Ndebele and Another v Industrial Development Corporation of South Africa and Others (2021/21687) [2024] ZAGPJHC 470 (10 May 2024)

Ndebele and Another v Industrial Development Corporation of South Africa and Others (2021/21687) [2024] ZAGPJHC 470 (10 May 2024)

The court found that the applicants' new legal argument regarding pactum commissorium was not properly raised in the notice of application for leave to appeal and would prejudice the respondents, as it introduced a new cause of action not factually ventilated in the papers. Even if allowed, the agreements did not constitute an invalid pactum commissorium, as the pledge was to secure delivery of shares upon exercise of the IDC Call Option, not upon default by Emvelo. The price for the shares was contractually agreed, and there was no default that allowed IDC to keep the shares as its own property. The implementation of the agreements was not inherently unfair, nor contra bonos mores or...

Citation
[2024] ZAGPJHC 470
Parties
Applicant: Phatisani Ndebele; Applicant: Emvelo Holdings (Pty) Ltd; Respondent: Industrial Development Corporation of South Africa; Respondent: Buyelwa Patience Sonjica; Respondent: Odiweb (Pty) Ltd; Respondent: Companies and Intellectual Property Commission
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 May 2024
Case Number
2021/21687
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal
Outcome
Application for leave to appeal dismissed with costs.
Judges
R Strydom
Legal Topics
Leave to Appeal, Pactum Commissorium, Contractual Fairness, Strike Out Applications
Commercial and Corporate Civil Procedure Leave to Appeal Pactum Commissorium Contractual Fairness Strike Out Applications

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Parties

Phatisani Ndebele

Applicant

Emvelo Holdings (Pty) Ltd

Applicant

Industrial Development Corporation of South Africa

Respondent

Buyelwa Patience Sonjica

Respondent

Odiweb (Pty) Ltd

Respondent

Companies and Intellectual Property Commission

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal

Legal Issues

  1. 1 Whether the IDC Call Option and related pledge agreement constituted an invalid pactum commissorium.
  2. 2 Whether the implementation of the agreements was contra bonos mores or contrary to Ubuntu.
  3. 3 Whether new legal arguments or causes of action may be raised for the first time on appeal.

Ratio Decidendi

The court found that the applicants' new legal argument regarding pactum commissorium was not properly raised in the notice of application for leave to appeal and would prejudice the respondents, as it introduced a new cause of action not factually ventilated in the papers. Even if allowed, the agreements did not constitute an invalid pactum commissorium, as the pledge was to secure delivery of shares upon exercise of the IDC Call Option, not upon default by Emvelo. The price for the shares was contractually agreed, and there was no default that allowed IDC to keep the shares as its own property. The implementation of the agreements was not inherently unfair, nor contra bonos mores or...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The applicants shall pay the party and party costs of this application: pertaining to the first respondent on scale C, including the costs of senior counsel; pertaining to the second respondent's counsel on scale A.