Juglal NO and Another v Shoprite Checkers (Pty) Ltd t/a OK Franchise Division (634/02) [2004] ZASCA 33; [2004] 2 All SA 268 (SCA); 2004 (5) SA 248 (SCA) (31 March 2004)

Juglal NO and Another v Shoprite Checkers (Pty) Ltd t/a OK Franchise Division (634/02) [2004] ZASCA 33; [2004] 2 All SA 268 (SCA); 2004 (5) SA 248 (SCA) (31 March 2004)

The Supreme Court of Appeal held that the clauses in the notarial bond, including those conferring parate executie and powers to the creditor, were not contrary to public policy or the Constitution. The Court found that the respondent's powers were exercised under judicial oversight and did not oust the debtor's right of access to the courts. The context of the franchise agreement and the commercial realities justified the bond's terms, which were designed to protect perishable security and maintain the business as a going concern. The Court distinguished between the contract's terms and their implementation, holding that only the latter could be struck down if abused. The common law...

Citation
[2004] ZASCA 33
Parties
Appellant: N Juglal NO Jumbo Trust t/a OK Foodsport Shepstone; Respondent: Shoprite Checkers (Pty) Ltd t/a OK Franchise Division
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 March 2004
Case Number
634/02
Procedural Posture
Civil Appeal / Appeal From Confirmation of Rule Nisi and Interim Order in High Court
Outcome
Appeal dismissed with costs.
Judges
MPATI, Marais, Cameron, Conradie, Heher
Legal Topics
Notarial Bond, Parate Executie, Public Policy, Constitutional Right of Access, Franchise Agreement, Security for Debt
Commercial and Corporate Land and Property Notarial Bond Parate Executie Public Policy Constitutional Right of Access Franchise Agreement Security for Debt

Case Brief

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Parties

N Juglal NO Jumbo Trust t/a OK Foodsport Shepstone

Appellant

Shoprite Checkers (Pty) Ltd t/a OK Franchise Division

Respondent

Procedural Posture

Civil Appeal / Appeal From Confirmation of Rule Nisi and Interim Order in High Court

Legal Issues

  1. 1 Whether the clauses in the notarial general bond, particularly those conferring parate executie and powers to the creditor, are contrary to public policy.
  2. 2 Whether the bond's terms infringe the constitutional right of access to courts under section 34 of the Constitution.
  3. 3 Whether the common law relating to parate executie requires development to conform with the Constitution.

Ratio Decidendi

The Supreme Court of Appeal held that the clauses in the notarial bond, including those conferring parate executie and powers to the creditor, were not contrary to public policy or the Constitution. The Court found that the respondent's powers were exercised under judicial oversight and did not oust the debtor's right of access to the courts. The context of the franchise agreement and the commercial realities justified the bond's terms, which were designed to protect perishable security and maintain the business as a going concern. The Court distinguished between the contract's terms and their implementation, holding that only the latter could be struck down if abused. The common law...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.