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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 14866/2022
(1) REPORTABLE: NO
(2) OF IN TEREST TO OTHER JUDGES: NO
(3) REVISED: YES
21 May 2025
In the matter between:
HENDRIE ANDRIES MARAIS N.O. FIRST APPLICANT
CHRISTINA MAURTEEN PENDERIS N.O. SECOND APPLICANT
and
NORTIGER LOGISTICS -SA (PTY) LTD FIRST RESPONDENT
(Registration Number: 2010/022417/07)
ADRIANA MARIA VAN WYK SECOND RESPONDENT
(Identity Number: 4 […])
In Re:
MARBOE EN SEUNS (PTY) LTD (IN LIQUIDATION)
ESTATE NUMBER: G 1771/2021
2
JUDGMENT
TWALA, J
Introduction
[1] The applicants, the joint liquidators of Marboe En Seuns (Pty) Ltd (in
Liquidation) (“Marboe”), launched this application seeking an order to cancel and or
set aside the written sale agreement of the vehicle known as a Tadano TR – 250 EX
with registration letters and number R […] (“the vehicle”) which was entered into by
and between the first and second respondents on 6 November 2020 and other
ancillary relief.
[2] Further and as the first prayer in the notice of motion, the applicants sought
an order for the extension of their powers since they were still appointed as
provisional liquidators . Subsequent to the launching of this application, the applicants
were finally appointed and granted the powers necessary to bring this application by
the Master of the High Court and they are accordingly no longer seeking relief in this
regard.
[3] The application is opposed by the respondent s. After filing its answering
affidavit , the first respondent brought an application to join the second respondent in
the proceedings. The second respondent filed its answering affidavit with a counter
application that, if the Court finds in favour of the applicants, then the second respondent must retain the purchase price she received for the vehicle and pay over to the applicants the difference between the purchase price and what is owed to her by Marboe.
[4] In this judgment, I propose to refer to the parties as the applicants and the first
and second respondents as the respondents and where necessary to refer to the
parties as they are cited in these proceedings.
3
Preliminary Issue s
[5] At the commencement of the hearing, the respondents contended that the
applicants should not be allowed to make their case in the supplementary affidavit in
which the applicants traversed issues which were not in their founding affidavit.
Further, that there is a dispute of fact in this case which cannot be resolved on the papers and the applicants should have foreseen this and not approach the court with motion proceedings which are not suitable for resolving issues of dispute of facts.
[6] The applicants argued that there was no dispute of fact in this case which
cannot be determined on the papers filed of record. The issue of proof of ownership
of the vehicle which is what the respondents are disputing can be determined on the papers filed on record. Further, the applicants did not know about the cession
agreement until it was filed as an annexure to the answering affidavit of the second
respondent – hence the applicants simultaneously brought an application for
condonation for the filing of the supplementary affidavit to explain issues which were
not within their knowledge when they initiated these proceedings .
[7] It is a trite principle of our law that motion proceedings are meant to resolve
legal issues based on common cause facts and are simply not designed to
determine factual issues between the parties. However, there must be a real,
genuine and bona fide dispute of fact and not merely allegations of such a dispute or
a version which is far -fetched or clearly untenable that can justifiably be rejected
merely on the papers
1. I hold the view that there is no real, genuine and bona fide
dispute in this case as ownership of the vehicle can be determined on the papers.
[8] In Eke v Parsons2 the Constitutional Court defining the purpose of the Rules
of Court stated the following:
“Without doubt, rules governing the court process cannot be disregarded.
They serve an undeniably important purpose. That, however, does not mean
that courts should be detained by the rules to a point where they are
hamstrung in the performance of the core function of dispensing justice. Put
1 National Director of Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 26
2 [2015] ZACC 30; 2016 (3) SA 37 (CC), 2015 (11) BCLR 1319 (CC).
4
differently, rules should not be observed for their own sake. Where the
interests of justice so dictate, courts may depart from a strict observance of
the rules. That, even where one of the litigants is insistent that there be
adherence to the rules. Not surprisingly, courts have often said “[i]t is trite that
the rules exist for the courts, and not the courts for the rules.”3
Under our constitutional dispensation, the object of court rules is twofold. The
first is to ensure a fair trial or hearing. The second is to “secure the
inexpensive and expeditious completion of litigation and . . . to further the
administration of justice”. I have already touched on the inherent jurisdiction
vested in the superior courts in South Africa. In terms of this power, the High
Court has always been able to regulate its own proceedings for a number of
reasons, including catering for circumstances not adequately covered by the
Uniform Rules, and generally ensuring the efficient administration of the
courts’ judicial functions.”4 (Footnotes excluded).
