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South Africa decisions
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Investec Bank Limited v Big Business Innovations Group (Pty) Ltd (046686/2022) [2023] ZAGPPHC 1895 (6 November 2023)
The High Court confirmed a provisional winding-up order against BIG, finding Investec proved inability to pay debts and that no bona fide defence was raised.
Narasimooloo v Nedbank Limited and Others (12867/2017) [2023] ZAKZDHC 84 (3 November 2023)
The High Court cancelled security cessions over two insurance policies after a prior barring order meant no further claim could be pursued against Nedbank.
Botha N.O and Others v Lego Boerdery CC and Another (5856/2022) [2023] ZAFSHC 349 (4 September 2023)
The court found that the cession agreement between Agri-Com and Land Bank was a cession in securitatem debiti, not an out-and-out cession, based on the wording and intention reflected in clause 6. Therefore, the applicants had locus standi to pursue the claim. However, the respondents raised material disputes of fact regarding the alleged payments and the quantum of the debt, supported by statements of account and evidence of crop deliveries and payments. The applicants failed to provide full statements of account and supporting documentation, and the certificate of balance was unsettled by t…
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Prevance Bonds (Pty) Ltd v Voltex (Pty) Ltd (58/2022) [2023] ZASCA 40; [2023] 2 All SA 587 (SCA); 2023 (6) SA 173 (SCA) (31 March 2023)
The Supreme Court of Appeal held that Voltex 2 had established a proper case for rectification of the security cession. The evidence, particularly from Mr Green, demonstrated the parties' common intention to cede book debts to Voltex 2, and the incorrect registration number was a clerical error. Prevance, not being a party to the agreement, could not credibly challenge this evidence. The Court found that rectification of the document did not alter the substantive rights of the parties, as the cession agreement was validly concluded prior to liquidation. Rectification merely corrected the writ…
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Christopher Finance Proprietary Limited v Steyn Smal Incorporated and Others (45995/2021) [2022] ZAGPJHC 527 (28 May 2022)
The High Court granted an interim interdict preserving RAF claim proceeds pending a final ruling on whether the applicant held ceded rights to fees and disbursements.
Small Enterprise Finance Agency SOC Limited v Sakthi Trading (Pty) Ltd t/a Sakthi Financial Services (Pty) Ltd and Others (20766/2019) [2020] ZAGPJHC 386 (27 October 2020)
The court found that the applicant was contractually entitled to enforce its security under the cession and pledge agreement, including parate executie, but as the applicant was not in possession of the pledged documents, judicial intervention was required. The applicant established a reasonable apprehension of injury, as the first respondent had defaulted on its obligations and was in a precarious financial position, justifying the grant of an interdict to prevent dissipation of funds collected from end-user debtors. The mandatory relief sought to inspect and take possession of documents was…
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FirstRand Bank Ltd v Nedbank Ltd (1249/17) [2019] ZASCA 47 (29 March 2019)
The SCA held that book debts sold to Nedbank under an invoice discounting agreement did not revert on cancellation; Nedbank’s accrued ownership remained intact.
BP Southern Africa (Pty) Ltd v Intertrans Oil SA (Pty) Ltd and Others (34716/2016) [2016] ZAGPJHC 310; 2017 (4) SA 592 (GJ) (25 November 2016)
The court found that the first respondent is commercially insolvent, with liabilities far exceeding assets and no reasonable prospect of obtaining the working capital required to continue trading. The business rescue practitioner suspended all obligations under the Branded Distribution Agreement, entitling the applicant to withhold product, premises, and equipment, and the cession of book debts remains enforceable, securing the applicant's claim to all trade receivables until the debt is paid. The respondents' arguments regarding alternative suppliers and improved profitability were speculati…
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Shames No and Others v Body Corporate of Victoria and Edward Court (3920/2012) [2016] ZAGPPHC 633 (29 July 2016)
High Court dismissed a body corporate loan claim as prescribed, holding that repayment became due as levies were received, not only on cancellation.
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)
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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