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[2026] ZAGPJHC 235
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National Housing Finance Corporation SOC Limited v Indigo Kulani Properties Proprietary Limited (2024/061147) [2026] ZAGPJHC 235 (28 February 2026)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO:
2024-061147
(1)
REPORTABLE: NO/YES
(2)
OF INTEREST TO OTHER JUDGES: NO/YES
(3)
REVISED:
NO/YES
DATE
28 February 2026
In the matter between:
THE
NATIONAL HOUSING FINANCE
Applicant
CORPORATION SOC
LIMITED
(Registration number:
1996/005577/06)
and
INDIGO
KULANI PROPERTIES PROPRIETARY LIMITED
Respondent
(Registration number:
2012/124870/07)
JUDGMENT
STAIS
AJ:
This judgment is
handed down electronically by circulating it to the parties’
representatives by email and by uploading on
CaseLines.
[1]
This is an application in terms of s 344(f)
of the Companies Act, 1973 (“1973 Act”) as read with Item
9 of Schedule
5 to the
Companies Act, 2008
to finally wind up the
respondent for the reason that it is unable to pay a debt of R19,
013,576.36 (“Debt”). The Debt
arises from loans made by
the applicant to the respondent. The parties’ respective rights
and obligations in respect of the
loans and the Debt are contained in
a suit of agreements comprised of a Facility Agreement, two addenda
thereto, and a further
agreement that was referred to as a Moratorium
Agreement. The loans were intended for the respondent to develop and
construct housing
units on an immovable property (“Property”).
[2]
I pause to mention that additional loan
funding had been advanced to the respondent by the Gauteng
Partnership Trust trading as
the Gauteng Partnership Fund (“GPF”)
in terms of a separate suit of agreements, and that the agreements
concluded between
the applicant and the respondent recognised the
interests of the GPF. It is not necessary to say anything more about
the involvement
of the GPF.
[3]
The respondent defends the application on
three fronts. First, the applicant lacks standing as a creditor in
terms of the Facility
Agreement. This defence is based on the
contention that the Facility Agreement is of no force and effect due
to the fact that several
suspensive conditions had not been fulfilled
and the applicant failed to give the respondent written notice that
any suspensive
conditions had been waived (“waiver defence”).
Second, the applicant is precluded from bringing the application
because
the Moratorium Agreement has not been terminated and remains
extant (“moratorium defence”). Third, the respondent
contends
that it is able to pay its debts (“solvency defence”).
I shall consider each in turn.
[4]
Both the waiver defence and moratorium
defence were raised for the first time in the answering affidavit.
This despite the loans
being advanced to the respondent years ago,
subsequent negotiations and execution of the suit of agreements in an
attempt to assist
the respondent to complete the development.
Mr Brewer, who appeared for the applicant, referred to the
belated defences and
questioned the respondent’s
bona
fides
and the reasonableness of the
defences. The respondent’s explanation is that it did not
appreciate these issues until it
consulted and received advice on the
application.
The waiver defence
[5]
The
issue turns on an interpretation of the Facility Agreement. It is
trite law that this requires an application of the triad of
text,
context and purpose [
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA)
], which would,
in
casu
,
involve a consideration of the relationship between the words used,
the concepts expressed, and the place of the contested provision
within the contractual scheme as a whole to determine a coherent and
salient interpretation [
Capitec
Bank Holdings Ltd v Coral Lagoon Investments 194 (Pty) Ltd
2022
(1) SA 100
(SCA)].
[6]
In terms of the Facility Agreement, which
was concluded in 2013, the applicant advanced the sum of
R12,460,635.00 to the respondent,
repayable over twenty years
(including a moratorium in respect of capital and interest for the
first twelve months). In accordance
with the terms of the Facility
Agreement and as security for the respondent’s obligations
arising out of the Facility Agreement,
the respondent registered a
first covering mortgage bond over the Property in favour of the
applicant equal to the capital sum
of the loan (plus an additional
amount of approximately R2½ million). The first Addendum to
the Facility Agreement was concluded
in 2015 and amended a suspensive
condition to correct the terms of the payment in accordance with the
moratorium that the GPF had
granted the respondent. A second Addendum
was concluded in 2016 and provided for a further loan of
R2,949,392.00. Both addenda
confirm that the capital sum had been
advanced by the applicant to the respondent. Save for the specific
amendments contained in
the respective Addenda, the remainder of the
Facility Agreement remained the same.
