Dolberg Asset Finance Ltd v Dolberg South Africa (Pty) Ltd (2020/25831) [2021] ZAGPPHC 610 (20 September 2021)

Dolberg Asset Finance Ltd v Dolberg South Africa (Pty) Ltd (2020/25831) [2021] ZAGPPHC 610 (20 September 2021)

The court found that the respondent complied with its obligation by instructing FirstRand Bank Ltd to apply for SARB approval, and that the SARB's refusal was based on policy considerations outside the respondent's control. The doctrine of fictional fulfilment does not apply where fulfilment depends on a third party's discretion, and the applicant failed to demonstrate that the respondent acted in bad faith or failed to provide necessary information. The suspensive condition was not fulfilled, rendering the guarantee unenforceable. Granting alternative relief would contravene exchange control regulations and the separation of powers. Accordingly, the application was dismissed with costs.

Citation
[2021] ZAGPPHC 610
Parties
Applicant: Dolberg Asset Finance Ltd; Respondent: Dolberg South Africa (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 September 2021
Case Number
2020/25831
Procedural Posture
Civil Application / Final Judgment
Outcome
Application dismissed with costs.
Judges
van der Westhuizen
Legal Topics
Guarantee Enforcement, Exchange Control, Suspensive Condition, Fictional Fulfilment, Locus Standi
Commercial and Corporate Civil Procedure Guarantee Enforcement Exchange Control Suspensive Condition Fictional Fulfilment Locus Standi

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Parties

Dolberg Asset Finance Ltd

Applicant

Dolberg South Africa (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the respondent complied with its obligation to do everything in its power to obtain SARB approval for payment under the guarantee.
  2. 2 Whether the suspensive condition in the guarantee was fictionally fulfilled due to the respondent's conduct.
  3. 3 Whether the applicant is entitled to enforcement of the guarantee or alternative relief despite SARB's refusal.

Ratio Decidendi

The court found that the respondent complied with its obligation by instructing FirstRand Bank Ltd to apply for SARB approval, and that the SARB's refusal was based on policy considerations outside the respondent's control. The doctrine of fictional fulfilment does not apply where fulfilment depends on a third party's discretion, and the applicant failed to demonstrate that the respondent acted in bad faith or failed to provide necessary information. The suspensive condition was not fulfilled, rendering the guarantee unenforceable. Granting alternative relief would contravene exchange control regulations and the separation of powers. Accordingly, the application was dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.