REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-007209
DATE : 24 February 2025
In the matter between:
BLACK MOUNTAIN MINING (PTY) LIMITED Applicant
and
LEAD ENGINEERING AND PROJECTS (PTY) LIMITED Respondent
Neutral Citation : Black Mountain Mining v Lead Engineering and Projects
(2025-007209 ) [2025] ZAGPJHC --- (24 February 2025)
Coram: Adams J
Heard : 13 February 2025
Delivered: 24 February 2025 – This judgment was handed down
electronically by circulation to the par ties' representatives by
email , by being uploaded to CaseLines and by release to SAFLII.
The date and time for hand -down is deemed to be 10:30 on
24 February 2025.
Summary: Civil procedure – applications and motions – urgent application -
application by respondent for reconsideration of order granted ex parte in urgent
application in its absence – respondent in its application for reconsideration
(l) NOT REPORTABLE
(2) NOT OF INTEREST TO OTHER JUDGES
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entitled to place additional facts and matter before court which ought properly to
have been placed before court when the matter was originally presented – on
reconsideration of matter, court finding that court hearing original matter
(perfecting of pledge ) would have granted the order it did , but modified to cater
for further information which ought to have been brought to its attention –
Reconsideration application in terms of Uniform Rule of Court 6(12)(c) granted .
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ORDER
(1) The Order of this Court (per Wright J) dated 28 January 2025 be and is
hereby reconsidered in terms of Uniform Rule of Court 6(12)(c) and is
amended by the addition of the following sub -paragraph as sub -paragraph
2.3 after sub -paragraph 2.2: -
'2.3. The relief granted as per prayers 1, 2, 2.1 and 2.2 above – in terms of which
the applicant is granted leave to perfect its notarial general covering bond with
registration number BN000002212/2024 – does not cover nor extend to the
debtors’ book of the respondent and the funds held on account of the
respondent at Absa Bank, all of which have been ceded to Absa Bank
Limited .’
(2) Subject to the foregoing amendment / addition, the court order dated 28
January 2025 be and is hereby confirmed.
(3) The attachment of the funds held on account of the respondent at Absa
Bank and the respondent’s Absa Bank accounts in terms of the writ of
execution dated 3 February 2025, be and is hereby uplifted and the said
funds are released from attachment and Absa Bank be and is hereby
ordered and directed to unfreeze those funds and to allow the respondent
access to them.
(4) The costs of this reconsideration application are likewise reserved pending
the determination in Part B.
JUDGMENT
Adams J :
[1]. On 28 January 2025 this court (per Wright J) granted an ex parte order ,
on an urgent basis, permitting the applicant to perfect a general notarial bond
(GNB) executed by the respondent, in respect of the respondent’s movable
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property, in favour of the applicant for a capital sum of R100 million. The order
reads as follows: -
‘Pending the determination of Part B of this application:
(1) The applicant is granted leave to perfect its notarial general covering bond with
registration number BN000002212/2024.
(2) The respondent is ordered and directed to deliver the mortgaged assets to the
applicant, and in particular the applicant is granted leave:
(2.1) to enter in and upon all or any of the premises in which the respondent carries
on business or in which the respondent at any time stores, repairs, sells or
manufactures Movable Property, or any portion thereof and to take and retain
possession as pledgee of all or any of the Movable Property, and to retain
such possession for so long as the applicant deems fit, and/or at the option of
the applicant ; and
(2.2) to do any of the aforesaid things separately or conjointly and in such order and
at such times as the applicant or the applicant’s duly authorised agent thinks
fit, and to add to the applicant’s claim under the Bond any costs and expenses
of doing any of the above things.
(3) The costs of Part A of this application are reserved pending the determination in
Part B. ’
[2]. The respondent applies in terms of the provisions of Uniform Rule of
Court 6(12)(c) for a reconsideration of the said order . Rule 6(12)(c) reads as
follows:
'A person against whom an order was granted in his absence in an urgent application
may by notice set down the matter for reconsideration of the order.'
[3]. This court (per Farber AJ), in dealing with Rule 6(12)(c) , held as follows
in ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others1:
'The framers of Rule 6(12)(c) have not sought to delineate the factors which might
legitimately be taken into reckoning in determining whether any particular order falls to
be reconsidered. What is plain is that a wide discretion is intended. Factors relating to
the reasons for the absence of the aggrieved party, the nature of the order granted and
the period during which it has remained operative will invariably fall to be considered in
1 ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others 1996 (4) SA 484 (W) at 487B .
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determining whether a discretion should be exercised in favour of the aggrieved party.
So, too, will questions relating to whether an imbalance, oppression or injustice has
resulted and, if so, the nature and extent thereof, and whether redress can be attained
by virtue of the existence of other or alternative remedies. The convenience of the
protagonists must inevitably enter the equation. These factors are by no means
exhaustive. Each case will turn on its facts and the peculiarities inherent therein.'
