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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 2749/2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 20 October 2025
SIGNATURE:
In the matter between:
THE SPAR GROUP LIMITED APPLICANT
And
VOLEMO TRADING ENTERPRISE (PTY) LTD t/a FIRST RESPONDENT
NJHAKA NJHAKA BUILD IT and t/a ELIM BUILD IT
VONANI STANLEY MAKONDO SECOND RESPONDENT
MOKOENA CHRISTINA MAKONDO THIRD RESPONDENT
REASONS FOR JUDGMENT
DU PLESSIS AJ:
Introduction:
[1] The Applicant applied for an order authorizing the perfecting of its security in
terms of general notarial covering bonds, and an order as set out in the Notice of
Motion.
[2] In addition thereto ancillary orders were sought to give effect to the order set
out above as well as a cost order against the respondents on an attorney and client
scale.
[3] The Respondents opposed this application.
Background:
[4] The Applic ant and the First Respondent entered into two written credit
agreements.
[5] As security for facilitating the credit to the Respondents, the following General
Notarial Covering Bonds were registered in favour of the Applicant: B[...], [...]2, B[...]3
and B[...] 4(“the Bonds”).
[6] The First Respondent breached the agreements between the parties and then
failed to rectify the breach, which lead to the Applicant launching this application in
terms whereof it requested this Court to authorize the perfecti ng of its security in
terms of the bonds.
[7] The Respondents admitted being indebted to the Applicant.
Legal Framework:
[8] In Contract Forwarding (Pty) Ltd v Chesterfin (Pty) Ltd and others 1 the
Supreme Court of Appeal considered the perfecting of a notarial bond and held that:
1 Contract Forwarding (Pty) Ltd v Chesterfin (Pty) Ltd and Others (17/2002) [2002]
ZASCA 143; [2003] 1 All SA 267 (SCA); 2003 (2) SA 253 (SCA) (27 November 2002)
at [4] – [6].
“[4] A perfection clause entitles the holder of the bond to take possession of
the movables ove r which the bond has been registered. Such a clause
amounts to an agreement to constitute a pledge and will be enforced at the
instance of the bondholder, whereupon the creditor obtains a real right of
security.
[5] A bondholder enjoys the protection of the doctrine of notice. 2 For
instance, a later bondholder who has knowledge of the existence of a prior
bond will not be entitled to perfect the bond in disregard of the prior bond, this
being regarded as a species of fraud 3 or an intentional interference with
contractual relationships.4 However, constructive knowledge is not enough to
bring the doctrine into play. 5 Though it can be said that the registration of a
notarial bond amounts to notice to the world of the existence of the claim, 6 the
world is not bound to take notice or deemed to have notice. 7 I mention this
aspect because the Court below apparently held that the earlier notarial
bondholders were entitled to some precedence above later bondholders.8
[6] Real rights are stronger than personal rights and in the case of
conflicting real rights the principle prior tempore potior iure applies. 9 The right
in question, a pledge, is a real right, which is established by means of takin g
possession10 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.”
2 Coaton v Alexander 1879 Buch 17, Cato v Alion and Helps (1922) 43 NLR 469.
3 Grant and Another v Stonestreet and Others 1968 (4) SA 1 (A) 20B-F.
4 New Kleinfontein Company Ltd v Superintendent of Labourers 1906 TS 241 at 254.
NJ van der Merwe Die Beskerming van Vorderingsregte uit Kontrak teen Aantasting
deur Derdes (1959).
5 Grant and Another loc cit.
deur Derdes (1959).
5 Grant and Another loc cit.
6 Hare v Trustee of Heath (1884-1885) 3 SC 32 at 34.
7 Frye’s (Pty) Ltd v Ries 1957 (3) SA 575 (A) 583E-G.
8 At 167B-D.
9 CG van der Merwe Sakereg 2ed p 64.
10 My emphasis.
[9] It is therefore confirmed that in order to perfect a notarial bond, which is a
security instrument for movable assets, the creditor must obtain possession of the
bonded property.
[10] Possession of the bond ed property creates a limited real right which is
enforceable against third parties. Registration of the bond alone does not create this
right.
[11] The creditor must take possession of the movables to perfect the bond. This
is typically achieved by a court order or a perfecti ng clause in the bond and it is
enforced at the instance of the bondholder.
[12] The First Respondent has failed to adhere to the terms and conditions of the
credit facility and the Bonds despite multiple indulgences and final demands that
were made by the Applicant.
[13] This breach has triggered the Applicant’s right to perfect its security as
provided for in the bonds.
[14] The Respondents admitted that they are indebted to the Applicant. The First
Respondent owns and operates both Njhaka Njhaka Build It as well as Elim Build It.
