Court : South Africa Supreme Court of Appeal
..... [56] moreover, lio ho had ceded (in february 1997) to the idc, as security for the performance of its obligations under the suspensive sale agreement, its right to all amounts standing to the credit of its loan account in textiles. ..... he said in evidence that while the tsungs had appeared to be working with the idc to conclude the debt-equity swap agreement, such that the idc (findevco) would acquire 80 per cent of textiles, they had at the same time planned their emigration, and to take with them as much money from textiles as they could ..... acting on his advice the idc did not sign the debt-equity swap agreement and eventually instituted action under s 424 of the act against the tsungs. ..... for the tsungs argued that this court in fourie nonetheless approved the judgments in saincic to the effect that although causation as it is understood as a requirement for delictual liability is not required for liability under s 424, a causal link is somehow required as in the example given by harms ja in that case in his separate concurring judgment. ..... in fourie v firstrand bank ltd6brand ja said that he had not suggested that a causal requirement be introduced to found liability under the section: he had said, in the context of the l and p plant hire case, where the close corporation was able to pay its debts, that the reckless actors were not jointly and severally ..... [9] in november 1997 more equipment was purchased by findevco and sold in turn to textiles under a second suspensive sale agreement. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... not be able, on the available evidence, to meet the essentials of estoppel: a representation by words or conduct, made by absa as the principal that mistry had the authority to conclude the unlawful agreements, that their belief in the representation was reasonable and that they acted on that belief to their prejudice.10a party which knows that a transaction is unlawful or is part of an unlawful scheme and ..... words or implied authority inferred from the conduct of the parties and the circumstances of the case.7 [30] even assuming that the respondents concluded the investment agreements with mistry and handed him money as they alleged, it nevertheless remains clear from the evidence led at the trial and the agency ..... [32] having failed to establish express authority, the respondents were obliged to prove that mistry had implied authority to contract with them under the circumstances and on the terms they alleged he did, within the usual scope of his office.8as this court has pointed out: the appointment by a bank of a branch manager [or, as ..... it emerged, the respondents and mistry, unbeknown to absa, used fictitious names in concluding the investment agreements to conceal the substantial taxable funds which the respondents had deliberately failed to declare to the south ..... mistry ran the agencies under an agency agreement concluded between his entities and united bank limited, absas predecessor, before the latter was amalgamated with three other commercial banks (volkskas, allied .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... thus while a valid underlying agreement to pass ownership, such as a sale or donation, is not required, there must nonetheless be a genuine intention to transfer ..... is clear from the dictum of the constitutional court set out above, as well as from this courts decision in meintjies no v coetzer11where shongwe ja said that where the real agreement was falsified and the defendants effectively asked the court to countenance the fraud (by recognizing a waiver of the right to rely on it) such conduct would be contrary to public policy ..... [14] however, if the underlying agreement is tainted by fraud or obtained by some other means that vitiates consent (such as duress or undue influence) then ownership does not pass: preller v jordaan.5that principle was applied recently by this court in meintjies no v ..... mckenna inc v shea3brand ja confirmed, first, that the abstract theory of transfer of ownership applies to immovable property, and, second, that if there is any defect in what he termed the real agreement that is, the intention on the part of the transferor and the transferee to transfer and to acquire ownership of a thing respectively then ownership will not pass despite registration. ..... that proposition was reiterated by brand ja in cuninghame v first ready development 249 (association incorporated under section 21),8relying on thompson v south african broadcasting corporation9where harms ja said: the function of oral argument, especially in a court of appeal, is supplementary to the .