[4]. In the same vein, Wepener J in Oosthuizen v Mijs2 Wepener J held as
follows: -
'I am of the view that a court that reconsiders any order should do so with the benefit
not only of argument on behalf of the party absent during the granting of the original
order but also with the benefit of the facts contained in affidavits filed in the matter.'
[5]. That takes me to the facts in the matter.
[6]. On the same day as the ex parte order was granted, the applicant
caused three writs of execution to be issued, each of which identified specific
premises of the respondent at which perfection of certain movable assets was
to take place. The writs were executed in Vanderbijlpark, Aggeneys in the
Northern Cape Province and in Secunda. On Wednesday , 5 February 2025 ,
(some seven days later) a fourth writ of execution was served on Absa Bank
Limited in terms of which the respondent’s Absa bank accounts were attached.
[7]. The respondent contends that when the applicant moved for the urgent
ex parte relief on 28 January 2025, it was aware that all sums standing to the
credit of the respondent’s Absa bank accounts had been ceded and pledged to
Absa and that Absa held possession of those funds as principal / cessionary /
pledgee . Therefore, so the contention continues, the applicant could not
legitimately cause those Absa funds to be attached in purported perfection of its
notarial bond .
2 Oosthuizen v Mijs 2009 (6) SA 266 (W) at 269I -J.
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[8]. In support of the aforegoing assertion, the respondent points out that t he
bond was executed in favour of the applicant on 24 January 2024. It is a
general notarial bond and the execution of the bond followed after the
respondent had entered business rescue on 28 October 2022 and after a
business rescue plan had been approved by the respondent’s creditors on
19 May 2023. The significance of the approved plan , so the respondent alleges,
is that it records, amongst others, that Absa’s claim for approximately R40
million was secured by way of a cession of debtors dated 11 June 2014 ,
together with a cession of the funds held in the respondent’s various banking
accounts and that Merchant Commercial Finance (with a claim against the
respondent of approximately R101 million) held a reversionary cession of
debtors securing a claim of approximately R61 million.
[9]. The Absa cession of debts is in the standard form and, amongst others,
records that, for so long as the respondent is indebted to Absa, all monies it
may collect and receive into its bank accounts are so collected and received as
agent for and on behalf of Absa. Clause 17 of the cession records the
respondent’s undertaking not to pledge, dispose of or encumber any of its
assets in any manner whatsoever other than in the normal course of its
business, without first having obtained Absa’s consent. The Merchan t
Commercial Finance cession of debtors is in similar terms but records an
acknowledgement of the existence of the prior -ranking Absa cession of book
debts.
[10]. The existence of both the Absa and Merchant Commercial Finance
cessions of book debts were known to the applicant at the time of the execution
and registration of the notarial bond on 31 January 2024 , given that the
applicant does not dispute that the business rescue practitioner ‘informed (it) of
all developments in the business rescue process and the development of the
business rescue plan ’. The business rescue plan records two cessions of
debtors in Absa’s favour, one dated 11 June 2014 and the other dat ed
22 February 2021. Those cessions secured the respondent’s indebtedness to
Absa in the amount of approximately R26 million. The business rescue plan
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furthermore records the respondent’s reversionary cession of debtors in favour
of Merchant Commercial Finance to secure an indebtedness owing by the
respondent to the said company in the sum of approximately R61 million.
[11]. The import of the aforegoing is that d uring the currency of a pledge, the
respondent, as a cedent, was divested of its ability to enforce its personal right
as owner of the property and that such right vests in Absa Bank, as the
cessionary. The cedent – the respondent in this instance – retains nothing other
than a bare dominium in the asset. ‘Bare dominium ’ is sometimes referred to as
‘defective dominium ’ (dominium minus plenum ), which is anything less than ‘full
dominium ’ (dominium plenum ). Dominium minus plenum has been described to
refer to a circumstance in which ownership may be wanting – in respect of the
right to use the owned thing as the owner pleases (including to alienate or
dispose of it) – because of the fact that there is a real burden imposed on the
right of ownership, for example, by mortgage.
[12]. The respondent asserts that the notarial bond did not extend to
incorporeal property – the respondent’s Absa Bank accounts – owing to the fact
that, at the time of the execution and registration of the bond, the respondent
had no right to pass any real security to the applicant over the bank accounts.
[13]. I agree with these contentions on behalf of the respondent. More
importantly, the applicant was well aware of such state of affairs, which, it ought
to have disclosed to the court hearing the urgent ex parte application. The
simple point is that a proper interpretation of the provisions of the bond must
take place in the context in which it was executed and registered. That context
includes the knowledge on the part of the applicant that the respondent was not
legally capable of providing any real security over its book debts or the contents
of its bank accounts, as those rights had been ceded / pledged to Absa Bank
and, thereafter, to Merchant Commercial Finance.