[15] It is common cause between the parties that Njhaka Njhaka Build It was not
receiving stock from the Applicant, which means that it was either no longer
operating or had received credit facilities from other creditors.
[16] There thus exists a risk that other creditors of the First Respondent might
proceed with legal steps against the First Respondent, supporting the Applicant’s
right to perfect its security.
[17] If the notarial bond is not perfected the Applicant wou ld only have a statutory
preference over other concurrent creditors upon the debtor’s insolvency, but not a
full security right against all third parties.
[18] In Absa Bank Limited v Go On Supermarket (Pty) Limited 11 the Court
stated the following:
“With reference to the maxim vilantibus non dormientibus iura subveniunt (the
law should favour the vigilant creditor) and the general principle that a right of
pledge is established when a creditor under a general bond takes possession
of the movables, the cou rt concluded that Absa was entitled to the pledged
movable property to perfect its security under the general notarial bond.”
[19] It is expected of a creditor to be “vigilant in the protection of its interests and
rights,” which was what the Applicant di d by bringing the application and protecting
its rights.
[20] The Respondents argued that payments were made, but also do not deny that
the First Respondent is unable to make sufficient payments as and when they
become due and payable.
[21] The Respondents further admitted that there were financial difficulties
experienced due to the rain during the months of December 2024 to February 2025,
but they failed to explain to this Court why their payments were outstanding since 10
October 2024.
[22] This acknowledgement by the Respondents of the debt which is due and
payable to the Applicant further confirmed the Applicant’s right to apply for the relief
sought.
[23] The Respondents tried to separate the indebtedness in respect of the Njhaka
Njhaka Build It and the Elim Build It, arguing that there is only an amount due in
respect of the Njhaka Njhaka Build It. This does not change the fact that both
facilities belong to the First Respondent.
11 Absa Bank Limited v Go On Supermarket (Pty) Limited (The Spar Group Limited
Intervening) (9442/2022) [2022] ZAGPJHC 173 (24 March 2022).
[24] This is done in an attempt to exempt the property of the Elim Build It facility
from the perfecting of the bonds over the assets of the Applicant.
[25] The Respondents further argued that there is an amount of R1,905,000.00
held under a Development Fund in favour of the Njhaka Njhaka Build – It and argued
that these funds should be used to pay the outstanding balance due to the Applicant.
[26] In its addres s to this argument the Applicant explained that the Development
Fund is for the development of the business, its purpose is not to pay the debt of the
First Respondent and may not be used for such purposes.
[27] It must also be noted that the First Respon dent is not entitled to the
Development Funds, but must apply and be approved in order for it to be allocated
for development of the First Respondent’s business.
[28] The First Respondent has made such an application on a previous occasion
and has been denied the allocation of the Development Funds.
[29] Even if the funds under the Development Fund is applied to the outstanding
debt (which is not what it is meant for), it will still leave an amount outstanding, which
is due and payable to the Applicant. T hus it will not solve the breach of the First
Respondent.
Conclusion:
[30] In Pick 'n Pay Retailers Proprietary Limited v Northern Suburbs
Supermarket Proprietary Limited12 it was held that:
“[11] When seized with the application for perfection, the court has a
discretion to exercise. In this regard, our courts have held that where there is
an agreement permitting perfection in certain eventualities, there is no reason
12 Pick 'n Pay Retailers Proprietary Limited v Northern Suburbs Supermarket
Proprietary Limited (2024/083061) [2024] ZAGPJHC 765 (2 August 2024).
for not granting a perfe ction order in the exercise of the discretion by court. 13
This is so because in doing so, once the bond is perfected, real rights are
conferred on the assets perfected. The onus is on the applicant to discharge
and meet the requirements relating to breach as agreed to with the
respondent.”
[31] It is common cause that the First Respondent has breached the terms of the
agreement and that it is not able to comply with the payment terms as set out in the
agreements between the parties.
[32] The Applicant l aunched this application because it faces the risk of losing its
security, as against third parties, if it is not perfected.
[33] The Respondents have not raised any defense to demonstrate to this Court
that the Applicant is not entitled to the relief claimed.
[34] Having considered all the aforementio ned factors, in my view, it is in the
interest of justice that the Applicant be authorized to perfect the bonds in order to
secure the debt.
Costs:
[35] The default practice in awarding costs is that costs ordinarily follow the result
but that the issue of costs is in the discretion of the court.14
[36] The Court finds that there is no reason for the Applicant to be deprived of his
costs.
13 Para [10] in Contract Forwarding footnote 1 above.
14 Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) at [224], [227]
and [228]; Limpopo Legal Solutions v Eskom Holdings (Soc) Limited 2017 (12)
BCLR 1497 (CC) at [20] (“Eskom”).