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... the government had done so, we are told, on the hypothesis that the roads were validly declared toll roads and that sanral would thus be able to meet its obligations under the loan agreements through the collection of tolls. ..... [24] section 9(1) provides, however, that the 180-day period may be extended for a fixed period, by agreement between the parties or, failing such agreement, by a court or tribunal, on application by the person or administrator concerned. ..... [39] the appellants sixth argument as to why the 180 day period should be extended under s 9 was that the alleged unlawfulness of the challenged decisions will in any event give rise to a collateral challenge every time sanral seeks to compel payment of toll. ..... the proposed toll collection system would operate through overhead gantries, fitted with toll collection equipment that would identify vehicles passing under the gantry by electronic transponders (e-tags) fitted to the vehicle or by its number plates. ..... (4) the minister will not give approval for the declaration of a toll road under subsection (1)(a), unless (a) the agency, in the prescribed manner, has given notice, generally, of the proposed declaration, and in the notice (i) has given an indication of the approximate position of the toll plaza contemplated for the proposed ..... in order to succeed the appellants are therefore driven back to their application for the review of the declarations under s 6(1) of paja, which brings the 180 day time limit into play. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... dealer in full in terms of the relevant invoice with interest thereon as shall from time to time be stipulated by the bank and all other amounts, if any, due in terms of or in connection with the agreement, the ownership in the goods shall not pass to the dealer but shall be and remain with the bank, and nothing herein contained nor any act or omission of the bank shall be deemed to vest ownership ..... (2011) 60 the taxpayer 2 at 5-6; eddie broomberg sc nwk and finders hall (2011) 60 the taxpayer i187 at 197-8; c j pretorius simulated agreements and commercial purpose commissioner for the south african revenue service v nwk ltd (2012) 75 thrhr 688 at 696; andrew hutchinson and dale hutchinson simulated transactions and the ..... and when a court is asked to decide any rights under such an agreement, it can only do so by giving effect to what the transaction really is: not what ..... to deal with the nedcor case, supra, in which cloete j relied on the minority judgment of nienaber ja in bank windhoek bpk v rajie at 145c-d to conclude that the floor plan agreement was a simulated transaction that did not have the effect in law of transferring ownership in the vehicle. ..... cases dealt with cases of agreements being dressed up in a particular form where the underlying intention of the parties was ..... nissan diesel supplied the vehicles under a supplier agreement it had concluded with wesbank in terms of which it sold and wesbank purchased and paid for the vehicles that authorised nissan dealers, such .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... value of a documentary credit, therefore, is that whatever disputes may subsequently arise between the issuing banks customer (the buyer) and the beneficiary under the credit (the seller) in relation to the performance or, for that matter, even the existence of the underlying contract, by issuing or confirming the credit, the bank undertakes to pay the beneficiary provided only that the conditions specified in the credit are met ..... the claim that the interest exceeded the in duplumrule, it held that [c]onsidering that the original debt was reconstituted by voluntary agreement as a new capital advance, it does not appear that there is any scope for applying the rule. ..... its essential feature is the establishment of a contractual obligation on the part of a bank to pay the beneficiary under the credit (the seller) which is wholly independent of the underlying contract of sale between the buyer and the seller and which assures the seller of payment of the purchase price before he parts with the goods forming the subject-matter of ..... consequently, the undertaking of a bank to pay, accept and pay draft(s) or negotiate and/or to fulfil any other obligation under the credit, is not subject to claims or defences by the applicant resulting from his relationship with the issuing bank or the ..... between 1998 and 2000 the term of the 1998 agreement was extended for further one year periods until 5 march ..... however that no funds were requested by, or advanced to kimberley under the 2005 agreement. f. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... accordingly asked the high court for an order amending the definition in both the resolution and the ministerial determination by including, after the reference to a stepchild: a child whereof the parental responsibilities and rights agreement has been registered with the family advocate or has been made an order of the high court in terms of section 22 of the childrens act 38 of 2005. ..... in order to facilitate this she entered into parental rights and responsibilities agreements, under s 22 of the childrens act 38 of 2005, with her daughters in respect of her grandchildren, which permitted her to take them to norway and to arrange for their education and religious upbringing as well as obliging her to maintain ..... [7] it is unnecessary to cite authority for the proposition that courts do not have the power to amend contracts or collective agreements or to direct ministers of state to amend the proclamations they issue in the absence of some statutory or constitutional ground for doing ..... it may provide a reason for the parties to the collective agreement to negotiate an amendment of the definition but that is for them, not the courts, ..... and extent of these allowances is negotiated in the public service co-ordinating bargaining council and embodied in resolutions that are collective agreements in terms of s 214 of the labour relations act 66 of 1995. ..... it rejected the request because the relevant collective agreement and ministerial determination did not permit ms ngwenya to receive the .