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Circulate to Judges: Yes / No

Circulate to Magistrates: Yes / No

IN THE HIGH COURT OF SOUTH AFRICA

(Northern Cape Division)

Case no: 621/03

Date heard: 2003-09-15

Date delivered: 2003-09-26

In the matter of:

ALBERT WILLEM DE VILLIERS PLAINTIFF

versus

GLOBAL DIAMOND RESOURCES (PTY) LTD DEFENDANT

Coram: MAJIEDT J

JUDGEMENT

MAJIEDT J:

1. The applicant seeks the confirmation of the provisional liquidation order issued by Olivier AJ on 18 July 2003. The respondent opposes such confirmation. There is also an application to intervene in the proceedings by an alleged creditor of the respondent, one Petrus Frederick Cloete (“the intervening party”).

2. The application for provisional liquidation was brought on an urgent basis. The respondent sought a postponement of that application, but was unsuccessful and a provisional order was issued. Voluminous papers have been filed in answer and in reply – in fact a fourth set of affidavits has been presented by the respondent. At the hearing counsel for the respondent went even further and sought to hand up two further answering affidavits from the Bar. I shall deal with my rulings on these additional affidavits and the reasons therefor in due course.

3. The applicant sought and obtained the provisional order of liquidation on the grounds that

a) the respondent is unable to pay its debts as envisaged in sec 345 of the Companies Act, 61 of 1973 (‘the Act’) in accordance with sec 344(f) of the Act; and

b) it is just and equitable that the respondent should be wound up (sec344(h) of the Act).

4. The applicant had previously been in the employ of the respondent as mine manager of the respondent’s Grasdrif Exploration Project in the Richtersveld area of Namaqualand in this province. It is common cause that the respondent has been conducting its business primarily at the said Grasdrif and at Caerwinning mine in the Barkly West area where the respondent was similarly involved in exploration activities. Although there has been a half-hearted attempt at raising this Court’s alleged lack of jurisdiction as a point in limine in the opposing papers, Mr. Walters for the respondent has wisely elected not to pursue with it in argument. This Court clearly has jurisdiction to hear this application since the respondent’s main place of business is situated in its area of jurisdiction (sec 12(1) of the Act).

5. The applicant alleges that the respondent is indebted to him in the following amounts:

5.1 the sum of R70 436.04 in respect of accumulated leave pay.

5.2 an amount of R1 026 291.26 in respect of an alleged agreed severance benefit; and

5.3 an amount of R250 000.00 in respect of a claim for defarmation.

With regard to the alleged outstanding amounts in pars 5.2 and 5.3 above, there are in this Court two actions pending under case numbers 1130/02 and 1170/02 respectively. Case number 1130/02 had been set down for trial from 22 September 2003. In that matter I had presided in an opposed summary judgement application wherein I had refused summary judgement, since I had taken the view that the respondent has a bona fide defence.

6.1 It is a well-established principle in our law that liquidation proceedings ought not to be resorted to in order to enforce a claim which is bona fide disputed by a respondent company – the proper course is to have the disputed claim adjudicated upon through ordinary litigation;

See: Kalil v Decotex (Pty) Ltd 1988 (1) SA 943 (A) at 980;

Securefin Ltd v KNA Insurance and Investment Brokers (Pty) Ltd [2001]  3 All SA 15 (W) at 48;

Robson v Wax Works (Pty )Ltd 2001 (3) SA 1117 (C)

6.2 Consequently only the applicant’s claim for accumulated leave pay (par. 5.1 above) warrants further consideration herein – it is abundantly clear that in respect of the other two claims there is a serious bona fide dispute, in fact there is litigation pending in respect thereof.

7. The respondent has, in opposing the confirmation of the rule nisi¸ averred that:

7.1 it disputes the applicant’s claim for accumulated leave pay;

7.2 it is able to pay its debts;

7.3 it would not be just and equitable to issue a final winding-up order;

7.4 in any event this Court should, in the exercise of its discretion, discharge the provisional order by reason of the fact that the applicant is abusing the process of Court in this application.

The respondent has also raised in limine the question of urgency. It also opposes the application to intervene.

