IN THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-022468
THIRTY SEVEN60 INVESTMENTS (PTY) LTD Applicant
and
VALORIS GROUP (PTY) LTD Respondent
JUDGMENT
SHANGISA, AJ
Introduction
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
2026/09/09
DATE SIGNATURE
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[1] This is an application for the winding up of the respondent in terms of the
provisions of s 344(f), read with ss 345(1)(a)(i) and 345(1)(c) of the Companies
Act1 (1973 Companies Act), on the basis that the respondent is unable to pay its
debts.
[2] In terms of s 224(3), read with item 9 of schedule 5 of the Companies Act2 (2008
Companies Act), the 1973 Companies Act continues to apply in respect of the
winding up of insolvent companies.
[3] The respondent opposes the application. At this stage, it is convenient to set out
the brief background to this matter.
Factual Background
[4] It is common cause that, in February 2021, the applicant and the respondent
entered into a written lease agreement under which the applicant acted as the
respondent’s landlord.
[5] On 11 February 2022, the applicant and the respondent entered into a 2 -year
extension of the existing lease agreement.
[6] On 8 November 2023, the respondent advised its employees that it would close
its business operations.
[7] On 14 November 2023, the respondent advised the applicant that it would stop
its recycling operation at the leased premises. As a result, the respondent stated
that it had to terminate the lease early.
[8] The following day, on 15 November 2023, the respondent again wrote to the
applicant regarding the early termination of the lease and stated that it was facing
financial difficulties. As such, it would be unable to meet its payment obligations
in terms of the lease agreement.
1 61 of 1973.
2 71 of 2008.
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[9] On 4 December 2023, the applicant served on the respondent a statutory letter
of demand in terms of s 345 of the 1973 Companies Act. On the same day, to
protect its landlord hypothec, the applicant issued summons and an automatic
rent interdict against the respondent. There was no response to the applicant’s s
345 letter.
[10] The respondent denies being indebted to the applicant. It contends that when
the rental interdict summons was served on it on 4 December 2023, and the
premises were locked, that constituted an act of spoliation of its undisturbed
possession of the leased p remises. As a result, so the respondent argues, the
applicant repudiated the lease agreement, and this was accepted on 14
December 2023.
[11] The respondent’s case is that having been denied undisturbed use and
possession of the leased premises since 14 December 2023, it was not obliged
to pay the rental.
Applicable Legal Principles
[12] In Datacolor International (Pty) Ltd v Intamerket (Pty) Ltd 3 (Datacolor) the court
cited the following description of repudiation given by the court in Nash v Golden
Dumps (Pty) Ltd4 (Nash):
“Where one party to a contract, without lawful grounds, indicates to the other party
in words or by conduct a deliberate and unequivocal intention no longer to be
bound by the contract, he is said to “repudiate” the contract ... Where that happens,
the other party to the contract may elect to accept the repudiation and rescind the
contract. If he does so, the contract comes to an end upon communication of his
acceptance of repudiation and rescission to the party who has repudiated.”5
3 2001 (2) SA 284 (SCA).
4 1985 (3) SA 1 (A).
5 Datacolor above n 3 at paras 16-9.
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[13] I have already pointed out above that it is common cause that on 14 November
2023, the respondent advised the applicant that it would cease its recycling
operations at the leased premises, and that, as a result, it had to terminate the
lease early. In my view, the respondent’s letter of 14 November 2023 constituted
its repudiation of the lease agreement.
[14] The other issue which arises for consideration concerns whether the respondent
committed any act of insolvency that entitles the applicant to a provisional
winding-up order.
[15] The court in Afgri Operations Limited v Hamba Fleet (Pty) Limited 6 (Afgri), at
paragraph 9, set out the test which the applicant must meet to be entitled to a
provisional winding-up order by holding the following view:
“[9] Indeed, it is precisely by reason of the fact that a court may first make a
provisional order of liquidation that in Kalil v Decotex (Pty) Ltd & Another7 (Kalil) a
different test was applied from that in Plascon-Evans when setting out the
circumstances that would be sufficient to justify the making of such an order of
liquidation. It is that the affidavits must demonstrate a prima facie case in favour
of the applicant. It may bear repeating that Plascon-Evans is the locus classicus
as to the test in the factual enquiry before a final order can be made in motion
proceedings.”
