South Africa Case Law

Venter and Another v Els and Another (3639/2024)

Venter and Another v Els and Another (3639/2024) [2024] ZAWCHC 83; 2024 (4) SA 305 (WCC) (18 March 2024)

Court

Western Cape High Court, Cape Town

Case number

3639/2024

Judge

Slingers

The court found that the applicants do not lease out property in the ordinary course of business, but only temporarily while deciding on their permanent relocation. The lease agreement was not part of a continual enterprise to derive income, and thus the Consumer Protection Act does not apply. The three-month notice clause was valid and binding, and the notice given on 21 December 2023 validly cancelled the lease agreement with effect from 31 March 2024. The application was correctly brought as urgent, as substantial redress would not be afforded if heard in the ordinary course. The responden…

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• Consumer Protection Act
• Fixed Term Lease
• Urgent Application
• Early Termination
• Ordinary Course Of Business

Moodliar N.O and Others v Lawson Tool Distributors (Pty) Ltd (7855/2016)

Moodliar N.O and Others v Lawson Tool Distributors (Pty) Ltd (7855/2016) [2021] ZAWCHC 99; 2022 (2) SA 220 (WCC) (7 May 2021)

Court

Western Cape High Court, Cape Town

Case number

7855/2016

Judge

Bozalek

The court found that the payments made by Vusela to the defendant were regular, consistent, and in accordance with the terms of the credit facility. The evidence showed that Vusela needed building supplies to continue trading and that the payments were made to maintain its business operations, not to prefer the defendant over other creditors. There was no direct evidence of Vusela's intention to prefer, and the relationship between Vusela and the defendant was entirely at arm's length. The court held that the most plausible inference was that Vusela's dominant intention was to keep its busine…

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• Voidable Preference
• Insolvency Act Section 29
• Ordinary Course Of Business
• Intention To Prefer
• Companies Act Section 339
• Burden Of Proof

Ramodike NO and Another v MGG Productions (Pty) Ltd (38218/2018)

Ramodike NO and Another v MGG Productions (Pty) Ltd (38218/2018) [2020] ZAGPJHC 199 (17 August 2020)

Court

South Gauteng High Court, Johannesburg

Case number

38218/2018

Judge

DP de Villiers

Leave to appeal was refused in a dispute about section 46 of the Insolvency Act and whether a set-off occurred in the ordinary course of business.

• Insolvency Act Section 46
• Impeachable Transactions
• Set Off
• Ordinary Course Of Business
• Insolvency-act
• Set-off

MGG Productions (Pty) Ltd v Ramodike NO and Others (38218/2018)

MGG Productions (Pty) Ltd v Ramodike NO and Others (38218/2018) [2020] ZAGPJHC 4; 2021 (4) SA 543 (GJ) (16 January 2020)

Court

South Gauteng High Court, Johannesburg

Case number

38218/2018

Judge

DE Villiers

The court found that the Master’s decision to disregard the set-off was arbitrary and unsupported by adequate reasons. Upon reconsideration of the facts, the court held that the set-off was effected in the ordinary course of business. The reciprocal debts arose from legitimate transactions, were market-related, and the set-off was a common business practice. There was no evidence of collusion, fraud, or substantial disturbance to the distribution of the insolvent estate’s assets. The change from 90-day credit to cash on delivery and the wiping of the slate were normal commercial responses to…

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• Insolvency Act Section 46
• Set Off
• Review Of Master Decision
• Ordinary Course Of Business
• Statutory Review

Jackson v Louw N.O and Another (CA&R 149/17)

Jackson v Louw N.O and Another (CA&R 149/17) [2018] ZAECGHC 141; [2019] 2 All SA 145 (ECG) (13 December 2018)

Court

Eastern Cape High Court, Grahamstown

Case number

CA&R 149/17

Judges

D Van Zyl, J E Smith, G H Bloem

The court held that the agreements regarding the livestock and equipment constituted voidable preferences under section 29 of the Insolvency Act. The Trust was the owner of the heifers and younger animals, and the equipment, at the time of disposition. The surrender of these assets to the appellant was not in the ordinary course of business, but rather arose from the Trust's insolvency and inability to meet its obligations. The evidence did not support a finding of collusion or fraudulent intent under section 31. The trial court's order was set aside and replaced with an order setting aside o…

