IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 132163/2025
( l ) REPORTABLE: ~NO
(2) O F INTEREST TO OTHER JUDG ES: ~ /NO
(3) REVISED.
03 JUNE 2026
SIGNATURE DATE
In the matter between:
SONNHEIM AFTREEOORD (PTY) LTD
(Registration Number: 1982/005190/07)
and
HLCV PROPERTIES (PTY) LTD
(Registration Number: 2016/301793/07)
JUDGMENT
LABUSCHAGNE J:
Applicant
Respondent
[1 ] The applicant sold a building in which it ran an old age home to the respondent
, who bought it in order to renovate it for student housing. The respondent
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took occupation in March 2023, but three months later the contract of sale was
cancelled. The applicant seeks to enforce its right to the occupational rent
payable by the respondent for the period that it was in occupation of the
premises.
[2] The applicant applies for the final winding -up of the respondent, alternatively
a provisional order is sought with a return date determined by the Registrar.
[3] The respondent denies the locus standi of the applicant. According to a deed
search the owner of the building was R-Beleggings (Proprietary)( Limited). It
contended that the whole contract was void as the appli cant was not the
owner.
[4] This issue fell away. The respondent failed to check tha t the applicant is the
same entity as R - Beleggings, following a name change . What is more
troubling is that the respondent should contend that only the owner of property
is entitled to sell it. This is proposition so patently wrong, that the respondent
was, by means of a widely shared notice on CaseLines requested to address
the court on the basis for this proposition. The respondent abandoned the
contention.
[5] The respondent contended that the Deed of Sale did not come into operation
due to non -compliance with suspensive conditions. The suspensive
conditions are set out in Clause 5 of the Deed of Sale. The suspensive
conditions include the following:
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-The shareholders of the Seller must pass a special resolution pertaining to
the sale of the property.
-The Board of Directors of the Seller must approve and ratify the entering into
the agreement, the sale and all other transactions contemplated in the
agreement (Clauses 5.1.1 and 5.1.2).
Clause 5.2 reads as follows:
“Unless all the suspensive conditions have been fulfilled or waived
within 60 days after receipt of the deposit provided for in clause 4.2.1
above, the provisions of the agreement will never become of any force
or effect of the status quo at the time and they will be restored as near
as may be possible and neither the parties will have any claim against
the other in terms thereof.”
[6] The applicant’s claim is based on the occupation al rent payable in respect of
the premises. Occupation was taken on 17 March 2023. In terms of Clause
6.2 of the agreement, dealing with occupation and possession, the following
was agreed:
“6.2 Per agreement, the purchasers may take occupation immediately after
the deposit is paid from 1 February 2023, or such earlier date as may
be agreed to between the parties in writing . The occupation rent of
1% of the purchase price, amounting to R280 000.00 will take effect
from 1 March 2023 until date of transfer of the property into the name
of the purchaser, with provision for pro rate rental should transfer be
effected within any particular month and not at the last day of the
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month. Occupational rental is payable monthly in advance on or
before the first day each month. Upon occupation of the property by
the purchaser, the risk, profit and loss will pass to the purchaser and
from which date the purchaser is also responsible for all consumption
charges and levies that may be payable in respect of the said property
from such date onwards. The purchaser is aware that the electricity
supply is interrupted by the local municipality.”
[7] The respondent took occupation under the aforesaid terms. The suspensive
conditions in clause 5 of the deed of sale relied upon by the respondent relate
to the validity of the underlying sale. The occupational rent was however
payable in advance in terms of clause 6.2 and the applicant’s claim accrued
on this basis from date of occupation.
[8] The respondent denies that a deposit was paid and contends that the contract
never came into force. However, the conduct of both parties in interpreting
Clause 6.2 is apparent. Occupation went ahead regardless of the aforesaid
and, in terms of Clause 6.2, liability attached to such occupation.
[9] In light of Clause 5.2 quoted above, read with Clause 6.2, there is some
ambiguity whether the failure to comply with the suspensive conditions also
struck at the root of the agreement to take occupation.
[10] In such circumstances it is permissible for the court to have regard to the
conduct of both parties. This finds support in Kooij v Middleground Trading:1 :
1 Kooij v Middleground Trading 251 CC 2020 JDR 0659 (SCA) at para 16:
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“It is true that a Court can, when interpreting a contract, have regard to the
parties' subsequent conduct in order to determine what they intended. This
Court has, however, made it clear that the use of such evidence is
circumscribed. It laid down that su ch evidence may be accepted subject to
three provisos. First, the evidence must be indicative of a common
understanding of the terms and meaning of the contract. Second, the evidence
may be used as an aid to interpretation and not to alter the words used by the
parties. Third, that evidence must be used as conservatively as possible.”
[11] In these circumstances there is no ambiguity in the conduct of the parties .
They gave effect to the occupation agreement, and the respondent has no
defence.
[12] Under these circumstances I am satisfied that the applicant has established a
basis for the winding-up of the respondent.
[13] Having considered the papers, I am satisfied that there is compliance with all
the requirements for a provisional order. I decline a final order at this stage
simply because I don’t know the position of other creditors. A provisional order
would give them the opportunity, once published, to either oppose or support
the winding-up of the respondent on the return date.
[14] In the premises I make the following order:
1. A provisional order of liquidation is granted with a return date o f 11
August 2026 on the opposed roll of the Insolvency Court, on which date
the respondent and any interested parties should advance reasons why
the aforesaid provisional order should not be made final.
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2. This order is to be served on the respondent and any trade union at its
registered address.
3. This order is to be published in the Government Gazette and in an
English language newspaper circulating in Gauteng.
4. A copy of this order is to be served on SARS by email.
LABUSCHAGNE J
JUDGE OF THE HIGH COURT
COUNSEL FOR APPLICANT: ADV VORSTER
INSTRUCTED BY POTGIETER LOUW ATTORNEYS
COUNSEL/ATTORNEY FOR RESPONDENT: MR MATHEBULA
INSTRUCTED BY MATHEBULA INC