Twin Rivers Homeowners Association NPC v Siyanda Sabelo Trading (Pty) Ltd (2024/008136) [2025] ZAGPPHC 968 (28 August 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 968 | Noteup | LawCite sino index ## Twin Rivers Homeowners Association NPC v Siyanda Sabelo Trading (Pty) Ltd (2024/008136) [2025] ZAGPPHC 968 (28 August 2025) Twin Rivers Homeowners Association NPC v Siyanda Sabelo Trading (Pty) Ltd (2024/008136) [2025] ZAGPPHC 968 (28 August 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_968.html sino date 28 August 2025 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION PRETORIA Case Number: 2024-008136 (1) REPORTABLE: NO (2) OF INTEREST TO THE JUDGES: NO (3) REVISED. DATE: 28 August 2025 SIGNATURE: In the matter between: TWIN RIVERS HOMEOWNERS ASSOCIATION NPC Applicant and SIYANDA SABELO TRADING (PTY) LTD Respondent JUDGMENT VIVIAN AJ Introduction [1]        The applicant applies for an order placing the respondent in liquidation. [2]        The application is brought in terms of Section 346(1)(b) read with Section 344(f) of the old Companies Act (Act 61 of 1973). [3]        In order to succeed in the application, the applicant must accordingly show that it is a creditor of the respondent and that the respondent is unable to pay its debts. The applicant is a creditor [4]        It is not in dispute that the applicant is a creditor. [5]        The respondent owns two erven in the Twin Rivers Country Estate. The applicant is the relevant homeowners association. It is common cause that the respondent is required to pay monthly levies to the applicant. [6]        The respondent fell into arrears. On 31 March 2023, the applicant signed an acknowledgement of debt. He acknowledged arrears in the capital amount of R519 801,09 and undertook to pay off the arrears instalments. He also undertook to continue paying monthly levies. [7]        The respondent says that it has made payments in terms of the acknowledgement of debt and that parties are in ongoing talks to reduce the indebtedness. It has paid approximately forty percent of the debt. [8]        There is no minimum amount of debt for an applicant to qualify as a creditor. As long as part of the debt is admitted, the applicant has standing to apply for the respondent to be placed in liquidation. [1] [9]        The applicant accordingly has standing to bring this application. The respondent is unable to pay its debts [10]      In terms of Section 344(f), a company may be wound up if it is unable to pay its debts. [11]      The applicant served a notice in terms of Section 345(1)(a) on the respondent at its registered office on 19 January 2024. [12]      The respondent did not pay the admitted amount of the debt or secure or compound for it to the reasonable satisfaction of the applicant within three weeks of service of the letter. [13]      The respondent is accordingly deemed to be unable to pay its debts. [14]      In addition, the facts show commercial insolvency. It signed an acknowledgement of debt. Despite the respondent's counsel's argument to the contrary, I consider that the fact that the respondent had fallen into arrears and signed the acknowledgement of debt is strong evidence of its inability to pay its debts. [15]      Further evidence is the admission in the answering affidavit that the respondent is making payments under the acknowledgement of debt as and when it is able to do so. [16]      The applicant has accordingly established the requirements for a winding up order. Discretion [17]      The respondent's counsel sought to persuade me to exercise my discretion to refuse a liquidation order. [18]      In a well-structured argument, he demonstrated inconsistencies in the applicant's position, including whether the respondent was in fact in arrears in terms of the acknowledgement of debt instalments, at particular times and whether the applicant correctly invoked the acceleration clause in that document. [19]      However, my discretion to refuse a liquidation order is very narrow. A creditor has a right, ex debito justitiae , to a liquidation order to a respondent company that has not paid the debt. The Court will only refuse to grant an order in exceptional circumstances. [2] [20]      I do not consider that such exceptional circumstances have been established by the respondent. Non-compliance with Section 346(4A)(b) [21]      The applicant has not filed an affidavit by the person who furnished a copy of the application which sets out the manner in which Section 346(4A)(a) has been complied with. [22]      Instead, it filed two affidavits deposed to by its attorney in which she contended that the sheriff had effected service on the relevant trade unions and employees. [23]      This does not constitute compliance with Section 346(4A)(b). [3] [24]      The requirements of Section 346(4A) are peremptory. In the result, I cannot grant a final liquidation order. However, I can grant a provisional liquidation order. [4] [25]      In the recent case of Rent-a-Tank , [5] Gilbert AJ explained that, when deciding whether to grant a provisional winding up order where there has not been compliance with Section 346(4A), the Court will consider whether there has been effective notice to the trade union and employees. Where the application is opposed, as this application is, and where there are returns of service from the sheriff which show effective notice, then it is appropriate to grant a provisional winding up order. Conclusion [26]      The applicant has made out a case for a provisional winding up order. [27]      I accordingly make the following order: 27.1.     The respondent is hereby placed in provisional winding up. 27.2.     All persons who have a legitimate interest are called upon to put forward their reasons why this court should not order the final winding up of the respondent on 26 January 2026 at 10:00 or so soon thereafter as the matter may be heard. 27.3.     A copy of this order must be served on the respondent at its registered office. 27.4.     A copy of this order must be published forthwith once in the Government Gazette. 27.5.     A copy of this order must be published forthwith once in a newspaper circulating nationally. 27.6.     A copy of this order must be forthwith forwarded to each known creditor by hand or by email. 27.7.     The applicant is to comply with the provisions of Section 346(4A) and Section 346A of the Companies Act (Act 61 of 1973). 27.8.     The applicant's costs in respect of, including the fees of counsel on scale B, are costs in the application. Vivian, AJ Acting Judge of the Gauteng Division of the High Court of South Africa Appearances For the Applicant:           SN Davis Instructed JJR Inc. For the Respondents:    L Moela Instructed by Matlhwana Attorneys Inc. Date of hearing:       13 August 2025 Date Delivered:        28 August 2025 MODE OF DELIVERY : This Judgment was handed down electronically by circulation to the parties' and or parties' representatives by email and by being uploaded to CaseLines. The date and time for the hearing are deemed to be 10h00 on 21 August 2025 [1] Henochsburg on the Companies Act, 71 of 2008 ,, APPI - 74 [2] Afgri Operations Ltd v Hambs Fleet (Pty) Ltd 2022 (1) SA 91 (SCA) at para 12 [3] Lyconet Austria GmbH v Weiglhofer and Others (2023/082122) [2023] ZAGPJHC 1197 (20 October 2023) [4] EB Steam Co (Pty) Ltd v Eskom Holdings SOC Ltd 2015 (2) SA 526 (SCA) at para's 23 to 25 [5] Rent a Tank JHB (Pty) Limited v Fuelgiants (Pty) Limited (2025/012156) [2025] ZAGPJHC 517 (19 May 2025) sino noindex make_database footer start