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• Insolvency Act
• Voidable Preference
• Collusive Dealing
• Secured Creditor Rights
• Ordinary Course Of Business
• Statutory Pledge

Griffiths v Janse van Rensburg NO (20269/2014)

Griffiths v Janse van Rensburg NO (20269/2014) [2015] ZASCA 158; [2016] 1 All SA 643 (SCA); 2016 (3) SA 389 (SCA) (26 October 2015)

Court

Supreme Court of Appeal

Case number

20269/2014

Judges

Shongwe, Pillay, Petse, Saldulker, Gorven

The SCA held that repayments from an unlawful pyramid scheme were not made in the ordinary course of business and upheld setting them aside under insolvency law.

• Insolvency Act Section 29
• Ordinary Course Of Business
• Pyramid Scheme Liability
• Condictio Ob Turpem Vel Iniustam Causam
• Mora Interest
• Unjust Enrichment

Sekgothe N.O v Wesbank Ltd (14056/2013)

Sekgothe N.O v Wesbank Ltd (14056/2013) [2015] ZAGPJHC 242 (21 October 2015)

Court

South Gauteng High Court, Johannesburg

Case number

14056/2013

Judge

Makume

The High Court dismissed a trustee’s claim to recover the value of two vehicles surrendered under instalment sale agreements, finding no impeachable disposition.

• Insolvency Act Dispositions
• Instalment Sale Agreement
• Ownership Of Movable Property
• Ordinary Course Of Business
• Insolvency-act-disposition
• Instalment-sale-agreement

Button N.O and Others v Akbur and Others (14600/2014)

Button N.O and Others v Akbur and Others (14600/2014) [2015] ZAKZDHC 84 (23 September 2015)

Court

Kwazulu-Natal High Court, Durban

Case number

14600/2014

Judge

Mbatha

The court held that payments by an insolvent close corporation to an insider and related party were voidable preferences and ordered repayment with interest.

• Voidable Preference
• Insolvency Act Section 29
• Close Corporation Liquidation
• Onus Of Proof
• Ordinary Course Of Business
• Collusive Dealing

Doyle v Killeen and Others (NCT/12984/2014/75(1)(b)CPA)

Doyle v Killeen and Others (NCT/12984/2014/75(1)(b)CPA) [2014] ZANCT 43 (25 September 2014)

Court

National Consumer Tribunal

Case number

NCT/12984/2014/75(1)(b)CPA

Judges

J Simpson, H Devraj, P Beck

The Tribunal found that the Consumer Protection Act does not apply to the sale of the property, as the Second Respondent was not acting in the ordinary course of business but rather engaged in a once-off transaction. No evidence was presented to establish an agency relationship between the First and Second Respondents sufficient to invoke joint and several liability under section 113 of the Act. The Applicant failed to demonstrate that the First and Third Respondents had prior knowledge of the defects or contravened any relevant provisions of the Act. The Tribunal granted condonation for the…

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• Consumer Protection Act
• Leave To Refer
• Ordinary Course Of Business
• Agency Liability
• Misrepresentation
• Condonation

Janse Van Rensburg and Another v Griffiths (2101/2002)

Janse Van Rensburg and Another v Griffiths (2101/2002) [2014] ZAECPEHC 20; [2014] 2 All SA 670 (ECP) (25 March 2014)

Court

Eastern Cape High Court, Port Elizabeth

Case number

2101/2002

Judge

R W N Brooks

The court found that the payments made by Usapho Trust to the defendant within six months prior to sequestration were voidable preferences under section 29 of the Insolvency Act. All elements required by section 29 were established, including that the payments constituted dispositions, were made within the relevant period, and preferred the defendant above other creditors. The only remaining issue was whether the payments were made in the ordinary course of business. Applying a broad, objective test and considering the illegal nature of Usapho Trust's business as a pyramid scheme, the court h…

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• Insolvency Act Section 29
• Voidable Preferences
• Pyramid Scheme Illegality
• Ordinary Course Of Business
• Harmful Business Practices
• Interest On Impeachable Dispositions