REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Numb er: 120493/2024
(1) REPORTABLE : YES
(2) O F INTEREST TO OTHER
(3) RE VISED: YES
DATE 07 Novembe r 2025
In the matter between:
MARTHINUS JACOBUS BEKKER N.O.
JACQUES ANDER FISHER N.O.
LEBOGANG GRACE MPAKATI N.O .
and
WILLOWS BOUTIQUE HOTEL AND
First App licant
Second Applicant
Th ird Applicant
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CONFERENCE CENTRE (PTY) LTD Respondent
JUDGMENT
JANSE VAN NIEUWENHUIZEN J:
Introduction
[1] The applicants in their capacity as the duly appointed provisional liquidators of
Roderick Trade 9 (Pty) Ltd (in liquidation) (“the company”) pray for an order
ejecting the respondent from premises known as the Willows Boutique Hotel and
Conference Centre (“the Hotel”) situated at the Remainder of Portion 21 of the
Farm The Willows 340, Registration Division JR. (“the premises”).
Common cause facts
[2] The following facts are common cause between the parties;
2.1 the company is the registered owner of the premises,
2.2 the company was placed under supervision and business rescue
proceedings commenced on 14 May 2020,
2.3 an application for the winding up of the company was presented to court
on 20 November 2020,
2.3 whilst the application was pending the Business Rescue Practitioner
published a business rescue plan that was rejected by the creditors on
30 April 2021,
2.4 the Business Rescue Practitioner terminated the business rescue
proceedings on 17 December 2021,
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2.5 on 15 June 2022 the company and the respondent concluded a lease
agreement in terms of which the respondent leased the premises from
the company for purposes of conducting the Hotel business,
2.5 the company was provisionally wound up on 7 February 2023 and the
order was made final on 26 January 2024.
Legal position
[3] In terms of section 348 of the Companies Act, 61 of 1973 (“the 1973 Act”), the
winding-up of a company is deemed to commence when the application is
presented to court, in casu, 20 November 2020.
[4] Section 341(2) of the 1973 Act provides that “every disposition of its property
(including rights of action) by any company being wound -up and unable to pay
its debts made after the commencement of the winding -up, shall be void unless
the Court otherwise orders.”
[5] The lease agreement is a disposition of property for purposes of section 341(2)
and in the result, the lease agreement concluded between the company and the
respondent on 15 June 2022 is void.
Issue for determination and legal framework
[6] The respondent brought a counter -application and prays for an order declaring
the lease agreement between the company and the respondent valid, in terms of
the provisions of section 341(2) of the 1973 Act.
[7] In deciding whether to exercise the discretion conferred on the court in terms of
section 341(2), it is apposite to have regard to prevailing authorities. In Pride
Milling Co (Pty) Ltd v Bekker NO and Another 2022 (2) SA 410 (SCA), the court
referred with approval to the following extract from Lane NO v Olivier Transport
1997 (1) SA 383 (C) at 386D-387B:
“ '(a) The discretion should be controlled only by the general principles which apply to
every kind of judicial discretion. (See Re Steane's (Bournemouth) Ltd [1950] 1 All ER 21
(Ch) at 25.)
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(b) Each case must be dealt with on its own facts and particular circumstances.
(c) Special regard must be had to the question of good faith and the honest intention
of the persons concerned.
(d) The Court must be free to act according to what it considers would be just and fair
in each case. See Herrigel's case supra at 678 and see Re Clifton Place Garage Ltd
[1970] Ch 477 (CA) at 490 and 492 ([1970] 1 All ER 353 at 356 and 357 – 8).
(e) The Court, in assessing the matter, must attempt to strike some balance between
what is fair vis -à-vis the applicant as well as what is fair vis -à-vis the creditors of the
company in liquidation.
(f) The Court should gauge whether the disposition was made in the ordinary course
of the company's affairs or whether the disposition was an improper alienation. See Re
Wiltshire Iron Co; Ex parte Pearson (1868) LR 3 Ch App 443 at 447.
(g) The Court should investigate whether the disposition was made to keep the
company afloat or augment its assets. See Herrigel's case supra at 679 – 80.
(h) The Court should investigate whether the disposition was made to secure an
advantage to a particular creditor in the winding-up which otherwise he would not have
enjoyed or with the intention of giving a particular creditor a preference and which latter
factor may be decisive. See Wiltshire's case supra at 447.
