The law reports – November 2013

November 1st, 2013
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Heinrich Schulze BLC LLB (UP) LLD (Unisa) is a professor of law at Unisa.

September 2013 (4) The South African Law Reports (pp 1 – 323); [2013] 3 The All South African Law Reports August no 1 (pp 227 – 350); and no 2 (pp 351 – 479)

Abbreviations

CC: Constitutional Court

GSJ: South Gauteng High Court

KZD: KwaZulu-Natal High Court, Durban

KZP: KwaZulu-Natal High Court, Pietermartizburg

SCA: Supreme Court of Appeal

WCC: Western Cape High Court

Arbitration

Enforceability of arbitration clause: In North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd 2013 (5) SA 1 (SCA); [2013] 3 All SA 291 (SCA) the court was asked to pronounce on what is probably the most vexed question in the law of arbitration, namely whether it is possible to enforce an arbitration clause where the contract that contains the arbitration clause is invalid.

The facts that led to the present dispute were as follows: The parties had a business relationship in terms of which North East financed the acquisition of goods by third parties. The finance agreements were ceded to Standard Bank (the bank). A dispute arose regarding accounting issues between North East and the bank and they entered into a settlement agreement containing an arbitration clause.

The bank alleged that the settlement had been induced by North East’s fraud. The arbitration clause provided specifically that ‘any dispute … including any question as to the enforceability of this contract’ would be referred to arbitration.

There were two issues before the court. First, whether the arbitration clause could be construed to compel submission to arbitration on whether the bank was induced by North East’s fraud to conclude the settlement agreement; and secondly, whether the allegations of fraud on the part of North East were unfounded.

Lewis JA held that it was in principle possible for parties to agree that the question of the validity of their agreement would be determined by arbitration even though the reference to arbitration was part of the agreement being questioned. There was one rider though. The parties had to foresee the possibility of such a dispute arising. Whether this was so would depend on a purposive construction of the arbitration clause itself and the agreement generally; having regard to the context of the agreement and what the parties probably intended.

The court pointed out that the purpose of the settlement agreement was to resolve certain accounting issues. The evidence was that the bank had, at the time of the conclusion of the agreement, not foreseen that there might have been fraudulent conduct by North East. There was thus no intention that the arbitrator would have to resolve issues relating to fraud, it having been envisaged that the arbitrator’s role would be to determine disputes in respect of accounting issues.

The court investigated the purpose of the settlement agreement and what the parties envisaged at its conclusion. It found that it was not intended that the validity or enforceability of the agreement, induced as it was by fraudulent misrepresentations and non-disclosures, would be subject to arbitration.

The bank’s allegations of fraud by North East were sufficient to conclude that the agreement was probably induced by fraud, and the bank could not be compelled to refer the questions of fraud, and the bank’s right to resile from the agreement to arbitration.

The appeal was accordingly dismissed with costs.

 

Remittal of an award: Various disputes between the appellants and the respondents in Leadtrain Assessments (Pty) Ltd and Others v Leadtrain (Pty) Ltd and Others 2013 (5) SA 84 (SCA) were referred to arbitration by agreement. The nature of the disputes, and the award that was made on the merits, were not material to the appeal or to the present discussion.

The key issue before the SCA was under what circumstances an award may be remitted to the arbitrator. Section 33(1) of the Arbitration Act 42 of 1965 (the Act) permits a court to interfere with an award where an arbitration tribunal has misconducted itself, or committed a gross irregularity, or exceeded its powers, or the award has been improperly obtained.

In a joint judgment Nugent and Tshiqi JJA pointed out that, in terms of s 32(2) of the Act, a court may on good cause remit an award to the arbitrator. Although the expression ‘good cause’ is of wide import, it falls to be applied in the context of the Act, which strives for finality in arbitration awards.

The court held that it is not desirable to attempt to circumscribe when ‘good cause’ for remitting an award will exist. It will exist pre-eminently where the arbitrator has failed to deal with an issue that was before him or her. But once an issue has been pertinently addressed and decided there was little room for remitting the matter for reconsideration. The guiding principle of consensual arbitration is finality – right or wrong – and the court held that there is no reason why an award of costs is to be treated differently to any other aspect of an award.

