Lombaard v Moolgem (Pty) Ltd and Others (23/076940) [2023] ZAGPPHC 708 (22 August 2023)

Lombaard v Moolgem (Pty) Ltd and Others (23/076940) [2023] ZAGPPHC 708 (22 August 2023)

The Court found that the wording of the cession agreement is clear and unambiguous, permitting Moolgem to request withdrawal of the investment without notice to the applicant and without prior judicial determination of the tenant's liability. The applicant's interpretation is not supported by the text or context of the agreement. The clause does permit parate executie, which is valid under South African law unless its enforcement is unfair or contrary to public policy. The applicant failed to establish any unfairness or impropriety in the enforcement of the clause and did not make out a prima facie right to an interdict. Accordingly, the application was dismissed.

Citation
[2023] ZAGPPHC 708
Parties
Applicant: Dirk Vos Lombaard; Respondent: Moolgem (Pty) Ltd; Respondent: PSG Wealth Financial Planning (Pty) Ltd.; Respondent: PSG Invest (Pty) Ltd T/A PSG Invest; Respondent: Duroc Foods CC; Respondent: Andries Frederik Lombard
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 August 2023
Case Number
23/076940
Procedural Posture
Urgent Application / Final Order Following Interim Interdict
Outcome
Application dismissed. Each party to pay their own costs.
Judges
Irene de Vos
Legal Topics
Collateral Cession, Parate Executie, Interim Interdict, Lease Agreement, Suretyship
Civil Procedure Commercial and Corporate Collateral Cession Parate Executie Interim Interdict Lease Agreement Suretyship

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Parties

Dirk Vos Lombaard

Applicant

Moolgem (Pty) Ltd

Respondent

PSG Wealth Financial Planning (Pty) Ltd.

Respondent

PSG Invest (Pty) Ltd T/A PSG Invest

Respondent

Duroc Foods CC

Respondent

Andries Frederik Lombard

Respondent

Procedural Posture

Urgent Application / Final Order Following Interim Interdict

Legal Issues

  1. 1 Whether Moolgem (Pty) Ltd is entitled to call up the collateral cession without prior court determination of the tenant's liability.
  2. 2 Whether the cession agreement permits parate executie and if its enforcement is contrary to public policy.
  3. 3 Whether the applicant has established a prima facie right to an interdict preventing payment under the cession.

Ratio Decidendi

The Court found that the wording of the cession agreement is clear and unambiguous, permitting Moolgem to request withdrawal of the investment without notice to the applicant and without prior judicial determination of the tenant's liability. The applicant's interpretation is not supported by the text or context of the agreement. The clause does permit parate executie, which is valid under South African law unless its enforcement is unfair or contrary to public policy. The applicant failed to establish any unfairness or impropriety in the enforcement of the clause and did not make out a prima facie right to an interdict. Accordingly, the application was dismissed.

Court Disposition

Application dismissed. Each party to pay their own costs.

Orders

  • The forms and services provided for in the Uniform Rules of Court are dispensed with and the matter is heard as one of urgency under Uniform Rule 6(12).
  • The application is dismissed.