[14]. Had the court been advised of the foregoing, it would, in my view, have
authorised the applicant to perfect its notarial general covering bond subject to
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the Cession of Debtors dated 24 February 2021 by the respondent in favour of
Absa Bank Limited, in terms of which the respondent ceded and assigned to
Absa Bank Limited any and all of the debts due to it ‘from whatsoever cause
arising’. That is exactly the approach this court adopted in Absa Bank Limited v
Go On Supermarket (Pty) Limited and Another3.
[15]. I also find support for my aforegoing finding in Contract Forwarding (Pty)
Ltd v Chesterfin (Pty) Ltd and Others 2003 (2) SA 253 (SCA)4, in which the SCA
(per Harms JA) held as follows at para 6: -
'Real rights are stronger than personal rights and in the case of conflicting real rights
the principle prior tempore potior iure applies. The right in question, a pledge, is a real
right, which is established by means of taking possession and not by means of an
agreement to pledge. The bondholder who obtains possession first thereby establishes
a real right. If I may be permitted some more Latin: vigilantibus non dormientibus iura
subveniunt , meaning that the laws aid those who are vigilant and not those who sleep.
(Both principles provide a safer guide to the correct answer than the Court below's "just
and equitable" principle. The fact that it is "fortuitous" that the vigilant person perfects
his rights first does not make the act either unjust or inequitable.) … ... … The fact that
Chesterfin's bond contained a provision prohibiting Eurotile from pledging or
hypothecating its movables without Chesterfin's consent also has no effect on Contract
Forwarding's position unless the latter knows of it. In the absence of Contract
Forwarding's knowledge, Eurotile's breach of its contract with Chesterfin does not
affect the former's position.'
[16]. It is, as contended by the respondent, that Absa had possession of the
funds in the respondent’s bank account as principal / cessionary / pledgee. It
had thereby acquired a real right to those funds. The applicant had knowledge
of the Absa cession prior to the registration of its notarial bond and prior to it
moving the order before Wright J on 28 January 2025. The applicant also knew
that clause 17 of the Absa cession of debtors read as follows : -
3 Absa Bank Limited v Go On Supermarket (Pty) Limited and Another 2022 JDR 0656 (GJ) .
4 Contract Forwarding (Pty) Ltd v Chesterfin (Pty) Ltd and Others 2003 (2) SA 253 (SCA) .
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‘The cedent (the respondent in this instance) undertakes not to pledge, dispose of or
encumber any of its assets in any manner whatsoever other than in the normal course
of its business, without first having obtained the consent of Absa .’
[17]. Subject to the proviso relating to the cession of the debts by the
respondent in favour of Absa Bank Limited, the order authorising the perfection
of the applicant’s pledge by this Court on 28 January 2025, is, in my view,
beyond reproach. The balance of the order should therefore be allowed to
stand.
[18]. An order to that effect should therefore be granted.
Order
[19]. In the result, I make the following order:
(1) The Order of this Court (per Wright J) dated 28 January 2025 be and is
hereby reconsidered in terms of Uniform Rule of Court 6(12)(c) and is
amended by the addition of the following sub -paragraph as sub -paragraph
2.3 after sub -paragraph 2.2: -
'2.3. The relief granted as per prayers 1, 2, 2.1 and 2.2 above – in terms of which
the applicant is granted leave to perfect its notarial general covering bond with
registration number BN000002212/2024 – does not cover nor extend to the
debtors’ book of the respondent and the funds held on account of the
respondent at Absa Bank, all of which have been ceded to Absa Bank
Limited .’
(2) Subject to the foregoing amendment / addition, the court order dated 28
January 2025 be and is hereby confirmed.
(3) The attachment of the funds held on account of the respondent at Absa
Bank and the respondent’s Absa Bank accounts in terms of the writ of
execution dated 3 February 2025, be and is hereby uplifted and the said
funds are released from attachment and Absa Bank be and is hereby
ordered and directed to unfreeze those funds and to allow the respondent
access to them.
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(4) The costs of this reconsideration application are likewise reserved pending
the determination in Part B.
_________________________________
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
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HEARD ON: 13 February 2025
JUDGMENT DATE: 24 February 2025 – Judgment handed
down electronically
FOR THE APPLICANT : J Peter SC
INSTRUCTED BY: Tiefenthaler Attorneys Incorporated ,
Waterfall , Randburg
FOR THE RESPONDENT : A R G Mundell SC
INSTRUCTED BY: W J J Badenhorst Incorporated ,
Morningside , Sandton