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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO.: 4067/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 14/05/2026
SIGNATURE:
In the matter between:
MOTWELL PLANT HIRE (PTY) LTD APPLICANT
AND
SAVIJENI COMMUNICATIONS (PTY) LTD RESPONDENT
DELIVERED: 14 MAY 2026
This judgment was handed down electronically by circulation
to the parties' legal representatives by e -mail. The date and
time for hand down of the judgment is deemed to be 14 MAY
2026 at 16h00
Date heard: 13 MAY 2026
Coram: NGOBENI J
JUDGMENT
NGOBENI J
[1] The applicant is MOTWELL Plant Hire (PTY) LTD, a company duly incorporated
and registered in terms of the laws of the Republic of South Africa with registration
number 2014/050269/07, with its place of business at 3[...] H[...] Office Park, Block D,
corner 1[...] Avenue and H[...] Road, Rivonia, Johannesburg.
[2] The respondent is SAYIJENI Communications (PTY) LTD, a company duly
incorporated and registered in terms of the laws of the Republic of South Africa with
registration number 2013/173477/07, and has its registered address at 1[...] B[...] Street,
Onverwacht, Lephalale.
[3] This is an application for provisional liquidation of the respondent and for it to be
placed in the hands of the Master of the High Court. The applicant alleges that the
respondent is indebted to it in the amount R357 322 -43 (three hundred and fifty -seven
thousand three hundred and twenty-two rand forty-three cents).
[4] The respondent raised a point in limine which for the sake of completeness I am
going to as far as possible quote the submission as it appears on the answering affidavit
of the respondent. It reads as follows:
B. POINT IN LIMINE: PACTUM DE NON CEDENDO
"11. Clause 3 of the plant hire concluded between the applicant and Tseke
Construction CC on 12 June 2023 restricts Tseke Construction CC's cession of
the contract or debts in its entirety.
12. Tseke Construction CC could not cede its rights as it is the subject of a
pactum de non cedendo.
13. The existence of a pactum de non cedendo is fatal to the applicant's
application."
[5] Clause 3 of the Agreement that was entered into between the applicant and
Tseke Construction CC reads as follows:
"the hirer shall not cede or assign this agreement nor sublet, mortgage, pledge
nor in any way encumber the plant, lend or part with possession thereof and shall
be obliged to retain the plant on the site and, save for the purpose of returning it
to the owner, shall neither remove nor allow it to be removed there from without
first obtaining the written consent of the owner"
[6] In simple terms a pactum de non cedendo is a contractual clause prohibiting a
party from transferring or ceding their rights or claims to a third party without the
debtor's consent. In Born Free Investments 364 (Pty) Ltd v FirstRand Bank Ltd 1, the
court went to an extend of explaining the difference between a pactum de non cedendo
which prohibits the cession of an existing right or the right that pre -existed before the
conclusion of the contract, and a pactum de non cedendo of a right which was created
by the contract from the beginning or inception of the contract.
[7] The submission by the respondent is that upon reading clause 3 of the
Agreement as outlined above, the applicant could not cede any rights and interests
according to the Agreement, because the Agreement confines it to dealings pertaining
to the plant only. In other words, the Agreement allowed the applicant to cede rights
pertaining to dealings relating to the plant only, not any other rights and interests arising
from the agreement.
[8] In reaction to the point in limine raised by the respondent, the applicant submits
that clause 3 of the Agreement relates to the hiring of plant, and the applicant and Tseke
had already entered into an agreement before, in which Tseke was allowed to sublet the
equipment to the respondent.
1 [2014] 2 All SA 127 (SCA).
[9] It is clear to the court that clause 3 of the Agreement must be interpreted in order
to decide as to whether the clause precludes the cession of any other rights and
interests arising out of the contract or just confined to dealings relating to plant. In
interpreting the contract, the contract would normally at the beginning have the
interpretation clause of the terms that are used in that contract.
[10] Although the issue of interpretation was not clearly dealt with in the Agreement,
but on what appears to be page 2 of the Agreement, there is a title at the top which is
written 'TERMS AND CONDITIONS OF HIRE (GENERAL PLANT). There are sub -titles
that follow underneath which are the following: Agreement; Plant and Accessories; No
Cession or Subletting (which is the subject of the point in limine);Period of Hire,
Termination, Minimum Hours and Downtime; Rated Capacity and Use of Plant; Permits;
Access and Site Conditions, Defects and Breakdown Report.
[11] I am quoting the title and sub -titles of the Agreement so that I can determine
whether clause 3 of the Agreement concerns only issues relating to plant or whether it
also concerns other rights and interests arising from the Agreement. I do so with
guidance from the Constitutional Court, where in the case of University of Johannesburg
v Auckland Park Theological Seminary and Another2, (University of Johannesburg case)
on paragraph 81 of the judgment the court said that:
"[81] ... The obligation on courts to take a contextual approach to the
interpretation of contracts is peremptory. It is not capable of exclusion by
agreement between the parties"
[12] The above extract from the University of Johannesburg case, supra, fortifies what
has been said in the opening remarks in the very case that the old adage that context is
everything holds true. The title and sub -titles that I have quoted on paragraph 10 of this
judgment, relate to how plant should be dealt with in the Agreement. It is therefore my
judgment, relate to how plant should be dealt with in the Agreement. It is therefore my
2 [2021] ZACC 13 (11 June 2021).
view that the clauses referred to in the Agreement from pages 2 to 4 only relate to plant
not any other rights or interests as suggested by the respondent, because the whole
Agreement deals with issues pertaining to plant. In my view the first words on clause 3
of the Agreement which reads: "the hirer shall not cede or assign this agreement"
relates to the ceding of plant, and not any other rights.
[13] In the result the point in limine that was raised by the respondent is bound to fail.
I'm not inclined to make a cost order at this stage as the matter may hopefully still
proceed.
[14] In the result the following order is made:
(i) the point in limine of pactum de non cedendo raised by the respondent is
dismissed.
(ii) costs in the cause.
J.T. NGOBENI
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant: Adv. A.T. Raselebana
Instructed by: Wynand Du Plessis Attorneys
For the respondent: Adv. J.J. Marais
Instructed by: Alers Van Aardt Bester Inc.
Date heard: 13 May 2026
Date delivered: 14 May 2026