[9] It should be recalled that the applicants are the liquidators of Marboe and
relied on the directors of the company and other relevant parties to furnish them with
all the relevant documentation and information about Marboe. It is on record that the
applicants did not have the registration papers of the vehicle when they deposed to
the founding affidavit nor did they have knowledge or possession of the cession agreement between Marboe and the second respondent.
[10] It is accepted that it is a trite principle of our law that an applicant must make
out its case in its founding papers and not in reply. However, as indicated above, the rules are for the courts and not the courts for the rules. Where the interest of justice demands a deviation from the rules, the court is obliged to do so as the court has the inherent power to regulate its own processes conferred upon it in terms of section
173 of the Constitution.
5
[11] I hold the view therefore that , since the applicants had no knowledge and or
possession of the vehicle regis tration papers and the cession agreement between
3 Id para 39.
4 Id para 40.
5 Constitution of the Republic of South Africa, 1996
5
Marboe and the second respondent at the time of deposing to the founding papers ,
there is no other way they could have made allegations in their founding papers
about these documents. Further, the respondents have failed to demonstrate to this court that if the supplementary affidavit is allowed and admitted, they will be
prejudiced thereby. Moreover, the respondents had ample time to file an answering
affidavit but chose not to do so. I am of the respectful view therefore that it is in the interest of justice that the supplementary affidavit be allowed to stand.
Factual Background
[12] The facts foundational to this case are mostly common cause and are as
follows:
On 6 November 2020, the first and second respondents concluded a written
agreement of purchase and sale whereby the second respondent sold the vehicle to the first respondent. The purchase price was paid by the first
respondent to the second respondent on 6 January 2021, and the vehicle was
transferred into the name of the first respondent on the 4 March 2021.
[13] On 9 December 2020, an application for the liquidation of Marboe was
launched. On 15 April 2021, Marboe was placed under final liquidation by this court
under case number 2020/42660, and the applicants were appointed as the joint
provisional liquidators .
[14] On 7 June 2022, the applicants received a cession agreement between
Marboe and the second respondent from Mr Dustan Barnard of Barco Auctioneers.
The cession agreement is dated 5 December 2015 and provided that Marboe ceded all its rights title and interest in the vehicle to the second respondent.
Submission by the Parties
[15] The applicants say that the cession agreement is invalid since the resolution
of Marboe authori sed Mr DCJ van Wyk to act on behalf of Marboe, but it was Mrs
AM van Wyk who signed the cession agreement. Further, so it was argued, the
cession is not an out -and-out cession, and it is void or at best for the second
6
respondent it is a pledge. This is so, so it was contended, because the vehicle
remained in the possession of Marboe and it appeared as an asset in the books of Marboe subsequent to the cession agreement up and until the liquidation of Marboe.
The sale of the vehicle therefore amounts to a voidable disposition without value and
or a preference of one creditor above the other .
[16] Further more, so say the applicants , even if the agreement between Marboe
and the second respondent were to constit ute a pledge, such a pledge is void since
the agreement does not contain a provision for the pledged property to be taken over
at a fair price when the debt became due by the cessionary . Therefore, so it was
argued, the second respondent did not have dominium or security over the vehicle
since Marboe was at all relevant times the owner of the vehicle. T he second
respondent was not entitled to sell the vehicle to the first respondent and that the sale agreement between the first and second respondent is therefore invalid.
[17] The respondents contended that the second respondent was the rightful
owner of the vehicle and had the dominium over the vehicle on the basis of the
cession agreement since Marboe failed to pay its debt with the second respondent .
When the sale agreement was concluded between the first and second respondents,
the second respondent was entitled to sell the vehicle on the basis of the out-and-out
cession agreement between herself and Marboe. The cession became perfected when Marboe failed to settle its indebtedness to the second respondent.
Legal Framework
[18] Since the case of the applicants is that the sale of the vehicle by one of the
former directors of Marboe to the first respondent amount to a disposition not for
value and or a preference of one of the creditors of Marboe above others, it is apposite to restate the provisions of the Companies Act
6 which provid e the
following:
“Section 340
Voidable and undue preferences —
6 61 of 1973
7
(1) Every disposition by a company of its property which, if made by an
individual, could, for any reason, be set aside in the event of his insolvency,
may, if made by a company, be set aside in the event of the company being wound up and unable to pay all its debts, and the provisions of the law relating to insolvency shall mutatis mutandis be applied to any such
disposition. ”
[19] It is also necessary to mention the provisions of the Insolvency Act
7 which find
application in this case, which state the following:
“Section 29
(1) Voidable preferences -
Every disposition of his property made by a debtor not more than six months
before the sequestration of his estate or, if he is deceased and his estate is
insolvent, before his death, which has had the effect of preferring one of his
creditors above another, may be set aside by the Court if immediately after
the making of such disposition the liabilities of the debtor exceeded the value
of his assets, unless the person in whose favour the disposition was made
proves that the disposition was made in the ordinary course of business and
that it was not intended thereby to prefer one creditor above another. ”
Discussion
[20] The nub of this case is the ownership of the vehicle. The respondents contend
that the second respondent was entitled to sell the vehicle as her own based on the
cession between herself and Marboe. This is so because Marboe failed to pay the
debt owing to the second respondent when it became due.
