Pilot Freight (Pty) Ltd v Von Landsberg Trading (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 2015 (2) SA 550 (GJ)

Pilot Freight (Pty) Ltd v Von Landsberg Trading (Pty) Ltd
2015 (2) SA 550 (GJ)

2015 (2) SA p550

Citation	2015 (2) SA 550 (GJ)
Case No	13/25839
Court	Gauteng Local Division, Johannesburg
Judge	Kairinos AJ
Heard	July 22, 2014
Judgment	July 25, 2014
Counsel	S van Aswegen for the applicant.; R Grundlingh for the respondent.

Flynote : Sleutelwoorde G

Company — Winding-up — Application — Furnishing of copy to employees — Affidavit on manner of furnishing — Appropriate deponent — Content with H respect to employees — Companies Act 61 of 1973, s 346(4A)(b).

Headnote : Kopnota

Company P applied for the winding-up of company V, and in issue was whether P had complied with s 346(4A)(b) of the Companies Act 61 of 1973. The section provides:

'(b)

I The applicant must, before or during the hearing, file an affidavit by the person who furnished a copy of the application [for winding-up] which sets out the manner in which paragraph (a) was complied with.'

(Paragraph (a) requires the applicant to furnish a copy of the application for winding-up to the employees' trade union; to the employees themselves J (methods for doing so are stipulated); to Sars; and to the company itself.)

2015 (2) SA p551

P's attorney made the affidavit and in it she confirmed that the sheriff had served A a copy of the winding-up application on V's employees. (Paragraphs [6] – [7] and [12] at 553F – I and 554E – G.)

Held, that the affidavit had to be made by the person who physically furnished the application to the specified parties (here the sheriff), rather than the person who merely arranged for the application to be furnished (P's attorney). (Paragraphs [26] – [27] at 557C – F.) B

As to the content of the affidavit, specifically how the application had been furnished to the company's employees, the deponent would have to set out —

(1)

what he did when he came to the place of employment;

(2)

the circumstances he found there;

(3)

the steps he took to bring the application to the notice of the employees; and C

(4)

the steps he took to find out if the employees belonged to a trade union.

This content was lacking here. (Paragraphs [32] and [36] – [37] at 558G – J and 559I – 560B.)

Accordingly the court dismissed the application for non-compliance with s 346(4A)(b), and also on the basis that V had raised what appeared to be good defences to P's claim for payment. (Paragraphs [37] and [74] at 559J – 560B and 566I.) D

Cases Considered

Annotations

Case law

Southern Africa E

Badenhorst v Northern Construction Enterprises (Pty) Ltd 1956 (2) SA 346 (T): dictum at 347 applied

Commonwealth Shippers Ltd v Mayland Properties (Pty) Ltd (United Dress Fabrics (Pty) Ltd and Another Intervening) 1978 (1) SA 70 (D): referred to

Corporate Money Managers (Pty) Ltd and Others v Panamo Properties 49 (Pty) Ltd 2013 (1) SA 522 (GNP): referred to F

EB Steam Co (Pty) Ltd v Eskom Holdings Soc Ltd 2015 (2) SA 526 (SCA) ([2014] 1 All SA 294): dicta in paras [22] – [23] applied

Gillis-Mason Construction Co (Pty) Ltd v Overvaal Crushers (Pty) Ltd 1971 (1) SA 524 (T): dictum at 529 followed

Hülse-Reutter and Another v HEG Consulting Enterprises (Pty) Ltd (Lane and Fey NNO Intervening) 1998 (2) SA 208 (C): referred to G

Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A): referred to

Kyle v Maritz & Pieterse Inc [2002] 3 All SA 223 (T): referred to

Machanick Steel & Fencing (Pty) Ltd v Wesrhodan (Pty) Ltd; Machanick Steel & Fencing (Pty) Ltd v Transvaal Cold Rolling (Pty) Ltd 1979 (1) SA 265 (W): referred to

Meyer NO v Bree Holdings (Pty) Ltd 1972 (3) SA 353 (T): referred to H

Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C): referred to

Robson v Wax Works (Pty) Ltd and Others 2001 (3) SA 1117 (C) ([2001] 3 All SA 546): referred to

Securefin Ltd v KNA Insurance and Investment Brokers (Pty) Ltd [2001] 3 All SA 15 (T): referred to I

SMM Holdings (Pvt) Ltd v Southern Asbestos Sales (Pty) Ltd [2005] 4 All SA 584 (W): referred to

Sphandile Trading Enterprise (Pty) Ltd and Another v Hwibidu Security Services CC and Others 2014 (3) SA 231 (GJ): referred to

Ter Beek v United Resources CC and Another 1997 (3) SA 315 (C): referred to J

2015 (2) SA p552

Wackrill v Sandton International Removals (Pty) Ltd and Others 1984 (1) SA 282 (W): dictum at 293C applied A

Walter McNaughtan (Pty) Ltd v Impala Caravans (Pty) Ltd 1976 (1) SA 189 (W): referred to.

