Dark Fibre Africa (Pty) Ltd v Bluecentrix (Pty) Ltd t/a Smartswitch

Dark Fibre Africa (DFA) provided services to Bluecentrix (Pty) Ltd t/a Smartswitch from August 2018 to July 2021, raising invoices for these services. Bluecentrix fell behind on payments, prompting negotiations between the parties. On 24 February 2021, Mr Van der Mescht of Bluecentrix wrote an email to DFA stating that Smartswitch was not in a position to repay its debt at R250,000 per month and that an offer to settle would be made by 31 March 2021. During July 2021, DFA served a notice in terms of s 345(1) of the Companies Act 61 of 1973 demanding payment of R1,388,434.06. Bluecentrix failed to pay or secure the amount. A string of emails exchanged between December 2020 and May 2021 showed repeated acknowledgements of debt by Bluecentrix representatives (including Van Rooyen, Van der Mescht, and Pretorius), calculations of the outstanding amount, and offers of settlement. Gamble J granted a provisional liquidation order on 27 July 2023, finding a prima facie case. At the final stage, Bluecentrix filed affidavits opposing the rule nisi but persisted with bald denials of indebtedness, disputed the authority of its representatives, and raised prescription.

• Whether Bluecentrix bona fide disputed the existence of the debt on reasonable grounds (the Badenhorst rule).
• Whether Bluecentrix had shown that it was solvent and able to pay its debts at the final liquidation stage.
• Whether the court should apply the Plascon-Evans test at the final liquidation stage and, if so, whether Bluecentrix's version should be accepted.
• Whether the defence of prescription applied, specifically whether the email correspondence (particularly the email of 4 May 2021) constituted an acknowledgement of liability under section 14(1) of the Prescription Act.
• Whether DFA was entitled to introduce the string of emails in its replying affidavit.

The respondent, Bluecentrix (Pty) Ltd t/a Smartswitch, is placed under final liquidation. The costs of the applicant, Dark Fibre Africa (Pty) Ltd, are to be costs in the liquidation of the respondent.

Where a respondent's indebtedness has been prima facie established and the respondent has admitted indebtedness in correspondence, the onus is on the respondent to show that the debt is disputed on bona fide and reasonable grounds. Bald denials and far-fetched, untenable versions will not constitute a genuine dispute of fact. Under section 14(1) of the Prescription Act, a tacit acknowledgement of liability may be inferred from a debtor's conduct viewed in the context of preceding conduct, and individual communications (such as an email) should not be viewed in vacuo.

The court expressed that it was not necessary to decide whether both the Badenhorst rule and the Plascon-Evans test must be applied where there is a factual dispute regarding a respondent's indebtedness in a final liquidation application, as there was no genuine factual dispute on the papers. The court also declined to rule on the admissibility of the provisional liquidators' preliminary report, as it was unnecessary for reaching a finding on solvency.

The judgment clarifies the application of the Badenhorst rule and the Plascon-Evans test at the final liquidation stage, and provides guidance on how email correspondence and prior conduct of a debtor can constitute a tacit acknowledgement of liability under section 14(1) of the Prescription Act, interrupting the running of prescription. It also reinforces the principle that a respondent in liquidation proceedings cannot rely on bald denials when confronted with documentary evidence of acknowledgements of debt.