexure “FA3”. Accompanying the founding affidavit is an affidavit by Jocey Beatrice Duvak confirming delivery of the original of annexure “FA5” at the registered address of the respondent on 31 May 2021. Notwithstanding the expiration of well over three weeks after such delivery, the respondent has neglected to make any payment to the applicant or to the applicant or to secure or compound for the indebtedness of which payment was claimed in annexure “FA5”.
Annexures “FA7” and “FA8” are copies of a Deeds Office Property Report dated 10 September 2021 in respect of the respondent, reflecting the respondent as the registered owner of Erven 13511 and 113512 Ellisras Extension 123 Township Registration Division L.Q Limpopo Province under Deed of Transfer Number T5366/2017. The said properties are mortgaged to the applicant under Continuing Covering Mortgage Bond Number B 5367/2017. The said properties were acquired by the respondent as vacant land for the purpose of township development. External services comprising roads and storm water, external water reticulation and external electrical reticulation are in place and the conditions of establishment have been approved. Although the respondent has completed the development planning for a proposed development of 396 title opportunities, the said properties remain unimproved save for the external services referred to above.
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Kevin Clench believes the total current value of the said properties together to be in the region of R19 100 000,00. Copies of valuations of both properties dated 19 September 2021 are annexures “FA10 and “FA11” to the founding affidavit. The applicant is not aware of any other property which forms part of the assets of the respondent. There are outstanding rates and taxes on the said properties which have not been pain and which Kevin Clench believes to be in the region of R229 315,05. Copies of the municipal accounts in respect of both properties are annexures “FA12” and “FA13” to the founding affidavit. In the premises, the indebtedness of the respondent to the applicant far exceeds the value of its...
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