8. The respondent is a company primarily engaged in diamond mining. Its main business activities for the last few years has been concentrated on exploration at Grasdrif and Caerwinning. Its mother company is based in the USA. The present application for liquidation is the third one brought against the respondent in the last two years. During 2001 it was placed in final liquidation by order of the Witwatersrand Local Division at the behest of one of the respondent’s creditors, Standard Bank. The final order was thereafter set aside after the respondent had settled its indebtedness to Standard Bank. On 31 May 2002 the present applicant withdrew his application for the liquidation of the respondent in this Court, the parties having reached a settlement in the matter. That settlement entailed respondent settling its indebtedness to the applicant in respect of unpaid salary and contained a clear and unequivocal reservation of the applicant’s rights.

9. Before I proceed to the merits of the main application, I pause to consider two preliminary aspects, namely the question of urgency in the main application and the intervening creditor’s application to intervene in these proceedings. I shall deal firstly with the latter aspect.

10.1 On behalf of the intervening creditor Mr Muholonyi has submitted that a clear case has been made out on the papers to grant the application to intervene. The intervening creditor relies on a claim for unpaid salary. There is a significant dispute on the papers between the intervening creditor and the respondent on that aspect. According to the respondent, the intervening creditor and other workers left the respondent’s employ of their own volition.

10.2 Leave to intervene does not follow as a matter of course. Accepting for the moment that the intervening creditor has shown that he has a valid, enforceable claim against the respondent, for which the creditor holds no security, the following questions arise:

• Why could the intervening creditor not await the outcome of the main application – how can he justify incurring additional costs (which he asks that the respondent be ordered to pay “to achieve a result which was possibly or probably underway in any event”;

See: Firstrand Bank Ltd v Wallace Pienaar Properties CC 2002(2) SA 758 (W) at 760 H-I (per Flemming DJP).

• Has the intervening creditor in his papers contributed anything further in his own papers towards achieving the liquidation of the respondent? Or as Flemming DJP put it in the abovementioned case:

“Counsel was asked why the new party sought to 'intervene'. Paraphrased, the explanation is that when the new party became aware of the contents of the opposing affidavits, they thought it proper to proceed lest the respondent's opposition to the applicant was successful. On the facts of the case that is rather difficult to justify. The opposing affidavits relied on an alleged counterclaim but, on respondent's own showing, it left a substantial amount owing to the applicant. Applicant was accordingly a creditor. The picture of inability to pay debts was clear. There was no particular reason which ought to influence the Court's discretion nevertheless not to order liquidation. And in any event the new party did not testify about the facts deposed to in the applicant's application but introduced its own facts. The inferences suggested in the two applications were similar.

I choose to approach the matter more fundamentally. This is not the first example of collaborative efforts by financial institutions and other parties. They are, of course, entitled to do so. But it is at the risk of the 'intervening' party. It is unlike a competing application which is lodged in ignorance of an application already pending. The new application was with full knowledge of a pending application and even of the contents of the opposing affidavits. What I have to deal with is not the question of access to the Court or the right to lodge a competing application. “

• Can intervention be justified on the basis that the applicant has been tardy in prosecuting the application? (see the Firstrand Bank case, supra at 761 D-H). I think not.

It is clear to me that intervention cannot be justified at all when the abovementioned three questions are to be answered – all in the negative. The intervening creditor is doing no more than to aver a claim for unpaid salary (which the applicant is also relying on in part) and piggybacking on the applicant’s case as to the inferences and conclusions on the respondent’s ability to pay its debts.

10.3 Consequently I am of the view that the application for intervention is ill conceived and ought to be dismissed with costs.

11. Mr. Walters, for the respondent, has launched a fierce onslaught on the applicant’s flimsy grounds for urgency in the founding affidavit. The applicant relied mainly on the evidence of one Reality Mthetho, a security guard at Caerwinning Mine, who declared in an affidavit that a scrubber plant had been removed from the Caerwinning plant and that “from the size of the plant and the fact that it had to be mechanically lifted onto the back of the trailer, (he) believe(s) it to be a valuable item of machinery”.

This is very flimsy indeed – in my view certainly not enough to pass muster on the test for urgency. As Mr Botha, for the applicant, has correctly pointed out however, there was additional evidence supporting urgency which emanates from the affidavit of one Freddie Malinga, a bulldozer operator in the respondent’s employ who made mention in his affidavit of a front-end loader which had also been removed from Caerwinning Mine. I am of the view that the applicant has just about succeeded in showing sufficient grounds for urgency herein.

12.1 Returning to the merits of the main application – can it be said that the applicant is guilty of abusing the process of Court?

