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2026
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[2026] ZAGPJHC 335
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Social Housing Requlatory Authority v Evening Shade Properties 56 (Pty) Limited and Others (2023/06462) [2026] ZAGPJHC 335 (26 March 2026)
THE REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number: 2023-064626
(1)
REPORTABLE: NO
(2)
OF INTREST TO OTHER JUDGES
(3)
REVISED: YES
In the matter between:
SOCIAL
HOUSING REGULATORY AUTHORITY
Applicant
and
EVENING
SHADE PROPERTIES 56 (PTY) LIMITED
First Respondent
NEDBANK
LIMITED
Second Respondent
LETS
CARE SOUTH AFRICA NPC
Third Respondent
In re:
EVENING
SHADE PROPERTIES 56 (PTY) LIMITED
First Applicant
NEDBANK
LIMITED
Second Applicant
and
LETS
CARE SOUTH AFRICA NPC
First Respondent
SOCIAL
HOUSING REGULATORY AUTHORITY
Second 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 24 March 2026.
JUDGMENT
VAN EEDEN AJ
[1]
This is an application for leave to appeal
by the Social Housing Regulatory Authority (“SHRA”)
against a judgment handed
down on 19 September 2025. The parties are
represented as before.
[2]
In submitting that leave to appeal should
be granted to SHRA, Mr Lecoge SC appearing with Mr Mokwena, referred
to the case of
MEC of Health, Eastern
Cape v Mkhipha and Another
(1221/2015)
[2016] ZASCA 176
(25 November 2016) where the Supreme Court of Appeal
stated the following in respect of the test for reasonable prospects
of success:
“
Once
again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable
prospect of success.
Section 17(1)(a)
of the
Superior Courts Act 10
of 2013
makes it clear that leave to appeal may only be given where
the Judge concerned is of the opinion that the appeal would have a
reasonable prospect of success …
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal … There must be a sound, rational basis to
conclude that there is a reasonable prospect of success
on appeal.”
[3]
The essence of the application for leave to
appeal was already advanced during the main hearing. In short, it
entails the contention
that the administration order granted on 23
June 2023, which placed Lets Care South Africa NPC (“Lets
Care”) under
SHRA’s administration, trumps the
provisional order of winding-up granted on 5 August 2024. According
to SHRA the effect
of the administration order is that a creditor is
precluded from applying for a winding-up. The argument has again been
advanced
that whilst the administration order remains in place, a
winding-up order obtained by a creditor is meaningless. In addition,
the
contention is repeated that since constitutional rights of
housing are infringed, a purposive interpretation should be given to
the Social Housing Act, 16 of 2008 (“Housing Act”), to
create a special winding-up regime for the social housing institution
which is in administration. It was submitted that this special
winding-up procedure clothes the applicant with exclusive authority
in respect of winding-up procedures.
[4]
In its express terms neither the Housing
Act nor the administration order supports the argument for reasons
set out in the main
judgment. With some justification, Mr Horn
submitted that these submissions are based on a fiction created by
argument that the
Housing Act and the Companies Acts of 1973 and of
2008 are in conflict, or that they are competing with each other.
[5]
Mr Horn also submitted that the
administration had lapsed with reference to paragraph 31 of SHRA’s
founding affidavit.
He submitted that the forensic
investigation referred to in paragraph 2 of the administration order
was completed on 27 January
2024. Mr Lecoge SC’s argument that
paragraph 3 of the administration order is not time bound, cannot be
accepted as correct
when regard is had to paragraph 2, which clearly
provides that rights and obligations of the Let's Care are suspended
“
pending the conclusion of the
Applicant’s forensic investigations into the affairs of the
First Respondent”
.
[6]
Mr Lecoge SC also submitted that leave to
appeal could be granted because of the public interest in the matter
and that it would
be in the interests of justice to obtain legal
certainty on the effect of two court orders, where the administration
order grants
rights to SHRA and a (provisional) winding-up order
seemingly interferes therewith. But the answer to this is that
the Housing
Act does not infringe on rights of creditors. In
consequence and as submitted by Mr Gibson, the interests of justice
require
that finality be reached. Grounds for an appeal in
terms of
section 17
of the
Superior Courts Act, 2013
on the basis
that there is some other compelling reason to grant leave, are
accordingly not established.
[7]
I find nothing in the application for leave
to appeal to cast doubt on the finding that the jurisdictional
requirements for a final
winding-up order were met. The orders 2 and
3 granted in paragraph [15] of the main judgment provide guidance to
the parties, given
the clear indication during argument of the main
application, that SHRA was going to persist with its un-operative
attitude even
if final liquidators were appointed.
[8]
In the circumstances the test for leave to
appeal has not been met and this application cannot succeed.
[9]
I make the following orders:
1.
The application for leave to appeal is
dismissed.
2.
The costs of the application for leave to
appeal shall be costs in the winding-up, including the costs of two
counsel where so employed,
on scale C.
H VAN EEDEN
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For
Evening Shade Properties 56 (Pty) Ltd: C Gibson instructed by
Senekal Simmons Inc
For
Nedbank Limited: NJ Horn and LV Swandle instructed by Werksmans
For
Social Housing Regulatory Authority: MB Lecoge SC and CI Mokwena
instructed
by Galanzhele Sebela Attorneys Inc
Date
of hearing: 24 March 2026
Date
of judgment: 26 March 2026