South Africa Case Law

De Waal Incorporated v Property and PIP Solutions (Pty) Ltd (A02/19)

De Waal Incorporated v Property and PIP Solutions (Pty) Ltd (A02/19) [2019] ZAWCHC 89 (27 June 2019)

Court

Western Cape High Court, Cape Town

Case number

A02/19

Judges

P.A.L.Gamble, M.K.Parker

The court found that clause 12.5 of the discounting agreement did not impose a personal contractual warranty or unconditional guarantee of payment on the appellant. The clause was interpreted as a recordal of a statement of fact, not a promissory undertaking. While the respondent established the existence of a tacit term requiring the appellant to exercise reasonable professional skill, care, and diligence, and proved that the appellant was negligent in failing to conduct the correct Deeds Office search, the respondent failed to establish that such negligence was causally linked to its loss.…

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• Bridging Finance
• Contractual Warranty
• Professional Negligence
• Tacit Terms
• Duty Of Care

Attorneys' Fidelity Fund v Prevance Capital (Pty) Ltd (917/17)

Attorneys' Fidelity Fund v Prevance Capital (Pty) Ltd (917/17) [2018] ZASCA 135 (28 September 2018)

Court

Supreme Court of Appeal

Case number

917/17

Judges

Navsa, Mathopo, Van der Merwe, Mocumie, Molemela

The Supreme Court of Appeal held that the funds deposited by Prevance Capital (Pty) Ltd into Mr Weide's trust account were entrusted to the attorney within the meaning of s 26(a) of the Attorneys Act. The finance agreements required Mr Weide to act as agent and undertake specific professional duties for Prevance, including FICA compliance and payment of rates and taxes. The court found that the transaction was not an investment, and the statutory exclusion in s 47(1)(g) did not apply. The Board's reliance on s 47(5) was misplaced, as the facts did not fit the statutory presumptions for exclus…

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• Attorneys Fidelity Fund
• Entrustment Of Funds
• Theft By Attorney
• Statutory Exclusion Of Liability
• Bridging Finance
• Trust Account Liability

Nel and Another v Fensham t/a MV Finance (31739/2015)

Nel and Another v Fensham t/a MV Finance (31739/2015) [2016] ZAGPJHC 117 (26 May 2016)

Court

South Gauteng High Court, Johannesburg

Case number

31739/2015

Judge

Ratshibvumo

The court found that the applicants failed to prove the existence of an oral agreement binding the respondent to repay R1 050 000.00. There was insufficient evidence that Fensham had authority to represent the respondent or that she ratified his actions. The respondent's denial of any agreement and lack of documentary proof undermined the applicants' case. The court further held that the transactions did not constitute a credit agreement under the National Credit Act, and thus compliance with sections 129 and 130 was not required. The applicants' reliance on ostensible authority was misplaced…

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• Oral Contracts
• Ostensible Authority
• National Credit Act
• Bridging Finance
• Application Procedure

Attorneys Fidelity Fund Board of Control v Injo Investments CC (A80/2014)

Attorneys Fidelity Fund Board of Control v Injo Investments CC (A80/2014) [2015] ZAWCHC 112; 2016 (3) SA 62 (WCC) (21 August 2015)

Court

Western Cape High Court, Cape Town

Case number

A80/2014

Judges

J I Cloete, J M Hlophe, V Saldanha

The court held that, although the respondent claimed to have intended to entrust the funds to PV by paying into its trust account, the factual context showed that PV acted as a conduit for payment to its client. The discounting agreement and warranty indicated that PV's obligation was to pay the money directly to the client, not to hold it in trust for the respondent. The arrangement mirrored the facts in Mettle, where the Supreme Court of Appeal found no entrustment under section 26(a) of the Attorneys Act. The payer's intention alone was not sufficient; the transaction's structure and docum…

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• Attorneys Fidelity Fund
• Entrustment Of Funds
• Bridging Finance
• Trust Account Liability

Kruger v K2011136167 (South Africa) Proprietary Limited and Others (78599/2014)

Kruger v K2011136167 (South Africa) Proprietary Limited and Others (78599/2014) [2014] ZAGPPHC 943 (19 November 2014)

Court

North Gauteng High Court, Pretoria

Case number

78599/2014

Judge

Tuchten

The court dismissed an urgent application for interim interdict relief, finding the applicant had not shown a prima facie right to preserve the property.

