IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No 8659/2010

In the matter between:

and

CLOETE AJ:

INTRODUCTION

[1] The applicant launched an application for liquidation on 29 April 2010. with the papers being served on respondent on 30 April 2010. The basis of the application for liquidation was that respondent was unable to pay its debts in terms of Section 344 (f) of the Companies Act 61 of 1973 (-the Act") and that it was just and equitable for the respondent to be wound up in terms of Section 344 (h) of the Act. The application was set down for hearing on 6 May 2010.

[2] The respondent opposed the application which was then postponed until 3 June 2010. On 14 May 2010 the respondent delivered an answering affidavit and thereafter delivered a supplementary answering affidavit on 25 May 2010 The applicant did not deliver a replying affidavit.

[3] It is common cause that the debt was discharged on approximately 24 May 2010.

[5] The matter came before me on 16 November 2010 After it became apparent that the notice of withdrawal as attorneys of record by the respondent's attorneys which was delivered on 17 June 2010 did not comply with the provisions of rule 16 of the rules of court, I further postponed the hearing on the outstanding issues to 3 December 2010, and directed that a copy of the notice of withdrawal together with a copy of my order be served on the respondent, and that the respondents attention be drawn to the provisions of rule 16(4), with the costs of the application to stand over further.

[7] Respondent subsequently delivered heads of argument on 9 December 2010.

[9] Although there was some debate on the papers as to whether the respondent was correctly cited in the application, from the heads of argument filed on behalf of the respondent it is apparent that the three main issues to be determined by me are (a) whether the debt was due and payable; (b) whether interest should be awarded; and (c) whether applicant has abused the process of court.

WHETHER THE DEBT WAS DUE AND PAYABLE

[10] The application's capital claim related to the refund of a deposit of R30 000 paid by him to the respondent in respect of a rental vehicle hired by him from the respondent. The applicant's submission is that, despite the respondent's earlier protestations, it is now common cause that the debt was owing and that it had remained unpaid for a period of many months. The respondent received various demands for payment from the applicant, none of which evoked payment. In the circumstances, the applicant was entitled to bring an application for liquidation. The applicant further submits that there is no reason why, therefore, that the applicant {as the successful party) ought not to be awarded his costs, as well as interest that has accrued on the capital sum. The applicant points out that whilst it is unusual for the issue of interest to be determined in what commenced as a liquidation application, the parties formally agreed that such liability may be determined by this court.

[12] The applicant contends that the repayment of the deposit would have been due on 12 August 2009, the vehicle having been returned on 12 July 2009. The applicant thus claims that he is entitled to interest at the rate of 15.5% per annum on R30 000 calculated from 13 August 2009 to the date of payment, being 24 May 2010.

[15]     The following appears from the papers:
15.2. The rental vehicle was returned by the applicant to the respondent on 12 July 2009;

15.3. As from 6 October 2009 all forms of communication from the applicant to the respondent ceased The respondent states that it thus assumed that the credit (ie refund of the deposit) had eventually reflected on the applicant's American Express Card;

15.5. On the same date the applicant launched the liquidation application and served it on the respondent on the following day. being 30 April 2010.

[16] I agree with respondent's counsel that (a) the applicant's letter of demand (through his attorneys) dated 19 April 2010 did not provide a reasonable period for payment, particularly having regard to the difficulties experienced by the respondent with credit card companies (as set out in respondent's answering affidavit, to which the applicant chose not to reply); and further the fact that no communication whatsoever was received by the respondent from the applicant for a period in excess of six months prior to such letter of demand.

[18] Accordingly, the application for liquidation was launched at a stage when the debt was not due and payable (bearing in mind that no time limit for performance had been agreed upon) and the applicant was not in a position to invoke the provisions of Section 344 (f) of the Act for the winding-up order.

INTEREST

[19] The agreement concluded between the parties is silent on the issue of interest being payable on the deposit

[21] Further, there is nothing in the order of 3 June 2010 which indicates to me that the respondent in any way conceded that, in principle, it might be liable for interest notwithstanding the agreement between the parties that the liability for interest would be determined by a court in due course.

[22]    To my mind, the applicant is not entitled to interest on his claim

LIABILITY FOR COSTS, AND WHETHER THE APPLICANT HAS ABUSED THE PROCESS OF COURT

[24] The respondent argues that the applicant purported to launch the application for the winding-up of the respondent on an urgent basis, and that in so doing, he displayed a flagrant disregard for the rules of this court, not only because he failed to include a prayer that the matter be heard as one of urgency in terms of the provisions rule 6 (12) but that he also failed to set out any factual basis whatsoever for urgency in his founding affidavit.

[30]     I accordingly make the following order:
30.1. The applicant is not entitled to interest on the capital sum of R30 000;
30.2. There shall be no order as to costs.