Lak Investment Company NO 26 (Pty) Ltd v Pressure Advance Technology CC

• Jurisdiction: South Africa
• Court: North Gauteng High Court, Pretoria
• Judge: Pretorius J
• Judgment Date: 20 February 2014
• Citation: 2014 JDR 0315 (GNP)
• Hearing Date: 03 February 2014
• Docket Number: 55018/2011

Pretorius J,

[1]

This is an application for rescission of a final liquidation order granted on 28 March 2012. The respondent applies in this application, to set aside or rescind the winding-up order.

2014 JDR 0315 p2

Pretorius J

[2]

On 26 September 2011 the applicant issued a winding-up application against the respondent. This application was served by the Sheriff by forwarding it by registered post to the respondent in terms of rule 4(1)(a)(v) of the Uniform Rules of Court.

[3]

Rule 4(1)(a)(v) provides as follows:

"(1)(a) Service of any process of the court directed to the sheriff and subject to the provisions of paragraph (aA) any document initiating application proceedings shall be effected by the sheriff in one of the following manners:

(v) in the case of a corporation or company, by delivering a copy to a responsible employee thereof at its registered office or its principle place of business within the court's jurisdiction, or if there be no such employee willing to accept service, by affixing a copy to the main door of such office or place of business, or in any manner provided by law;"

[4]

The winding-up application was served on the respondent by forwarding it by registered post by the sheriff, although the rule does not provide for service in such a way. A copy of the application was affixed to the main front door of the respondent's place of business and the sheriff alleged in the return of service that this was done in terms of rule 4(1)(a)(ii). Rule 4(1)(a)(ii) provides:

2014 JDR 0315 p3

Pretorius J

"(1)(a) Service of any process of the court directed to the sheriff and subject to the provisions of paragraph (aA) any document initiating application proceedings shall be effected by the sheriff in one of the following manners:

(ii) by leaving a copy thereof at the place of residence or business of the said person, guardian, tutor, curator or the like with the person apparently in charge of the premises at the time of delivery, being a person apparently not less than sixteen years of age…"

[5]

It is quite clear from the return of service by the sheriff that he did not comply with the rule at all. The sheriff reported in the return of service:

"I certify that on the 14th day of OCT 2011 and at GALLOWAY STR MEYERTON which is the RESPONDENT'S place of business, I served the annexed NOTICE OF MOTION, AFFIDAVIT – WD ANGERMAIER by affixing a copy to the main front door."

The respondent alleges that it never received the application.

[6]

A provisional liquidation order was granted on 2 November 2011. According to the documents this order was served on the respondent by the sheriff on 4 January 2012 by affixing a copy of the order to the main front door of the respondent's place of business, without setting out the time of service or why no other service was possible. He reported:

2014 JDR 0315 p4

Pretorius J

"I certify that on the 4TH day of JAN 2012 and at 55 GALLOWAY STR MEYERTON which is the RESPONDENT'S place of business, I served the annexed COURT ORDER – 2 NOV 2011 by affixing a copy to the main front door."

[7]

Service on the respondent's employees were dealt with as follows according to the applicant in the founding affidavit:

"It is not within the knowledge of the applicant if the respondent has any employees. A copy of this application will be served at the respondent's main place of business by attachment to the main gate or main door of the business premises as notice to all employees at 55 Galloway Street, Meyerton."

[8]

There is no indication that the application or order for provisional...