South Africa Case Law

Cowin NO and Others v Kyalami Estate Homeowners Association and Others (12/11377)

Cowin NO and Others v Kyalami Estate Homeowners Association and Others (12/11377) [2013] ZAGPJHC 121 (25 February 2013)

Court

South Gauteng High Court, Johannesburg

Case number

12/11377

Judge

Mashile

The court held that a homeowners association title-deed condition was a real right binding successors in title and refused transfer without compliance.

• Insolvency Act Section 89
• Real Vs Personal Rights
• Title Deed Conditions
• Clearance Certificate Requirement
• Concurrent Creditor Status
• Arbitrary Deprivation Of Property

BOE Bank Ltd. v Bassage (445/04)

BOE Bank Ltd. v Bassage (445/04) [2006] ZASCA 50; 2006 (5) SA 33 (SCA) ; [2006] 4 All SA 105 (SCA) (31 March 2006)

Court

Supreme Court of Appeal

Case number

445/04

Judges

Mpati, Scott, Zulman, Navsa, Cloete

The Supreme Court of Appeal held that the appellant’s election to rely solely on its security in terms of section 89(2) of the Insolvency Act did not extinguish the underlying debt or its claim against the surety for the shortfall. The election merely limited the appellant’s participation in the insolvent estate to the value of the security and relieved it from liability for sequestration costs, but did not amount to a waiver or abandonment of the balance of the debt. The suretyship remained enforceable for the balance not recovered from the principal debtor, as the respondent had waived the…

Source excerpt

• Suretyship
• Insolvency Act Section 89
• Liquidation And Distribution Account
• Waiver Of Debt
• Accessory Liability
• Companies Act Section 366

City of Johannesburg v Kaplan NO and Another (111/05)

City of Johannesburg v Kaplan NO and Another (111/05) [2006] ZASCA 39; 2006 (5) SA 10 (SCA); 68 SATC 286 (29 March 2006)

Court

Supreme Court of Appeal

Case number

111/05

Judges

Harms, Zulman, Streicher, Heher, Cachalia

The Supreme Court of Appeal held that section 118(3) of the Municipal Systems Act creates a statutory charge on property for municipal debts, granting the municipality preference over mortgage bonds. However, when the debtor is subject to liquidation or insolvency, section 118(2) makes the operation of section 118 subject to section 89 of the Insolvency Act. Section 89(4) limits the preference for municipal debts that qualify as 'taxes' under section 89(5) to a two-year period prior to liquidation and from that date until transfer. Debts not qualifying as 'taxes' are not subject to this limit…

Source excerpt

• Municipal Debt Preference
• Insolvency Act Section 89
• Municipal Systems Act Section 118
• Mortgage Bond Priority
• Liquidation Distribution
• Secured Claims