South Africa Case Law

Van Der Merwe and Associates Incorporated v Muller N.O and Others (117119/2023)

Van Der Merwe and Associates Incorporated v Muller N.O and Others (117119/2023) [2024] ZAGPPHC 991 (2 October 2024)

Court

North Gauteng High Court, Pretoria

Case number

117119/2023

Judge

Nyathi

The court found that the funds held in trust by the applicant, Van Der Merwe and Associates Incorporated, constitute assets of the insolvent company and must be recovered by the liquidators in terms of section 391 of the Companies Act 61 of 1973. The fourth claimant, Mr Viljoen, as a judgment creditor, does not have a legal entitlement to direct payment of the funds held in trust, but retains the right to lodge a claim as a creditor of the insolvent estate. The court relied on established principles that, upon liquidation, all assets—including those held in trust or attached in execution—vest…

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• Interpleader Proceedings
• Company Liquidation
• Creditor Claims
• Trust Account Funds
• Preferent Creditor
• Distribution Of Assets

Zwiegers v Du Toit N.O. and Another (15418/2021)

Zwiegers v Du Toit N.O. and Another (15418/2021) [2022] ZAWCHC 70 (4 May 2022)

Court

Western Cape High Court, Cape Town

Case number

15418/2021

Judge

Nziweni

The High Court dismissed an employee’s bid for accelerated remuneration during business rescue, holding that the employment contract had not been terminated.

• Business Rescue
• Employment Contracts
• Acceleration Clause
• Preferent Creditor
• Declaratory Relief
• Business-rescue

Farmsecure Livestock (Edms) Bpk v Matsepe N.O. and Others, In Re; Farmsecure Livestock (Edms) Bpk v Meester Van Die Hoë Hof and Others (3338/2013)

Farmsecure Livestock (Edms) Bpk v Matsepe N.O. and Others, In Re; Farmsecure Livestock (Edms) Bpk v Meester Van Die Hoë Hof and Others (3338/2013) [2014] ZAFSHC 44 (27 March 2014)

Court

Free State High Court, Bloemfontein

Case number

3338/2013

Judge

C.H.G. van der Merwe, R

The court refused interim relief over cattle-sale proceeds, holding that Farmsecure showed no prima facie right and no locus standi against the insolvent estate.

• Interim Interdict
• Locus Standi
• Ownership Of Movable Property
• Liquidation And Distribution Account
• Preferent Creditor
• Actio Ad Exhibendum

Sampo and Another v Ivan Davies Theunissen Inc and Others (35051/2003)

Sampo and Another v Ivan Davies Theunissen Inc and Others (35051/2003) [2007] ZAGPHC 203 (3 September 2007)

Court

High Courts - Gauteng

Case number

35051/2003

Judge

T M Makgoka

The court found the applicants' evidence unreliable and inconsistent, particularly regarding their arrival time and the amount of money presented on 21 November 2003. The respondents' witnesses were found credible and their version accepted. The court held that no agreement existed to cancel the sale upon payment of arrears in instalments, but a conditional agreement did exist for cancellation if R10,000 was paid before 15:00. The applicants failed to comply with this condition, arriving after the deadline and with insufficient funds. The argument that the attachment had lapsed under section…

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• Sale In Execution
• Attachment Of Property
• Magistrates Courts Act
• Preferent Creditor
• Oral Evidence
• Mortgage Bond

First Rand Bank Ltd. v Body Corporate of Geovy Villa (671/2002)

First Rand Bank Ltd. v Body Corporate of Geovy Villa (671/2002) [2003] ZASCA 141; [2004] 1 All SA 259 (SCA); 2004 (3) SA 362 (SCA) (28 November 2003)

Court

Supreme Court of Appeal

Case number

671/2002

Judges

Harms, Scott, Navsa, Cloete, Heher

The Supreme Court of Appeal held that the provisions of section 15B(3)(a)(i)(aa) of the Sectional Titles Act do not create a preference for the body corporate over the mortgagee for purposes of execution under section 66(2) of the Magistrates' Courts Act. Embargo provisions give the body corporate a right to resist transfer until arrears are paid, but do not constitute a claim ranking in priority to a mortgage bond. The Legislature did not expressly elevate the body corporate's claim above that of the mortgagee, and the extraordinary consequences of such an interpretation were considered and…

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• Sectional Titles Act
• Preferent Creditor
• Mortgage Bond Priority
• Embargo Provisions
• Magistrates Courts Act

Firstrand Bank Limited v Ramokgadi and Others (296/02)

Firstrand Bank Limited v Ramokgadi and Others (296/02) [2003] ZANWHC 60 (10 October 2003)

Court

North West High Court, Mafikeng

Case number

296/02

Judge

Nkabinde

The court found that the sale in execution was invalid due to non-compliance with the mandatory requirements of Rule 46 of the Uniform Rules of Court. The advertisement of the sale in the Government Gazette did not occur within the prescribed two-week period, and the applicant, as a preferent creditor and mortgagee, was not given the required notices. The respondent's explanation for non-compliance was insufficient, and condonation was refused. The court held that the procedural defects were fatal to the validity of the sale, and the applicant's interests were prejudiced as the sale price did…

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• Sale In Execution
• Preferent Creditor
• Mortgagee Notice
• Rule 46 Compliance
• Condonation
• Advertisement Requirements