[21] To put matters in the correct perspective, it is necessary to restate the terms
of the cession of agreement which are relevant for the purposes of the discussion
that will follow which are as follows:
“1. Cession
7 24 of 1936
8
The Cedent hereby cedes, transfers and makes over to the Cessionary her
right, title and interest in and to the equipment as security for the payment of
the loan account of the Cessionary by the Cedent.
2. Duration
The cession which is the subject matter of this agreement shall endure and be of force and effect until the Cedent has paid the loan account to the Cessionary in full.
3. Undertaking
The Cedent hereby undertakes and warrants that he:
3.1 has not entered into any agreement restricting or excluding the
transferability of the equipment that form the object of the cession;
3.2 has not prior to this cession ceded the equipment that forms the object
of this cession to any other person of concern. But if it should happen that the Cedent is in breach of this, then this cession shall operate as a cession of the Cedent’s reversionary right including all rights of action against the
Cessionary. against the prior Cessionary.
3.3 during such time as the cession which is the subject matter of this
agreement remains of force and effect, the Cedent will not allow the equipment to be sold, rented out or removed from its possession.
4. Authority
The Cessionary authorizes the Cedent during the currency of this agreement from time to time to inspect the equipment and t have it valuated.
[22] It is trite that cession is a method of transferring a right of the cedent to the
cessionary. However, if the agreement between the cedent and the cessionary does not demonstrate a clear intention to make a complete surrender of the right, then it is not an out -and-out cession.
[23] The author Christie
8 describe as cession as follows:
8 Law of Contract in South Africa , 8th edition
9
“A cession of the cedent’s right, title and interest as well as ownership in the
goods, although passing the cedents contractual rights, will not however, pass
ownership without delivery.9
The essence of cession by way of security is that the cedent retains as against the cessionary, expressly or impliedl y, a reversionary interest to
receive back any surplus remaining from the enforcement of the ceded right after the debt in respect of which the security was given has been paid.
10”
[24] In Grober v Oosthuizen
11 which was quoted with approval in Engen
Petroleum Ltd v Flotank Transport (Pty) Ltd 12, the Supreme Court of Appeal, dealing
with the differences between the cession and a pledge, stated the following:
“ …The one theory is inspired by the parallel with a pledge of a corporeal
asset and is thus loosely referred to as 'the pledge theory'. In accordance with
this theory, the effect of the cession in securitatem debiti is that the principal
debt is 'pledged' to the cessionary while the cedent retains what has variously
been described as the 'bare dominium' or a 'reversionary interest' in the claim
against the principal debtor .13 (Footnote excluded)
Critics of the pledge theory have difficulty with the concept of a real right of
pledge over the personal rights arising from the principal debt (see eg De Wet
& Yeats op cit 416; Van der Merwe Sakereg 683). Concomitantly they also
have difficulty with the description of the interest retained by the cedent in the
personal right against the debtor as that of 'ownership' or 'dominium'. This
difficulty is well formulated in the following dictum by Broome JP in Moola v
Estate Moola:
'The word "dominium" is therefore out of place, and it does not help much to
describe plaintiff as the "owner" of the ceded rights. Ownership of a right of
action would seem to imply the right to sue, and if the right to sue has passed
to the cessionary it is difficult to imagine what can remain with the cedent. The
truth probably is that the cedent by way of security retains only his
9 Page 564
10 Paga 570
11 [2009] ZASCA (5) SA 500
12 [2022] ZASCA 98
13 Id para 15
10
"reversionary right", that is to say his right to enforce the ceded right of action
after the [secured debt] . . . has been discharged.'14 (Footnote excluded)
In the light of these problems associated with the pledge theory, an alternative
theory had been preferred by the majority of academic authors and even in
some earlier decisions of this court. According to this theory a
cession in securitatem debiti is in effect an outright or out -and-out cession on
which an undertaking or pactum fiduciae is superimposed that the cessionary
will re -cede the principal debt to the cedent on satisfaction of the secured
debt. In consequence, the ceded right in all its aspects is vested in the
cessionary. After the cession in securitatem debiti the cedent has no direct
interest in the principal debt and is left only with a personal right against the
cessionary, by virtue of the pactum fiduciae, to claim re -cession after the
secured debt has been discharged. It is readily apparent that if the pactum
fiduciae theory were to be applied to the facts of this case, the plea of
prescription must be upheld, because Grobler's case would then depend on a
claim for re -cession which arose in August 1991. But despite the doctrinal
difficulties arising from the pledge theory, this court has in its latest series of
decisions – primarily for pragmatic reasons – accepted that theory in
preference to the outright cession/ pactum fiduciae construction. In the light of
these decisions the doctrinal debate must, in my view, be regarded as settled
in favour of the pledge theory15. (Footnote excluded)
[25] It is apparent on record that the vehicle remained in the possession of Marboe
and no delivery to the second respondent took place after the cession was
concluded. Further, the vehicle had been used by Marboe during the currency of the
cession and has remained in the financials or books of Marboe until the concursus
creditor am. The vehicle was only transferred into the name of the first respondent in
March 2021 barely a month before Marboe was finally liquidated on 15 April 2021.