12.2 I have already made mention of the previous liquidation application (which was withdrawn after a settlement had been reached), as well as the two pending actions instituted by the applicant in this court against the respondent. It is certainly uncontroverted that the applicant is keenly litigious when it comes to disputes with the respondent.

12.3 I have also been referred by Mr. Walters to the fact that the applicant has unsuccessfully pursued his claim for unlawful dismissal against the respondent in the CCMA. In dismissing the applicant’s application for the condonation of the late filing of his claim for conciliation, the presiding commissioner held that the applicant has no prospects of success and he also made an adverse finding as to the true motives of the applicant. I have indicated to Counsel that this is an opinion which I ought not and shall not have regard to herein. The fact of the CCMA proceedings should, however, be taken into account in holistically assessing the applicant’s conduct and bona fides herein.

12.4 There are two further matters which cause considerable disquiet on this aspect. The first is the fact that the applicant is alleged to have approached on 8 March 2002, by way of a letter (annexed to the respondent’s opposing affidavit) the attorneys acting for Grimbeeck Civils, one of the respondent’s creditors in which letter the applicant indicated that the respondent is unable to protect its assets. Brent Grimbeeck of the said Grimbeeck Civils has deposed to a confirmatory affidavit in which he confirms having received the aforementioned letter from the applicant. More importantly, he also alludes to the fact that the applicant had solicited his support for the liquidation of the respondent. The respondent avers that this conduct on the part of the applicant:

• was a deliberate step to commit an act of insolvency so as to sustain an application for the immediate winding-up of the respondent; and

• should be seen in the context of the applicant’s earlier unsuccessful attempt to persuade the main shareholders and investors of the respondent to agree to a management buy-out of the respondent (“management” being inclusive of the applicant). For this purpose the applicant had taken the trouble of travelling to Saudi Arabia to meet with the investors and shareholders there.

12.5 The second troubling aspect relates to the fact (which is common cause on the papers) that the applicant has, as part of an entity known as Eureka (Pty) Ltd, applied for the allocation of the Grasdrif mining authorisation. The respondent, who has been the holder of such authorisation until early August 2003, has applied for the renewal of the said authorisation which has lapsed due to the effluxion of time. The respondent avers that the aforementioned fact explains the true motive for the applicant in bringing this liquidation application, i.e. as part of a systematic and premeditated strategy, engineered by the applicant, to obtain the Grasdrif operation (which the respondent describes as its “primary asset”) for less than its true value.

12.6 The applicant has vehemently denied any ulterior motive on his part in the bringing of these liquidation proceedings. He avers that he is merely pursuing in a bona fide manner his claims against the respondent and seeks to safeguard the interests of the body of creditors as a whole.

12.7 This Court has inherent jurisdiction to prevent abuse of its process, that is to say to prevent its process being used “to achieve a object not within the scope of the process or for a purpose other than that for which the proceedings are properly designed, or to obtain some ulterior or collateral advantage beyond what the law offers or that it would be unjust to obtain, or when the legal process is diverted from its true course so as to serve extortion or oppression or harassment to exert pressure so as to achieve an end which is improper or frivolous or vexatious”;

See: Blackman, Jooste, Everingham: COMMENTARY ON THE COMPANIES ACT at 14-76, footnote 3, and cases cited thereat.

Thus even where one or more grounds for liquidation is established, a Court may in its discretion refuse to order the company’s winding-up where it is established that the sole or predominant purpose of the applicant is mala fide or ulterior, to harass or oppress the company.

See: Tucker’s Land and Development Corporation (Pty) Ltd v Soja (Pty) Ltd 1980(3) SA 253 (T) at 256;

Wackrill v Sandton International Removals (Pty) Ltd 1984(1) SA 282 (W) at 293;

Hulse-Reutter v HEG Consulting Enterprises (Pty) Ltd 1998 (2) SA 208 (C) at 218.

12.8 In the present matter I have a strong suspicion that there is more to the applicant’s application than meets the eye. While I am not able to find as a proved fact that his application for the liquidation of the respondent has been actuated by ulterior motives, I shall most certainly place his overall conduct, as described hereinbefore, in the scale when I consider in due course whether it would be just and equitable to confirm the winding-up order or whether, in the exercise of my discretion, I should grant or decline the request for confirmation of the provisional order.

13.1 With regard to the applicant’s claim for unpaid accumulated leave, Mr. Botha has averred that such claim stands undisputed on the papers or, at best for the respondent, is being resisted on grounds which are unsustainable in law.

