Marais and Others v Ruskin NO (88/85) [1985] ZASCA 70; [1985] 2 All SA 533 (A) (5 September 1985)

Marais and Others v Ruskin NO (88/85) [1985] ZASCA 70; [1985] 2 All SA 533 (A) (5 September 1985)

The Supreme Court of Appeal held that the cession by Moll to Marais was a cession in securitatem debiti, granting Marais all rights and title in Moll's loan account with the Trust as security for the debt. Upon payment of the debt by the respondent, as curator, to Marais, the respondent became entitled to a reversionary session of those rights from Marais. The purported cession by Moll to Erica Jane Sutton Moll during divorce proceedings did not transfer any reversionary right, as such a right only comes into existence upon payment of the secured debt, which had not occurred at the time of the cession. The wording of the cession and the circumstances did not support the conclusion that...

Citation
[1985] ZASCA 70
Parties
Appellant: Louis Barend Marais; Appellant: Marius Leonidas Benade N.N.O.; Appellant: Erica Jane Sutton Moll; Respondent: Albert Ruskin N.O.
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
5 September 1985
Case Number
88/85
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division
Outcome
Appeal dismissed with costs.
Judges
Rabie, Jansen, Joubert, Cillié, Boshoff
Legal Topics
Cession of Claims, Trust Law, Insolvency, Reversionary Rights
Civil Procedure Commercial and Corporate Cession of Claims Trust Law Insolvency Reversionary Rights

Case Brief

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Parties

Louis Barend Marais

Appellant

Marius Leonidas Benade N.N.O.

Appellant

Erica Jane Sutton Moll

Appellant

Albert Ruskin N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division

Legal Issues

  1. 1 Whether the respondent, as curator of the insolvent estate, is entitled to claim payment from the trustees of the Christiaan Lodewyk Moll Trust.
  2. 2 Whether the cession granted by Moll to his former wife transferred a reversionary right capable of defeating the respondent's claim.
  3. 3 Whether the session of rights by Moll to Marais and subsequent session to the respondent was effective against the claim of Erica Jane Sutton Moll.

Ratio Decidendi

The Supreme Court of Appeal held that the cession by Moll to Marais was a cession in securitatem debiti, granting Marais all rights and title in Moll's loan account with the Trust as security for the debt. Upon payment of the debt by the respondent, as curator, to Marais, the respondent became entitled to a reversionary session of those rights from Marais. The purported cession by Moll to Erica Jane Sutton Moll during divorce proceedings did not transfer any reversionary right, as such a right only comes into existence upon payment of the secured debt, which had not occurred at the time of the cession. The wording of the cession and the circumstances did not support the conclusion that...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs, payable jointly and severally by the Christiaan Lodewyk Moll Trust and Erica Jane Sutton Moll.