South Africa Case Law

Firstrand Bank Limited v Basson N.O. and Others (16052/2020)

Firstrand Bank Limited v Basson N.O. and Others (16052/2020) [2023] ZAGPJHC 132 (10 February 2023)

Court

South Gauteng High Court, Johannesburg

Case number

16052/2020

Judge

Redman

The applicant failed to establish factual insolvency, as there was a genuine dispute regarding the value of the Trust's assets, particularly the Mullers-Rust property. The applicant did not prove that the Trust committed acts of insolvency under section 8(b) or 8(g) of the Insolvency Act, as the sheriff's returns did not meet the required standards and the statements relied upon did not amount to admissions of inability to pay debts. Furthermore, the applicant did not demonstrate that sequestration would benefit creditors, given its position as the major creditor and the existence of first mo…

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• Final Sequestration
• Acts Of Insolvency
• Benefit To Creditors
• Valuation Of Assets
• Mortgage Bonds

Residual Debt Services Limited v Company Unique Finance (PTY) Ltd and Others (33442/21)

Residual Debt Services Limited v Company Unique Finance (PTY) Ltd and Others (33442/21) [2023] ZAGPPHC 27 (20 January 2023)

Court

North Gauteng High Court, Pretoria

Case number

33442/21

Judge

Barit

The court found that the contractual arrangement between the applicant and the first respondent was valid and enforceable, meeting all the essential requirements of a contract. The transfer of the ring-fenced business, including all assets and liabilities, was approved by the Minister of Finance in terms of Section 54 of the Banks Act. The respondent's reliance on prescription was rejected, as the special contractual circumstances and statutory requirements of the Banks Act preclude the application of prescription. The Arbitration Appeal Tribunal had already determined that all properties, re…

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• Transfer Of Assets
• Section 54 Banks Act
• Contractual Obligations
• Arbitration Award Enforcement
• Mortgage Bonds
• Prescription

Standard Bank of South Limited Dankie Beleggings (Pty) Ltd (20201/2019)

Standard Bank of South Limited Dankie Beleggings (Pty) Ltd (20201/2019) [2020] ZAGPPHC 150 (15 May 2020)

Court

North Gauteng High Court, Pretoria

Case number

20201/2019

Judge

P D Phahlane

The court found that the respondent was unable to pay its debts as and when they became due, having defaulted on multiple instalments under the medium-term loan agreement with the applicant. The respondent did not dispute its indebtedness or default, and its opposition was based on irrelevant grounds, including the financial position of Jawiklane (Pty) Ltd, which is a separate legal entity and not a party to the loan agreement. The National Credit Act was held not to apply, as the respondent is a juristic person and the agreement constitutes a large agreement. The respondent failed to demonst…

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• Winding Up Of Company
• Commercial Insolvency
• Credit Agreements
• Mortgage Bonds
• Liquidation Procedure

McNaughton and Others v Absa Bank Limited (6058/13)

McNaughton and Others v Absa Bank Limited (6058/13) [2016] ZAGPPHC 344 (20 May 2016)

Court

North Gauteng High Court, Pretoria

Case number

6058/13

Judge

DM Thulare

The High Court granted condonation and rescinded a default judgment after finding the applicants had a reasonable explanation for delay and a bona fide defence.

• Rescission Of Judgment
• Condonation
• Default Judgment
• Bank Credit Facilities
• Mortgage Bonds
• Liquidation Dividends

Salie v Bales NO and Others (7462/2009)

Salie v Bales NO and Others (7462/2009) [2012] ZAWCHC 32 (29 March 2012)

Court

Western Cape High Court, Cape Town

Case number

7462/2009

Judge

Bozalek

The court found that the order declaring the property specially executable was granted in error, as the applicant, a beneficial owner and occupant, was not notified or heard. Applying Rule 42(1) and the Constitutional Court's decision in Gundwana, the lack of judicial oversight and ignorance of the applicant's interest rendered the order invalid. The subsequent sale in execution and registration of bonds over the property by the fourth respondent after the divorce were also invalid, as the applicant had acquired dominium over the property by virtue of the divorce order, and the fourth respond…

