South Africa Case Law

South African Forestry Company SOC Limited v Boruchowitz N.O and Another (033595/2022)

South African Forestry Company SOC Limited v Boruchowitz N.O and Another (033595/2022) [2025] ZAGPJHC 314 (24 March 2025)

Court

South Gauteng High Court, Johannesburg

Case number

033595/2022

Judge

JM Berger

The court found that Hakhensa Consulting CC demonstrated a direct and substantial interest in the outcome of the main review application, both as cessionary under the deed of cession and as a contractual beneficiary under the addendum to the memorandum of understanding. Clause 18.2 of the services agreement did not clearly prohibit cession of the right to receive payment, and even if it did, any refusal of consent by SAFCOL would have been unreasonable given the circumstances. The court held that Hakhensa's rights would be adversely affected if the relief sought by SAFCOL in the review were g…

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• Intervention Application
• Cession
• Contractual Rights
• Pactum De Non Cedendo
• Arbitration Award

Massbuild (Pty) Ltd v MEC for the Department of Co-Operative Governance, Human Settlements and Traditional Affairs, North West Province and Another (CIV APP FB 16/2021; M44/2020)

Massbuild (Pty) Ltd v MEC for the Department of Co-Operative Governance, Human Settlements and Traditional Affairs, North West Province and Another (CIV APP FB 16/2021; M44/2020) [2023] ZANWHC 146 (20 April 2023)

Court

North West High Court, Mafikeng

Case number

CIV APP FB 16/2021; M44/2020

Judges

Petersen, Reddy, Malowa

The court held that Clause 13.2 of the Department-Tawana contract constituted an enforceable pactum de non cedendo, restricting Tawana from ceding its rights without the Department's written consent. The cession agreement between Tawana and Massbuild was concluded in direct breach of this clause and other contractual provisions requiring Departmental approval for financial arrangements involving third parties. The restriction served a legitimate interest by ensuring compliance with internal controls and procedures for payment of public funds, and was not against public policy. The Department…

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• Cession Of Contractual Rights
• Pactum De Non Cedendo
• Contractual Interpretation
• Public Policy
• Enforceability Of Cessions

Propell Specialised Finance (Pty) Ltd v Attorneys Insurance Indemnity Fund NPC (1147/2017)

Propell Specialised Finance (Pty) Ltd v Attorneys Insurance Indemnity Fund NPC (1147/2017) [2018] ZASCA 142; [2019] 1 All SA 79 (SCA); 2019 (2) SA 221 (SCA) (28 September 2018)

Court

Supreme Court of Appeal

Case number

1147/2017

Judges

Lewis, Saldulker, Zondi, Mathopo, Mokgohloa

The Supreme Court of Appeal held that indemnity rights under a professional insurance policy for attorneys were not capable of cession without the insurer’s consent.

• Insurance Contracts
• Cession Of Rights
• Delectus Personae
• Pactum De Non Cedendo
• Professional Indemnity
• Locus Standi

Propell Specialised Finance (Pty) Ltd v Attorneys Insurance Indemnity Fund NPC and Others (16864/2013)

Propell Specialised Finance (Pty) Ltd v Attorneys Insurance Indemnity Fund NPC and Others (16864/2013) [2017] ZAWCHC 71; [2017] 3 All SA 1005 (WCC) (30 June 2017)

Court

Western Cape High Court, Cape Town

Case number

16864/2013

Judge

D V Dlodlo

The court found that the insurance policy and the Attorneys Act create a personal and closed relationship between the first defendant and practising attorneys, which is not capable of being transferred to non-attorneys by way of cession. The rights to indemnification under the policy originate from legislation and are restricted to practitioners, and the policy contains clauses that, expressly or tacitly, prohibit cession. The purported cession to the plaintiff, a non-practitioner, is invalid in law, and the plaintiff lacks locus standi in iudicio to claim against the first defendant. Further…

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• Insurance Contracts
• Cession
• Delectus Personae
• Pactum De Non Cedendo
• Interpretation Of Contracts
• Stay Of Proceedings

Born Free Investments 364 (Pty) Limited v Firstrand Bank Limited (973/2012)

Born Free Investments 364 (Pty) Limited v Firstrand Bank Limited (973/2012) [2013] ZASCA 166 (27 November 2013)