[7]
The respondent fell into substantial
arrears, resulting in the parties concluding the Moratorium Agreement
in 2023, which recorded
the respondent’s admission of its
indebtedness to the applicant. The purpose of the Moratorium
Agreement was to afford the
respondent an opportunity to complete
certain milestones in executing a ‘Plan’ to enable it to
pay the loans in full.
To this end, the applicant agreed to suspend
any legal proceedings against the respondent until termination of the
Moratorium Agreement.
I shall deal with the Moratorium Agreement in
more detail when I consider the moratorium defence.
[8]
The Facility Agreement contains numerous
suspensive conditions that were inserted for the applicant’s
benefit and could be
waived by the applicant on written notice to the
respondent [clause 7.3]. It further provided that if any of the
suspensive conditions
were not timeously fulfilled or waived, the
Facility Agreement would be of no force and effect and neither party
would have a claim
against the other, save for a claim that may arise
from a breach of clause 10 of Appendix 2 to the Facility Agreement
[clause 7.4].
[9]
The waiver defence involves two questions:
did the Facility Agreement lapse due to the applicant’s failure
to give notice
to the respondent that it had waived compliance with
the suspensive conditions, and did the applicant retain a claim under
clause
10 of Appendix 2?
Absence of notice of
waiver
[10]
Clause 7.3, in its terms, provides that the
suspensive conditions were inserted for the applicant’s
benefit, and that they
“
may
accordingly be waived
” by giving
notice to the respondent. I do not read the word “
may
”
to mean “
must
”.
The term is couched in permissive language that grants the applicant
a discretion to waive, but without placing on it a
duty to do so by
notice. This is in keeping with the context and purpose of the
Facility Agreement to immediately advance money
to the respondent to
enable it to proceed with the development, and the applicant’s
right to waive compliance with any or
all of the suspensive
conditions that were inserted for its benefit. Elsewhere in the suit
of agreements the terms and conditions
reflect peremptory language
that donates unequivocal and absolute contractual obligations on the
part of the respondent.
[11]
Importantly, the notice of waiver in terms
of clause 7.3 is required to be given before the expiry of the notice
period in clause
7.2, which in turn provides for the respondent to
remedy an unfulfilled condition, failing which the condition will be
deemed to
have been unfulfilled. On a simple and businesslike
reading, the purpose of the waiver notice is intended to negate the
deeming
provision of clause 7.2. It is only in instances of a notice
to remedy an unfulfilled suspensive condition that notice of waiver
is required to prevent the threat of the suspensive condition being
deemed unfulfilled.
[12]
For the respondent’s interpretation
to have meaning, one would be required to ignore the words “
before
the expiry of the time period referred to in 7.2 above.
”.
But one may then legitimately ask why the parties inserted the
reference to clause 7.2, because the requirement for a waiver
notice
in terms of clause 7.3 cannot sensibly be separated from the
reference to clause 7.2.The respondent’s reading of clause
7.3
leads to an unbusinesslike (if not absurd) result, in that waiver
would always require both notices, and the applicant would
be unable
to waive compliance with a suspensive condition without having
afforded the respondent the opportunity to remedy the
unfulfilled
suspensive condition.
[13]
The unfulfilled suspensive conditions
relied on by the respondent relate to obligations that were either
borne by the respondent
or by its appointees. It was well within its
remit to ensure compliance with the relevant suspensive conditions,
or to ascertain
whether they had been complied with. This much is
recognised by clause 7.5, which obliges the respondent to use its
best endeavours
to procure fulfilment of the suspensive conditions
without delay. It does not behove the respondent to now seek to avoid
the Facility
Agreement because it was not informed of waiver by
notice, despite knowing that the applicant had not insisted on
compliance with
these suspensive conditions or had by its conduct
waived compliance. That would be placing form above substance.
[14]
I find that the Facility Agreement did not
lapse.
[15]
I turn to consider the second question,
whether (in the event the Facility Agreement did lapse) the applicant
retained a claim in
terms of clause 10 of Appendix 2 to the facility
Agreement.