• Simulated Transaction
• Interim Interdict
• Transfer Of Property
• Bridging Finance
• Ownership Dispute
• Prima Facie Case

Rodel Financial Services (Pty) Ltd v Stupel & Berman Inc and Another (2011/43229)

Rodel Financial Services (Pty) Ltd v Stupel & Berman Inc and Another (2011/43229) [2013] ZAGPJHC 266 (28 October 2013)

Court

South Gauteng High Court, Johannesburg

Case number

2011/43229

Judge

C. J. Claassen

The High Court held that a conveyancer’s undertaking to pay sale proceeds to a lender was irrevocable and enforceable, and entered judgment for Rodel.

• Bridging Finance
• Cession Of Claims
• Conveyancer Liability
• Tripartite Agreement
• Irrevocable Undertaking
• Contract Cancellation

Govender and Another v Burden and Swart Attorneys (35418/2010)

Govender and Another v Burden and Swart Attorneys (35418/2010) [2013] ZAGPPHC 255 (27 August 2013)

Court

North Gauteng High Court, Pretoria

Case number

35418/2010

Judge

Molefe

The High Court found that the defendants undertook to repay a bridging finance loan and ordered payment of the outstanding balance, interest, and costs.

• Loan Agreement
• Bridging Finance
• Oral And Written Contract
• Undertaking To Repay
• Mutually Destructive Versions
• Bridging-finance

Honey & Partners Inc and Others v Quince Property Finance (Pty) Ltd (345/11)

Honey & Partners Inc and Others v Quince Property Finance (Pty) Ltd (345/11) [2011] ZASCA 213 (29 November 2011)

Court

Supreme Court of Appeal

Case number

345/11

Judges

Harms, Ponnan, Snyders, Leach, Seriti

The Supreme Court of Appeal dismissed an appeal over rectification of a bridging-finance agreement, holding that unchallenged adverse credibility findings doomed the defence.

• Rectification Of Contract
• Attorneys Liability
• Bridging Finance
• Credibility Of Witnesses
• Rectification-of-contract
• Attorneys-liability

Frans Jacobus Kruger h/a Kruger Attorneys v Property Lawyer Services (Edms) Bpk (420/2010)

Frans Jacobus Kruger h/a Kruger Attorneys v Property Lawyer Services (Edms) Bpk (420/2010) [2011] ZASCA 80 (27 May 2011)

Court

Supreme Court of Appeal

Case number

420/2010

Judges

Mpati, Brand, Lewis, Malan, Tshiqi

The Supreme Court of Appeal held that the letter of undertaking furnished by the appellant was not an independent obligation to pay the respondent regardless of the availability of sale proceeds. Instead, the undertaking was to pay the respondent from the proceeds of the sale of the properties upon registration of transfer. The factual context and the wording of the undertaking, as well as the bridging request and mandate to pay, made it clear that payment was conditional upon the receipt of sale proceeds. The cession of proceeds by the client to the respondent further reinforced that payment…

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• Bridging Finance
• Construction Of Undertaking
• Credit Guarantee
• National Credit Act
• Cession Of Proceeds

Filigro (Pty) Ltd v Kamfer and Another (11665/2010)

Filigro (Pty) Ltd v Kamfer and Another (11665/2010) [2010] ZAWCHC 461 (7 September 2010)

Court

Western Cape High Court, Cape Town

Case number

11665/2010

Judge

Bozalek

The court found that the applicant failed to provide any evidence that sequestration would be to the advantage of creditors, as required by the Insolvency Act. The applicant did not address why ordinary execution would not suffice, nor did it demonstrate that sequestration would yield a better result for creditors than execution on a judgment. The general averments made by the applicant were unsupported by facts, and the respondents' estate was not shown to be insolvent. The principles from Gardee v Dhanmanta & Others were applied, emphasizing that sequestration is only justified if it offers…

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• Sequestration
• Advantage To Creditors
• Act Of Insolvency
• Bridging Finance
• Execution Vs Sequestration