It concluded that it would be extraordinary if the conduct of an arbitrator that falls short of the strict constraints of s 33(1) were nonetheless to be capable of being set aside and remitted for reconsideration under s 32(2). As has been correctly pointed out in Benjamin v Sobac South African Building and Construction (Pty) Ltd 1989 (4) SA 940 (C), awards that are not reviewable under s 33 should not be remitted under s 32(2), for the effect would be to emasculate s 33(1).

In the present case the respondent attempted to take the arbitrator on appeal under the guise of a remittal in terms of s 32(2) of the Act and the respondent’s counter-application ought to have failed. The appeal was accordingly upheld with costs to be paid by the respondents jointly and severally.

 

Breach of an arbitration agreement: In BDE Construction v Basfour 3581 (Pty) Ltd 2013 (5) SA 160 (KZP) Swain J held that if a party to an arbitration agreement institutes court proceedings in breach of the arbitration agreement, the innocent party must choose whether to enforce the arbitration agreement by seeking a stay of proceedings. If the innocent party elects not to seek a stay, it condones the guilty party’s breach of the arbitration agreement. In such a case the guilty party is not obliged to abandon the instituted proceedings before referring the dispute to arbitration.

Note: The decision in the BDE Construction case is in conflict with the one in Aveng (Africa) Ltd (formerly Grinaker-LTA Ltd) t/a Grinaker-LTA Building East v Midros Investments (Pty) Ltd 2011 (3) SA 631 (KZD) in which the court held that a breach of the arbitration agreement, caused by the failure of one party to refer a dispute to arbitration and institute legal proceedings, does not cease to be such where the other party elects not to rely on the breach and stay the proceedings.

Cession

Cession in securitatem debiti: In Retmil Financial Services (Pty) Ltd v Sanlam Life Insurance Company Ltd and Others [2013] 3 All SA 337 (WCC) the court confirmed that, in the case of cession in securitatem debiti, ownership of the ceded right is not transferred to the cessionary but remains with the cedent, thus entitling him or her to the reversion of the ceded right on settlement of the secured indebtedness.

The applicant (Retmil) was a registered credit provider. It entered into a loan agreement with the fifth respondent (the closed corporation) in terms of which it lent the closed corporation an amount of R 877 253 repayable by way of 36 monthly instalments. A member of the closed corporation provided security for the loan, and bound himself as surety and co-principal debtor in favour of Retmil for the due fulfilment of the closed corporation’s obligations under the loan. He also effected a cession in securitatem debiti in favour of Retmil of his right, title and interest in a life insurance policy.

The first respondent (Sanlam) was the insurer under the policy. The said member of the closed corporation died in June 2012, and the closed corporation continued to pay the monthly instalments due in respect of the loan. Following the death of the member, Retmil notified Sanlam that the member had died and requested payment of the proceeds of the policy. Sanlam refused to pay out the proceeds of the policy without a court order, leading to the present application.

Davis AJ identified a number of key issues, two of which merit a discussion here. First, whether Retmil was entitled to demand immediate payment of the policy proceeds in order to discharge the loan, notwithstanding the fact that the loan was not yet due. Secondly, whether Retmil was entitled to accept Sanlam’s reduced payment offer on the policy.

The court held that a cession in securitatem debiti is analogous to a pledge. The cedent (here: the deceased), as creditor of a right (here: the right to claim under the policy), cedes his or her right or claim to the cessionary (here: Retmil), as security for a debt owed to the latter. The cedent as security-giver is not wholly divested of an interest in the asset which he or she surrenders to the cessionary as security-receiver. He or she retains what has been variously described as ‘the bare dominium’ and ‘a reversionary interest’ in the ceded right. Ownership of the ceded right is not transferred to the cessionary but remains with the cedent, entitling him or her to the reversion of the ceded right on settlement of the secured indebtedness. Until such time as the secured debt has been paid, only the cessionary has locus standi to enforce the ceded right.

Applying the relevant principles, the court held that Retmil was not entitled to demand immediate payment of the proceeds for the purposes of settling the loan. It was also not entitled to accept Sanlam’s offer of reduced payment on the policy.

The executor of the deceased’s estate was entitled, by virtue of the reversionary interest in the policy that vests in the estate, to take appropriate steps to protect that interest by disputing the reduced offer of payment on the policy and engaging with the insurer in the claims review process in an attempt to secure an increased offer of payment.

The application was dismissed with costs.

Class action

Availability of class action: In Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC) the CC was asked to pronounce on the circumstances under which a so-called ‘opt-in class action’ will be permissible.