[37] The parties have contractually agreed that in the event of a breach, all costs
shall be on an attorney and cli ent scale, thus the Court is inclined to grant costs
accordingly.
Order:
[38] It is for the above reason that the following order was made:
1. Judgment is granted against the Respondents, the one paying , the
others to be absolved, for:
1.1 payment in the sum of R3,007,730.95 (three million seven
thousand and thirty rand and ninety five cent); and
1.2 interest on the aforesaid sum at a rate equal to 5% above the
prime overdraft lending rate char ged by the Applicant’s principal
bankers, calculated from the December 2024 to date of final payment;
2. The Applicant is authorised for the purposes of perfecting its security in
terms of the following General Notarial Covering Bonds numbered B […],
B[…]2 and B […]3; and B […]4 (“the Bonds”) to enter upon the First
Respondent’s premises or any other place where any of the First
Respondent’s movable property, corporeal or incorporeal, (“the movable
property”) is situated and:
2.1. The Applicant’s duly authorised representatives to take charge,
possession and control of the movables at the First Respondent’s
business premises and the Applicant is allowed to control the
movement of all the movables brought onto or r emoved from the
business premises, at the direction of the Applicant. The Applicant’s
duly authorised representatives would hold the keys to (and ensure the
security of) the business premises. It being recorded that the proceeds
of all movables sold or dis posed of by the First Respondent would be
paid into a bank account designated by the Applicant;
2.2. transfer and cede out and out, its right, title and interest in and to
all amounts owing to it, including but not limited to its debtors, to the
Applicant so arising from the Bonds and the cession of debtors;
2.3. to accept that the Bonds are perf ected in accordance with the
provisions thereof;
2.4. and undertake to allow the Applicant to operate and draw on the
banking accounts of the First Respondent, and to instruct that all funds
in such accounts, or which may be paid into such accounts, be p aid to
the to the Applicant or that any funds held to the credit of the First
Respondent, in the said accounts, not be drawn on by the First,
Second and Third Respondents and / or any third party acting on their
behalf;
2.5. that the Applicant may take p roceedings at law, in the name of
the First Respondent as it deems fit for the recovery of any and all
debts due to the First Respondent;
2.6. authorise and permit the Applicant to enter any premises where
the First Respondent carries on its businesses and to:
2.6.1 take possession of and retain all or any of the movable
property belonging to the First Respondent and to retain such
possession for so long as the Applicant may deem fit and / or to
sell and dispose thereof or any portion thereof in such ma nner
and on such terms as the Applicant may decide and to convey
valid title to the purchaser/s or transferee/s and to collect in all
monies due to the Firs Respondent in respect thereof;
2.6.2 carry on the business of the First Respondent relating to
the movable property in the name of and at the expense of the
First Respondent and for that purpose to purchase goods and
do whatever else the Applicant deems necessary.
2.6.3 operate and draw on the banking account of the First
Respondent and to instruct th at all funds in such accounts or
which may be paid into such accounts, be paid to the Applicant
or be not withdrawn therefrom or to the order of the First
Respondent;
2.6.4 sign or subscribe on behalf of the First Respondent to all
applications or agreemen ts for transfer of licences, quotas,
permits, registration certificates and the like which relate to the
movable property and to affect the cession and delegation of the
rights and / or obligations of the First Respondent as lessee or
lessor under any lease to which the First Respondent is a party;
2.6.5 take proceedings at law in the name of either the First
Respondent or the Applicant as the Applicant thinks fit for the
recovery of any debts due to the First Respondent.
2.6.6 sign and complete all forms, declarations, agreement and
the like as may be necessary or desirable to record the sale,
disposal and / or transfer, as the case may be of any of the
movable property.
2.6.7 have the movable property excused by legal process; and
2.6.8 take possession of and realise by public auction or by
private treaty or otherwise, all or any of the movable property.
3. That the Application is not obliged, in carrying on the business of the
First Respondent, to use its own capital for the running of the First
Respondent’s business, and that all capital required in order to carry on the
business of the First Respondent remains the responsibility of the First
Respondent;
4. That the Respondents pays the costs of this application on the scale as
between attorney and client jointly and severally.
S DU PLESSIS
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE APPLICANT : Adv. MM de Jager
INSTRUCTED BY : Cliffe Dekker Hofmeyer Inc
Eugene.bester@cdhlegal.com
FOR THE FIRST RESPONDENT : Adv. M Rakgogo
INSTRUCTED BY : Maboku Mangena Inc
admin@mmattorneys.co.za
makie@mmattorneys.co.za
DATE OF HEARING : 04 June 2025
DATE OF JUDGMENT : 20 October 2025