SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2026-073454
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 20/08/26
SIGNATURE:
DURF KAPITAAL (PTY) LTD Applicant
and
GARAGE PROPCO HOLDINGS (PTY) LTD Respondent
(Registration number: 2019/617217/07)
JUDGMENT
HERSHENSOHN AJ
Introduction
[1] This is an unopposed application for the compulsory winding -up of the
respondent, a private company, on the ground that it is unable to pay its debts
as contemplated in section 344(f) read with section 345(1)(a) of the Companies
Act 61 of 1973, those provisions being retained in force for the winding-up of
companies by item 9 of Schedule 5 to the Companies Act 71 of 2008. The
application was enrolled on the unopposed motion roll of this Division, sitting at
its main seat at Pretoria, and served before me on 28 July 2026.
[2] When the matter was called I raised, mero motu , a question going to the
competence of this court to entertain it. On 2 July 2026 the Minister of Justice
and Constitutional Development published Government Notice 7648 in
Government Gazette 54935, which, purportedly with effect from 1 July 2026,
re-determined the areas under the jurisdiction of the main and local seats of,
among others, this Division, and in doing so brought to an end the long-standing
regime of concurrent jurisdiction between the main seat at Pretoria and the local
seat at Johannesburg. The respondent’s registered office is situated at
Johannesburg, within the area now assigned to the local seat. The question
that arises is whether, notwithstanding that notice, this court remains clothed
with the jurisdiction to hear and determine this application.
[3] I invited Mr Hewitt, who appeared for the applicant, to address me on the point,
and directed that heads of argument be delivered. I am indebted to counsel for
the assistance rendered, and I found his heads of argument most useful and
helpful in delivering this judgement. For the reasons that follow, I am satisfied
both that this court is clothed with the jurisdiction to entertain the application,
and that the applicant has made out a proper case for a final order of winding -
up. I deal first with the question of jurisdiction, and then with the merits.
The relevant facts and chronology
[4] The material facts are common cause and may be shortly stated.
[5] The debt on which the application is founded arises from a written loan facility
agreement concluded at Pretoria on 21 October 2020. The application was
issued out of this court on 27 March 2026. It was served on the respondent, its
employees (if any) and the relevant trade union, the South African Revenue
Service and the Master of the High Court between 31 March and 8 April 2026.
The respondent delivered a notice of intention to oppose on or about 17 April
2026 but filed no answe ring affidavit. An application for a hearing date was
made on 1 June 2026, and the notice of set down was served on the
respondent’s attorneys of record on 2 June 2026.
[6] The chronology matters. The application was issued, served, enrolled, and the
notice of set down given, by 2 June 2026, a full month before Government
Notice 7648 took effect. The respondent’s registered office is at 3[...] P[...]
Street, Oaklands, Johannesburg, which falls within the magisterial districts
now assigned to the local seat at Johannesburg.
The jurisdictional framework
[7] “Jurisdiction” means the power or competence of a court to hear and determine
an issue between parties: Gcaba v Minister for Safety and Security 2010 (1) SA
238 (CC) at para 74, adopting the definition of Watermeyer CJ in Graaff-Reinet
Municipality v Van Ryneveld’s Pass Irrigation Board 1950 (2) SA 420 (A) at 424.
[8] The High Court of South Africa is a single court, constituted under section 6(1)
of the Superior Courts Act 10 of 2013 (“the Act”) in Divisions, each with a main
seat and, where the Minister has so established, one or more local seats. The
Act gave effect to the rationalisation of the courts envisaged by item 16(6) of
Schedule 6 to the Constitution and repealed the former Supreme Court Act 59
of 1959. Since its commencement there are no longer “provincial” and “local”
divisions; there are Divisions, with main and local seats: Murray NNO v African
Global Holdings (Pty) Ltd 2020 (2) SA 93 (SCA) at paras 16 to 18.
[9] The power to determine the area under the jurisdiction of a Division, and of a
local seat, is conferred on the Minister by section 6(3) of the Act, which provides
in material part:
“(a) The Minister must, after consultation with the Judicial Service
Commission, by notice in the Gazette, determine the area under
the jurisdiction of a Division, and may in the same manner amend
or withdraw such a notice.
(b) The area under the jurisdiction of a Division may comprise any
part of one or more provinces.
(c) The Minister may, after consultation with the Judicial Service
Commission, by notice in the Gazette establish one or more Local
Seats for a Division … and determine the area under the
jurisdiction of such a local seat, and may in the same manner
amend or withdraw such a notice.
(d) The publication of a notice referred to in paragraph (a) or
(c) does not affect any proceedings which are pending at the
time of such publication.” (My emphasis)
[10] Section 21(1) of the Act provides that a Division has jurisdiction over all persons
residing or being in, and in relation to all causes arising within, its area of
jurisdiction, that area being the area determined by the Minister under section
6(3).