In the court a quo (reported under the citation of Mukaddam and Others v Pioneer Food (Pty) Ltd and Others 2013 (2) SA 254 (SCA) it was held that an opt-in class action, that is, one where the class to be represented is confined to claimants who come forward and identify themselves, will be permitted only in exceptional circumstances. Nothing exceptional has been shown by the applicants for the class action and the SCA dismissed the applicants’ appeal against the decision in the WCC where the application was also dismissed. (For a more detailed discussion of the decision in the SCA, see 2013 (May) DR 45.)

The salient facts were that the appellants were purveyors of bread. They purchased their bread from one or other of the respondents. It is trite that Pioneer and the other respondents engaged in practices prohibited by the Competition Act 89 of 1998. They engaged in coordinated fixing of prices, fixing of discounts that were given to distributors such as Mukaddam, and agreed not to deal with one another’s distributors.

Mukaddam alleged that it and about 100 other distributors of bread in the Western Cape suffered financial loss as a result of the prohibited conduct, particularly the fixing of discounts they would receive. Mukaddam and the other distributors accordingly wish to pursue claims for damages in a class action. Their original application and subsequent appeals were aimed at certifying the institution of a class action on behalf of themselves and other affected distributors for recovery of their losses.

In issue before the CC was what standard a court ought to use in adjudicating an application for certification of an ‘opt-in class action’.

Jafta J held that a class action ought to be certified if it were in the interests of justice to do so. Factors to be used in determining where the interests of justice lay were whether –

  • the class had identifiable members;
  • there was a cause of action raising a triable issue;
  • there were common issues of fact or law; and
  • there was a suitable class representative.

These factors were not conditions precedent or jurisdictional facts and nor were they exhaustive.

A second issue was when a court of appeal could interfere with a lower court’s exercise of the discretion to certify or not certify a class action. The CC held that an appeal court could interfere where the lower court had not acted judicially in exercising its discretion, or where it had based the exercise of its discretion on a wrong principle of law, or on a misdirection of fact.

It further held that the SCA had erred in not finding that Mukaddam’s claim was also potentially plausible. A further error committed by the SCA was the finding that certification in an opt-in class action requires the applicant (here: Mukaddam) to show exceptional circumstances. The test of exceptional circumstances is at variance with the standard laid down by the court in Children’s Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others 2013 (2) SA 213 (SCA).

The appeal was accordingly allowed with costs.

Company law

Close corporation: In Livanos NO and Others v Oates and Others 2013 (5) SA 165 (GSJ) the first applicant’s father (the deceased) and the first respondent (Oates) had each held a 50% members’ interest in a close corporation. After the death of the deceased, the first and second applicants (Mark and Bernadette, who were the son and wife of the deceased), acting in their capacities as the executors in the deceased’s estate, wrote to the first respondent (Oates) requesting him to approve the transfer of the deceased’s interest to Bernadette, the deceased’s sole heir. Oates declined.

The executors then sold the deceased’s interest to Mark for R 16 million. They sent Oates a letter requesting his approval of the sale, but he declined. Mark and Bernadette (acting in their personal and official capacities) then approached the court for an order declaring the sale valid. Oates counter-applied for its rescission. Oates argued that he was entitled, as the remaining member of the close corporation, to purchase the deceased’s interest at fair market value, and that he was thus not obliged to consent to the sale to Mark. Mark contended that Oates was obliged to approve the sale.

The key issue was the proper interpretation of s 35(b)(iii) read with s 34(2) of the Close Corporations Act 69 of 1984 (the Act). Section 34(2) of the Act provides for the sale of an insolvent member’s interest in a corporation. Section 35, in turn, regulates the disposal of the interest of a deceased member of a corporation.

Wepener J held that a failure to transfer a deceased member’s interest to an heir (such as Bernadette) would oblige the executor to act pursuant to s 35(b). Oates’ failure to consent to the transfer to Bernadette meant that the executors were entitled to dispose of the deceased’s interest under s 35(b), which contained the disjunctive ‘or’ and thus did not oblige them to sell it either to –

  • the corporation itself; or
  • a remaining member (such as Oates).

Specifically, they could choose to sell it in terms of s 35(b)(iii) to any other qualified person (such as Mark), in which case s 34(2) would apply. Since Oates had failed to exercise the pre-emptive right bestowed on him by s 34(2)(b), the sale to Mark had become effective. There also was no warrant for reading into the impugned sections the requirement of fair value argued for by Oates.