[26] In interpreting the cession agreement, I am of the considered view that , from
the wording of the cession agreement, the starting point was that Marboe retained its
reversionary right and only lost/ceded that right to the second respondent upon it
14 Id para 16
15 Id para 17
11
having ceded the equipment to a third party, that the agreement would automatically
come to an end upon payment of Marboe’s debt to the second respondent, and that
there would have been no need for a re- cession back to Marboe.
[27] I am unable to disagree with the applicants that the cession agreement is
invalid in that it was not signed by the authorised person in terms of the resolution of
Marboe. Further, the cession is invalid in that it is not an out -and-out cession to
entitle the second respondent to sell or deal with the vehicle any how on the failure
of Marboe to pay and settle its indebtedness in full in favour of the second
respondent. This is so for there was no delivery of the vehicle by Marboe to the
second respondent and Marboe remained the owner of the vehicle as it remained
and was retained in its financials or books up until it was liquidated.
[28] It is my respectful view therefore that Marboe received no value for the
disposition of the vehicle and therefore the disposition amount to preference of one
creditor of Marboe above the others. The disposition was actuated on the basis of an
invalid cession agreement which did not transfer the right of ownership from Marboe
to the second respondent. The sale of the vehicle occurred not more than six months
of Marboe being unable to pay its debts. Therefore, the unavoidable conclusion is
that the agreement of sale between the first and second respondent is invalid and
falls to be cancelled and set aside
[29] I now turn to deal with the counter -application of the second respondent that if
the court finds that the cession agreement is invalid and that the disposition was of no value to Marboe, then the court should grant her the relief that she retains the equivalent of the amount owed to her by Marboe and that she pays over to the difference to the applicants.
[30] I disagree with this proposition. There are other creditors of Marboe who are
cueing for payment of their proven claims . If the second respondent were to pay
herself and settle the debt between herself and Marboe from the proceeds she
received for the vehicle, she would be at an advantage than the other creditors for she would have been paid in full instead of the R650 000 being equally distributed
amongst the creditors of Marboe.
12
[31] In the result , the following order is made:
1. The applicants are granted leave to file their supplementary affidavit;
2. The sale of the vehicle, Tadano TR -250 EX Crane with registration
number R […] sold by the second respondent to the first respondent is set
aside;
3. The Sheriff is authorized to attach and remove the vehicle described as
a Tadano TR -250 EX Crane with registration number R […] and VIN number
F[…] from the first respondent or where the vehicle may be found and hand
same to the applicants.
3.1 Should a person or entity who/which is in the possession of the vehicle
refuse to hand over same to the Sheriff, the Sheriff is authorized to make use
of the services of the SAPS to attach and remove the vehicle from the person
or entity in which possession the vehicle is and to hand it over to the
applicants.
4. The second respondent’s conditional counter -claim is dismissed with
costs.
5. The second respondent is granted leave, in as far as it may be
necessary, to prove her claim against Marboe in terms of section 44(1) of the
Insolvency Act 24 of 1936.
6. The second respondent shall pay the costs occasioned by the late
proving of her claim.
7. The first respondent is to pay the costs of the application, on scale C.
TWALA M L
Judge of t he High Court of South Africa
Gauteng Division, Johannesburg
Date of Hearing: 5 May 2025
Date of Judgment: 21 May 2025
For the Applican ts: Advocate JC Carstens
13
Instructed by: G.D Ficq Attorneys
Tel: 011 760 2558
For the First Respondent: Advocate WJ Prinsloo
Instructed by: BMH INC Attorneys
Tel: 016 421 4320
Email: jaco@bmhatt.co.za
For the second Respondent: Advocate A Mooij
Instructed by: Barnard Attorneys
Tel: 010 510 0093
Email: veronica@barnardattorneys.co.za
Delivered: This judgment and order was prepared and authored by the Judge
whose name is reflected and is handed down electronically by circulation to the
Parties/their legal representatives by email and by uploading it to the electronic file of
this matter on Case Lines. The date of the order is deemed to be the 21 May 2025 .