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• Rescission Of Judgment
• Ownership Of Immovable Property
• Mortgage Bonds
• Estoppel
• Sale In Execution

Gainsford NO and Others v Tiffski Property Investments (Pty) Ltd and Others (874/2010)

Gainsford NO and Others v Tiffski Property Investments (Pty) Ltd and Others (874/2010) [2011] ZASCA 187; [2011] 4 All SA 445 (SCA); 2012 (3) SA 35 (SCA) (30 September 2011)

Court

Supreme Court of Appeal

Case number

874/2010

Judges

Harms, Cloete, Mhlantla, Leach, Petse

The Supreme Court of Appeal held that the transfer of the business and assets of Tiffindell Ski Limited to Tiffski Property Investments was void under section 34(1) of the Insolvency Act because it was not in the ordinary course of business, was not for securing payment of a debt, and no notice was published as required. The company was a trader, and the transfer occurred within six months prior to liquidation. Consequently, Tiffski did not acquire ownership, and the mortgage bonds registered in favour of the State Bank of India Limited were also void. The Bank's constitutional property right…

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• Void Disposition Of Assets
• Ordinary Course Of Business
• Mortgage Bonds
• Trader Definition
• Constitutional Property Rights
• Onus Of Proof

Absa Bank Ltd v Kernsig 17 (Pty) Ltd (386/2010)

Absa Bank Ltd v Kernsig 17 (Pty) Ltd (386/2010) [2011] ZASCA 97; 2011 (4) SA 492 (SCA); [2011] 4 All SA 113 (SCA) (31 May 2011)

Court

Supreme Court of Appeal

Case number

386/2010

Judges

Cloete, Cachalia, Shongwe, Majiedt, Seriti

The SCA held that a section 38 Companies Act challenge to a loan was not properly pleaded or factually supported, so the appeal succeeded.

• Company Law
• Section 38 Companies Act
• Mortgage Bonds
• Financial Assistance For Share Purchase
• Company-law
• Section-38-companies-act

Land and Agricultural Development Bank of South Africa v Boeke (12506/07)

Land and Agricultural Development Bank of South Africa v Boeke (12506/07) [2011] ZAGPJHC 253 (17 February 2011)

Court

South Gauteng High Court, Johannesburg

Case number

12506/07

Judge

C.P. Rabie

The court held that debts secured by special notarial bonds attract a 30-year prescription period under section 11(a)(i) of the Prescription Act.

• Prescription Periods
• Mortgage Bonds
• Notarial Bonds
• Security For Debt
• Prescription-periods
• Mortgage-bonds

ABSA Bank Ltd v Van De Vyver NO (724/99)

ABSA Bank Ltd v Van De Vyver NO (724/99) [2002] ZASCA 8; [2002] 3 All SA 425 (A); 2002 (4) SA 397 (SCA) (22 March 2002)

Court

Supreme Court of Appeal

Case number

724/99

Judges

Howie, Zulman, Navsa

The Supreme Court of Appeal held that the respondent's letter of 16 July 1997, offering R180,000 in full and final settlement, constituted an offer of compromise rather than payment of an admitted liability. The quantum of indebtedness was disputed, and no admission of liability in a specific sum was made. The appellant's retention and appropriation of the cheque amounted to acceptance of the offer, thereby effecting a compromise. The court further found that the compromise did not constitute a variation of the mortgage bonds, as it did not alter their terms but merely reduced the amount secu…

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• Compromise And Settlement
• Variation Of Contract
• Mortgage Bonds
• Offer And Acceptance

Boland Bank Bpk. v Engelbrecht en Andere (281/95)

Boland Bank Bpk. v Engelbrecht en Andere (281/95) [1996] ZASCA 42; 1996 (3) SA 537 (SCA); [1996] 2 All SA 273 (A); (29 March 1996)

Court

Supreme Court of Appeal

Case number

281/95

Judges

Botha, Nestadt, Nienaber, Marais, Plewman

The Supreme Court of Appeal held that occupiers in the Nimmersat scheme did not gain priority over Boland Bank’s earlier mortgage bonds under section 4A.

• Housing Development Schemes
• Right Of Occupation
• Statutory Priority
• Mortgage Bonds
• Retrospective Application
• Trust Law