The application was accordingly granted and Oates’ counter-application dismissed with costs.

 

Deregistration of company: In Nulandis (Pty) Ltd v Minister of Finance and Another 2013 (5) SA 294 (KZP) the court was asked to pronounce on the question whether it is possible for a court to reverse the dissolution of a deregistered company and so effect the revival of the company as an association of its members.

The facts were that the applicant (Nulandis) sold and delivered agricultural chemicals to Greenacres Management Services (Pty) Ltd (the company). The company failed to pay for the chemicals and Nulandis obtained judgment against the company. However, before it could enforce the judgment the company was deregistered by the Registrar of Companies for failing to lodge annual returns.

Nulandis brought an application under s 83(4) of the Companies Act 71 of 2008 (the 2008 Act), which allows the court to declare the dissolution of a company void. It also asked the court to order that the deregistered company’s assets not vest in the state any longer. This last application was not opposed by the Minister of Finance.

Pillay J held that the 2008 Act has conflated deregistration and dissolution of companies so that it is no longer correct to reserve the concept of dissolution for companies that have been wound up. The deregistration of a company now results in its dissolution.

Under s 82(4) of the 2008 Act only the Companies and Intellectual Property Commission (CIPC) has the power the reinstate a deregistered company to the Register of Companies. Conversely, the power to void the dissolution of a company under s 83(4) of the 2008 Act is a power vested exclusively in the court.

However, the power to reinstate registration for causes that are not administrative and because ‘it is just’ (the power contained in s 73 of the Companies Act 61 of 1973) has not been provided for under the 2008 Act.

What Nulandis actually sought was to void the company’s dissolution. In this regard s 83(4)(a) gave the court a wide discretion to decide the application on its merits. Earlier authority cautioned that dissolution should not be voided unless new assets had been discovered, fraud had come to light, or the dissolution had become an instrument of injustice.

Applying that authority to the present case, the court held that it would be unjust if the company’s dissolution were to result in Nulandis being unable to recover what it was owed. Accordingly it was just and equitable to void Greenacres’ dissolution, and the court made an order to this effect.

Nulandis also asked the court to declare that Greenacres’ assets were not bona vacantia and vested in the state. The court noted in this respect that, on a company being dissolved, its assets became bona vacantia and vested in the state. It also noted that a deregistered, but not dissolved, company existed as an association of its members. On a court voiding the dissolution of a company, the property reverted from the state to the association of members of the deregistered company, as had happened in the present case.

As a result, the court ordered that the company be revived as an association of its members; that the company’s assets were no longer bona vacantia; and that the members of the company be revested with its assets.

Contract law

Breach of contract: In King Sabata Dalindyebo Municipality v Landmark Mthatha (Pty) Ltd and Another [2013] 3 All SA 251 (SCA) the second respondent (Bulk Earthworks) was engaged by the first respondent (Landmark) to undertake earthworks on a property that was being developed. However, as a result of financial difficulties experienced by Landmark, it found itself unable to pay Bulk Earthworks for the work done.

Bulk Earthworks accordingly ceased work on the property and cancelled the contract. It then sued Landmark, claiming payment of various amounts it alleged were due and payable under the contract. In its plea, Landmark averred that, when the contract was concluded, Bulk Earthworks was aware that the appellant municipality was the owner of the property and that Landmark’s rights to it arose from a long-term lease between itself and the municipality.

Landmark further averred that it had been unaware that land claims had been lodged in respect of the land to be developed and such claims meant that the land could not be developed. Landmark, accordingly, joined the municipality as a third party in the action brought by Bulk Earthworks.

The municipality’s defence to Landmark’s claim for breach of contract was that it became impossible for it to give vacant possession of the property to Landmark, due to the gazetting of the land claims and the land claims commissioner’s threat of an interdict to the development of the property in the event of it continuing.

The court a quo directed the municipality to pay interest on the sum claimed at the rate of 15,5% per annum, calculated from 16 January 2012 to date of payment. Interest on the balance of R 11 260 148,85 was to be payable at the rate of 160% of the ruling bank rate, from 13 October 2010 to date of payment. The municipality appealed against that order, while Landmark cross-appealed against a certain part of the order that dealt with the question on which part of the debt what interest rate applied. The present discussion will ignore Landmark’s cross-appeal.