13.2 There is considerable merit in these submissions. Initially the respondent, quite amazingly, relied on an alleged waiver by the applicant by virtue of the settlement attained in the previous liquidation proceedings which the applicant has brought in this court against the respondent. That defence was totally ill founded: in the settlement agreement the applicant had clearly and unequivocally reserved his rights to pursue his further outstanding claims against the respondent. During argument Mr. Walters correctly conceded that there was no substance in this defence.

13.3 The second defence relied upon relates to the fact that the respondent has a counterclaim against the applicant for the latter’s failure to give one month’s notice of his resignation. Quite apart from the fact that the applicant denies that he has resigned, there is much to be said for the argument that there has been repudiation of a contract of service so that notice is not required. In any event, even a successful counterclaim would leave a balance due to the applicant on his claim.

13.4 A further defence is that the applicant presently unlawfully occupies the respondent’s property at Delportshoop, for which the respondent has a substantial claim against the applicant. This claim is illiquid and bad in law as a defence.

13.5 It is of considerable significance that as yet no counterclaim, foreshadowed in the respondent’s opposing affidavit in the summary judgement application, has seen the light of day in case no. 1130/02.

13.6 On behalf of the applicant, his attorneys had addressed a letter of demand in respect of the claim for unpaid accumulated leave pay to the respondent. Since no payment had been forthcoming, the applicant relies on the deeming provision in sec. 345(1)(a) of the Act for his averment that the respondent is unable to pay its debts. The respondent, of course, avers that it disputes the said debt but, as I have shown, does so on questionable grounds. A guarantee for the payment of the full sum, foreshadowed in the respondent’s answering affidavit, was handed to the applicant’s attorney on the day of the hearing, but the latter found it inadequate and hence unacceptable.

13.7 I am satisfied that the applicant has, on a preponderance of probabilities, shown that it has the necessary locus standi as a creditor herein and that the respondent should, in terms of the provisions contained in sec 345(1)(a) of the Act, be deemed to be unable to pay its debts.

13.8 In support of the aforementioned finding, I make mention of the fact that the respondent has clearly not been paying long outstanding and overdue creditors, despite having undertaken to do so. During the discharge of the final order of liquidation in the Witwatersrand Local Division, referred to earlier, undertakings were made that all outstanding debts would be settled. On the respondent’s own papers it is clear that a number of creditors have not been paid a year later, despite undertakings having been made.

14.1 It is abundantly clear on the papers that the respondent presently finds itself in very turbulent financial waters indeed. Mr. Walters has not contended otherwise. He has also very fairly conceded that the respondent cannot generate revenue at present, since its operations at Caerwinning and Grasdrif have ground to a halt.

14.2 As I have indicated, many of the respondent’s creditors have not received payment, despite solemn undertakings that they would.

14.3 In addition, the respondent is deemed to be unable to pay its debts in terms of sec 345(1)(a) of the Act.

14.4 On its own papers, more particularly ex facie its financial statements, the respondent has been trading at a substantial loss for the past three years or so – in 2000 the loss exceeded R6 million; more than R4 million in 2001 and more than R2 million in 2002. For the period 1 January to 31 July 2003, the loss stands at R2.7 million.

14.5 Moreover, the respondent’s liabilities exceed its assets. Of particular concern is the fact that the respondent’s main assets, namely its mining infrastructure, has been encumbered as security for its short term borrowings.

14.6 The above facts portray a very bleak picture indeed. Are there reasonable prospects of calmer waters ahead? Mr. Botha has urged me to confirm the provisional winding-up order, contending that there is no light at the end of a very dark tunnel for this company.

15. The respondent has held out hope for its financial rescue in the following respects:

15.1 The main shareholders/investors (who also happen to be the respondent’s main creditors) have indicated a firm commitment to inject substantial financial resources into the respondent. The firmness of this commitment has already been illustrated by the fact that these shareholders/investors have pledged and paid an amount of US $ 95 000.00 over to the respondent, so it has been submitted. Mr Botha has poured scorn on this commitment, referring me to previous promises and undertakings by the shareholders which have failed to materialise in full or at all. While there is certainly some justification for a degree of scepticism on this aspect, I am prepared to accept that there is a genuine commitment to supply the respondent with a lifeboat. Furthermore, one needs to bear in mind that, although the amount pledged and paid is wholly insufficient to meet the respondent’s debts and recurring operational expenditure, it has been clearly stated in the respondent’s papers that this is to be seen as “initial funding” only.

