KHAYAH Cement has suffered a legal setback after the High Court ruled against its application to liquidate Hhoopwestern Investments, which trades as Afrimining, over a US$511 000 debt.
In the court application, Khayah cited Afrimining, Master of the High Court and the Registrar of Companies as respondents.
The cement firm was seeking provisional liquidation of Afrimining and the appointment of Theresa Grimmel as the liquidator.
According to the court documents, Afrimining owed Khayah US$510 979,80 with interest at the rate of 8% per annum calculated from January 19, 2021 to date of payment.
The amount was awarded under arbitral proceedings.
After the registration of the award, Khayah caused a writ of execution against movable property to be issued, and property belonging to Afrimining was attached and sold in execution.
The sale realised a sum of US$35 318,50 after deduction of the agent’s commission and other costs.
Khayah argued that the application was necessitated by the fact that Afrimining was unable to pay its debt.
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But Afrimining opposed the application, saying Khayah was frustrated payment of the amounts claimed by unlawfully withholding its equipment.
In his ruling, High Court judge Justice Happius Zhou dismissed the case, saying inability does not mean a refusal to pay or neglecting to pay.
“Inability, on the other hand, must be assessed objectively by reference to all the circumstances of the case as proved by the evidence placed before the court. The evidence must show an actual lack of capacity to pay the debt.
“The applicant (Khayah) clearly misled itself by attaching only the goods that were in its possession and neglected to look for other goods belonging to the first respondent at its identified address,” the judge said.
“In fact, it is disconcerting that the applicant ignored the address for execution that is stated in the writ of execution that it caused to be issued and paradoxically attached the goods in its custody in order to thereafter allege inability to pay the debt.”
Justice Zhou found that Afrimining had not shown to be unable to pay its debt and that an additional liquidation order seemed to had sought as a way of enforcing payment of the debt.
“This conclusion is reached based on the conduct of the applicant of attaching only the Afrimining goods that were in its custody and selling them and thereafter alleging inability to pay a debt even without making an attempt to enforce the writ at the address that is stated in the writ,” the High Court judge said.
“No equitable grounds have been advanced to justify the liquidation of the company under such circumstances.
“In view of the conclusion reached that none of the grounds alleged to justify the liquidation has been established, the question of the discretion that the court has, in relation to the liquidation of a company, does not arise in casu.”