On appeal Mpati P pointed out that the main issue in the appeal was whether the municipality’s plea of supervening impossibility of performance should have succeeded, with the resultant dismissal of Landmark’s claim. The allegations made in the third-party notice as a basis for Landmark’s claims were that it was an implied, alternatively tacit, term of the lease agreement that the municipality would give Landmark vacant possession of the property. This level of possession entailed that the development work could be conducted and completed lawfully and, that the municipality was not aware of facts that would render the continuation and completion of the development unlawful or liable to be set aside.

The court decided that the impossibility of performance, as pleaded by the municipality, was self-created, with the result that the appeal against the finding of the court below relating to the defence of supervening impossibility had to fail.

Regarding the rate of interest applied, it was accepted that Landmark obtained a bridging loan for which it was liable to pay interest. The amount of the interest formed part of the damages claimed in the third-party notice. It was thereafter for the municipality to allege and prove the unreasonableness of the rate of the interest payable in that there were alternative places where bridging finance, at a lower rate of interest, was available. The municipality failed to do that.

The appeal was accordingly dismissed with costs.

 

Contract contrary to public policy: In Uniting Reformed Church, De Doorns v President of the Republic of South Africa and Others 2013 (5) SA 205 (WCC) the applicant church was the owner of three properties on which were located three public schools under the control and administration of the state (the Western Cape Provincial Minister of Transport and Public Works, which was the third respondent). During 1987 the church and the state (in a different guise) had concluded three 20-year notarial lease agreements in respect of each of the properties and the school buildings. Clause 16 of the agreements provided that once the 20-year period was over, the church would transfer the properties to the state free of charge. After 20 years the state demanded transfer.

The church disputed the state’s claim on the ground that the lease agreements were contrary to public policy and unenforceable because of  the –

  • unequal bargaining power that had existed when the agreements were concluded; and
  • unconstitutional deprivation of property its enforcement would result in.

It appeared that by 1987 the school buildings were in need of repair and maintenance that the church was unable to afford, and that the state came to its assistance by facilitating a loan from a life insurance company against the security of mortgage bonds over the property. In return the state required the above-mentioned lease agreements to be concluded and registered against the title deeds of the relevant properties.

Zondi J held that two competing principles come into play in the present case, namely, freedom of contract and fairness. The principle of fairness requires consideration of the relative bargaining positions of the contracting parties.

The church had established facts objectively demonstrating that when the lease was concluded it was in a weak bargaining position compared to the state. The state had dictated the terms of an agreement that the church had little option but to accept, and the result was inimical to the public interest and s 25 of the Constitution.

If the state should proceed in enforcing the provisions of clause 16, the church would have no alternative but to transfer its properties to the state without receiving any compensation. This is unconstitutional deprivation as intended in s 25(1) read with s 25(2)(a) and (b) of the Constitution.

Because clause 16 sought to deprive the church of its properties without creating an obligation on the state to pay compensation, it was unfair and therefore contrary to public policy and thus invalid and unenforceable.

Insolvency

Concursus creditorum: The facts in Van Zyl and Others NNO v The Master, Western Cape High Court, and Another 2013 (5) SA 71 (WCC) were as follows. The applicants were the liquidators of a company (Black River). The liquidators sought to review the decision of the master of the High Court in terms of which she (the master) refused to expunge the proven claim of the second respondent, AIK Credit Plc (AIK), a company registered in Mauritius, in the liquidated estate of Black River. The master did not oppose the application, but AIK did.

The facts that led to the present dispute, including the details of a loan in terms of which Black River signed as surety for the repayment of the loan by the principal debtor, are not relevant for purposes of the present discussion.

The gist of the present matter turned on the tension between the principle that, once there has been a concursus creditorum, no creditor in a liquidated estate can take steps to improve its position to the prejudice of other estate creditors, on the one hand, and the principle that temporary non-compliance with the provisions of reg 10(1)(c) of the Exchange Control Regulations, which requires treasury approval of any transaction involving the export of capital, does not present a bar to the validity or enforceability of a claim based on such a transaction.

Bozalek J held that a claim by a creditor against an insolvent estate cannot be rejected for the sole reason that it is based on a transaction requiring treasury approval in terms of reg 10(1)(c), but which approval has, at the relevant time, neither been obtained nor refused. To hold otherwise would lead to ‘greater inconveniences and impropriety’ and deliver a windfall advantage to competing creditors in the estate. It ignores the fact that the underlying transaction is not void for want of treasury approval and that treasury approval could still be sought.

