IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
Case Number: 2024..008136
(I} REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
:i..~---~~-~~?.!. ... ~.~:. 5
DATE
In the matter between:
TWIN RIVERS HOMEOWNERS ASSOCIATION
NPC
and
SIYANDA SABELO TRADING (PTY) LTD
JUOGMENT
Applicant
Respondent
2
VIVIAN AJ
Introduction
[1] The applicant applies for an order placing the respondent in liquidation.
[2] The application is brought in terms of Section 346(1 )(b) read with Section 344(f)
of the old Companies Act (Act 61 of 1973).
[3] In order to succeed in the application, the applicant must accordingly show that
it is a creditor of the respondent and that the respondent is unable to pay its
debts.
The applicant Is a creditor
{4] It is not in dispute that the applicant is a creditor.
[5] The respondent owns two erven in the Twin Rivers Country Estate. The applicant
is the relevant homeowners association. It is common cause that the respondent
is required to pay monthly levies to the applicant.
[6] The respondent fell into arrears. On 31 March 2023, the applicant signed an
acknowledgement of debt. He acknowledged arrears in the capital amount of
R519 801,09 and undertook to pay off the arrears instalments. He also undertook
to continue paying monthly levies.
[7] The respondent says that it has made payments in terms of the
acknowledgement of debt and that parties are in ongoing talks to reduce the
indebtedness. It has paid approximately forty percent of the debt.
3
[8] There is no minimum amount of debt for an applicant to qualify as a creditor. As
long as part of the debt is admitted, the applicant has standing to apply for the
respondent to be placed in liquidation.1
[9] The applicant accordingly has standing to bring this application.
The respondent is unable to pay its debts
[10) In terms of Section 344(f), a company may be wound up if it is unable to pay its
debts.
[11] The applicant served a notice in terms of Section 345(1)(a) on the respondent at
its registered office on 19 January 2024.
(12] The respondent did not pay the admitted amount of the debt or secure or
compound for it to the reasonable satisfaction of the applicant within three weeks
of service of the letter.
(13] The respondent is accordingly deemed to be unable to pay its debts.
(14) In addition, the facts show commercial insolvency. It signed an
acknowledgement of debt. Despite the respondent's counsel's argument to the
contrary, I consider that the fact that the respondent had fallen into arrears and
signed the acknowledgement of debt is strong evidence of its inability to pay its
debts.
l Henochsburg on the Companies Act, 71 of 2008,, APPi -74
4
[15) Further evidence is the admission in the answering affidavit that the respondent
is making payments under the acknowledgement of debt as and when it is able
to do so.
[16) The applicant has accordingly established the requirements for a winding up
order.
Discretion
[17) The respondent's counsel sought to persuade me to exercise my discretion to
refuse a liquidation order.
(18) In a well-structured argument, he demonstrated inconsistencies in the applicant's
position, including whether the respondent was in fact in arrears in terms of the
acknowledgement of debt instalments, at particular times and whether the
applicant correctly invoked the acceleration clause in that document.
[19] However, my discretion to refuse a liquidation order is very narrow. A creditor
has a right, ex debito justitiae, to a liquidation order to a respondent company
that has not paid the debt. The Court will only refuse to grant an order in
exceptional circumstances.2
[20] I do not consider that such exceptional circumstances have been established by
the respondent.
2 Afgri Operations Ltd v Hambs Fleet (Ptv) Ltd 2022 (1) SA 91 (SCA) at para 12
5
Non-compliance with Section 346(4A)(b)
[21) The applicant has not filed an affidavit by the person who furnished a copy of the
application which sets out the manner in which Section 346(4A)(a) has been
complied with.
(22] Instead, it filed two affidavits deposed to by its attorney in which she contended
that the sheriff had effected service on the relevant trade unions and employees.
(23) This does not constitute compliance with Section 346(4A)(b).3
[24] The requirements of Section 346(4A) are peremptory. In the result, I cannot grant
a final liquidation order. However, I can grant a provisional liquidation order.4
[25) In the recent case of Rent-a-Tank,5 Gilbert AJ explained that, when deciding
whether to grant a provisional winding up order where there has not been
compliance with Section 346(4A). the Court will consider whether there has been
effective notice to the trade union and employees. Where the application is
opposed, as this application is, and where there are returns of service from the
sheriff which show effective notice, then it is appropriate to grant a provisional
winding up order.
Conclusion
[26] The applicant has made out a case for a provisional winding up order.
[27) I accordingly make the following order:
3 Lyconet Austria GmbH v Weiglhofer and Others (2023/082122} [2023) ZAGPJHC 1197 (20 October 2023)
4 EB Steam Co (Pty) Ltd v Eskom Holdings SOC Ltd 2015 (2) SA 526 (SCA) at para's 23 to 2S
5 Rent a Tank JHB (Pty) Limited v Fuelgiants (Pty) limited (2025/012156) (2025) ZAGPJHC 517 {19 May 2025)
6
27 .1. The respondent is hereby placed in provisional winding up.
27 .2. All persons who have a legitimate interest are called upon to put forward
their reasons why this court should not order the final winding up of the
respondent on 26 January 2026 at 10:00 or so soon thereafter as the
matter may be heard.
27 .3. A copy of this order must be served on the respondent at its registered
office.
27.4. A copy of this order must be published forthwith once in the Government
Gazette.
27.5. A copy of this order must be published forthwith once in a newspaper
circulating nationally.
27 .6. A copy of this order must be forthwith forwarded to each known creditor
by hand or by email.
27.7. The applicant is to comply with the provisions of Section 346(4A) and
Section 346A of the Companies Act (Act 61 of 1973).
27 .8. The applicant's costs in respect of, including the fees of counsel on scale
B, are costs in the application.
Vivian, AJ
Acting Judge of the Gauteng Division
of the High Court of South Africa
Appearances
For the Applicant:
For the Respondents:
Date of hearing:
Date Delivered:
SN Davis
Instructed JJR Inc.
L Moela
Instructed by Matlhwana Attorneys Inc.
13 August 2025
28 August 2025
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MODE OF DELIVERY: This Judgment was handed down electronically by circulation
to the parties' and or parties' representatives by email and by being uploaded to
CaseLines. The date and time for the hearing are deemed to be 10h00 on 21 August
2025