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2026
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[2026] ZAGPJHC 99
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Thwala v Monaghan Farm Homeowners Association NPC (125130/2023) [2026] ZAGPJHC 99 (10 February 2026)
THE REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case Number: 125130/2023
(1)
REPORTABLE: NO
(2) OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
In the matter between:
ANDILE
THWALA
Applicant
and
MONAGHAN
FARM HOMEOWNERS ASSOCIATION NPC
Respondent
In
re
:
MONAGHAN
FARM HOMEOWNERS ASSOCIATION NPC
Applicant
and
ANDILE
THWALA
Respondent
Delivered:
This judgment was prepared and
authored by the Judge whose name is reflected and is handed down
electronically by circulation to
the parties' legal representatives
by email and by uploading it to the electronic file of this matter on
CaseLines. The date and
time for hand-down is deemed to be 10:00 on
___ February 2026.
JUDGMENT
VAN EEDEN AJ
[1]
This is an application for leave to appeal
a judgment I signed on 19 September 2025. The parties referred to
themselves as in the
main application, and I shall also adopt that
terminology.
[2]
The application for leave to appeal is
dated 30 October 2025. It is common cause that condonation is
required for the late launching
of the application for leave to
appeal. To that end, the respondent launched a substantive
application. The founding affidavit
was signed on 10 November 2025.
The applicant filed an answering affidavit and the replying affidavit
was filed on the morning
of the hearing of this application.
[3]
The delay in launching the application for
leave to appeal was apparently caused by financial distress. In the
founding affidavit
the respondent stated as follows:
“
13.
After receiving the judgment, there was a delay in giving the
necessary financial mandate to my
attorneys of record to proceed with
the matter. This is considering that I had recently made payments
north of R220 000.00
to the Applicant to cover the debt which
stretched me financially.”
[4]
In the replying affidavit this issue was
further explained:
“
23.
I had recently made substantial payments towards the judgment debt.
Those payments reduced
my immediate disposable funds and required me
to secure additional funds to continue the litigation responsibly.
This is precisely
the conduct of a person attempting to pay his
debts, not to evade them.”
[5]
Mr T Mahapa appeared on behalf of the
respondent. He submitted that the high value of the respondent’s
house undermines the
finding of insolvency made in the main judgment.
He submitted that this militated against the finding of factual
insolvency.
[6]
In the main judgment, I stated that it
appeared to be common cause that the immovable property in issue was
unencumbered and that
it had a value of approximately R4,5 million.
The fact that the property is unencumbered, seen in isolation, does
not have the
result Mr Mahapa contended for. Nor is the submission
that the respondent was simply unwilling to pay and that there is not
an
inability on his part to effect payment. The respondent was
compelled to pay in accordance with the court order obtained by the
applicant. In these circumstances, the authority of
Barlow’s
(Eastern Province) Ltd v Bouwer
1950 (4) SA 385
(E) at 390
relied upon by Mr Mahapa is not of assistance. In fact, it seems to
me that it goes against the respondent. The respondent is not
entitled to hide behind a contention that he is simply unwilling to
pay, without providing a factual basis for such contention.
This is
an issue which I highlighted in the main judgment. The application
for condonation does not rectify this shortcoming in
the respondent’s
case.
[7]
Mr Mahapa contended that there was no
advantage shown to creditors. This submission cannot be supported for
the reasons set out
in paragraph [12] of the main judgment. If I
understood the papers in the condonation application correctly, they
reflect not only
that the respondent remains indebted to the
applicant, but also that the amount of indebtedness is increasing on
a monthly basis.
Given the shortage of facts provided by the
respondent as to his financial position, there is in my view a clear
benefit to creditors.
Moreover, the house is unencumbered.
[8]
Mr Mahapa also contended that the
application was defective for non-compliance with section 9(3)(a)(iv)
of the Insolvency Act in
that the applicant did not state whether the
debt was secured or not secured. In my view, it is clear from a
reading of the application
that the debt was not secured.
[9]
In my view the application for leave to
appeal has no prospects of success. It follows that the application
for condonation can
also not succeed. The parties agreed that
costs would be allowed on the attorney and client scale.
[10]
In the premises, I make the following
orders:
1.
The application for condonation is
dismissed with costs on the attorney and client scale.
2.
The application for leave to appeal is
dismissed with costs on the attorney and client scale.
3.
All costs are costs in the sequestration of
the respondent.
H VAN EEDEN
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
For
the Applicant:
Adv
S Mushet instructed by AJ van Rensburg Inc
For
the Respondent:
Adv
T Mahapa instructed by Crafford Attorneys
Date
of hearing:
9
February 2026
Date
of judgment:
10
February 2026