appeaibaby
IN THE HIGH COURT OF SOUTH AFRICA rWITWATERSRANP LOCAL DIVISIONS
CASE NO: 97/007828 In the matter between;
FLEECYTEX JOHANNESBURG CC and
BABY ANGEL CC
APPLICATION FOR LEAVE TO APPEAL
BE PLEASED TO TAKE NOTICE THAT Respondent intends applying for leave to appeal to the full Court of the Transvaal Provincial Division of the High Court,
alternatively, to the full Court of the Witwatersrand Local Division of the High Court against the whole of the judgment and order of his Lordship the honourable Mr Justice Malan given on 4 December 1997 in terms of which his Lordship granted a final liquidation order against Respondent.
BE PLEASED TO TAKE FUTHER NOTICE THAT the Application will be based inter alia on the following grounds:
(It being clear that Applicant has a right of appeal against a final liquidation order in terms of the provisions of Section 150 of the Insolvency Act No 24 of 1936 read with Section 339 of Act 61 of 1973 in pursuance of the decision in Kalil vs Decotex (Pty) Ltd
•and another 1988 (1) S A 943 (A) at page 961)
1.
The learned Judge erred in finding that Applicant had proved that there was a debt owing by Respondent to Appliqant. The learned Judge should have found that the evidence
presented in applicants application as to any indebtedness was so vague, confusing and contradictory that no Court could make a finding of the existence of any debt at all.
2.
The learned judge erred in finding that Respondent had in the course of discussions with applicant admitted that there was a debt owing by it's associated company Artistic Interior Baby CC and also inferring from paragraph 17.4 of the answering affidavit that the debt on which applicant is bringing the application for liquidation was admitted by Respondent.
3 . • '
The learned Judge erred in finding that because a Respondent had issued two cheques in favour of applicant amounting to R70 000.00 which cheques had however been stopped, Respondent's had acknowledged an indebtedness of R70 000.00.
4.
The learned judge erred in finding with the reference to an issue referred to evidence namely who owed applicant money, Artistic Interiors of Baby Angel that Baby Angel undertook to pay the debt and that Applicants locus standi as a creditor was no longer disputed.
5.
The learned Judge erred in not holding that the process of liquidation was not a means of determining Applicants alledged debt which should have been determined by means of au ordinary action.
6.
Applicant is now awaiting the transcription of the learned Judge's reasons for judgment and the correction thereof and hereby reserves Applicant's right to augment and/or to supplement the above grounds in the light thereof.
KINDLY enroll the application for hearing at such time and such venue as the learned presiding Judge, Mr Justice Malan, may, in consultation with the Registrar of the above Honourable Court, appoint and direct.
DATED at JOHANNESBURG on the fa day of December \Wl
TO:
AND TO:
C A SCHO&MAN ATTORNEY Respondents Attorney
No.9, Win^fberg Street Northcliff P.O.Box 898, Melville 2109 Tel: 477-9562 / Ref: 1306/CAS THE REGISTRAR OF THE COURT
JOHANNESBURG
SOLOMON-FRIEDMAN Applicant's Attorney 1st & 2nd Floors SFB Chambers 133 Marshall Street Johannesburg Ref: NJordaan
Accepted entirely wltWout Prejudice SALOMON FRIEDMAN
CAS/1306 Mr Salomon 19 January 1998
SALOMON-FRIEDMAN
Perfax:331.7178 . '.
as well as:
R M G TRUST Reuben Miller Group Mr B Surmany Perfax:883.8143 Dear Sirs
BABY ANGEL CC // FLEECYTEX JOHANNESBURG CC CASE NUMBER: 7828/97
MASTER'S REFERENCE: T 4914/97
We refer to the telephonic conversation between Mr Bert Surmany of the liquidator's office and our Anna-Marie Conway in terms whereof Mr Surmany clearly stated that, notwithstanding the application for leave to appeal having been noted, the liquidation process is being proceeded with immediately.
We therefore have to proceed immediately with an urgent application to interdict any *- steps in connection with the liquidation of our client, Baby Angel CC and the papers will be served upon you within the next 24 hours as it also has to be notified to the Master in Rretoria.
We will be asking for attorney and own client costs against the Respondent and if required an order de bonis propriis against the Attorney for Respondent who ignores the provision of Rule 49(11).
Kindly therefore, refrain from trespassing onto our client's property before the urgent application is lodged in the High Court of South Africa (Witwatersrand Local Division) for hearing which will probably take place on the 21st of January 1998, at 14:00.