Clause 10 of Appendix
2
[16]
Appendix 2 contains what are stated to be
standard terms and conditions that are not subject to amendment by
the respondent and
which were inserted for the protection of the
applicant’s interests. Clause 10 thereof (“Clause 10”)
incorporates
several events of default, any one of which would
entitle the applicant to claim and recover all amounts owing under
the Facility
Agreement (including the balance of capital not repaid
and interest).
[17]
Mr Hollander, who appeared for the
respondent, submitted that Appendix 2 did not survive the lapsing of
the Facility Agreement.
The argument ignores the stated purpose of
Appendix 2. Its terms and conditions were inserted separately from
the terms and conditions
of the Facility Agreement, specifically to
protect the applicant’s interests
inter
alia
in the event of the occurrence of
any of the default events detailed in clause 10. It is apparent from
clause 5 of the Facility
Agreement that clause 10 shall survive
termination of the Facility Agreement. Clause 10 was clearly
introduced to ensure that the
applicant retained a claim against the
respondent in the event the Facility Agreement lapsed.
[18]
Mr Hollander relied on two further
arguments, both founded on the objection that the applicant cannot
rely on new matter raised
in its replying affidavit. The first new
matter is the applicant’s reliance on clause 10 and the second
is the introduction
of a potential enrichment claim to found
locus
standi
. I was not persuaded by the
arguments. It was the respondent who introduced its defences to the
contractual claim for the first
time in its answering affidavit.
Until then, and despite several written admissions of the facts
underpinning the Debt (as contained
in the suit of agreements), there
was no dispute between the parties that the applicant is a creditor
of the respondent. The replying
affidavit contains the response to
the belated defences. There is no reason why the applicant should be
precluded from referring
to Clause 10 in response to the waiver
defence. As for the potential enrichment claim, it arises from facts
that were either admitted
or not disputed, and this only became
apparent upon a perusal of the answering affidavit. The respondent
did not seek to strike
out the references to clause 10 or the
reference to a potential enrichment claim, nor did it attempt to file
a rejoinder to deal
with these issues. Mr Hollander did not suggest
that an enrichment claim would be bad in law or in fact;
understandably so, because
it would have been a tough row to hoe.
[19]
As Mr Brewer correctly submitted, my task
is not to adjudicate on a particular cause of action (a submission
with which I understood
Mr Hollander to agree) but to determine
whether the applicant is a creditor (including a contingent or
prospective creditor) [s
346(1)(b) of the 1973 Act]. This I find to
be established based on an interpretation of the relevant contractual
terms, taken together
with the admitted facts.
The moratorium defence
[20]
The applicant is a creditor also in terms
of the Moratorium Agreement, which records the respondent’s
indebtedness for the
loans of R12,460,635.00 and R2,949,392.00
advanced under the Facility Agreement [clauses 2.1 and 2.5], as well
as the respondent’s
obligation to comply with the terms and
conditions of the Facility Agreement [clause 2.6].
[21]
The issue turns on an interpretation of the
Moratorium Agreement. Essentially, the moratorium defence asserts
that the applicant
was precluded from instituting this application
because the Moratorium Agreement was not terminated. Clause 2.7 of
the Moratorium
Agreement records that the applicant agreed to suspend
any legal proceedings against the respondent, subject to the
respondent
timeously completing certain milestones for the respondent
to execute the ‘Plan’ to sectionalise the Property into
units and to sell the units in order to pay the loan in full. It was
common cause before me that this application would be covered
by the
prohibition against legal proceedings, unless the applicant
terminated the Moratorium Agreement. The respondent contends
that the
Moratorium Agreement has not been terminated.
[22]
The applicant has a right to terminate the
Moratorium Agreement (clause 5) if a trigger event occurs. A trigger
event arises if
the respondent fails to achieve a milestone timeously
or at all, and in the event of a breach of the Moratorium Agreement
[clauses
5.1 and 5.7]. The Moratorium Agreement included a
lex
commissoria
that entitled the applicant
to terminate the Moratorium Agreement only after written notice to
the respondent of the default constituting
the trigger event and
calling on it to remedy such default within ten days of receiving the
applicant’s notice of its intention
to terminate the Agreement
[clause 5.3]. The right to terminate shall be exercised at the
applicant’s election and in its
discretion [clause 5.4], and a
failure to exercise the election immediately shall not constitute a
waiver of the right to invoke
the election at a later stage [clause
5.4]. Upon termination, the respondent became obliged to do all
things necessary to place
itself into voluntary business rescue
[clause 2.9.2] and the applicant shall be entitled to exercise all
legal remedies available
to it under the Facility Agreement [clause
5.8].
