South Africa Case Law

FFS Finance South Africa (RF) (Pty) t/a Ford Credit v Lamola (79127/2023;24590/2022)

FFS Finance South Africa (RF) (Pty) t/a Ford Credit v Lamola (79127/2023;24590/2022) [2023] ZAGPPHC 1891; 2024 (2) SA 427 (GP) (9 November 2023)

Court

North Gauteng High Court, Pretoria

Case number

79127/2023;24590/2022

Judge

C Marumoagae

The court held that it retains discretion over costs orders and is not bound by punitive costs clauses in standard instalment sale agreements, especially where the matter is unopposed and the defendants are consumers who likely did not negotiate or understand the implications of such clauses. The court found that enforcing punitive costs against defaulting consumers would be contrary to the aims of the National Credit Act and Consumer Protection Act, as well as public policy rooted in constitutional values of dignity, equality, and freedom. The court emphasized the unequal bargaining power in…

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• Default Judgment
• Punitive Costs
• Consumer Protection
• National Credit Act
• Contractual Freedom
• Public Policy

Wyno Construction and Projects (Proprietary Limited v Miway Insurance Limited (48046/20)

Wyno Construction and Projects (Proprietary Limited v Miway Insurance Limited (48046/20) [2022] ZAGPPHC 437 (13 June 2022)

Court

North Gauteng High Court, Pretoria

Case number

48046/20

Judge

G Malindi

The court found that the exclusion clause in the insurance policy, which denies cover for theft or attempted theft by an employee, is reasonable and not contrary to public policy. The applicant voluntarily chose to exclude driver dishonesty cover to reduce the premium, exercising contractual autonomy. There was no evidence of coercion or uneven bargaining power. The clause does not attribute fault to the applicant but simply excludes claims under specified circumstances. The evidence established, on a balance of probabilities, that the applicant's employee stole the truck, thereby triggering…

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• Insurance Policy Exclusion
• Public Policy
• Contractual Freedom
• Driver Dishonesty
• Onus Of Proof

A M v H M (CCT95/19)

A M v H M (CCT95/19) [2020] ZACC 9; 2020 (8) BCLR 903 (CC) (26 May 2020)

Court

Constitutional Court

Case number

CCT95/19

Judges

Mogoeng, Jafta, Khampepe, Madlanga, Mathopo, Mhlantla, Theron, Tshiqi, Victor

The Constitutional Court dismissed leave to appeal in a dispute over a postnuptial agreement, holding the new constitutional points were raised too late.

• Matrimonial Property Act
• Postnuptial Agreement
• Leave To Appeal
• Contractual Freedom
• Public Policy
• Postnuptial-agreement

Smartgrid Engineers (Pty) Ltd v Protea Mines (Pty) Ltd (29523/2017)

Smartgrid Engineers (Pty) Ltd v Protea Mines (Pty) Ltd (29523/2017) [2019] ZAGPPHC 616 (30 October 2019)

Court

North Gauteng High Court, Pretoria

Case number

29523/2017

Judge

EM Kubushi

The court found that the in duplum rule does not apply in this case because the interest was contractually agreed upon at the outset and did not accrue over time. The defendant, a mining company, was not vulnerable or exploited in the transaction, having initiated the loan and proposed the terms. Public policy does not require protection of the defendant in these circumstances. The agreement was entered into voluntarily, and the defendant was fully aware of its consequences. Therefore, the plaintiff is entitled to claim the full amount of R2,500,000, comprising the capital and agreed interest…

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• Loan Agreement
• In Duplum Rule
• Contractual Freedom
• Public Policy
• Interest On Judgment Debt

Trustees for the Time Being of Roshen and Komarie Family Trust and Others v Business Partners Limited (28839/2016)

Trustees for the Time Being of Roshen and Komarie Family Trust and Others v Business Partners Limited (28839/2016) [2019] ZAGPJHC 383 (10 October 2019)

Court

South Gauteng High Court, Johannesburg

Case number

28839/2016

Judge

L T Modiba

The applicants breached the settlement agreement three times, as established by the respondent's evidence and correspondence. Notices of breach were properly served, and the applicants acknowledged receipt by attempting to remedy the breaches. The computation of the seven-day period for the last breach was correct, and the applicants failed to remedy the breach within the required time. The respondent was entitled to have the warrant of execution issued in terms of the agreement. The applicants failed to show good cause for rescission. There was no basis for awarding costs de bonis propriis a…

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• Rescission Of Warrant Of Execution
• Settlement Agreement Breach
• Contractual Freedom
• Notice Of Breach
• Costs De Bonis Propriis

First National Bank - a Division of Firstrand Bank Ltd v Clear Creek Trading 12 (Pty) Ltd and Another (4549/2011)

First National Bank - a Division of Firstrand Bank Ltd v Clear Creek Trading 12 (Pty) Ltd and Another (4549/2011) [2013] ZAGPPHC 80; 2014 (1) SA 23 (GNP) (14 March 2013)

Court

North Gauteng High Court, Pretoria

Case number

4549/2011

Judge

Kollapen

The court held that the National Credit Act applied to a home loan agreement, because the parties had expressly made it part of their contract.

• National Credit Act
• Contractual Freedom
• Rectification
• Suretyship
• Public Policy
• Separation Of Powers

Maclear Financial Services (Pty) Ltd v Human (468/08)

Maclear Financial Services (Pty) Ltd v Human (468/08) [2008] ZAECHC 43 (20 March 2008)

Court

High Courts - Eastern Cape

Case number

468/08

Judge

D Chetty

The court found that the restraint of trade clause was entered into freely and primarily to protect the applicant's proprietary interests, including its client base and goodwill, following the purchase of the respondent's business. The respondent's arguments regarding unequal bargaining power and lack of intention to re-enter the industry were rejected as disingenuous, given the circumstances and the agreed purchase price. The restraint was not found to be unreasonable or contrary to public policy, as the respondent was permitted to operate within the Humansdorp area and had the option to see…

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• Restraint Of Trade
• Enforceability Of Contracts
• Proprietary Interest
• Public Policy
• Contractual Freedom

De Jager en Andere v ABSA Bank Bpk (303/98)

De Jager en Andere v ABSA Bank Bpk (303/98) [2000] ZASCA 193; [2000] 4 All SA 481 (A); 2001 (3) SA 537 (SCA) (29 September 2000)

Court

Supreme Court of Appeal

Case number

303/98

Judges

Smalberger, Harms, Olivier, Scott, Melunsky

The court held that a debtor’s post-prescription undertaking not to raise prescription is valid and not contrary to public policy, even if unlimited in duration.

• Prescription Act
• Suretyship
• Public Policy
• Contractual Freedom
• Prescription
• Public-policy