REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
CASE NO : 2025-011864
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE NO
(2) OF INTEREST TO OTHER JUDGES NO
(3) REVISED
SIG
NATURE
DATE 26 August 2025
In the matter between:
PREGASON PADAYACHEE Applicant
and
OCEANS PRIVATE SCHOOL (PTY) LIMITED Respondent
JUDGMENT
THERON AJ:
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[1] This is an application where the Applicant seeks the final winding- up of
the Respondent on the grounds that the Respondent company is
commercially insolvent in the sense that it is unable to pay its debts as
and when they become due as contemplated in Section 344(f) read
with Section 345(1)(c) and (h) of the Companies Act 61 of 1973 as
read with item 9 of Schedule 5 of Act 71 of 2008.
[2] The defence initially raised in the answering affidavit was destroyed by
the replying affidavit to which was attached a settlement agreement in
which the Respondent admitted an amount then due and rate of
escalation in terms of a lease agreement between the Applicant and
the Respondent.
[3] Shortly before the hearing of the application, the parties filed
supplementary affidavits, without seeking the leave of the court,
dealing with settlement negotiations between them.
[4] The settlement negotiations between the parties were disclosed to the
court in annexures to the supplementary affidavits.
[5] Even if the settlement negotiations were without prejudice, which they
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clearly are no longer, the negotiations would have been admissible.1
[6] During the negotiations, the Respondent agreed that it was lawfully
liable and indebted to the Applicant in the amount of R713 652,48
which offered to pay by effecting an initial payment of R100 000,00 on
or before the close of business on the 30 th of July 2025. It further
offered to contribute towards an amount of legal fees which was to be
agreed between the parties on or before the close of business on 30
July 2025.
[7] The Respondent further offered to effect payment on or before the last
day of each month in the amount of R50 000,00 until such time as the
full indebtedness was settled.
[8] The parties could not agree to the amount of the principal debt, the
Applicant insisting that an outstanding amount of R60 077,64 in
respect of the utilities was also outstanding and should form part of the
capital amount outstanding.
[9] The parties could not agree on the capital amount outstanding as they
could not agree on the amount in respect of the City of Johannesburg
1 ABSA Bank Limited v Hammerle Group 2015 (5) SA 215 (SCA) at paragraph [13]; ABSA
Bank Limited v Chopdat 2000 (2) SA 1088 (W) at 1092 H to 1094 F and Lynn & Main Inc v
Naidoo and Another 2006 (1) SA 59 (N) at paragraphs [23] to [24}
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account for utilities.
[10] The parties could not reach a settlement, and the matter came before
me on 19 August 2025.
[11] The concept of winding up companies based on commercial
insolvency (a state of inability to pay debts as they fall due) is well
recognised.2
[12] The Respondent is clearly unable to pay its debts as and when they
fall due.
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[13] The Applicant is an unpaid creditor and has a right, ex debito justitiae,
to a winding-up order.
4
[14] This court is not sitting under a palm tree, and no particular reason
was advanced why, despite making out the requirements for
liquidation, I should withhold such an order.
5
2 Boschpoort Ondernemings (Pty) Limited v ABSA Bank Limited 2014 (2) SA 518 (SCA) at
paragraphs [16] to [17] and paragraphs [23] to [24] and ABSA Bank v Rhebokskloof (Pty)
Limited and Others 1993 (4) SA 436 (C) at 440 F – 441 A
3 Rosenbach & Co (Pty) Limited v Singh’s Bazaars (Pty) Limited 1962 (4) SA 593 (D) at 597 D-
F and De Waard v Andrew & Thienhaus, Limited 1907 TS 727 at 733
4 Afgri Operations Limited v Hamba Fleet (Pty) Limited 2022 (1) SA 91 (SCA) at paragraph [12]
5 Orestisolve (Pty) Limited t/a Essa Investments v NDFT Investment Holdings (Pty) Limited and
Another 2015 (4) SA 449 (WCC) at paragraph [18]
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In the result I make the following order:
1. The Respondent, Oceans Private School (Pty) Limited, is placed under
final winding -up in the hands of the Master of the High Court,
Johannesburg.
2. The costs of the application are costs in the liquidation.
_____________________________
THERON AJ
Acting Judge of the High Court
Date of hearing: 19 August 2025
Date of judgment: 26 August 2025
Appearances:
Counsel for Applicant :
Attorneys for Applicant : SP Attorneys Incorporated
Counsel for Respondent :
Attorneys for Respondent : Strydom & Associates