Any trespass in defiance of the above will also be notified to the South African Police.
Yours fa C A S C
per:
EMAN ATTORNEY
19/01 '98 M0\ 17:OU FAX 3311829 SALOiMON FRIEDMAN
EM6 3
SALOMON-FRIEDMAN
ATTORNEYS, NOTARIES & CONVEYANCERS PROKUREURS, NOTAR1SSE & AKTEVERVAARDIGERS
1»t & 2nd FLOOR. SFB CHAMBERS, COR. MARSHALL AND VON BRANDIS ST./Hv. MARSHALL EN VON BRANDISSTRAAT JOHANNESBURG 2001
Pwbwt/Vannota:
EARLE FRIEDMAN, B . C 0 M . . U . B . MICHAEL Q. SALOMON. B.A..L.LB.
JAN F. B62U!DENHOUT,BJURIS,L.LB.
Facsimile to : C A Schoeman Number 673-1339
WITHOUT PREJUDICE
POCEX 34 O £ i . C;
TEL: NATIONAL/NASiONAAL (011) 331-0312 INTERNATIONAL/INTERNASIONAAL 12711) 331-0312 P.O. BOX/POSBUS 7019 & 10148 TELEFAX 331-7178 JOHANNESBURG 2000
TELEGRAMS -
4 6 8A
OUHREF/ONSVERW. M R C A L D E I R A / J S / YOUR REFAJ VERW. C A S / 1 3 0 6
19 January 1998
Dear Sirs
RE: FLEECYTEX JOHANNESBURG CC / BABY ANGEL CC
The above matter, and the telecon between your Ms Conway and our Mr Caldeira and the telefax from yourselves dated 19th January 1998 refers.
We hereby confirm our advices to your Ms Conway that :-
1. Your application for leave to appeal served on ourselves on 14th January 1998 has only reached the writer's attention on even date as a result of our filing clerk's oversight;
2. Tho actionc of tho liquidator in the al>uve mailer ul lids stage are not steps in the liquidation; and
3. Our client has agreed that we should revert to yourselves before the liquidator takes any further steps in the liquidation of the close corporation.
In light of the above there are no grounds for your client applying urgently to the High Court for relief.
Kindly acknowledge receipt hereof.
YouJteAffeiltrfSTIy
-FRIEDMAN
17:58 FAX 3311829
SALOMON FRIEDMAN
SALOMON-FRIEDMAN
ATTORNEYS, NOTARIES & CONVEYANCERS
" PROKUREURS, NOTARISSE & AKTEVERVAARDiGERS
1 st. f. 2nd f LOOR, SFR CHAMOERS. COB. MARSHALL AND VON BRANDIS ST./Hv. MARSHALL EH VON BRANOISSTRAAT JOHANNESBURG 3001
O.COM..L.L,E.,ai(i L.bo..- L*w [HAU1 AEL G. S
OOCEX 34 TCI.: NATIONAI/NASIONAAL 1011) 331-0312 INTERNATlONAi/inTERtJASlONAAL U 7 U I 331-0212 P.O. GOX/POSBUS 7013 & I 0 U B TELEFAX 331-7178 JOHANNESeURG 2000
TELECnAMS "SUBESAFE"
TEltX/TELGKS 4-0*31 45 KA
OUR REF/ONS VOUR REF/U VCRW.
DATED :
TO :
FAX NO :
FROM :
FAX NO: 331-7178 : SALOMON - FRIEDMAN: JOHANNESBURG
This transmission consists of C>-» pages, including this cover.
MESSAGE:
SALOMON-FRIEDMAN
ATTORNEYS, NOTARIES & CONVEYANCERS PROKUREURS, NOTARISSE & AKTEVERVAARD1GERS
1st & 2nd FLOOR; SF8 CHAMBERS, COR. MARSHALL ANO VON BRANDIS ST./Hv. MARSHALL EN VON BRANDISSTRAAT JOHANNESBURG 2001
DOCEX 34 EAflLE FRIEDMAN, S.COM..L.L.B.
MICHAEL G. SALOMON, B.A..L.LB.
JAN P, BE2UlOENHOUT,B.JUniS,L,LB.
