South Africa Case Law

Sebenza Shipping and Forwarding (Pty) Ltd v Passenger Rail Agency of South Africa Society Limited (43909/2016)

Sebenza Shipping and Forwarding (Pty) Ltd v Passenger Rail Agency of South Africa Society Limited (43909/2016) [2018] ZAGPJHC 646 (21 November 2018)

Court

South Gauteng High Court, Johannesburg

Case number

43909/2016

Judge

B Wanless

The court found that the Applicant had, through its conduct and correspondence, consented to the Respondent entering the principal case after the expiry of the two-month period prescribed by Rule 8.11. This consent effectively extended the time limit in terms of Rule 27. Even if such consent was not established, the court held that condonation should be granted for the late filing, as the Respondent was not guilty of wilful default and had raised bona fide defences and a substantial counter-claim. The court distinguished Osman Spice Work CC v Corporate International (Pty) Ltd on the basis tha…

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• Provisional Sentence
• Condonation
• Irregular Step
• Consent To Extension
• Security De Restituendo

Mahon v Mahon and Others (14918/2008)

Mahon v Mahon and Others (14918/2008) [2009] ZAWCHC 106 (29 July 2009)

Court

Western Cape High Court, Cape Town

Case number

14918/2008

Judge

HJ Erasmus

The court held that the right to execute a provisional sentence derives from the common law and is not precluded by Rule 8 or Rule 45. The history and practice of provisional sentence in South African law support the immediate execution of provisional sentence upon the provision of adequate security de restituendo. The applicant's argument that execution must wait until the provisional sentence becomes a final judgment is inconsistent with both the theory and practice of provisional sentence. The constitutional challenge based on section 34 was rejected, as the procedure is an extraordinary r…

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• Provisional Sentence
• Writ Of Execution
• Security De Restituendo
• Section 34 Right To Fair Hearing
• Reading Down
• Avoidance Principle

Absa Bank Bpk. v Du Preez en 'n Ander, Absa Bank Bpk. v Beyplas (Edms) Bpk. en 'n Ander (343/06, 344/06)

Absa Bank Bpk. v Du Preez en 'n Ander, Absa Bank Bpk. v Beyplas (Edms) Bpk. en 'n Ander (343/06, 344/06) [2007] ZASCA 67; [2007] SCA 67 (RSA) (29 May 2007)

Court

Supreme Court of Appeal

Case number

343/06, 344/06

Judges

Scott, Heher, Hancke

The Supreme Court of Appeal held that material factual disputes about silo certificates required referral to trial, not final relief on the papers.

• Ownership Of Silo Certificates
• Interdict Proceedings
• Transfer Of Possession
• Dispute Of Fact
• Application For Transfer
• Security De Restituendo

Teligent AB v Telsar Solutions (Pty) Ltd

Teligent AB v Telsar Solutions (Pty) Ltd [2005] ZAGPHC 374; 40/05/01 (17 August 2005)

Court

High Courts - Gauteng

Case number

5440/05

Judge

Willis

The respondent admits owing the applicant Euro 105 000. Although the respondent has a counterclaim, the applicant's offer of security de restituendo and the absence of clear evidence that the counterclaim is not frivolous or vexatious justify the exercise of the court's discretion in favour of the applicant. The court finds that the applicant is entitled to judgment for the sum claimed, subject to the provision of security de restituendo. The respondent's counterclaim is referred to trial, and the applicant must maintain security for as long as the counterclaim is prosecuted. The costs of the…

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• Stay Of Judgment
• Security De Restituendo
• Counterclaim Procedure
• Equitable Discretion

Osmans Spice Works CC v Corporate International (Pty) Ltd (A5036/04)

Osmans Spice Works CC v Corporate International (Pty) Ltd (A5036/04) [2005] ZAGPHC 1; 2005 (6) SA 494 (W) (19 May 2005)

Court

High Courts - Gauteng

Case number

A5036/04

Judges

M.B. Labe, C.J. Claassen, R.R. Rosenberg

Appeal over provisional sentence security under Rule 8 was upheld. The court held the respondent’s notice to enter the principal case was premature and invalid.

• Provisional Sentence
• Security De Restituendo
• Final Judgment
• Uniform Rules Of Court
• Amendment Of Citation
• Provisional-sentence

Crossroads Distribution (PTY) Ltd t/a Jowells Transport v Petersen N.O. and Another (1638/2003)

Crossroads Distribution (PTY) Ltd t/a Jowells Transport v Petersen N.O. and Another (1638/2003) [2004] ZAWCHC 24 (11 October 2004)

Court

Western Cape High Court, Cape Town

Case number

1638/2003

Judge

D. Van Reenen

The High Court refused leave to execute an occupational-interest order pending appeal, finding no irreparable harm and making no costs order.

• Leave To Execute Pending Appeal
• Rule 49 11
• Security De Restituendo
• Occupational Interest
• Sectional Title Sale
• Leave-to-execute-pending-appeal

FHP Managers (PTY) Ltd v Theron N.O. and Others (13608/98)

FHP Managers (PTY) Ltd v Theron N.O. and Others (13608/98) [2001] ZAWCHC 1 (13 July 2001)

Court

Western Cape High Court, Cape Town

Case number

13608/98

Judge

Van Reenen

High Court application to execute a prior order pending appeal was refused. The court found no sufficient proof of irreparable harm and made no costs order.

• Rule 49 11 Execution Pending Appeal
• Sectional Title Sale
• Occupational Interest
• Security De Restituendo
• Execution-pending-appeal
• Rule-49-11

Van Der Merwe v Bonaero Park (Edms) Bpk (106/98)

Van Der Merwe v Bonaero Park (Edms) Bpk (106/98) [2000] ZASCA 180 (31 May 2000)

Court

Supreme Court of Appeal

Case number

106/98

Judges

Grosskopf, Schutz, ARR, Mthiyane

The Supreme Court of Appeal held that the respondent's refusal to provide security de restitutendo upon request was contrary to Rule 8(9) and 8(10), as payment and provision of security must occur simultaneously. The appellant's notice was sufficient to trigger the obligation to provide security, and the respondent's failure constituted a default under Rule 8(10), entitling the appellant to proceed to the principal case. The court further found that the late filing of the notice to proceed could be condoned under Rule 27, as good reasons for condonation were present in the record. The previou…

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• Provisional Sentence
• Security De Restituendo
• Rule 8 Application
• Condonation
• Late Filing
• Final Judgment Effect