SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NUMBER: 2026-030241
In the matter between:
PREFERENCE CAPITAL PROPRIETARY LIMITED APPLICANT
Versus
MICASA ASSET MANAGEMENT PROPRIETARY
LIMITED FIRST RESPONDENT
MILNEX 587 PROPRIETARY LIMITED SECOND RESPONDENT
JUDGMENT
P C BEZUIDENHOUT J:
[1] Applicant herein is seeking on an urgent basis that the general notarial bonds
in respect of both First and Second Respondent be perfected and that the goods
2
which are listed and found at the premises be removed and also that they inter alia
be sold.
[2] First Respondent’s indebtedness to Applicant is in respect of a Trade Finance
Loan Agreement in the sum of R10 000 000.00. First Respondent executed a
general notarial bond in favour of Applicant under bond number B[...]4 in the sum of
R15 000 000.00. On 30 May 2025 Second Respondent executed a general notarial
bond in favour of Applicant under bond number B[...]5 in the sum of R10 000 000.00.
The notarial bond of First Respondent was on 26 March 2024.
[3] It was submitted on behalf of Applicant that the nature of the application was
such that it was urgent. Respondents are in a precarious financial position as
appears from annexures AA3 and AA6 attached to the answering affidavit wherein
they state and request a restruct uring and also that money is being sought from
other financial institutions. There are also other creditors and loan agreements and it
is clear that they are financially distressed. Applicant was further informed by
counsel for Respondent s that this morning in the Durban High Court Nedbank had
obtained an order perfecting a general notarial bond against Second Respondent by
consent. This made it urgent as it is apparent that the situation is pre carious and
that other creditors are in the process of taking action against Respondents. It is
therefore necessary for Applicant to secure its position. It was submitted that the
defences raised by Respondents that Azalea was not joined is unsustainable as
there is no guarantee or restructuring of the agreement and Respondents breached
the arrangement and have no valid defence. Applicant cancelled the agreement on
3 February 2026 and accordingly Respondents have no right to be in possession of
any of the goods.
[4] It was submitted on behalf of Respondents that as far as Second Respondent
was concerned the relief sought could in actual fact not be opposed due to the relief
was concerned the relief sought could in actual fact not be opposed due to the relief
which was granted in the Durban High Court by consent. It is submitted that there is
no urgency and that Applicant has other means of redress. Further that the order of
3
execution is to take the equipment and also to sell it which there is no need for at this
stage. Respondents cha llenge the breach which is alleged by Applicant and deals
with this in its answering affidavit. It is submitted that it should have been brought as
a Rule nisi. Further that Respondents are engaging an auditor but the auditor has
not yet provided any documentation to show what the financial position of
Respondents are.
[5] In reply it was submitted that the general notarial bond could be perfected as
there was a breach of the terms of the agreements, thus large amounts were due .
There was also a cancellation of the agreements. Accordingly Applicant was entitled
to the relief claimed.
[6] A reading of the general notarial bonds indicates that it is in respect of all
movables, debts etc of Respondents. Further a reading of the founding affidavit
indicates that there is allegations that Second Respondent is in possession of such
machinery certain of the machinery in respect of which the notarial bonds are to be
effected. It is thus difficult to distinguish between First and Second Respondent and
who is in possession of what machinery especially as it was conceded that the
perfecting of the bonds in respect of Second Respondent cannot be opposed.
[7] It is apparent from a reading of the papers that indeed the agreements have
been cancelled. Further that Respondents are in debt to Applicant for large sums of
money. It is also not disputed that there are other creditors which could also take
action and the basis for the general notarial bond is to secure the claim which
Applicant may have. If this is not done then Applicant would lose the preferential
claim which it would have and therefore it is necessary at this stage due to the
precarious financial position of Respondents that the general notarial bonds be
perfected.
4
[8] The bonds also provide that all the movables as set out therein can be
removed and sold.
[9] As I have set out above these applications are of nature urgent because they
are there to protect the interests of the bond holder and accordingly in this case
especially in the light of what ha s transpired in the Durban High Court in respect of
Second Respondent it is definitely urgent and to be dealt with on that basis.
[10] I am further satisfied that on the papers Applicants have made out a case for
the relief which is claimed that no valid defence has been raised by Respondents
which in actual fact is only First Respondent at this stage and that the relief should
therefore be granted.
Accordingly I grant an order as follows:
1. Applicant, Applicant’s duly authorised agent and/or the Sheriff of the High
Court is authorised to:
1.1 Perfect the general notarial bonds under bond numbers: B[...]4
(“Micasa GNB”) and B[...]5 (“Milnex GNB”) , respectively, and in
particular to enter in and upon all of First Respondent and Second
Respondents’ premises and the premises of any third party where
Respondents’ assets may be found, and to take possession and hold in
pledge all of the movable assets of Respondents, present and future,
wherever situate.
1.2 Take all reasonable steps required including the locking of
Respondents’ relevant business premises in which the movable assets
of Respondents are stored or sold (including the removal of stock from
one premises to another), with immediate effect, with the effect of
ensuing that the movable assets and effects are duly protected.
1.3 Take and retain, at the expense of Respondents, possession of the
movable assets and effects referred to in paragraph 1.1.
5
1.4 Sell and dispose of the movable assets taken into possession as set
out in paragraph 1.1, by public auction, public tender or private treaty
on such terms as Applicant may decide to this end.
1.5 Collect and take receipt of t he purchase price which shall first be
applied to defray all costs and charges relating to such sale and
thereafter in settlement or reduction of amounts owing by Respondents
to Applicant duly certified then to be due in terms of the relevant
clauses of the Micase GNB and Milnex GNB , respectively, plus interest
and legal costs thereon.
2. Applicant, alternatively, the Sheriff of the High court and/or Applicant’s duly
authorised agent, is authorised to serve and execute this order by way of an
emailed copy.
3. Second Respondent is ordered to, within three (3) days of the order being
granted, deliver the equipment set out in the schedules annexed hereto,
marked “A”, to the applicant.
4. In the event of Second Respondent failing to comply with prayer 3 above,
then the Sheriff of t he High court or his lawful deputy is authorised, directed
and hereby empowered to attach, seize and hand over to Applicant t he
equipment set out in the annexure A hereto.
5. Applicant is granted leave to approach this Court on these papers as may be
amplified for further relief in respect of the Micasa GNB and the Milnex GNB
and/or the vindicatory relief set out in prayers 3 and 4 above.
6. Respondents are ordered to pay the costs of this application on a scale as
between attorney and own client, jointly and severally, the one paying the
other to be absolved.
____________________
P C BEZUIDENHOUT J.
6
JUDGMENT RESERVED: 19 FEBRUARY 2026
JUDGMENT HANDED DOWN: 20 FEBRUARY 2026
COUNSEL FOR APPLICANT: L SWANDLE
Instructed by: Edward Nathan Sonnenbergs Inc.
Johannesburg
Email: ckekana@ensafrica.com
Ref: C Kekana
c/o: Stowell & Co.
Pietermaritzburg
COUNSEL FOR RESPONDENTS: M Z F SULEMAN
Instructed by: I Hoosen Attorneys Inc.
Johannesburg
Tel: 064 516 9198
Cell: 082 8473441
Email: ibrahim@ihattorneys.co.za
Ref: IHA/IH/MIC-26-02
c/o: Hay & Scott Attorneys
Pietermaritzburg