[11] Until 1 July 2026 the main seat at Pretoria and the local seat at Johannesburg
exercised concurrent jurisdiction. That concurrency was expressly provided for
in the Ministerial determination, Government Notice 30 in Government Gazette
39601 of 15 January 2016 having recorded that the local seat “ has concurrent
jurisdiction with the main seat until such time that the area of jurisdiction of the
local seat is determined in terms of section 6(3)(c)”. Under that regime the main
seat enjoyed jurisdiction throughout the province, including the areas of the
local seats, and, being seized of a matter within its jurisdiction, was obliged to
entertain it and had no discretion to decline, this per the well-known judgement
of Standard Bank of South Africa Ltd and Others v Thobejane and Others;
Standard Bank of South Africa Ltd v Gqirana NO and Another 2021 (6) SA 403
(SCA) (“Thobejane”).
[12] On 2 July 2026 the Minister, acting under section 6(3)(a) and (c) of the Act read
with item 16(6)(a) of Schedule 6 to the Constitution, published Government
Notice 7648 in Gove rnment Gazette 54935, expressed to take effect from 1
July 2026. The notice withdrew earlier determinations affecting the Limpopo,
Gauteng and North West, and Mpumalanga Divisions, and determined afresh
the areas of the main and local seats as set out in the Schedule. For this
Division, the main seat at Pretoria was assigned the Tshwane metropolitan and
specified adjacent districts, and the local seat at Johannesburg the Ekurhuleni,
Johannesburg, Sedibeng and West Rand districts. Critically, the provision for
concurrency between the two seats was omitted. It appears, and from my
understanding, that the effect of the notice, going forward, is to bring the
concurrent regime to an end and to confer on the Johannesburg local seat
jurisdiction, to the exclusion of the main seat, over matters falling within its area.
[13] Paragraph 2 of the notice contains a saving provision in the following terms:
“Despite the publication of this Notice and the withdrawal of the
Government Notices … in paragraph 1(a)(b) and (c) above,
proceedings which have already been placed on the court roll for
trial, but have not been concluded before the coming into effect
of this Notice, must be concluded as if this Notice has not been
published …”
The question restated
[14] It is common cause, and, in my view, plainly correct, that prior to 1 July 2026
this court had jurisdiction to entertain the application. Under the winding -up
regime, the court within whose area a company’s registered office is situated is
the court with jurisdiction to wind it up, again as dealt with in insolvency context
in the well-known judgement of Sibakhulu Construction (Pty) Ltd v Wedgewood
Village Golf & Country Estate (Pty) Ltd 2013 (1) SA 191 (WCC) at paras 21 to
23. The respondent’s registered office is at Johannesburg. Under the
concurrent regime, however, the main seat at Pretoria enjoyed jurisdiction over
the whole province, including the area of the Johannesburg local seat, and was
bound to entertain such a matter (per Thobejane). Jurisdiction was accordingly
validly established in this court when the application was launched.
[15] Two consequences follow, and they usefully narrow the enquiry. First, the fact
that the loan agreement was concluded at Pretoria does not, of itself, found the
jurisdiction of this seat. For the winding -up of a company, jurisdiction follows
the registered office and not the place where the underlying cause of action
arose ( Sibakhulu). Secondly, the true question is therefore not whether this
court ever had jurisdiction, it plainly did, but whether the coming into operation
of Government Notice 7648 divested this court of the jurisdiction it had, in
respect of a matter already pending before it. That is a question about the
temporal reach of the notice.
Government Notice 7648 is subordinate legislation
[16] Government Notice 7648 owes both its existence and its authority to the
empowering provisions of section 6(3) of the Act. It is therefore subordinate or
delegated legislation, and falls to be interpreted as such: Minister of
Environmental Affairs and Tourism and Others v Pepper Bay Fishing (Pty) Ltd;
Minister of Environmental Affairs and Tourism and Others v Smith 2004 (1) SA
308 (SCA) at 320E–F. Two things follow. The notice is subject to the ordinary
principles governing the temporal operation of legislation, including the
presumption against retrospectivity; and, more fundamentally, it can neither
exceed nor override the terms of its empowering statute.
The decisive provision: section 6(3)(d)
[17] The empowering statute itself answers the question. Secti on 6(3)(d) provides,
in terms, that “[t]he publication of a notice referred to in paragraph (a) or (c)
does not affect any proceedings which are pending at the time of such
publication”. Government Notice 7648 is, on its face, a notice made under
section 6(3)(a) and (c). The statutory saving in section 6(3)(d) therefore applies
to it directly.