The court further held that a claim by a creditor based on a transaction in respect of which treasury approval has not been obtained is irrevocably unenforceable because a concursus creditorum in the insolvent estate intervened before such approval was sought would produce an arbitrary and inequitable result not intended by the Exchange Control Regulations.

The application was dismissed and the costs of both the liquidators and AIK was held to be costs in the winding-up of Black River.

Insurance law

Insurable interest: The facts in Lorcom Thirteen (Pty) Ltd v Zurich Insurance Company South Africa Ltd 2013 (5) SA 42 (WCC) were as follows: The plaintiff (Lorcom) was the only shareholder in Gansbaai Fishing Wholesalers, a company that owned a fishing vessel. Lorcom had insured the vessel against loss and damage in an amount of R 3 million. Upon the loss of the vessel at sea, Lorcom claimed on its insurance policy with the defendant insurer (Zurich). Zurich resisted the claim and argued that Lorcom did not have an insurable interest in the vessel.

Rogers J held that an insurable interest should no longer be regarded as a self-standing requirement for the enforceability of an insurance contract. It is one of a number of public-policy-related factors that have to be considered when determining whether the contract is an enforceable contract of insurance, or an unenforceable contract of gaming or wagering.

In this regard the court referred with approval to the earlier decision in Phillips v General Accident Insurance Co (SA) Ltd 1983 (4) SA 652 (W) in which it was held that a contract of insurance should be enforceable if it is not a gambling contract at common law, irrespective of the presence or absence of an insurable interest. In the present case the contract was clearly not one of gaming or wagering.

The court pointed out that, even if one accepts that an insurable interest has to be present for a contract to qualify as one of insurance, a 100% shareholder (like Lorcom) has an insurable interest in property belonging to that company and can therefore conclude a valid insurance contract on that property.

In establishing an insurable interest by Lorcom in the vessel the court also took into account that Lorcom had a right to make use of the vessel, as well as the expectancy of becoming the owner of the vessel. Lorcom’s interest as a 100% shareholder entitled it to recover the full insured value of R 3 million.

Zurich was thus ordered to pay Lorcom the amount of the actual value of the vessel (R 2,85 million) together with interest from the date on which the claim was first repudiated by Zurich.

Sale in execution

Immovable property: In ABSA Bank Ltd v Morrison and others 2013 (5) SA 199 (GSJ) the issue before the court was whether the applicant bank (Absa) could set aside a sale in execution of immovable property by public auction on the ground that the third respondent (the judgment debtor), had settled the arrears in full prior to the date of sale. However, due to an administrative error Absa omitted to instruct its attorneys to cancel the sale. The property was knocked down to the first respondent (the buyer of the property at the sale in execution) who contended that ‘on the fall of the hammer’ the sale was complete and could not be set aside on the grounds of an administrative error by Absa.

Spilg J held that a sale in execution of immovable property by public auction can be set aside where the debtor has settled what it owed to the creditor in full prior to the date of sale, but where the creditor, in error, has failed to instruct the sheriff to cancel the sale.

In this regard the court referred with approval to the decision in Nedbank Ltd v Fraser and Another and Four Other Cases 2011 (4) SA 363 (GSJ) where the court held that, under s 129(3), read with s 129(4) of the National Credit Act 34 of 2005 (NCA), a consumer debtor is entitled to have a credit agreement reinstated by paying only the overdue arrears and not the entire debt. The court, in the Fraser case, further held that in the case of immovable property, this right extended beyond the date of the sale in execution and terminated only on transfer of ownership into the name of the successful bidder. The court held that the interpretation of the term ‘execution’ as adopted in s 129(4)(b) of the NCA contemplates both the sale and registration of transfer of ownership of the immovable property.

Absa’s application was accordingly allowed and the sale in execution was cancelled. Absa was ordered to pay the costs of the application.

Other cases

Apart from the cases and topics that were discussed or referred to above, the material under review also contained cases dealing with administrative law, children, civil procedure, constitutional law, consumer law, delict, directors of companies, discovery and inspection, environmental conservation, housing, local authorities, magistrates’ courts, mining and minerals, motor vehicle accidents, practice and shipping.

This article was first published in De Rebus in 2013 (Nov) DR 51.