Farmsecure Grains (Edms) Bpk v Du Toit en Ander (2382/2012) [2012] ZAFSHC 178; 2013 (1) SA 462 (FB) (20 September 2012)

Farmsecure Grains (Edms) Bpk v Du Toit en Ander (2382/2012) [2012] ZAFSHC 178; 2013 (1) SA 462 (FB) (20 September 2012)

The court found that the applicant, as holder of a special notarial bond, has a real right over the specified movable property and may enforce this right without prior demand or request, unless the bond or contract expressly requires such notice. The interim order only authorised attachment by the sheriff and did not require removal or handover, aligning with the applicant's undertaking to maintain control without removal. The court distinguished the present case from those involving general notarial bonds, where a request or demand may be necessary. However, the court was not persuaded that the applicant was contractually entitled to complete its security by taking possession, as the...

Citation
[2012] ZAFSHC 178
Parties
Applicant: Farmsecure Grains (Edms) Beperk; Respondent: Johannes Petrus Cornelius Du Toit; Respondent: Johanna Elizabeth Du Toit
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
20 September 2012
Case Number
2382/2012
Procedural Posture
Urgent Application / Opposed Application for Confirmation of Interim Order
Outcome
Application dismissed; rule nisi discharged; costs awarded to respondents.
Judges
L J Lekale
Legal Topics
Special Notarial Bond, Possessionless Pledge, Specific Performance, Security by Means of Movable Property Act
Land and Property Commercial and Corporate Special Notarial Bond Possessionless Pledge Specific Performance Security by Means of Movable Property Act

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Parties

Farmsecure Grains (Edms) Beperk

Applicant

Johannes Petrus Cornelius Du Toit

Respondent

Johanna Elizabeth Du Toit

Respondent

Procedural Posture

Urgent Application / Opposed Application for Confirmation of Interim Order

Legal Issues

  1. 1 Whether the applicant is entitled to confirmation of the interim order authorising possession of specified movable property under a special notarial bond.
  2. 2 Whether a request or demand to the respondents is a prerequisite for the relief sought.
  3. 3 Whether the applicant must perfect its security by taking actual possession of the hypothecated movables.

Ratio Decidendi

The court found that the applicant, as holder of a special notarial bond, has a real right over the specified movable property and may enforce this right without prior demand or request, unless the bond or contract expressly requires such notice. The interim order only authorised attachment by the sheriff and did not require removal or handover, aligning with the applicant's undertaking to maintain control without removal. The court distinguished the present case from those involving general notarial bonds, where a request or demand may be necessary. However, the court was not persuaded that the applicant was contractually entitled to complete its security by taking possession, as the...

Court Disposition

Application dismissed; rule nisi discharged; costs awarded to respondents.

Orders

  • The rule nisi is discharged.
  • The applicant shall pay the respondents' costs.