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... that (a) the respondent was not the owner of the vehicle at any time, and in particular at the time she concluded the agreement with amod; (b) if the respondent was the owner of the vehicle at the time she concluded the agreement with amod, then its ownership passed to amod upon conclusion of the agreement and amod taking delivery on 18 january 2010; and (c) if ownership did not pass to amod, the respondent was estopped from asserting ..... the respondent, on the other hand, insisted that upon a proper interpretation of the agreement ownership did not pass because it was reserved until the full purchase price had been paid and that the appellant failed to prove the necessary requisites for the defence ..... contended that if the respondent was the owner of the vehicle when she concluded the agreement with amod then, and as expressly provided for in certain clauses thereof, ownership of the vehicle passed from her to amod upon conclusion of the agreement and amod taking delivery of the vehicle on 18 january 2010. ..... she claimed that the vehicle still belonged to her as the agreement contemplated that its ownership would pass to amod only after he paid the full purchase price which he ..... is presently registered as its owner and bmw financial services, which financed the transaction under an instalment sale agreement, as titleholder. ..... this was in terms of a written agreement of sale (the agreement) concluded in brakpan in the presence of two witnesses, the respondents husband and mr shiraz choonara .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... in doing so, the magistrate lost sight of the fact that the municipality had by then abandoned reliance upon an all-inclusive tariff of r110 000 per month and that, on the provisions of the written agreement upon which it then relied, had still not paid the amount for which it had become liable. ..... faced with the tariffs contained in resolution mc 1300 on the one hand as opposed to those in the written agreement of august 2003 on the other, the magistrate held that paphiri had failed to prove that those used in preparing the schedule to its particulars of claim were applicable, and dismissed the claim. ..... despite this, instead of paying a sum determined with reference to the number of houses, businesses and containers being serviced as set out in the written agreement, the municipality paid r110 000 per month throughout the period to which paphiris claim relates. ..... by then it was also not in dispute that the tariffs in the written agreement were to be adjusted by way of the consumer price index upon which the parties were further agreed. ..... the history of the negotiations that i set out above shows conclusively that parties were bound by the written agreement of august 2003 which contained the material terms of their contract. ..... municipality persisted in paying the all-inclusive fee on the one hand, it appears from correspondence that, on the other, it also accepted being obliged to have regard to the number of houses, businesses and containers being serviced under the written agreement. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... another application launched by awake solutions against fintech and altron in the south gauteng high court during march 2011 for payment of further sums of money and disclosure of certain information relating to the co-operation agreement, an agreement was reached in terms of which fintech paid to awake solutions attorneys the amount of r72 310 in respect of profit share and r251 920,31 in respect of arrear interest on 17 may 2011. ..... a re-instatement of a deregistered company, which the previous act did, the court said: i can see no reason why the court should not be able to exercise its inherent jurisdiction, in view of the absence of enabling statutory provision under the [act], on application or otherwise, to validate anything done by or against the affected company, between deregistration and its re-instatement and to make such order it considers appropriate. ..... during february 2004 fintech, in terms of a sale and assignment agreement it concluded with altron, acquired and assumed altrons rights and obligations under the co-operation agreement. ..... addition, it was submitted that all the payments made to the attorneys of awake solutions and to choice decisions were made under the bona fide and reasonable belief that awake solutions was lawfully entitled to such payments when in fact there was no legal basis for fintech to have made the payments, because awake solutions, as a deregistered entity, lacked any right or title to receive payments in terms of the co-operation agreement. .....
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