15.2 There is also reliance placed on the proverbial white knight or, to be consistent, an outside rescue vessel. This is in the form of a joint venture partner in respect of the Caerwinning and Grasdrif operations of the respondent. Initially vague references had been made to a company known as SA Gemstones with which negotiations were being conducted. In his further answering affidavit, the deponent for the respondent (its managing director) alludes to a company known as Pan African Diamonds (Pty) Ltd which has made an in-principle commitment to such joint venture. Again there is ample room for scepticism on this score, but I am prepared to consider this as a prospect which is not too remote in favour of the respondent.

15.3 The respondent has put forward an affidavit of a geologist, one JP van Wyk, as to the value of the mining deposits at Grasdrif and Caerwinning. Two aspects cast a very dark shadow over the evidentiary value of these estimates:

a) the fact that the respondent had previously been involved in litigation with the very same Van Wyk over alleged misrepresentations which van Wyk had made about the value of diamond deposits at Caerwinning! (I point out that Van Wyk is a former director of the respondent.)

b) Furthermore, the said note on the estimates contain a clear disclaimer in the following terms:

“Although the figures ... are presented with the best of my knowledge about these deposits and may probably be attainable with careful and proper exploration and mining techniques, given the unpredictable nature of alluvial diamond deposits, these figures should be considered as speculative and may not be used to solicit investments or otherwise influence potential investors” (emphasis supplied).

Hardly any reliance can in my view be placed on such a speculative opinion.

15.4 The respondent has averred that the wishes of its creditors should be taken into account. This is a two-pronged submission:

a) Firstly there are the main creditors, who are also the respondent’s main shareholders/investors, who have indicated that they are keen to have the respondent continue as a going concern. They have also committed funds to rescue the respondent and have, to the extent of US $ 95 000.00, put their money where their mouths are.

b) The applicant had made mention in his founding affidavit and in the replying affidavits of a number of creditors of the respondent who have not been paid for a substantial length of time. The respondent, in its further answering affidavit, has obtained affidavits from all these creditors (eight in total) in which a willingness to further defer payment is expressed. In addition, all these creditors have indicated that they desire the rule nisi to be discharged herein. Mr. Botha has referred to the fact that these affidavits appear to be pro forma. The reason for this, in my view, may simply be one of expediency. What is of more substance is Mr. Botha’s submission that these creditors do not appear to be properly apprised of all the facts herein, more particularly the respondent’s parlous financial situation. For this he relies on Porterstraat 69 Eiendomme v PA Venter Worcester 2000(4) SA 598 (C) at 613 H – 614 E.

It seems to me that that cannot be the case – the creditors in the present matter most certainly have sufficient knowledge of the facts. It can also not be said that their approach is unreasonable, bearing in mind that a similar stance has been adopted by the respondent’s main creditors. I come to this conclusion in the light of the fact that some of these creditors had made detailed affidavits in the founding papers – ostensibly in support of the applicant’s application. I fail to see how they can now be said to be ignorant of the full facts of this matter.

16. During the hearing I had allowed the introduction of a fourth set of affidavits – the further answering affidavit from respondent. I did so because:

a) Mr. Botha for the applicant did not seriously oppose the introduction thereof; and

b) it appeared to me to be just that the respondent be permitted to deal with the numerous new matters introduced by the applicant in its replying papers.

A subsequent confirmatory affidavit of the main deponent for the respondent, Macdonald, was handed in from the Bar during the hearing and admitted for the same reason. The further affidavit of Vries was however disallowed, because it was a thinly veiled attempt to plug a loophole in the respondent’s case which appeared in its answering affidavit.

17.1 It is perhaps opportune at this juncture to deal very briefly with the apparent disputes of fact on the papers herein. As is apparent from this judgement, there are numerous disputes of facts on a number of issues in this matter, some more important and material than others. Not surprisingly, neither of the parties has applied for a referral of this matter for the hearing of oral evidence. The reason for that is clear: these disputes are either not genuine, bona fide disputes of fact or they do not preclude the matter from being decided on the papers as they stand.

17.2 In opposed provisional winding-up applications a Court has a wide discretion to order the hearing of oral evidence, even where no prima facie case has been established by an applicant. Such discretion would, however, only be exercised in favour of the hearing of oral evidence in appropriate instances.