[23]
The applicant claims that it did terminate
the Moratorium Agreement and relies in this regard on two letters.
[24]
The first letter, dated 6 March 2024, is
captioned to be a ‘notice of intention to terminate’. The
content informed
the respondent, in accordance with clause 5.3, that
the notice served as a notice “
of
intention to terminate
” the
Moratorium Agreement. It proceeded to identify the trigger event and
called on the respondent to remedy its breaches
within ten days by
making payment or placing itself in business rescue, failing which
the applicant “
shall institute the
appropriate legal proceedings
”
against the respondent. In its terms, this was a notice to remedy in
accordance with the terms of the
lex
commissoria
that incorporated the
express threat that termination and legal proceedings would follow a
failure to remedy.
[25]
The second letter, dated 8 April 2024,
reminded of the relevant content of the earlier letter, including the
warning that a failure
to make payment or commencing voluntary
business rescue would result in the applicant instituting the
appropriate legal proceedings
against the respondent. The letter
further informed the respondent that the applicant will institute
appropriate legal proceedings
against the respondent and, for the
purposes of engaging in the sale of housing units by private treaty,
that the respondent hand
over any agreements for the sale of housing
units in its possession. I agree with Mr Brewer that the
Moratorium Agreement
was terminated by the letter, despite it not
saying so expressly. But I do not believe that it is necessary to
affix a particular
label to the letter or to the action it conveyed.
The terms of the Moratorium Agreement are clear – the applicant
could not
litigate against the respondent unless it terminated the
Moratorium Agreement. The letter of 6 March 2024 said as much. It
was,
in its terms, a notice of an intention to terminate, and if the
breaches were not remedied, it would be followed by the institution
of legal proceedings. Termination and litigation are inextricably
linked; the latter could not take place unless the former had
occurred. The implication was clear: if the applicant litigated (as
it has), it had terminated the Moratorium Agreement. To the
respondent’s knowledge, when it received this application, it
knew that the Moratorium Agreement had been terminated.
[26]
Clause 5.3 of the Moratorium Agreement does
not require two separate notices. It requires only a notice of
intention to terminate
unless the default is remedied.
In
casu
, the first letter contained both a
notice to remedy, and a notice of an intention to terminate if the
remedy did not occur. The
law, as opposed to the contract, requires
that the decision to terminate (
i.e.
,
the exercise of the right to terminate) must be conveyed to the other
party [
Swart v Vosloo
1965 (1) SA 100
(A) at 105G] and this is what occurred when the
respondent was informed that the applicant “
will
”
institute legal proceedings against it, followed by the application.
[27]
There is a less complicated answer to the
issue of termination. Acting
ex
abundante cautela
, the applicant
terminated the Moratorium Agreement in its replying affidavit. Mr
Hollander repeated the objection he raised in
regard to the waiver
defence, that a new case should not be permitted in reply. However,
the respondent failed to respond to the
letter of 8 April 2024 and
the applicant was not aware of the moratorium defence until it was
raised in the answering affidavit.
It is not suggested that there is
any basis for a material objection to the (belated) termination of
the Moratorium Agreement.
The justification for the moratorium
defence is based on the alleged non-termination and if that falls
away, litigation is not
suspended and the application is good.
Solvency defence
[28]
Mr Hollander was hard-pressed to find facts
to support this defence.
[29]
The respondent has provided no relevant
financial statements to establish its solvency. The Property was last
valued in 2020 at
R33½ million, but the respondent has
provided no information of any other assets or of its liabilities. It
did not disclose
its annual financial statements or management
accounts. It disclosed no detailed information of any particular
relevance as to
commercial solvency. Significantly, the
respondent has not disclosed the total or monthly costs of the
development to date,
which has allegedly included the construction of
sixty housing units (of which seven were sold for R2,7 million). The
use to which
the monthly rental surplus of approximately R208, 000.00
is put, is also not explained. The respondent has failed to show that
it is factually or commercially solvent. If anything, the absence of
relevant information speaks effectively to the fact of insolvency.
