South Africa Case Law

Shepstone and Wylie Attorneys v Abraham Johannes de Witt N O and Others (1270/2021)

Shepstone and Wylie Attorneys v Abraham Johannes de Witt N O and Others (1270/2021) [2023] ZASCA 74; 2023 (6) SA 419 (SCA) (26 May 2023)

Court

Supreme Court of Appeal

Case number

1270/2021

Judges

Zondi, Mocumie, Mbatha, Weiner, Kathree-Setiloane

The Supreme Court of Appeal held that the trust deed and its appendix required trustees to act unanimously when conducting business on behalf of the Trust and employing trust property in such business. The deed of suretyship was signed by only two trustees without the participation or proxy of the third trustee, contrary to the express requirement of unanimity in clause 26 of the appendix. The majority decision at a quorate meeting was insufficient to bind the Trust externally, as all trustees were required to participate and sign the resolution. The deed of suretyship was not valid or enforc…

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• Trust Deed Interpretation
• Suretyship Validity
• Joint Action Of Trustees
• Resolution Requirements
• Fiduciary Duties Of Trustees

TUHF Limited v 68 Wolmarans Street Johannesburg (Pty) Ltd and Others (44394/2020)

TUHF Limited v 68 Wolmarans Street Johannesburg (Pty) Ltd and Others (44394/2020) [2021] ZAGPJHC 701 (16 November 2021)

Court

South Gauteng High Court, Johannesburg

Case number

44394/2020

Judge

Senyatsi

The court found that the requirements for lis pendens were satisfied, as the present application involved the same parties and cause of action as the previously disposed matter. The respondents established that the reduced payments for May and June 2020 were agreed upon via email communications as Covid-19 relief, and such electronic communications are valid for varying agreements under the Electronic Communications and Transactions Act. The court rejected TUHF's argument that the variation was invalid due to lack of a formal signature, finding the intent and agreement clear from the emails.…

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• Loan Agreement Breach
• Suretyship Validity
• Lis Pendens
• Covid19 Relief Variation
• Abuse Of Process

JP Van Schalkwyk Attorneys v Botha N.O and Another (65348/2020)

JP Van Schalkwyk Attorneys v Botha N.O and Another (65348/2020) [2021] ZAGPPHC 189 (23 March 2021)

Court

North Gauteng High Court, Pretoria

Case number

65348/2020

Judge

N Davis

The court provisionally sequestrated a family trust, upheld jurisdiction in Pretoria, and removed two trustees for conduct inconsistent with trust duties.

• Sequestration Of Trust
• Trustee Removal
• Trust Property Control Act
• Act Of Insolvency
• Suretyship Validity
• Jurisdiction Of High Court

Masibuyisane Services (Pty) Ltd v Eqstra Corporation (Pty) Ltd (1245/2019)

Masibuyisane Services (Pty) Ltd v Eqstra Corporation (Pty) Ltd (1245/2019) [2020] ZASCA 159 (1 December 2020)

Court

Supreme Court of Appeal

Case number

1245/2019

Judges

Maya, Dlodlo, Nicholls, Matojane, Sutherland

The Supreme Court of Appeal held that the conversion of a close corporation into a company does not create a new juristic person; rather, the same legal entity continues to exist in a different corporate form. Statutory provisions explicitly provide for continuity of rights, obligations, and personality. The misdescription of the entity in the suretyship as a close corporation, when it was in fact a company, does not invalidate the contract. The directors and members acted for the same entity throughout, and the appellant's attempt to repudiate the suretyship on grounds of nomenclature is wit…

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• Conversion Of Close Corporation
• Juristic Personality Continuity
• Suretyship Validity
• Rescission Of Judgment

Hartley and Another v Nedbank (28772/19)

Hartley and Another v Nedbank (28772/19) [2020] ZAGPPHC 69 (10 March 2020)

Court

North Gauteng High Court, Pretoria

Case number

28772/19

Judge

Neukircher

The court postponed a rescission application over default judgment, ordered the Hartleys to supplement the papers, and awarded attorney-and-client costs.

• Default Judgment
• Rescission Of Judgment
• Suretyship Validity
• Notice Of Intention To Defend
• Attorney And Client Costs
• Default-judgment

Wishart NO and Another v Firstrand Bank Limited (3459/2013)

Wishart NO and Another v Firstrand Bank Limited (3459/2013) [2014] ZAKZDHC 58 (28 November 2014)

Court

Kwazulu-Natal High Court, Durban

Case number

3459/2013

Judge

Madondo

The court found that service of summons at the chosen domicilium address was not sufficient in this case, as the property had been sold and vacated years before, and the trust had no connection to the address at the time of service. There was no evidence that the applicants or the trust received the summons, and the probabilities indicated they did not. The applicants' explanation for default was reasonable and bona fide, and there was no deliberate avoidance. The suretyship was not validly executed as the first applicant lacked authority and did not act jointly with the other trustees, nor w…

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• Rescission Of Judgment
• Service At Domicilium
• Suretyship Validity
• Trustee Authority
• Ratification Of Acts

Wishart and Another v Firstrand Bank Limited (3459/2013)

Wishart and Another v Firstrand Bank Limited (3459/2013) [2014] ZAKZPHC 59 (28 November 2014)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

3459/2013

Judge

Madondo

The High Court granted rescission of a default judgment, finding insufficient proof that summons was received and holding the trust had a prima facie defence.

• Rescission Of Judgment
• Service At Domicilium
• Suretyship Validity
• Trustee Authority
• Ratification Of Acts
• Rescission-of-judgment

Nurcha Finance Company (Pty) Ltd v Mahlaku Mosebo Contractors CC and Another (A174/12)

Nurcha Finance Company (Pty) Ltd v Mahlaku Mosebo Contractors CC and Another (A174/12) [2012] ZAGPPHC 308 (29 November 2012)

Court

North Gauteng High Court, Pretoria

Case number

A174/12

Judges

Tuchten, M Mphaga

The High Court held that the written loan agreement clearly limited the Paymaster's agency to the specific purpose of amending the Actual Costs Breakdown Schedule, and did not authorize the Paymaster to act as agent for the appellant in making payments. There was no evidence that the appellant had conferred broader authority on the Paymaster outside the agreement. The magistrate erred in finding otherwise. The court further held that the pre-trial agreement limiting the issues for trial was binding on the parties and should have been given effect, regardless of whether the conference was held…

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• Agency In Contract
• Suretyship Validity
• Pre Trial Agreements
• Parol Evidence Rule

Antalis South Africa (Pty) Ltd v Fastpulse Trading 368 (Proprietary Limited) and Another (63920/2009)

Antalis South Africa (Pty) Ltd v Fastpulse Trading 368 (Proprietary Limited) and Another (63920/2009) [2010] ZAGPPHC 219 (9 December 2010)

Court

North Gauteng High Court, Pretoria

Case number

63920/2009

Judge

RD Claassen

High Court judgment upholding a suretyship signed by two trustees, rejecting a section 226 challenge, and granting judgment for the certified debt plus interest and costs.

• Suretyship Validity
• Anti Dissipation Order
• Companies Act Section 226
• Quantum Of Debt
• Suretyship
• Trusts