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South Africa decisions
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Emerald Capital (Pty) Ltd v Ace Auto Salvage CC (2023-077999) [2023] ZAGPJHC 957 (25 August 2023)
The High Court reconsidered and set aside an ex parte urgent perfection order over a general notarial bond, finding no adequate basis to proceed without service.
Industrial Development Corporation of South Africa Limited v Bokone Group of Companies (Pty) Ltd (2022-027186) [2023] ZAGPJHC 837 (24 July 2023)
The court found that the applicant failed to make full and correct disclosure of material facts in its ex parte urgent application, including the true status of the project, communications regarding loan repayment extensions, and the nature of the respondent's financial position. While these nondisclosures were not material to the applicant's entitlement to perfect its security by attachment in situ (inventorying and marking assets), they were material and relevant to the urgency and justification for orders authorising removal and sale of the respondent's movable assets. The court exercised…
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Main Street 1613 (RF) and Others v Solar Capital Orange (RF) Proprietary Limited and Others (56709/2021) [2023] ZAGPJHC 109 (25 January 2023)
The court held that an order may be executed pending leave to appeal under section 18, finding exceptional circumstances and no irreparable harm to respondents.
Industrial Development Bank of SA Limited v Broodkraal Landgoed (Pty) Limited (2014/32635) [2015] ZAGPJHC 283 (10 December 2015)
The applicant was entitled to confirmation of the rule nisi because the respondent was in breach of the amended loan agreement and remained indebted in excess of R140 million. The general notarial bond, together with the perfection clause, entitled the applicant to take possession of the respondent's movable assets as security. The respondent's conditional tender to pay the bond amount did not extinguish the total indebtedness and was rightfully rejected. The alleged material non-disclosure and challenges to the certificate of indebtedness were either abandoned or lacked merit and did not aff…
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ABSA Bank Bpk v Van Niekerk NO and Others (596/2012) [2012] ZAFSHC 46 (22 March 2012)
The court confirmed ABSA’s interim order to perfect security under general notarial bonds, holding the National Credit Act did not bar the application.
Contract Forwarding (Pty) Ltd v Chesterfin (Pty) Ltd and Others (17/2002) [2002] ZASCA 143; [2003] 1 All SA 267 (SCA); 2003 (2) SA 253 (SCA) (27 November 2002)
The Supreme Court of Appeal held that the intervening liquidation of Eurotile did not prevent confirmation of the rule nisi, as Contract Forwarding perfected its general notarial bond by lawfully taking possession of the movables before the concursus creditorum. The perfection of the bond conferred a real right of security, and symbolic possession, such as the handing over of keys and effective control over the premises, was sufficient to constitute a pledge. The court rejected the argument that earlier bondholders had precedence absent actual possession and found no basis for the exercise of…
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Development Bank of Southern Africa Ltd. v Van Rensburg NO and Others (490/2000) [2002] ZASCA 39; [2002] 3 All SA 669 (SCA); 2002 (5) SA 425 (SCA) (14 May 2002)
The majority held that the appellant, having obtained possession of Serious Mills' movable property before the commencement of winding-up, acquired the status of a secured creditor as if a pledgee. The interim order authorising possession was properly granted and should have been confirmed to the extent that possession was obtained prior to liquidation. The court found that the phrase 'at the time' in section 348 of the Companies Act refers to a specific point in time, not merely the date, and that the attachment occurred before the winding-up commenced. The cession in securitatem debiti enti…
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FirstRand Bank Bpk v Burger, Burger v Burger (517/2001, 528/2001) [2001] ZANCHC 13 (8 June 2001)
The court found that the general notarial bond relied upon by the bank did not contain an express provision entitling the bank to take possession of the respondent's movable assets. The wording of the bond was identical to that considered in Schulenberg, which was held not to confer such a right. The court rejected the applicant's argument that possession was implied, confirming that the absence of an express clause is decisive. Consequently, the perfection application was dismissed. Regarding the sequestration application, the court found that the formal requirements of the Insolvency Act ha…
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