TEL: NATlONAL/NASIONAAL ( O i l ) 331-0312 INTERNATIONAL/INTERNASIONAAL 1271)) 331-0312 P.O. BOX/POSBUS 7019 4 10148 TELEFAX 331-717fl JOHANNESBURG 2000
TELEGRAMS 'SUHESAFE' TELEXflTELEKS 4 . 3 5 ! 4 6 SA
OUR REF/ONS VERW. M R S A L O M O N / J S /
VOUR REF/U VERW. I A N R O S E N D O R F F
Facsimile to :
Fleecytex Johannesburg CC Number 908-41 38
21 January 1998
Dear Ian
RE: BABY ANGEL CC
Further to the above matter we enclose for your attention a copy of the telefax which we have addressed to the respondent's legal representatives together with a copy of the telefax we have addressed to the liquidator in the above estate which are self explanatory.
We are most concerned that in the-interim period the-respondent may well have disposed of valuable assets due to the estate. The liquidator called on the respondent's premises on the 16th instant and observed that there is only stock on hand to the value of R3 000,00. There are approximately 24 machines- on hand, the bulk of which the respondent's representatives advise belong to another entity.
Our further advices follow.
Kindly acknowledge receipt hereof.
Kind regards
MJCHAEL SALOMON
p
SALOMON-FRIEDMAN
ATTORNEYS, NOTARIES & CONVEYANCERS PROKUREURS, NOTAR1SSE & AKTEVERVAARD1GERS
1st & 2nd FLOOR, SFB CHAMBERS, COR. MARSHALL AND VON BRANDIS ST./Hv. MARSHALL EN VON BRANDISSTRAAT JOHANNESBURG 2001
EAfllE FRIEDMAN, B.COM..L.L.B.
MICHAEL G. SALOMON, 8.A.XX.B.
JAN f. BEZUIDENHOUT.B.JURIS.LL.B.
TEL: NATIONAL/NASrONAAL 1011) 331 -0312 INTERNATlONAUINTERNASIONAAL (2711) 331-0312 P.O. BOX/POS0US 7019 & 10148 TELEFAX 331-717 JOHANNESBURG 2000
TELEGRAMS 'SURESAfE' TELEX/TH.EK5 4-651 45 SA
OUR REF/ONS VERW. M R S A L O M O N / J S /
YOUR REF/U VERW. c a s / 1 3 0 6
Facsimile to : C A Schoeman Number 673-1339
21 January 1998
Dear Sirs
RE: FLEECYTEX JOHANNESBURG CC / BABY ANGEL CC
We refer to our telefax to you dated 19th instant. We have now had an opportunity of considering this matter. We have advised the liquidator that he has a duty to carry out his duties as liquidator and he should proceed to immediately take the necessary action to take control of the assets of the estate. He is accordingly proceeding to do so. Your client is accordingly at liberty to proceed to bring the threatened application for an interdict preventing him from doing so.
In view of the fact that a final liquidation order has been granted against your client and more particularly in view of your client's representatives advices to -the liquidator that it is possessed of minimal assets, the bulk of the machines being on hand, being used by your client, allegedly being the property of another entity, should you proceed to bring the threatened application same will be opposed and an order for costs de bonis propriis will be sought against you.
Kindly acknowledge receipt hereof.
SALOMON-FRIEDMAN
7
C . A , SCHOEMAN
ATTORNEYPO Box 29898 MELVILLE 2109 9 Winterberg Street NORTHCLJFF TELEPHONE : (Oil) 477-9562
FACSIMILE : (Oil) 673-1339
ALL HOURS :(Oil) 650-5156 E-mail: [email protected]
MY REF, C A S / 13 0 6 YOUR REF, M R SALOMON/JS/
21 January 1998
Salomon-Friedman Attorneys jj) Per telefax: 331-7178
Dear Sir
BABY ANGEL CC // FLEKCYTEX JOHANNESBURG CC Your letters received now 16h20 refers.
We note that your Mr Salomon /js is the author of the letter.
On Monday afternoon also at approximately 16h00 your Mr Caldeira has dealt with this matter and agreed that the liquidation order is suspended pending the Application for Leave to Appeal and more specifically to the provisions of Rule 49(11) of the High Court Rules.
On that understanding we confirmed that although the urgent application has been drawn and ready to proceed we will on, his undertaking to respect the process laid down in terms of the above Rule 49(11), not proceed with the Urgent Application.
It seems that the one hand at your firm does not know what the other hand is doing and in the circumstances we are now serving the Notice of Motion as well as the Founding Affi avits on yourselves tomorrow morning.
faithfully
SCHOEMAN ATTORNEY
JvlG TRUST (MR B SURMANY = FAX: 883-8143)
CHRISTOFFEL ANDRIES SCHOEMAN (B. PROC UOVS)