[30]
It is common cause that the respondent has
failed, despite years of negotiations and extensions, to make
payments that were due
and owing to the applicant, resulting in the
undisputed amount of the Debt. This constitutes
prima
facie
evidence of the respondent’s
inability to pay its debts [
Rosenbach &
Co (Pty) Ltd v Singh’s Bazaars (Pty) Ltd
1962 (4) SA 593
(D)] and the applicant is entitled
ex
debito justitiae
to a winding up order
[
Absa Bank Ltd v Rhebokskloof (Pty) Ltd
1993 (4) SA 463
(C)].
[31]
The applicant seeks a final winding up
order. In
Johnson v Hirotec (Pty) Ltd
[2000] ZASCA 131
;
2000 (4) SA 930
(SCA), the court dealt with the discretion
whether to grant a final or provisional winding up order, and
referred to the practice
in this division:
“
[9]
The remaining question is whether this Court should issue
a provisional or a final order of winding-up. The Act does not
require a final order to be preceded by a provisional order, but
in Kalil v Decotex (Pty) Ltd and Another
1988
(1) SA 943 (A)
at
976A - B Corbett JA referred to the practice, which he regarded as
well-established, of granting a provisional order of winding-up
and
a rule nisi calling upon persons concerned to show
cause why a final order should not be granted. From the information
given to us by counsel it would seem that there is no longer a
uniform practice in this regard throughout the country. According
to
the Practice Manual of the Transvaal Provincial Division, a
Judge of that Division appears to have a wide discretion
to
grant a provisional or a final winding-up order, as the case may
require, and is under no constraint to issue a provisional
order
as a matter of course. This Court should ordinarily apply the rules
of practice of the Division from which the appeal emanates
and,
adopting this principle, there is no reason why, in an appropriate
case, this Court should not grant a final order. This is
such a case.
The respondent opposed the grant of a winding-up order in the Court a
quo and in this Court. The issues
have been fully ventilated and
the respondent has put nothing forward to persuade us that
further relevant facts would be
forthcoming if a rule nisi were
issued.
”
I
am mindful that the Court was speaking specifically with reference to
the discretion of that Court (or of another appeal court).
[32]
Recently, the Supreme Court of Appeal dealt
more pertinently with the discretion to be exercised by this Court:
“
Ordinarily,
following an application for the liquidation of a company and the
exchange of affidavits, the usual procedure is
to grant a
provisional order of winding-up and a rule nisi calling on all
interested persons to show cause why a final winding-up order
should not be granted. This procedure is not laid down in the Act or
any of its predecessors. It is, however, in our law, a
well-established practice.
Granting an outright final
winding-up order might be suggested in some practice
manuals or directives of divisions
of our High Court, but
usually only where there are good reasons to do so. However, the
grant, firstly, of a provisional winding-up order
should be
ordinarily preferred, where this is appropriate and required in the
interests of justice.
”
[
Selective
Empowerment Investments Ltd v Companies and Intellectual Property
Commission
2025 (6) SA 495
(SCA)
[49]
].
[33]
Applying these
dicta
,
I can find no reason why I should not grant a final winding up order.
The two main defences, to the applicant’s standing
and to the
respondent’s indebtedness, turn on issues of contractual
interpretation and have been fully ventilated and considered.
The
agreements are common cause and the applicable principles of
interpretation are well-established. As to the third defence,
there
is no indication that the facts pertaining to the respondent’s
insolvency, in particular to its inability to pay debts
as they fall
due, will substantially change in the next few weeks or that further
relevant facts will be presented if a rule
nisi
is issued. None of the facts that were presented by the respondent is
alleged to be subject to any material improvement in the
foreseeable
future. I am not convinced that any purpose will be served in
delaying the inevitable.
[34]
I grant the following order:
1.
The respondent is placed in final winding
up.
2.
The costs of the application shall be costs
in the cause.
P STAIS
Acting Judge of the High
Court
Johannesburg
APPEARANCES
:
Applicant:
Mr J Brewer
Instructed by:
Werksmans Attorneys
Respondent:
Mr L Hollander
Instructed by:
Swartz Weil Van der Merwe Greenberg Inc
Hearing:
13 February 2026
Judgment:
28 February 2026