South Africa Case Law

Tusk Construction Support Services (Pty) Ltd v Tokologo Local Municipality (628/2017)

Tusk Construction Support Services (Pty) Ltd v Tokologo Local Municipality (628/2017) [2024] ZAFSHC 63 (29 February 2024)

Court

Free State High Court, Bloemfontein

Case number

628/2017

Judge

Van Zyl

The court found that the defendant was properly notified of the cession and was aware of the plaintiff's entitlement to payment as early as October 2010. Payment certificates issued after notification signified debts owed by the defendant to Thiza, which, by virtue of the cession, were due to the plaintiff. The defendant's argument that Thiza had abandoned the site and was not entitled to retention money was rejected, as evidence showed the contract was not terminated and payment certificates continued to be issued in Thiza's name. The plaintiff only acquired knowledge of the relevant facts n…

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• Cession In Securitatem Debiti
• Prescription Act
• Notification Of Debtors
• Retention Money
• Liquidation Proceedings

Consolidated Aone Trade and Invest 6 Proprietary Limited v Master of the High Court, KwaZulu-Natal Local Division Durban and Others (12054/2016)

Consolidated Aone Trade and Invest 6 Proprietary Limited v Master of the High Court, KwaZulu-Natal Local Division Durban and Others (12054/2016) [2024] ZAKZDHC 7 (26 January 2024)

Court

Kwazulu-Natal High Court, Durban

Case number

12054/2016

Judge

M E Nkosi

The court found that the applicant provided a reasonable explanation for its failure to bring the review application within the prescribed 180-day period, as the delay was only one day and condonation was justified in the interests of justice. The Master's decision to expunge the applicant's Claims No. 4 and No. 5 was reviewed and set aside, as the Master failed to provide reasons for his decision, triggering the presumption under section 5(3) of PAJA that the action was taken without good reason. The intervening parties' arguments regarding cession, prescription, and alleged breach of contra…

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• Expungement Of Claims
• Judicial Review
• Condonation
• Unjust Enrichment
• Cession In Securitatem Debiti
• Prescription

Smith N.O. and Another v Pinnar Seed (Pty) Ltd and Another (4999/2022)

Smith N.O. and Another v Pinnar Seed (Pty) Ltd and Another (4999/2022) [2023] ZAFSHC 396 (9 October 2023)

Court

Free State High Court, Bloemfontein

Case number

4999/2022

Judge

Van Zyl

The court found that the cession in securitatem debiti was validly concluded and ratified by the business rescue practitioner, with FNB waiving its rights to the crop proceeds. However, the payments made to the first respondent after the deemed date of liquidation fell within the scope of section 341(2) of the Companies Act, 61 of 1973, and were therefore void unless validated by the court. Applying the judicial discretion under the proviso to section 341(2), the court considered the transaction's bona fides, the benefit to the general body of creditors, and the absence of improper preference…

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• Company Liquidation
• Cession In Securitatem Debiti
• Business Rescue
• Void Dispositions
• Judicial Validation Of Payments

Vantage Goldfields SA (Pty) Ltd & Another v Arqomanzi (Pty) Ltd and Others (733/2022)

Vantage Goldfields SA (Pty) Ltd & Another v Arqomanzi (Pty) Ltd and Others (733/2022) [2023] ZASCA 106; [2023] 3 All SA 667 (SCA) (27 June 2023)

Court

Supreme Court of Appeal

Case number

733/2022

Judges

Ponnan, Mocumie, Mbatha, Matojane, Mali

The Supreme Court of Appeal dismissed an appeal over cession, business rescue, subordination, and MPRDA s 11 consent, confirming Arqomanzi’s position.

• Cession In Securitatem Debiti
• Parate Executie
• Business Rescue
• Mineral And Petroleum Resources Development Act
• Ministerial Consent
• Subordination Agreements

Engen Petroleum Ltd v Flotank Transport (Pty) Ltd (876/2020)

Engen Petroleum Ltd v Flotank Transport (Pty) Ltd (876/2020) [2022] ZASCA 98 (21 June 2022)

Court

Supreme Court of Appeal

Case number

876/2020

Judges

Maya, Zondi, Makgoka, Meyer, Savage

The Supreme Court of Appeal held that the 2014 cession was an out-and-out cession, not a pledge, and upheld Engen’s claim against Flotank.

