Lewis v Oneanate (Pty) Ltd and Another (344/91) [1992] ZASCA 174; 1992 (4) SA 811 (AD); [1992] 2 All SA 498 (A) (28 September 1992)

Lewis v Oneanate (Pty) Ltd and Another (344/91) [1992] ZASCA 174; 1992 (4) SA 811 (AD); [1992] 2 All SA 498 (A) (28 September 1992)

The court held that the agreement was not void for contravening section 38(1) of the Companies Act, as the contemplated mortgage bond would not amount to financial assistance by Bergriviershoek in the circumstances described. The simultaneous transfer and registration of the bond would not expose Bergriviershoek's assets to risk or deplete its capital, and thus did not fall within the mischief addressed by section 38(1). On the issue of vagueness, the court found that the agreement, though ineptly drafted, was a commercial document intended to have legal effect, and its essential terms could be reasonably ascertained. The court emphasized that commercial agreements should not be destroyed...

Citation
[1992] ZASCA 174
Parties
Appellant: Paul Anthony Lewis; Respondent: Oneanate (Pty) Ltd; Respondent: Bergriviershoek (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 1992
Case Number
344/91
Procedural Posture
Civil Appeal / Appeal From Dismissal of Exception to Particulars of Claim
Outcome
Appeal dismissed with costs, including costs of two counsel. Condonation granted for late filing of power of attorney, with costs.
Judges
Nicholas, Corbett, Grosskopf, Nestadt, Eksteen
Legal Topics
Contractual Certainty, Exception Procedure, Financial Assistance Companies Act, Alienation of Land Act
Commercial and Corporate Civil Procedure Contractual Certainty Exception Procedure Financial Assistance Companies Act Alienation of Land Act

Case Brief

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Parties

Paul Anthony Lewis

Appellant

Oneanate (Pty) Ltd

Respondent

Bergriviershoek (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the agreement in Annexure 'D' is void and unenforceable due to contravention of section 38(1) of the Companies Act.
  2. 2 Whether the agreement is void for vagueness and uncertainty of terms.
  3. 3 Whether the agreement fails to comply with section 2(1) of the Alienation of Land Act.

Ratio Decidendi

The court held that the agreement was not void for contravening section 38(1) of the Companies Act, as the contemplated mortgage bond would not amount to financial assistance by Bergriviershoek in the circumstances described. The simultaneous transfer and registration of the bond would not expose Bergriviershoek's assets to risk or deplete its capital, and thus did not fall within the mischief addressed by section 38(1). On the issue of vagueness, the court found that the agreement, though ineptly drafted, was a commercial document intended to have legal effect, and its essential terms could be reasonably ascertained. The court emphasized that commercial agreements should not be destroyed...

Court Disposition

Appeal dismissed with costs, including costs of two counsel. Condonation granted for late filing of power of attorney, with costs.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.
  • Condonation is granted for the late filing of the appellant's power of attorney, with costs payable by the appellant.