Viljoen v Trakman NO and Others (562/92) [1994] ZASCA 39; 1994 (3) SA 116 (AD); (25 March 1994)

Viljoen v Trakman NO and Others (562/92) [1994] ZASCA 39; 1994 (3) SA 116 (AD); (25 March 1994)

The Supreme Court of Appeal held that the payment of R60,000 into the special savings account in the name of Viljoen and Behrmann, as mandated by the settlement agreement, constituted immediate discharge of the Dahkor group's liability for costs to Trakman. The mandate to Viljoen and Behrmann was divisible, and the function of receiving payment was fulfilled upon deposit, surviving the subsequent liquidation of the Dahkor entities. The court found that Viljoen and Behrmann were authorised to pay out the full amount of taxed costs to Trakman, up to the available funds, and that the settlement agreement covered all costs awarded in Trakman's favour, including those against Erasmus. The...

Citation
[1994] ZASCA 39
Parties
Appellant: Johan Loftus Viljoen; Respondent: Selwyn Trakman NO; Respondent: Pieter Arnoldus Cronje NO; Respondent: Marthinus Johannes Deysel; Respondent: David Francois Hebler; Respondent: Saambou Nationale Bouvereniging
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 March 1994
Case Number
562/92
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division; Leave to Appeal Granted by the Supreme Court of Appeal
Outcome
Appeal dismissed with costs, except that the order of the court a quo is amended to direct payment to Trakman of the full taxed costs (R63,730.81) from the account, not the entire account balance.
Judges
Nienaber, Hefer, Goldstone, Howie, Olivier
Legal Topics
Mandate, Settlement Agreement, Liquidation, Payment in Trust, Costs Award
Civil Procedure Commercial and Corporate Mandate Settlement Agreement Liquidation Payment in Trust Costs Award

Case Brief

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Parties

Johan Loftus Viljoen

Appellant

Selwyn Trakman NO

Respondent

Pieter Arnoldus Cronje NO

Respondent

Marthinus Johannes Deysel

Respondent

David Francois Hebler

Respondent

Saambou Nationale Bouvereniging

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division; Leave to Appeal Granted by the Supreme Court of Appeal

Legal Issues

  1. 1 Whether payment into a trust account in the name of designated third parties constitutes discharge of the debt owed by the debtor to the creditor, surviving subsequent liquidation of the debtor.
  2. 2 Whether the liquidator of the debtor or its group can prevent payment out of the trust account to the creditor.
  3. 3 Whether the settlement agreement covers costs awarded against a third party (Erasmus) and whether the full taxed costs must be paid from the trust account.

Ratio Decidendi

The Supreme Court of Appeal held that the payment of R60,000 into the special savings account in the name of Viljoen and Behrmann, as mandated by the settlement agreement, constituted immediate discharge of the Dahkor group's liability for costs to Trakman. The mandate to Viljoen and Behrmann was divisible, and the function of receiving payment was fulfilled upon deposit, surviving the subsequent liquidation of the Dahkor entities. The court found that Viljoen and Behrmann were authorised to pay out the full amount of taxed costs to Trakman, up to the available funds, and that the settlement agreement covered all costs awarded in Trakman's favour, including those against Erasmus. The...

Court Disposition

Appeal dismissed with costs, except that the order of the court a quo is amended to direct payment to Trakman of the full taxed costs (R63,730.81) from the account, not the entire account balance.

Orders

  • The first respondent is directed to sign whatever documents are necessary to procure payment to the applicant of R63,730.81 out of the amount standing to the credit of special savings account No. 09469192 001 styled 'Viljoen and Behrmann' with the fifth respondent.
  • The appeal is otherwise dismissed with costs.