[18] The notice was published on 2 July 2026. On that date these proceedings were,
beyond argument, pending: the application had been issued on 27 March 2026,
served by early April, and enrolled, with the notice of set down having been
served on 2 June 2026. By the plain terms of section 6(3)(d), the publication of
the notice “does not affect” them. The jurisdiction that this court possessed over
the application when it was launched is thus expressly preserved by the very
statute under which the notice was made. That, in my view, is dispositive of the
question.
[19] It makes no difference that the notice purports to take effect from 1 July 2026,
being the day before its publication. The saving in section 6(3)(d) is keyed to
the date of publication, and on that date the proceedings were pending; and
they were, in any event, equally pending on 1 July 2026. On either date the
saving operates.
The presumption against retrospectivity
[20] The same conclusion is reached through the presumption against
retrospectivity, which section 6(3)(d) may be regarded as codifying in this
context. In Veldman v Director of Public Prosecutions, Witwatersrand Local
Division 2007 (3) SA 210 (CC) the Constitutional Court affirmed (at paras 26 to
27) that, generally, legislation is not to be interpreted so as to extinguish existing
rights and obligations unless the statute so provides or its language clearly
shows that meaning; that legislation is presumed to affect only future matters.
[21] There is nothing in Government Notice 7648 that, expressly or by necessary
implication, purports to divest the courts of jurisdiction over matters already
pending when it took effect. On the contrary, the words “with effect from 1 July
2026” fix a date from which the notice is to operate in futuro. Read with the
presumption, and with section 6(3)(d), the notice operates prospectively only,
and does not reach back to strip this court of a jurisdiction already vested and
being exercised in a pending matter.
The notice’s own proviso does not narrow the statutory saving
[22] Mr Hewitt fairly drew my attention to paragraph 2 of the notice, which preserves
only “proceedings which have already been placed on the court roll for trial” and
which have not been concluded before the notice takes effect, and which is in
terms tied to “the withdrawal of the Government Notices … in paragraph 1(a)(b)
and (c)”. It might be contended that, by expressly saving only trial -roll matters
affected by the withdrawals, the Minister evinced an intention not to save other
pending matters.
[23] I do not accept that contention, for three reasons. First, paragraph 2 of the
notice is itself subordinate legislation and cannot cut down the saving conferred
by the empowering statute. Whatever paragraph 2 does or does not preserve,
section 6(3)(d) independently preserves all proceedings pending at publication,
and a Ministerial notice cannot lawfully abridge that statutory protection.
Secondly, expressio unius is no more than an aid to construction and yields
readily to context. Here it must yield to the wider statutory saving, and to the
presumptions against retrospectivity and against the ouster of the jurisdiction
of the High Court. Thirdly, and in any event, paragraph 2 is directed at the
withdrawal notices in paragraphs 1(a) to (c), whereas the re -determination of
this Division’s areas, the operative act that removes the concurrency, is
effected under paragraphs 1(d) and (e) of the notice. Paragraph 2 does not, on
its own terms, even engage the determination on which the jurisdictional
question turns. Section 6(3)(d), by contrast, does.
[24] I would add that the reference in paragraph 2 to matters “ placed on the court
roll for trial” sits uneasily with motion proceedings such as the present, which
are not enrolled “for trial”. That is a further reason why the answer is not to be
found in the proviso to the notice, but in the broader language of the statute,
which speaks of “proceedings which are pending” without any such limitation.
Perpetuatio jurisdictionis
[25] The conclusion I have reached accords, too, with the settled principle of our
common law expressed in the maxim perpetuatio jurisdictionis. That a court
which has validly acquired jurisdiction over a matter at the commencement of
the proceedings retains that jurisdiction, and is not divested of it, by a
subsequent change in the facts or circumstances that founded it. Jurisdiction
having been established in this court when the application was launched under
the concurrent regime then in force, the later re-determination of the Division’s
area does not divest this court of the authority to carry the pending matter to
completion.
No discretion to decline
[26] It follows that this court not only retains jurisdiction but is bound to exercise it.
A court seized of a matter within its jurisdiction has no discretion to refuse to
determine it (Thobejane). There is accordingly no room for this court to decline
the application on the footing that, under the new dispensation, such a matter
would now be brought at Johannesburg.
Jurisdiction: conclusion
[27] For these reasons I am satisfied that this court, sitting at its main seat at
Pretoria, is clothed with the requisite jurisdiction to hear and determine this
application, notwithstanding the publication of Government Notice 7648 in
Government Gazette 54935. The jurisdictional objection which I raised of my
own accord is accordingly resolved in f avour of the exercise of jurisdiction. I
turn to the merits.
The merits
[28] Having found that the court is competent to entertain the application, I turn to
the merits. Given the manner in which the respondent has conducted itself, they
may be dealt with shortly.
