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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

CASE NO: 39508/2019

 

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED:

Date: 26^th November 2021

 

In the matter between:

 

NCA PLANT HIRE CC                                                                                Applicant

 

and

 

BLACKFIELD GROUP HOLDINGS (PTY) LIMITED                                 Respondent

 

Coram:          Adams J

Heard:            22 November 2021 – The ‘virtual hearing’ of this Opposed Application was conducted as a videoconference on Microsoft Teams.

Delivered:     26 November 2021 – This judgment was handed down electronically by circulation to the parties' representatives via email, by being uploaded to CaseLines and by release to SAFLII. The date and time for hand-down is deemed to be 15:30 on 26 November 2021.

Summary:     Company – Winding-up – confirmation of provisional winding-up order – dispute settled with applicant before confirmation of order – settlement / compromise binding on the applicant and of full force and effect – consent of the provisional liquidator to settle application not necessary – provisional order discharged.

 

ORDER

 

(1)     The provisional winding-up order of this Court dated 20 May 2021 in respect of the respondent be and is hereby discharged.

(2)     The applicant is granted leave to approach the court again, for a winding up of the respondent, on these papers duly supplemented, in the event that the order referred to in (3) below is not complied with by the respondent.

(3)     The respondent shall pay to the applicant the proceeds of the sale of one or more of the items referred to in annexure ‘SAA5’ to the respondent’s further affidavit dated 6 October 2021, by no later than 31 January 2022 such that the amount of R1 574 638.69 is received by the applicant.

(4)     There shall be no order as to costs.

 

JUDGMENT

 

Adams J:

[1]          This matter came before me in the Opposed Motion Court on Monday, 22 November 2021, which was the return day of a provisional liquidation order granted at the instance of the applicant (‘NCA Plant Hire’) against the respondent (‘Blackfield Group’) by Miltz AJ on 20 May 2021. On that day, this Court in fact issued an order placing Blackfield Group under a provisional winding-up order in the hands of the Master, coupled with a rule nisi calling on all interested parties to show cause ‘on a date to be arranged with the registrar’ why the provisional winding-up order should not be final.

[2]          On the return day, which incidentally was arranged by Blackfield Group’s Attorneys, NCA Plant Hire applied for the provisional winding-up Order to be made final, whilst Blackfield Group contended that the rule nisi should be discharged and the winding application dismissed.

[3]          The respondent contends that the provisional order should be discharged on the basis inter alia that the dispute between the applicant and the respondent in the winding-up application had become resolved between them in that a written settlement agreement was concluded. The said agreement was constituted by and incorporated into correspondence exchanged between the legal representatives of the parties during August and September 2021. It is the case of the respondent that an agreement between the parties came into existence by virtue of an offer made by respondent’s attorneys to the applicant’s attorneys on 31 August 2021, which offer was accepted clearly and unequivocally on 1 September 2021. The acceptance of the offer, which was contained in an email from the applicant’s attorneys to the respondent’s attorneys, reads as follows:

‘Kindly take note that we have received instructions to accept the proposed settlement. Our client further instructed us to proceed to draft a settlement agreement in this regard, as such we are attending to draft same, which you will receive during the course of early next week.’

[4]          Having regard to the aforegoing, I have very little doubt that a settlement agreement was concluded between the parties. There was clearly an offer made, which offer was unequivocally accepted – classic offer-and-acceptance, resulting in a binding contract. It was an express term of the said agreement that on the return day, the provisional winding-up order was to be discharged. On the basis of the aforegoing alone, the provisional order stands to be discharged.

[5]          The applicant contends, however, that an agreement did not come into existence as it was a condition that the settlement should be incorporated into a written settlement agreement, presumably to be signed by the parties before the agreement would be binding on them. A very superficial reading of the correspondence, especially the extract referred to above, belies this contention. The wording is clear – the proposed settlement was accepted by the respondent.

[6]          It is trite that, in interpreting contracts and any other legal instruments, the logical point of departure remains the language of the provision itself. In casu, the words used in the exchange of correspondence between the legal representatives lend itself to one interpretation, and one interpretation only, that being that the dispute between the parties has been compromised. The agreement reached by the applicant and the respondent should therefore be given effect to and the provisional winding-up order ought to be discharged.

[7]          The applicant also submits that it cannot be accepted that a settlement agreement came into existence because, so the argument goes, an agreement of compromise could only be concluded by the duly appointed provisional liquidators. That is so, according to the applicant, because a concursus creditorum had been instituted and the settlement agreement would be to the detriment and prejudice of the general body of creditors. There is no merit in this contention on either a factual or a legal basis. There is no evidence that there has been a creditors meeting, and therefore it cannot be said that concursus creditorum has been instituted. Moreover, the respondent has as yet not been finally liquidated, which is a step which can only be taken at the behest of the applicant. The applicant is dominus litis in the liquidation application, not the provisional liquidators. And if the applicant decides to settle the dispute at the heart of the liquidation application, it is within its rights to do so.

[8]          In the circumstances, the provisional winding-up order should be discharged.

[9]          As contended by Mr Hollander, who appeared on behalf of the respondent, there is another reason why the rule should be discharged. That relates to the fact, so Mr Hollander submitted, that the respondent is not factually insolvent. I agree with this submission. On the uncontested and undisputed evidence before me, it cannot be said that the respondent is factually insolvent.

[10]       The applicant submitted that an order should be granted which in effect gives effect to the settlement reached between the parties. I agree. Such an order would do justice to the matter and between the parties, and it is the type of order which section 347(1) of the Companies Act, Act 61 of 1973 enjoins the Court to issue.

Costs

[11]       The general rule in matters of costs is that the successful party should be given his costs, and this rule should not be departed from except where there are good grounds for doing so. See: Myers v Abramson[1].

[12]       In this matter, there appears to be no winner and no loser. Moreover, the matter was settled between the parties after the provisional winding-up order was granted on terms which appear favourable to the applicant, who should not have insisted on proceeding to obtain a final liquidation.

[13]       The appropriate costs order, in my view, would therefore be one of no order as to costs. I intend granting such an order .

Order

[14]       In the result, the following order is made: -

(1)          The provisional winding-up order of this Court dated 20 May 2021 in respect of the respondent be and is hereby discharged.

(2)          The applicant is granted leave to approach the court again, for a winding up of the respondent, on these papers duly supplemented, in the event that the order referred to in (3) below is not complied with by the respondent.

(3)          The respondent shall pay to the applicant the proceeds of the sale of one or more of the items referred to in annexure ‘SAA5’ to the respondent’s further affidavit dated 6 October 2021, by no later than 31 January 2022 such that the amount of R1 574 638.69 is received by the applicant.

(4)          There shall be no order as to costs.

 

 

________________________________

L R ADAMS

Judge of the High Court

Gauteng Local Division, Johannesburg

 

 

HEARD ON:                                                         22^nd November 2021 – in a ‘virtual hearing’ during a videoconference on Microsoft Teams.

JUDGMENT DATE:                                              26^th November 2021 – judgment handed down electronically

FOR THE APPLICANT:                                        Advocate Nel

INSTRUCTED BY:                                               J A Van Wyk Attorneys, Benoni

FOR THE RESPONDENT:                                   Advocate L Hollander

INSTRUCTED BY:                                               Mohamed Randera & Associates, Rosebank, Johannesburg

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