[16] The court in Kalil held that all the respondent must do is show, on the balance of
probabilities, that its indebtedness to the applicant is disputed on bona fide and
reasonable grounds. As a result, where the respondent is indebted to the
applicant and fails to show that such indebtedness is disputed on bona fide and
reasonable grounds, the applicant has a right to a winding-up order.
[17] It is not seriously disputed that at the time of the repudiation of the lease
agreement, and as of 30 November 2023, the respondent was indebted to the
applicant for R 117 463.19. What is more, on the papers it appears that because
applicant for R 117 463.19. What is more, on the papers it appears that because
6 2022 (1) SA 91 (SCA).
7 1988 (1) SA 943 (A).
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of the respondent’s repudiation, the applicant has a claim for damages for the
repudiation of the lease agreement, which is at least the value of the remainder
of the lease agreement of R 2 253 484.80.
[18] On 24 January 2024 the respondent wrote a letter to the applicant in which it
offered to settle its indebtedness to the applicant. It seems to me that on the
conspectus of the evidence contained in the papers, the respondent is indebted
to the applicant in an amount exceeding R 100.
[19] The respondent has proffered nothing to seriously suggest that there is a bona
fide and reasonable dispute of its indebtedness to the applicant. Instead, it was
content to assert that it had not repudiated the lease agreement and that the
applicant had in fact committed spoliation against it. This assertion is at odds with
the weight of undisputed evidence, including the letters already referred to, in
which it admitted its indebtedness.
[20] I have already found that the respondent failed to deal with the s 345(1) letter
sent by the applicant. In terms of s 345 of the 1973 Companies Act, a company
is deemed to be unable to pay its debts if it is indebted to a creditor for not less
than R 100. Failure to satisfy the debt or respond constructively within three
weeks of demand for payment may give rise to an application for an order placing
the debtor in provisional liquidation. It seems to me that the respondent falls foul
of the provisions of s 345 of the 1973 Companies Act. In any event, the
respondent readily admitted in the letter it sent to the applicant that it was unable
to meet its payment obligations in terms of the lease agreement. The
respondent‘s defence is not genuine or reasonable. There is no doubt that the
respondent committed an act of insolvency.
Conclusion
[21] On the conspectus of the undisputed facts, I am satisfied that the applicant has
discharged its onus that it is a creditor of the respondent who is indebted to it in
discharged its onus that it is a creditor of the respondent who is indebted to it in
the amount of no less than R 100. Further, the applicant has demonstrated on
the balance of probabilities that the respondent has failed to satisfy the debt and
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that it is unable to pay its debts. Accordingly, the respondent is deemed to be
insolvent.
[22] I consequently find that the respondent committed an act of insolvency, and that
it is therefore liable to be provisionally wound up.
[23] In the circumstances, the application for a provisional order of liquidation must
succeed.
[24] Wherefore, I make the following order:
1. The Respondent is placed under provisional liquidation in the hands of the
Master of the above Honourable Court.
2. A rule nisi is hereby issued, calling upon the Respondent and all interested
parties, if any, to show cause to the above Honourable Court on a date to
be determined by the registrar of this court, why an order in the following
terms should not be granted:
2.1 that Respondent be placed under final liquidation; and
2.2 that the costs of the application should be costs in the liquidation, which
costs are to include costs of counsel on scale C.
3. A copy of this order shall be served:
3.1 that Respondent be placed under final liquidation; and
3.2 that the costs of the application should be costs in the liquidation, which
costs are to include costs of counsel on scale C.
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3.3 on the Respondent by the Sheriff of the above Honourable Court at
its Domicilium address (in terms of the lease agreement) and at its
registered address;
3.4 on the local offices of the Receiver of Revenue by the Sheriff of the
above Honourable Court;
3.5 on Respondent’s creditors by one publication thereof in an issue of
two national newspapers; and
3.6 on Respondent’s employees (if any), and any trade unions of which
such employees may be members (if any), by the Sheriff of the above
Honourable Court.
_________________________
S.L SHANGISA
Acting Judge of the High Court
Gauteng Division
JOHANNESBURG
This judgment was handed down electronically by circulation to the parties and/or
parties’ representatives by email and by being uploaded to the electronic file. The date
and time for hand-down is deemed to be 10h00 on 09 September 2026.
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HEARD ON: 05 May 2025
DATE OF JUDGMENT: 9 September 2026
APPEARANCES:
For the Applicant: Adv. M Louw
Instructed by: Lacante Attorneys Incorporated
For the Respondent: Adv. T Lipshitz
Instructed by: B Makukunzva Attorneys