[29] The application is unopposed. The respondent delivered a notice of intention to
oppose on 17 April 2026, but thereafter did nothing: it delivered no answering
affidavit, no heads of argument and no practice note, and there was no
appearance on its behalf at the hearing. The applicant’s attorney confirms in a
compliance affidavit, and it is not disputed, that the respondent is aware of the
application and has elected not to oppose it. In these circumstances the
allegations in the founding affidavit stand uncontroverted, and the application
falls to be determined on those allegations.
[30] The deponent to the founding affidavit is Mr Le Roux Abraham van Wyk, the
sole director of the applicant. He sets out the following, none of which is met by
any answer.
Locus standi and the indebtedness
[31] The applicant applies as a creditor of the respondent, and is competent to do
so under section 346(1)(b) of the 1973 Act. The indebtedness arises from a
written loan facility agreement concluded on 21 October 2020 (annexure “C” to
the founding affidavit), in terms of which the applicant advanced R2 000 000 in
capital to the respondent, repayable together with interest of R1 000 000 over
a period of five years. The respondent duly paid the first four annual interest
instalments of R200 000 each, in January of 2022, 2023, 2024 and 2025. It
failed, however, to pay the final instalment of R2 200 000, being the capital of
R2 000 000 together with the last interest instalment of R200 000, which fell
due on 31 January 2026. That debt remains unpaid, and, importantly, is not
disputed. The applicant’s standing as a creditor is beyond question.
The ground: inability to pay debts
[32] The application is founded on section 344(f) read with section 345(1)(a) of the
1973 Act. On 18 February 2026 the applicant caused a demand in terms of
section 345(1) to be served on the respondent at its registered office, as the
Sheriff’s return of service confirms. More than three weeks elapsed without the
respondent paying the sum demanded, or securing or compounding for it to the
reasonable satisfaction of the applicant. By operation of sec tion 345(1)(a), the
respondent is therefore deemed to be unable to pay its debts.
[33] That statutory deeming is amply borne out on the facts. The respondent was
reminded of the impending final payment on 19 January 2026; a notice of
breach affording five days to pay was delivered on 10 February 2026; and the
statutory demand followed. Although its attorneys corresponded with the
applicant on more than one occasion, the respondent has at no stage paid,
tendered payment, furnished security, or disputed either its breach or its
indebtedness. The only inference reasonably open, as the deponent submits,
is that the respondent is unable to pay its debts.
[34] Where a creditor establishes that a company is unable to pay a debt that is
itself undisputed, and where there is no bona fide dispute of the debt on
reasonable grounds, the creditor is ordinarily entitled to a winding-up order (see
the principle in Badenhorst v Northern Construction Enterprises (Pty) Ltd 1956
(2) SA 346 (T)). There is no hint of any bona fide dispute in this matter; the
respondent’s posture has been one of unexplained and persistent default.
Compliance with the statutory formalities
[35] I am satisfied that the formalities prescribed for a winding -up order have been
met. The compliance affidavit of the applicant’s attorney, Ms Merike Pienaar,
deposed to on 1 July 2026, establishes these facts, and which affidavit I accept.
Whether a final order should be granted
[36] The applicant seeks, as its primary relief, a final order of winding -up. A
provisional order with a rule nisi is sought only in the alternative. The court has
a discretion in the matter. Although a winding -up is often granted provisionally
in the first instance, with a rule nisi to afford other interested parties an
opportunity to intervene, that course is not invariable. A final order may be
granted at the first hearing where the court is satisfied that the requirements for
such an order are met and that the interests of those who may be affected have
been safeguarded.
[37] I am so satisfied in this case. The statutory ground for winding-up is established
on uncontroverted facts; the debt is undisputed; the formalities under sections
346(3) and 346(4A) have been complied with; the South African Revenue
Service, the Master, the employees and any trade union have received the
notice the Act requires, and the respondent’s known creditors have been
notified of the application an d have not sought to be heard. The respondent,
though aware of the application, has chosen not to oppose it, to deliver no
answering affidavit, heads of argument or practice note, and not to appear. In
these circumstances no purpose would be served by the grant of a provisional
order and a rule nisi, and the applicant is entitled to the final relief that it seeks.
Costs
[38] The applicant seeks that the costs of the application be costs in the winding-up
of the respondent. That is the ordinary order, and I see no reason to depart
from it.
Order
[39] In the result I make the following order:
1. The respondent, Garage Propco Holdings (Pty) Ltd, is placed under final
winding-up in the hands of the Master of the High Court.
2. The costs of the application are costs in the winding-up of the
respondent.
ACTING JUDGE HERSHENSOHN
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e-mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be
APPEARANCES
For the applicant: Mr D Hewitt
AUGUST 2026.
Instructed by: Delberg Attorneys, Pretoria
For the respondent: No appearance
Date of hearing: 27 July 2026
Date of judgment: August 2026