Nedcor Bank Limited v Boulbigh 224 CC (15078/98) [1998] ZAGPHC 4 (19 August 1998)

Nedcor Bank Limited v Boulbigh 224 CC (15078/98) [1998] ZAGPHC 4 (19 August 1998)

The court found that the cession agreement was clear, succinct, and unambiguous, constituting an out-and-out cession. The respondent's defence that the cession was in securitatem debiti was rejected, as the wording of the agreement did not support such an interpretation. Even if the cession were in securitatem debiti, the respondent would need to pursue a separate action for recession, which does not constitute a defence to the applicant's claim. The court further held that the restrictions in the mortgage agreement did not preclude the applicant from acting on the cession, as the respondent failed to allege in its answering affidavit that no breach had occurred. The standard...

Citation
[1998] ZAGPHC 4
Parties
Plaintiff: Nedcor Bank Limited; Respondent: Boulbigh 224 CC
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
19 August 1998
Case Number
15078/98
Procedural Posture
Civil Application / First Instance
Outcome
Application granted in favour of the applicant.
Judges
Willis
Legal Topics
Cession in Securitatem Debiti, Out and Out Cession, Parole Evidence Rule, Mortgage Bond Enforcement, Variation Clause
Commercial and Corporate Civil Procedure Cession in Securitatem Debiti Out and Out Cession Parole Evidence Rule Mortgage Bond Enforcement Variation Clause

Case Brief

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Parties

Nedcor Bank Limited

Plaintiff

Boulbigh 224 CC

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the cession agreement signed on 28 January 1998 constitutes an out-and-out cession or a cession in securitatem debiti.
  2. 2 Whether the applicant is entitled to act upon the cession in light of clause 8.3 of the mortgage agreement.
  3. 3 Whether the respondent's defences based on the nature of the cession and the mortgage agreement are sustainable.

Ratio Decidendi

The court found that the cession agreement was clear, succinct, and unambiguous, constituting an out-and-out cession. The respondent's defence that the cession was in securitatem debiti was rejected, as the wording of the agreement did not support such an interpretation. Even if the cession were in securitatem debiti, the respondent would need to pursue a separate action for recession, which does not constitute a defence to the applicant's claim. The court further held that the restrictions in the mortgage agreement did not preclude the applicant from acting on the cession, as the respondent failed to allege in its answering affidavit that no breach had occurred. The standard...

Court Disposition

Application granted in favour of the applicant.

Orders

  • The respondent must deliver to the applicant, at the offices of the applicant's attorneys of record, within five days of the date of this order: (1.1) A list of all tenants and occupiers who have or are presently occupying a sectional title unit owned by the respondent in the specified development; (1.2) Each and...
  • The respondent must debate the account referred to above with the applicant within five days of written request and, within twenty-four hours thereafter, pay the amount due pursuant to such debate.