Motala v Latib

• Jurisdiction: South Africa
• Judge: De Wet JP, Ludorf J and Theron J
• Judgment Date: 27 November 1963
• Court: Transvaal Provincial Division
• Hearing Date: 22 November 1963
• Citation: 1964 (1) SA 851 (T)

G Ludorf, J.:

The appellant, respondent in the Court below, appeals against an order granted in favour of the respondent, applicant in the Court below, which authorised the attachment and sale by the Sheriff or his lawful Deputy of this Court of all the right, title and interest of the appellant to stand 208, Asiatic Bazaar, district Benoni, and further H authorised the Sheriff to pay from the proceeds of the sale to the respondent an amount sufficient to cover the amount of the writ plus interest.

The facts are that the respondent obtained judgment against the appellant in the sum of R5,6000 and in pursuance of such judgment issued a writ in that amount plus costs. The judgment was obtained on an acknowledgment of debt and in that acknowledgment of debt the appellant had ceded all her right, title and interest in a certain notarial bond which she had over the assets of one Vazeer Guman. The bond

Ludorf J

provides that the appellant obtained the right of occupation of stand 208 and the right to collect rentals and had the right to apply ex parte for possession of the mortgagor's right, title and interest to the aforementioned stand and to continue to hold possession thereof until A the debt is paid or in the alternative and in addition to such possession for leave to sell the assets mortgaged under the bond.

The contention, on behalf of the respondent, is that although by reason of the cession the respondent stepped into the shoes of the appellant B vis-à-vis Guman there is still an interest remaining which the appellant has, namely the 'bare dominium' to Guman's rights to the stand and this, so the contention runs, is an interest, however small, which can be sold. Reliance for this contention is placed upon the case of National Bank of South Africa Ltd v Cohen's Trustees, 1911 AD 235, in which it was held that where a policy had been ceded in securitatem C debiti and insolvency supervened the trustee had the right to claim the proceeds of the policy and not the creditor. The contention, on behalf of the appellant, is that this application has been misconceived. The respondent, so the contention runs, should have proceeded against Guman as there was no remaining interest in the stand which vested in the D appellant. It is true that the cession under consideration in this case is not an out-and-out cession but one in securitatem debiti and the contractual position is similar to that in the case of a pledge. If...