• Cession In Securitatem Debiti
• Out And Out Cession
• Interpretation Of Contracts
• Liquidation Effects
• Secured Creditor Rights
• Cession-in-securitatem-debiti

Gore N.O. and Another v Hammond N.O. and Another (15012/21)

Gore N.O. and Another v Hammond N.O. and Another (15012/21) [2022] ZAWCHC 73 (7 April 2022)

Court

Western Cape High Court, Cape Town

Case number

15012/21

Judge

De Wet

The applicants, as joint liquidators of Ukhana Projects CC, established locus standi based on the Nedbank cession, which rendered subsequent cessions invalid. The payments from Bitou Municipality intended for Ukhana were unlawfully diverted to the H & H Trust, giving rise to a liquidated claim. The Trust made dispositions of property, including payments and asset transfers, which prejudiced creditors and constituted acts of insolvency under section 8(c) of the Insolvency Act. The respondents failed to provide credible evidence disputing the claim or demonstrating solvency. The court found tha…

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• Provisional Sequestration
• Locus Standi
• Cession In Securitatem Debiti
• Act Of Insolvency
• Advantage To Creditors

Extra Dimensions 44 (Pty) Ltd v Devcor Investments (Pty) Ltd and Another (33476/2019)

Extra Dimensions 44 (Pty) Ltd v Devcor Investments (Pty) Ltd and Another (33476/2019) [2021] ZAGPJHC 813 (14 December 2021)

Court

South Gauteng High Court, Johannesburg

Case number

33476/2019

Judge

Nichols

The court held that the plaintiff, having entered into a re-cession agreement with Nedbank that re-vested its rights in respect of the lease agreement from a date prior to the institution of action, was retrospectively vested with locus standi. The court found that the defendants suffered no prejudice, and that practical justice and established legal principles justified allowing the plaintiff to proceed. The court rejected the defendants' argument that the re-cession was not outright due to clause 5, finding that the operative cession was contained in clause 2 and remained in force until one…

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• Locus Standi
• Cession In Securitatem Debiti
• Recession Of Claims
• Replication Vs Amendment
• Holding Over Damages

Nedbank Limited v Firstclinic Properties One Limited and Another (33780/19)

Nedbank Limited v Firstclinic Properties One Limited and Another (33780/19) [2020] ZAGPPHC 334 (27 July 2020)

Court

North Gauteng High Court, Pretoria

Case number

33780/19

Judge

C.J. Collis

The High Court dismissed Nedbank’s bid to interdict tenants and enforce rental cessions under mortgage bonds, finding the tenants raised a dispute about the underlying rental debt.

• Cession In Securitatem Debiti
• Mortgage Bond Enforcement
• Final Interdict
• Tenant Landlord Dispute
• Cession-in-securitatem-debiti
• Mortgage-bond-enforcement

Engen Petroleum Limited v Flotank Transport (Pty) Ltd (1049/2017)

Engen Petroleum Limited v Flotank Transport (Pty) Ltd (1049/2017) [2020] ZANCHC 35 (5 June 2020)

Court

Northern Cape High Court, Kimberley

Case number

1049/2017

Judge

Makoti AJ

The court dismissed Engen’s claim against Flotank, holding that after Windsharp’s liquidation Engen’s remedy lay against the insolvent estate, not directly against Flotank.

• Cession In Securitatem Debiti
• Liquidation Effect On Cession
• Locus Standi
• Notice Of Perfection
• Secured Creditor Status
• Insolvency Act Section 44

Sambit Holdings (Proprietary) Limited v Marais and Others (90194/15)

Sambit Holdings (Proprietary) Limited v Marais and Others (90194/15) [2019] ZAGPPHC 1086 (9 December 2019)

Court

North Gauteng High Court, Pretoria

Case number

90194/15

Judge

Avvakoumides

The court dismissed an application to amend a replication, holding the plaintiff could not cure lack of locus standi in replication after a prior cession of debts.

• Amendment Of Pleadings
• Cession In Securitatem Debiti
• Locus Standi
• Prescription Interruption
• Suretyship
• Condonation