South Africa Case Law

First Rand Bank Limited v Engelbrecht and Another (010183/2022)

First Rand Bank Limited v Engelbrecht and Another (010183/2022) [2025] ZAGPPHC 250 (2 March 2025)

Court

North Gauteng High Court, Pretoria

Case number

010183/2022

Judge

Tolmay

The court held that the particulars of claim need only set out the cause of action, and the Rule 46A requirements may be satisfied by a separate application or supporting affidavit. The summary judgment and Rule 46A application were properly brought together, and the defendants did not oppose the Rule 46A application. The alleged payment holiday was not substantiated with sufficient detail and did not constitute a valid pactum de non petendo. The section 129 notice was dispatched to the defendants' nominated address, fulfilling statutory requirements. The defendants failed to demonstrate any…

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• Rule 46a Execution
• Summary Judgment
• Mortgage Foreclosure
• National Credit Act Section 129
• Pactum De Non Petendo
• Right To Housing

Man Financial Services SA (Pty) Ltd ta Man Financial Service v Appelcryn and Another (000087/2023)

Man Financial Services SA (Pty) Ltd ta Man Financial Service v Appelcryn and Another (000087/2023) [2024] ZAGPJHC 128 (5 February 2024)

Court

South Gauteng High Court, Johannesburg

Case number

000087/2023

Judge

Nowitz

High Court summary judgment in favour of a finance lessor against sureties for rental arrears. The court rejected pactum de non petendo and penalty-clause defences.

• Suretyship Liability
• Summary Judgment
• Conventional Penalties Act
• Non Variation Clause
• Pactum De Non Petendo
• Summary-judgment

H v Sheriff Johannesburg North and Another (2020/44450)

H v Sheriff Johannesburg North and Another (2020/44450) [2023] ZAGPJHC 1012 (11 September 2023)

Court

South Gauteng High Court, Johannesburg

Case number

2020/44450

Judge

Ingrid Opperman

The court dismissed an application to suspend Rule 43 maintenance orders, finding a prior undertaking barred the request and that no stay was justified in the interests of justice.

• Rule 43 Interim Maintenance
• Stay Of Execution
• Pactum De Non Petendo
• Costs Punitive Order
• Rule-45a-stay-of-execution
• Rule-43-maintenance

Smit En Maree Attorneys v Maree VD Berg Attorneys (HCAA07/2022)

Smit En Maree Attorneys v Maree VD Berg Attorneys (HCAA07/2022) [2023] ZALMPPHC 39 (14 April 2023)

Court

Limpopo High Court, Polokwane

Case number

HCAA07/2022

Judges

G J Diamond, F Kganyago, LGP Ledwaba

The appeal concerned whether a warrant of execution for taxed costs could be set aside after a letter proposing waiver on condition of a meeting was fulfilled.

• Setting Aside Warrant Of Execution
• Contractual Waiver
• Novation
• Costs Order
• Pactum De Non Petendo
• Setting-aside-warrant-of-execution

Phoenix Salt Industries (Pty)Ltd v Lubavich Foundation of South Africa (2022/1298)

Phoenix Salt Industries (Pty)Ltd v Lubavich Foundation of South Africa (2022/1298) [2023] ZAGPJHC 27 (19 January 2023)

Court

South Gauteng High Court, Johannesburg

Case number

2022/1298

Judge

Swanepoel

The court accepted the respondent's version that the applicant, through its directors, permanently waived its right to call up the loan and enforce repayment under the agreement. The evidence showed that the intention was for Golden Hands to settle the debt, and the applicant never sought repayment during the tenure of the original directors. The non-variation and non-waiver clauses in the contract do not preclude a permanent waiver, as clause 9.4 only relates to indulgences and temporary waivers, not the permanent abandonment of rights. The distinction between variation and waiver is materia…

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• Contract Non Variation Clause
• Waiver Of Rights
• Shifren Rule
• Pactum De Non Petendo
• Loan Agreement Enforcement

Techsoft International (PTY) Ltd v TIBCO Software (South Africa) Ltd and Others (047934/2022)

Techsoft International (PTY) Ltd v TIBCO Software (South Africa) Ltd and Others (047934/2022) [2022] ZAGPPHC 1022 (23 December 2022)

Court

North Gauteng High Court, Pretoria

Case number

047934/2022

Judge

Meersingh

Urgent interim-interdict application about a cancelled software partnership agreement was referred to oral evidence on the payment plan and pactum de non petendo.

