Pick n Pay Retailers (Pty) Ltd v Cascade Avenue Trading 158 (Pty) Ltd (150/2024) [2024] ZANCHC 18 (26 February 2024)

Pick n Pay Retailers (Pty) Ltd v Cascade Avenue Trading 158 (Pty) Ltd (150/2024) [2024] ZANCHC 18 (26 February 2024)

The applicant established urgency due to ongoing commercial loss and risk to its security, and acted promptly in bringing the application. The respondent's payments were appropriately allocated to historical debt in terms of the agreement, and the respondent remained indebted to the applicant. The contractual provisions entitle the applicant to perfect its security under the General Notarial Bond, and court oversight is required for such perfection. The respondent's arguments regarding the punitive nature of perfection and the alleged supplementation of the applicant's case in reply were rejected. The applicant is entitled to exercise the rights under the bond, including taking possession...

Citation
[2024] ZANCHC 18
Parties
Applicant: Pick n Pay Retailers (Pty) Ltd; Respondent: Cascade Avenue Trading 158 (Pty) Ltd
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
26 February 2024
Case Number
150/2024
Procedural Posture
Urgent Application / Final Judgment
Outcome
Application granted. The applicant is authorised to perfect its security under the General Notarial Bond and exercise the rights set out in the bond. Costs awarded against the respondent on attorney and client scale, except for the wasted costs of 09 February 2024, which each party must bear.
Judges
Phatshoane
Legal Topics
Notarial Bond Perfection, Urgent Interdict, Franchise Agreement Breach, Allocation of Payments, Security Enforcement
Commercial and Corporate Civil Procedure Notarial Bond Perfection Urgent Interdict Franchise Agreement Breach Allocation of Payments Security Enforcement

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Parties

Pick n Pay Retailers (Pty) Ltd

Applicant

Cascade Avenue Trading 158 (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to perfect its security under the General Notarial Bond against the respondent.
  2. 2 Whether the application is urgent and urgency is not self-created.
  3. 3 Whether the respondent remains indebted to the applicant and has breached the franchise agreement and bond terms.

Ratio Decidendi

The applicant established urgency due to ongoing commercial loss and risk to its security, and acted promptly in bringing the application. The respondent's payments were appropriately allocated to historical debt in terms of the agreement, and the respondent remained indebted to the applicant. The contractual provisions entitle the applicant to perfect its security under the General Notarial Bond, and court oversight is required for such perfection. The respondent's arguments regarding the punitive nature of perfection and the alleged supplementation of the applicant's case in reply were rejected. The applicant is entitled to exercise the rights under the bond, including taking possession...

Court Disposition

Application granted. The applicant is authorised to perfect its security under the General Notarial Bond and exercise the rights set out in the bond. Costs awarded against the respondent on attorney and client scale, except for the wasted costs of 09 February 2024, which each party must bear.

Orders

  • The applicant is authorised and empowered, through its representative or the Sheriff, to perfect its security under Notarial General Covering Bond no B[...] 1[...] registered in Kimberley on 25 August 2008, and to exercise the rights in clauses 6.1.1 to 6.1.10 of the bond.
  • The applicant may claim and recover from the respondent all sums secured by the bond, enter the respondent's premises to take possession of assets, conduct the respondent's business, engage and dismiss staff, purchase goods, manage leases, change locks, operate banking accounts, discharge debts, recover debts, draw...