Reebib Rentals (Pty) Ltd v Lets Trade 1163 CC

• Jurisdiction: South Africa
• Judge: Swain J
• Judgment Date: 19 February 2009
• Citation: 2009 (3) SA 396 (D)
• Docket Number: 7219/2008
• Hearing Date: 10 February 2009
• Counsel: HA de Beer SC for the applicant. BL Skinner SC (with him BSM Bedderson) for the respondent.
• Court: Durban and Coast Local Division

Swain J:

C [1] The applicant seeks an order provisionally winding up the respondent, as it were, for the second time. A prior provisional winding-up order was granted by this court on 18 July 2008, returnable on 15 August 2008, and thereafter adjourned on two occasions, when on 29 August 2008 the following order was granted by consent:

1.

D That the aforesaid rule nisi be and is hereby discharged.

2.

That the application is adjourned sine die.

3.

That the costs occasioned by the adjournment are reserved.

[2] The applicant then set the matter down again on the opposed roll on 9 December 2008, when an order was granted by consent adjourning the E matter to the opposed roll on 10 February 2009, and making provision for the filing of supplementary affidavits by both parties. Only the applicant, however, filed a supplementary affidavit.

[3] I have set out the history of the matter in some detail, because it is relevant to the first point, raised in opposition to the grant of a provisional order, by Mr Skinner SC who, together with Mr Bedderson, F appeared for the respondent.

[4] Mr Skinner SC submits that it is not clear whether the applicant is seeking a revival of the former provisional order, or the issue of a'new' provisional order of winding-up. In the applicant's heads of argument, Mr De Beer SC states that the applicant'seeks a (further) provisional G winding up order'.

[5] It seems to me, however, that when regard is had to the history of the matter, a revival of the original rule was not contemplated. This is because on 9 December 2008 the matter was adjourned to the opposed roll, with both parties being granted leave to file supplementary affidavits. H The parties were therefore afforded the opportunity to place additional evidence before the court which could pertain to what had happened in the interim. An agreed procedural indulgence of such a nature is, in my view, inconsistent with the object of'reviving' the discharged rule. How could the discharged rule be revived, on the basis I of evidence of facts which occurred after its discharge?

[6] It is therefore clear that the applicant seeks the issue of a'new' or'further' provisional order of winding-up.

[7] Two further arguments raised by Mr Skinner SC require for their resolution a determination of what the status is of the present application. J

Swain J

[8] The first argument is that the discharge of the provisional order had A the effect of bringing the application to an end. This is because when a court is not satisfied that a case has been made out for a final winding-up, the order granted is to discharge the provisional order.

[9] The short answer to this is that when the rule was discharged the order provided that the application was adjourned sine die and the costs B occasioned by the adjournment were reserved. Mr Skinner SC submits that the effect of reserving the costs was purely to keep the issue of the costs alive. I disagree. If this were the intention there would have been no need to adjourn the application. This made it quite clear that the application had not been brought to an end.

[10] The second argument is that, if the application is not at an end, and C a revival of the provisional order is not sought, then the application must be a'new' application. The consequence of this, so the argument went, was that the bond of security was stale and no longer operative because no provisional liquidator was appointed.

[11] Section 66 of the Close Corporations Act 69 of 1984, inter alia, D applies the provisions of s 346(3) of the Companies Act 61 of 1973 to the winding-up of a close corporation. This section provides for the furnishing of sufficient security for the payment of all fees and charges necessary for the prosecution of all winding-up proceedings, and of all costs of administering the company in liquidation, until a provisional liquidator has been appointed, or, if no provisional liquidator E is appointed, of all fees and charges necessary for the...