Court

Supreme Court of Appeal

Case number

973/2012

Judges

Ponnan, Bosielo, Pillay, Van der Merwe, Zondi

The Supreme Court of Appeal held that the rights which the liquidators of Summer Season and Central Lake attempted to cede to Born Free were created ab initio as non-transferable by virtue of clause 15.1 in the loan agreements with Firstrand Bank. The clause expressly prohibited cession or assignment of rights without the bank's prior written consent. The court found that such a prohibition, when incorporated in the contract creating the right, is valid and enforceable against all parties, including liquidators in insolvency. The liquidators could not transfer more rights than the companies t…

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• Pactum De Non Cedendo
• Cession Of Claims
• Liquidation
• Contractual Interpretation

Born Free Investments v Firstrand Bank Ltd (39068/2009)

Born Free Investments v Firstrand Bank Ltd (39068/2009) [2012] ZAGPJHC 139 (21 August 2012)

Court

South Gauteng High Court, Johannesburg

Case number

39068/2009

Judge

Wepener

The court found that the liquidators of Central Lake and Summer Season Trading did not validly acquire authority to sell and cede the claims to the plaintiff, as the meetings of creditors and members were fatally defective: members were not called, and the Gazette notice gave the wrong date and venue. These defects were not merely formal and caused prejudice, defeating the statutory object. Consequently, the liquidators lacked powers under section 386(3)(a) of the Companies Act. Furthermore, the claims for damages for breach of contract were held to be claims 'under the contract' and thus sub…

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• Cession Of Claims
• Pactum De Non Cedendo
• Liquidation Procedure
• Separation Of Issues
• Damages For Breach Of Contract

African Dynamics (Eastern Cape) (Pty) Ltd v MEC for Education, Eastern Cape Province and Others (352/2007, 583/2007, 768/2007)

African Dynamics (Eastern Cape) (Pty) Ltd v MEC for Education, Eastern Cape Province and Others (352/2007, 583/2007, 768/2007) [2010] ZAECBHC 12 (13 September 2010)

Court

Eastern Cape High Court, Bhisho

Case number

352/2007, 583/2007, 768/2007

Judge

L D Kemp

High Court held that the service-level agreement did not contain an absolute ban on cession and, alternatively, that the Department was estopped from denying liability.

• Cession Of Claims
• Pactum De Non Cedendo
• School Feeding Scheme
• Estoppel
• Contractual Interpretation
• Cession-of-claims

Smuts v Booyens, Markplaas (Edms) Bpk en 'n Ander v Booyens (222/99, 257/99)

Smuts v Booyens, Markplaas (Edms) Bpk en 'n Ander v Booyens (222/99, 257/99) [2001] ZASCA 57; [2001] 3 All SA 536 (A); 2001 (4) SA 15 (SCA) (2 April 2001)

Court

Supreme Court of Appeal

Case number

222/99, 257/99

Judges

Vivier, Nienaber, Olivier, Schutz, Cameron

The Supreme Court of Appeal held that the restrictions on share transfer contained in the articles of Markplaas (Edms) Bpk, derived from Table B of Schedule 1 of the Companies Act, created an absolute bar to the transfer of shares to a third party unless the prescribed procedure was strictly followed. These restrictions were not merely personal rights but statutory and contractual limitations that formed an original incident of the shares themselves. The right to transfer shares was limited from inception, and absent compliance with the procedure, no rights could vest in the transferee, regar…

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• Transfer Of Shares
• Company Articles
• Pactum De Non Cedendo
• Statutory Interpretation
• Rectification Of Register

Densam (Pty) Ltd. v Cywilnat (Pty) Ltd. (470/1988)

Densam (Pty) Ltd. v Cywilnat (Pty) Ltd. (470/1988) [1990] ZASCA 120; 1991 (1) SA 100 (AD); [1991] 1 All SA 275 (A) (28 September 1990)

Court

Supreme Court of Appeal

Case number

470/1988

Judges

Botha, Eksteen, F.H. Grosskopf, Friedman, Nienaber

The Supreme Court of Appeal held that the bank's claim against Densam was cedable, as the nature of Densam's obligation to pay the overdraft did not make it personal to the extent that it mattered who enforced the claim. The duty of confidentiality between banker and customer does not, in itself, render the claim non-cedable. The wording of the security cession of book debts, which included 'order or assigns', expressly authorized the bank to cede its rights to a third party, and Densam had given advance consent. The evidence showed that the intention was to cede the whole claim, not just par…

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• Cession Of Claims
• Delectus Personae
• Confidentiality In Banking
• Security Cession
• Pactum De Non Cedendo
• Interpretation Of Contracts