(i) The Court should enquire whether the recipient of the disposition was unaware of
the filing of the application for winding-up or of the fact that the company was in financial
difficulties. See Re Tellsa Furniture (Pty) Ltd (1984 – 85) 9 ACLR 869 (NSW).
(j) Little weight should be attached to the hardship which will be suffered by the
applicant if the payment is not validated, the purpose of the subsection being to minimise
hardship to the body of creditors generally. See Herrigel's case supra at 680.
(k) The payment should not be looked upon as an isolated transaction if in fact it
(k) The payment should not be looked upon as an isolated transaction if in fact it
formed part of a series of transactions. See Herrigel's case supra at 680.”
Facts
[8] The premises on which the respondent conducts the Hotel business is part of a
larger property in extent some 5 hectares. Save for the Hotel, there are multiple
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immovable structures on the property, such as a large hall which is, inter alia,
being utilised by a church to conduct services on Sundays, structures in which
businesses are trading and residential properties (“plots”) which are occupied for
residential purposes by third parties. Notwithstanding the mixed use and
occupation of the pro perty by various other entities / persons, the property has
not been subdivided and the whole 5 hectares needs to be sold as one property.
[9] One Mr Reader (“Reader”) was the sole director of the company which owns the
property. The company experienced financial difficulties and Reader resolved to
place the company in business rescue. At the time the company went into
business rescue the Hotel w as operated by an entity known as Yellowwisp 87
CC (“Yellowwisp”). Reader was the sole member of the close corporation.
[10] When the applicants took control of the affairs of the company it was not clear
whether Yellowwisp had a lease agreement with the company and/or whether it
was paying any rent to the company. In the result and on 28 March 2023, the
first applicant addresse d a letter to Reader requesting a copy of the lease
agreement between Yellowwisp and the company and advising Reader that all
further rentals should be paid into the company’s bank account.
[11] Reader provided the lease agreement between the company and the respondent
that was signed on 15 June 2022. Although Reader is the sole director of the
respondent, the lease agreement was signed on behalf of the respondent by
Reader’s wife whereas Reader signed on behalf of the company. The lease
agreement terminates on 30 June 2026. The monthly rental payable in respect
of the lease is R 40 000, 00 and in terms of clause 4.3 of the agreement:
“4.3 The monthly rental payable will take into account an offset amount of R 25 000,
00which is paid by the Lessee for payment of gardener’s salaries (+ -R10 000) plus
00which is paid by the Lessee for payment of gardener’s salaries (+ -R10 000) plus
appropriate use purchase of diesel for the generator (R+ -15000) for the benefit to the
Lessor and other tenants on the property. This Lessee will also perform all maintenance
on the property and ensure general maintenance of the property during the remainder
of the lease;”
[12] Clause 11 provides a right to the respondent to renew the lease agree for a
period of 12 months commencing on 1 July 2026.
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[13] The first applicant stated that the respondent has only made sporadic payments
of the rent. No rental was paid for the period October 2023 to May 2024.
[14] I pause to mention, that Reader attached another lease agreement to the
counter-application, which lease agreement was signed in May 2022. Reader
explained that it was a bona fide error and acknowledged that the June 2022
lease agreement is the correct agreement.
[15] Insofar as the necessity for an eviction order is concerned, the first applicant
stated that there were multiple creditors who lodged claims against the company,
whilst the company was in business rescue. The Business Rescue Practitioner
valued the claims in excess of R 45 000 000, 00. These creditors have not been
able to lodge claims against the company in liquidation because, due to an
administrative glitch in the Master’s office, a first meeting of creditors have not
been held. All or most of the creditors are expected to lodge claims at the first
meeting of creditors.
[16] Prior to business rescue and during the period that Reader managed the
company, the company failed to make all necessary payments to the local
authority and the municipality has a claim of R 12,9 million against the company.
As a result, the water and electricity supply to the property has been terminated,
a situation the applicants deem to be unacceptable and harmful to the property.
Insurance cover on the property may be compromised and in the absence of
municipal water supply, fire remains a serious hazard. The applicants submit that
the situation is not in the interests of creditors.
[17] The applicants state that the aforesaid circumstances led them to conclude that
it would be in the best interest of the creditors to sell the property in a bid to
minimise all the risks and uncertainties attached to the property. The property is
valued at an amount of R 16 800 000, 00 on a forced sale basis, but the sale of
valued at an amount of R 16 800 000, 00 on a forced sale basis, but the sale of
the property is hamstrung by the fact that the respondent occupies the Hotel.
