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South Africa decisions
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Compair (SA) (Pty) Limited v Van Jaarsveldt N.O. and Others (47458/21) [2022] ZAGPJHC 513 (3 August 2022)
The High Court held that section 84(1) of the Insolvency Act did not require paragraph (d) of the National Credit Act definition to be met, and dismissed the application.
Firstrand Bank Ltd, Wesbank Division v PMG Motors Alberton (Pty) Ltd and Others (2012/13077) [2013] ZAGPJHC 203; [2013] 4 All SA 117 (GSJ) (12 August 2013)
The court found that it had jurisdiction over all three respondents because two joint liquidators administered the affairs from Gauteng, and two of the three companies had principal places of business in Gauteng. The doctrine of causa continentia further justified jurisdiction over the third respondent for convenience and justice. The applicant validly cancelled the floor plan agreements with all three respondents on 23 January 2009, prior to liquidation, by delivering unequivocal letters of cancellation as contractually permitted. The court rejected the respondents' factual disputes regardin…
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Roering NO and Others v Nedbank Ltd (2012/12834) [2012] ZAGPJHC 183; 2013 (3) SA 160 (GSJ) (4 October 2012)
The court held that the bank's right of cancellation under the instalment agreements was incomplete at the time of concursus creditorum because the demand notice had not expired and the right to cancel was suspended for the notice period. As a result, the bank did not acquire a completed right of cancellation before the commencement of winding-up. Upon concursus, section 84(1) of the Insolvency Act applied, divesting the bank of ownership and substituting it with a statutory hypothec. The aircraft therefore fell into the insolvent estate of the company from the date of commencement of winding…
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Human Boerdery BK v Smith NO en Anders (1438/2012) [2012] ZAFSHC 81 (26 April 2012)
The court dismissed an urgent application for return of 155 calves under the Insolvency Act, finding the applicant had not clearly proved ownership or identification.
Venter NO en 'n Ander v Carels (634/94) [1996] ZASCA 52 (23 May 1996)
The Supreme Court of Appeal held that section 84(1) of the Insolvency Act applies even where the insolvent is not in possession of the movable property at the time of sequestration. The conflicting authorities were resolved by the court's own prior decision in Venter NO v Avfin (Pty) Ltd, which confirmed that the seller's rights are protected and a silent hypothec is created for the outstanding purchase price. The respondent's reliance on UDC Bank Ltd v Seacat Leasing and Finance Co (Pty) Ltd and Another was misplaced, as that reasoning has been expressly rejected. The respondent's additional…
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