England

Mann v Goldstein [1968] 2 All ER 769 (Ch): referred to B

Re Bayoil SA; Seawind Tankers Corporation v Bayoil SA [1999] 1 All ER 374 (CA): applied.

Statutes Considered

Statutes

The Companies Act 61 of 1973, s 346(4A)(b): see Juta's Statutes of South Africa C 2013/14 vol 2 at 1-226.

Case Information

S van Aswegen for the applicant.

R Grundlingh for the respondent.

D An application for winding-up. The order is in para [77].

Order

1.

The application for the winding up of the respondent is dismissed;

2.

The parties are to respectively bear their own costs occasioned by the application prior to the date of delivery of the answering affidavit;

3.

E The applicant is to pay the respondent's costs occasioned by the application from the date after the delivery of the answering affidavit to date.

Judgment

Kairinos AJ:

F [1] The applicant applies for an order placing the respondent in provisional or final winding-up in the hands of the master of the high court and directing that the costs be costs in the application.

[2] I shall deal with the merits of the application in due course. However before I do so I will deal firstly with the applicant's failure to comply with G the provisions of s 346(4A)(b) of the Companies Act, 1973 ('the old Act'), which is applicable by virtue of the provisions of item 9 of sch 5 of the Companies Act, 2008 ('the new Act'), and which non-compliance is in any event fatal to the application, for the reasons set out below.

Non-compliance with s 346(4A)(b) H

[3] At the outset of the hearing I indicated to Ms Van Aswegen, who appeared for the applicant, that it did not appear from the papers before me that the applicant had complied with the provisions of s 346(4A)(b) of the old Act read with the provisions of item 9 of sch 5 of the new Act, I since no affidavit had been filed by the person who furnished the application on the parties referred to in the section, setting out the manner in which s 346(4A)(a) had been complied with.

[4] Section 346(4A) of the old Act provides as follows:

'(4A)(a) When an application is presented to the court in terms of J this section, the applicant must furnish a copy of the application —

2015 (2) SA p553

Kairinos AJ

(i)

to every registered trade union that, as far as the applicant can A reasonably ascertain, represents any of the employees of the company; and

(ii)

to the employees themselves —

(aa)

by affixing a copy of the application to any notice board to which the applicant and the employees have access inside the premises of the company; or B

(bb)

if there is no access to the premises by the applicant and the employees, by affixing a copy of the application to the front gate of the premises, where applicable, failing which to the front door of the premises from which the company conducted any business at the time of the application;

(iii)

to the South African Revenue Service; and C

(iv)

to the company, unless the application is made by the company, or the court, at its discretion, dispenses with the furnishing of a copy where the court is satisfied that it would be in the interests of the company or of the creditors to dispense with it.

(b) The applicant must, before or during the hearing, file an affidavit by the person who furnished a copy of the application which sets out the manner in which paragraph (a) was complied with.' D

[5] The matter stood down for Ms Van Aswegen to take instructions and thereafter she informed me that the applicant would furnish the court with an affidavit in compliance with the provisions of s 346(4A)(b) of the old Act. In terms of the provisions of s 346(4A)(b), such an affidavit E would have to be by the person who furnished a copy of the application (in casu the sheriff of this court), setting out the manner in which s 346(4A)(a) had been complied with.

[6] The parties then proceeded to argue the merits of the matter. During the course of the argument an affidavit was handed up from the bar. It F was an affidavit headed 'Service affidavit'. It was deposed to by Ms Natasha-Ann Do Rego, an adult female attorney employed by the applicant's attorneys of record. In the affidavit Ms Do Rego confirmed that the application had been lodged with the master of the high court and the South African Revenue Service (Sars) as required by s 346(4A). G That much was in any event evident from the notice of motion which bore the stamps of the master and Sars. She also confirmed that the application was served on the respondent. That too was in any event common cause. However there was no affidavit from the person who has so furnished Sars with a copy of the application.

[7] However in para 6 of the affidavit Ms Do Rego states as follows: H

'I furthermore caused a copy of the applicant's application herein to be served upon the respondent's employees by the Sheriff of the above Honourable Court, which was so served on the 24th of July 2013 as appears from the Sheriff's return of service dated 24 July 2013, attached hereto as annexure B.' I

[8] Upon reading annexure B however, things became somewhat more problematic and raised further concerns as to whether the employees had been furnished with the application.

[9] Annexure B to the service affidavit is a return of service by the acting sheriff...