[18] In support of the relief claimed in the counter-application, Reader states that the
respondent maintains the premises and the equipment situated thereon to an
acceptable standard. The respondent has a security guard doing access control
and parking area control during the day and there are CCTV cameras across the
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premises internally and externally. The maintenance, security and garden
services amounts to R 22 500,00 and the remainder of the rental in the amount
of R 15 000, 00 is paid monthly to the company. Reader contends that the
upkeep of the premises enhances its value and is to the benefit of creditors.
[19] Furthermore, the respondent employs a number of employees who would lose
their income if the respondent is evicted from the premises. The respondent
makes use of borehole water and the fire hydrants on the property are connected
to the water supply, elimin ating any fears of a fire hazard. Water tanks with a
capacity of approximately 60 000 litres have been installed by the respondent on
the property and the tanks are continuously replenished with water from the
borehole. According to Reader, should the resp ondent be evicted, there will be
no drinking or sanitation water for the other occupants or tenants on the property.
[20] Lastly, Reader contends that a thriving Hotel business adds to the value of the
property as a whole and will make the property much more attractive to potential
buyers.
Discussion
[21] Having regard to the circumstances in casu, I am the view that the following two
factors mention in ……….supra are of particular relevance:
“(d) The Court must be free to act according to what it considers would be just
and fair in each case. See Herrigel's case supra at 678 and see Re Clifton Place
Garage Ltd [1970] Ch 477 (CA) at 490 and 492 ([1970] 1 All ER 353 at 356 and
357 – 8). and
(e) The Court, in assessing the matter, must attempt to strike some balance
between what is fair vis -à-vis the applicant as well as what is fair vis -à-vis the
creditors of the company in liquidation.”
[22] In facilitating the conclusion of the lease agreement between the company and
the respondent, Reader clearly endeavoured to gain an advantage for the
respondent in the winding -up of the company. A valid lease agreement would
respondent in the winding -up of the company. A valid lease agreement would
have guaranteed that the respondent remains in possession of the Hotel until at
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least 30 June 2027, even if it would have been in the interest of creditors to sell
the property unencumbered.
[23] On the other hand, the respondent has, on all accounts maintained the premises
in a satisfactory condition and has paid, although sporadically, rent to the
company. Notwithstanding the aforesaid and the respondent’s wish to remain on
the premises, the liqui dators must execute their statutory duties, which clearly
entail the sale of the property and in turn the obtainment of vacuo possession.
[24] The respondent maintained that even if it vacates the premises, the property as
a whole cannot be sold because of the presence of the tenants. In view of an
offer received from Laers kool Die Krans o n 15 October 2024, th e presence of
tenants do not seem to be a problem. The occupation of the Hotel Busine ss,
however, are.
[25] Laerskool Die Krans stated as much in the offer letter : “Our interest in this
property arises from our desire to convert the existing structures, particularly the
Willows Country Lodge, into a facility for our school….” In respect of the tenants,
the following was stated: “Concluding new lease agreements with existing
tenants on or before the Closing Date…”
[26] In view of the aforesaid, I do not deem it in the interest of creditors to validate the
lease agreement.
[27] I, however, deem it fair to allow the respondent a reasonable period to wound up
its affairs. The respondent, no doubt, has bookings and functions over the festive
period which should be honoured. The time allowed will also place the employees
of the respondent in a better position to seek alternative employment in the event
that the respondent does not relocate to another business premises.
[28] To this end, the respondent is granted a period of two months from 1 December
2025 to vacate the premises.
Costs
[29] The applicant prayed for costs on an attorney and client scale. I am not convinced
that the respondent’s conduct in opposing the application and claiming relief in
accordance w ith the counter-application is ma /a fide or for some other reason
deserving of a punitive cost order.
ORDER
I grant the follow ing order:
1. The respondent is ordered to vacate the premises know n as Willow s Boutique
Hotel and Conference Centre on or before 28 February 2026.
2. The respondent is ordered to pay the costs of the application. Co unsel's fees on
scale C .
3. The counter-application is dismissed w ith costs. Counsel's fee's on scale C .
DATE HEARD:
08 September 2025
DATE DELIVERED:
07 November 2025
APPEARANCES
Counse l for the Applicant:
Instructed by:
Counse l Respondents:
N. JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Adv Van Der Merwe SC
Donn E Bruw er Attorneys
Adv Ca lyn D 'A lton
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Instructed by: Du Pre Le Roux Attorneys
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