See: Shepstone & Wylie & Others v Geyser NO 1998(3) SA 1036 (A) at 1044-5;

Atkinson v Rare Earth Extraction [2002] 3 All SA 68 (C) at 72-73.

The same principle applies in my view to opposed confirmation proceedings of a provisional winding-up order, such as the present one.

17.3 In the present matter there are no grounds justifying the hearing of oral evidence, since the matter can be resolved on the papers as they stand.

18.1 Upon a careful consideration of the facts as they appear from the papers and having regard to Counsel’s arguments, I am of the view that the applicant has established, on a balance of probabilities, that the respondent is unable to pay its debts within the meaning of sec. 345 of the Act. I make this finding in respect of the applicant’s outstanding accumulated leave pay.

18.2 The matter does not end there however – the question which arises is: would it be just and equitable to place the respondent in final liquidation? The enquiry into what is just and equitable “postulates not facts but only a broad conclusion of law, justice and equity, as a ground for winding up” per Trollip J (as he then was) in Moosa NO v Mavjee Bhawan (Pty) Ltd 1967(3) SA 131 (T) at 136. As to a Court’s general discretionary power to grant or decline a winding-up order even where grounds therefor have been established, see:

Tjospomie Boerdery (Pty) Ltd v Drakensberg Botteliers (Pty) Ltd 1989(4) SA 31 (T) at 42-43.

Kyle v Maritz & Pieterse Inc [2002] 3 All SA 223 (T) at 232.

In considering this aspect, regard must also be had to the wishes of creditors and the respondent’s shareholders where sufficient evidence of such wishes exists.

See: Leca Investments (Pty) Ltd v Shiers 1978(4) SA 703 (W) at 705.

18.3 I have grave doubts as to whether it can be said, on the facts of this case, that it would be just and equitable to place the respondent in final liquidation. I expressly refrain from making a finding thereon. In the exercise of my discretion I do however, decline to confirm the rule nisi, despite the strong case made out by the applicant. I do so for the reasons hereinafter enumerated:

a) The overwhelming majority of creditors, both in value and in number, desire the continued operation of the respondent and request the discharge of the provisional winding-up order. I am satisfied that these creditors have sufficient factual knowledge of and insight in the matter to be able to make such a request.

b) The respondent’s main shareholders (and main creditors) have made a firm commitment to place sufficient financial resources at the respondent’s disposal to enable it to continue operating. This commitment has been underscored by initial funding of US $ 95 000.00.

c) It can safely be accepted that there are significant diamond deposits ready for mining at the respondent’s Grasdrif operations. Considerable sums of money have been expended in exploring for the diamonds (although such monies have not always been optimally expended) and have yielded favourable results. The applicant, through Eureka (Pty) Ltd, has in fact corroborated the fact of the existence of such diamond deposits at Grasdrif – why else would he take the trouble of applying for authorisation to mine there?

d) I have grave difficulty in accepting, without reservation, the applicant’s bona fides in this application. While I cannot find as a fact that he had acted with an ulterior purpose herein, it is an aspect which weighs to an extent in tilting the scales ever so slightly away from him.

e) There appears to be a not too remote prospect of the respondent obtaining a joint venture partner for its Grasdrif and Caerwinning operations. This would cause substantial further injecting of funds into the respondent.

19. Having come to the aforementioned conclusion, there remains the matter of costs. The applicant has been successful in obtaining a provisional order of liquidation. Mr Botha has urged that I make a costs order in the applicant’s favour to that limited extent, even if I should discharge the provisional winding-up order. I decline to do so, by reason of the fact that at the time of the issuing of the provisional order no facts as to the merits of the matter were at hand from the respondent’s side – it having unsuccessfully sought a postponement of the matter. Costs must follow the outcome.

20. I issue the following order:

20.1 The application of Petrus Frederick Cloete for leave to intervene in these proceedings is dismissed with costs.

20.2 The provisional winding-up order, issued on 18 July 2003, is hereby discharged.

20.3 The applicant is ordered to pay the respondent’s costs.

___________

SA MAJIEDT

JUDGE

ADVOCATE FOR THE PLAINTIFF : Adv CH Botha

ADVOCATE FOR THE DEFENDANT : Adv G Walters

ATTORNEY FOR THE PLAINTIFF : AB Horwitz

ATTORNEY FOR THE DEFENDANT : Neville Cloete

DATE OF HEARING : 2003-09-15

DATE OF JUDGEMENT : 2003-09-26

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