• Interim Interdict
• Contract Cancellation
• Pactum De Non Petendo
• Urgent Application
• Prima Facie Right
• Interim-interdict

Coral Lagoon Investments 194 (Pty) Ltd and Another v Capitec Bank Holdings Limited (887/2021)

Coral Lagoon Investments 194 (Pty) Ltd and Another v Capitec Bank Holdings Limited (887/2021) [2022] ZASCA 144; [2023] 1 All SA 1 (SCA) (24 October 2022)

Court

Supreme Court of Appeal

Case number

887/2021

Judges

Zondi, Gorven, Hughes, Windell, Chetty

The Supreme Court of Appeal held that clause 7.1.6.2 of the consent agreement is a binding contractual undertaking, not merely a warranty, and was freely and voluntarily agreed to by the appellants after obtaining independent legal advice. The clause restricts the appellants from instituting legal proceedings against Capitec in which they use or rely upon the 2017 Petratouch Transaction, except for claims arising from breach of the consent agreement itself. The institution of the 2020 action by the appellants, which relies on the 2017 Petratouch Transaction, constitutes a breach of this under…

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• Contractual Undertakings
• Specific Performance
• Public Policy
• Access To Courts
• Pactum De Non Petendo

Ozmik Property Investments v Staracom Proprietary Limited and Another (93172/2019)

Ozmik Property Investments v Staracom Proprietary Limited and Another (93172/2019) [2021] ZAGPPHC 325 (28 May 2021)

Court

North Gauteng High Court, Pretoria

Case number

93172/2019

Judge

MNGQIBISA-THUSI

The court found that the plaintiff had locus standi to institute summary judgment proceedings, as evidenced by the defendants' own correspondence acknowledging the plaintiff as landlord and seeking rental indulgences. The defendants' objections regarding the lack of proof of ownership and cession were dismissed as baseless. The court held that the defendants' reliance on Uniform Rule 35(12) and (14) was a delaying tactic and did not preclude summary judgment, as the defendants failed to show any prejudice or inability to plead a bona fide defence. Regarding the alleged pactum de non petendo,…

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• Summary Judgment
• Locus Standi
• Pactum De Non Petendo
• Non Variation Clause
• Lease Agreement
• Suretyship

Sterling v Myerson (15837/2016)

Sterling v Myerson (15837/2016) [2016] ZAWCHC 178 (25 November 2016)

Court

Western Cape High Court, Cape Town

Case number

15837/2016

Judge

Gamble

The court found that the defendant failed to establish a bona fide defence to summary judgment. The alleged rectification was unsupported by any detailed evidence of a common intention or agreement to alter the terms of the written acknowledgement of debt. The defendant's version amounted to a unilateral understanding, not a mutual agreement. The pactum de non petendo defence was similarly vague and lacked proof of any agreement suspending enforcement of the debt. The correspondence and meetings referenced by the defendant did not evidence any binding undertaking by the plaintiff not to enfor…

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• Summary Judgment
• Acknowledgement Of Debt
• Rectification
• Pactum De Non Petendo
• Enforcement Of Foreign Judgments

Jacobs and Another v Transand (Pty) Ltd (11554/2014)

Jacobs and Another v Transand (Pty) Ltd (11554/2014) [2014] ZAWCHC 172 (14 November 2014)

Court

Western Cape High Court, Cape Town

Case number

11554/2014

Judge

N J Yekiso

The court found that the applicants established a clear right to interdict the mining activities, as the property was determined to be zoned Agriculture Zone 1 in 1999, which does not permit mining. The evidence showed that no rezoning or departure permitting mining had been granted since the lapse of the temporary departure in 2005. The mining activities conducted by Transand on the property are unlawful and constitute a contravention of the Land Use Planning Ordinance and scheme regulations, amounting to a criminal offence. The pactum de non petendo in the 2004 agreement does not preclude t…

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• Land Use Planning Ordinance
• Zoning And Land Use Rights
• Final Interdict
• Municipal Powers
• Contravention Of Scheme Regulations
• Pactum De Non Petendo