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South Africa decisions
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Omezi v Edike and Others (B3624/2023) [2023] ZAGPPHC 623 (1 August 2023)
Urgent High Court relief was granted ordering delivery of a pledged Mercedes Benz and its registration papers as security for an investment agreement.
Merchant West (Pty) Ltd v Hellmann and Others (21/27401) [2023] ZAGPJHC 213 (10 March 2023)
The court found that Merchant West could not acquire ownership of the aircraft by constitutum possessorium on the effective date because CDC did not possess or own the aircraft at that time. The agreements specified the dates for transfer, but CDC only acquired ownership on 6 November 2019, after the effective date. Furthermore, the transaction between CDC and MW was found to be simulated, as MW was aware CDC had already paid for the aircraft and the financing was not genuinely for purchase but rather a loan secured by pledge. The court distinguished Boland Bank v Joseph on the facts and foll…
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Spar Group Limited v Nedbank Limited and Others (39358/13) [2021] ZAGPJHC 45 (15 February 2021)
The court found that Spar failed to establish that Nedbank was knowingly a party to the reckless or fraudulent carrying on of Rodtrade's business as required by section 64 of the Close Corporations Act. The evidence showed Nedbank acted only as banker and did not participate in Rodtrade's business operations. Spar also failed to prove that Nedbank owed a legal duty to disclose the perfection of its notarial bond, as Spar had contractual access to information and operational oversight of Rodtrade. The omission by Nedbank was not wrongful, and no delictual liability arose. However, regarding Cl…
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Graf v Buechel (150/2002) [2003] ZASCA 29; [2003] 2 All SA 123 (SCA); 2003 (4) SA 378 (SCA) (27 March 2003)
The Supreme Court of Appeal held that the prohibition on pactum commissorium applies to all pledges, irrespective of whether the pledgor is the debtor or a third party. The rule is clear and general, and its application does not depend on the presence of the policy considerations that motivated its origin. Comparative law supports the general prohibition, and the potential for injustice remains regardless of the pledgor's status. The contract in question did not provide for a fair valuation of the shares and loan account, and thus the relevant clause constituted an invalid pactum commissorium…
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