HELD Sample Clauses
HELD. The Court held that:
HELD allowing the appeal and awarding costs to the appellant in the High Court and in the appeal: Contractual provisions
HELD. The use of the process of judicial review as a means of enforcing judgment was a complete abuse of process.
HELD. The court, referring to clause 3.2 of the MRA, stated that, as per the party’s consensus, the agreement would terminate upon the expiry of the specified rental period. The agreement provided for a minimum rental period of 12 quarters, commencing on 3 December 2013 and terminating on 30 November 2016 (or, at the latest, 2 December 2016). If the court had given effect to the applicant’s contention, then the minimum rental period would have been extended for a further 3 months and terminate on 28 February 2017, thereby constituting almost 13 quarters, as opposed to the agreed 12 quarters. The court stated that giving effect to the applicant’s contention would lead to absurdity. The MRA contained an express provision to the effect that the agreement would terminate after 12 quarters. The court therefore rejected the applicant’s contention that the agreement should constitute almost 13 quarters as this was not the intention of the parties when entering into the agreement. The applicant, in responding to the court’s submissions, argued that the contract period would still be for express 12 quarters and that the interregnum period would be in addition thereto. The court disagreed with the applicant, stating that the applicant’s interpretation of the agreement would lead to an outcome whereby the interregnum rental would be treated as extraneous to the quarterly payments, the effect of which would be to ignore the express wording of clause 3.2, specifying that the rental period would be for 12 quarters commencing on the commencement date. The court, in agreeing with counsel for the respondent, stated that the first payment made by the respondent constituted a quarterly payment, but was adjusted as the period involved was shorter than a quarter. This interpretation was held to be consistent with clause 4.1 of the agreement, which did not distinguish between the first rental payable on the commencement date and the subsequent rentals payable on the rental due date. The applicant responded to the courts averments by arguing that it would lead to absurdity if the commencement date was a matter of days before the rental due date, thus shortening the minimum rental period to just over 11 quarters. The agreement made no provisions for a shortfall of the rental period of 12 quarters. The court suggested that a tacit term be inserted, to the effect that the rental period be extended in order to make up any shortfall, and that a proportionate rental be calculated and paid a...
HELD. There is no evidence that the Applicant had a lifelong usufrutus that she could retain and it is not clear that by the insertion of such a provision the parties understood what the right was.
HELD. The term “charge” is not defined in the Act. Nevertheless, taking into account the Act’s overall objectives of consumer protection against hidden costs, the parties are required to quantify the charge and specify the manner in which it is to be paid when they determine their contractual terms and conclude the credit agreement. However, the profit shares, as envisioned by the parties, had no fixed repayment date, were not guaranteed and ran the possibility of not eventuating. Furthermore, as the amount was to be determined by the Appellant at his sole discretion, the profit share also failed to meet the requirement of fixed quantification. Thus, said profit share did not qualify as a charge under the Act. As a result, the loans did not amount to credit agreements, in terms of Section 8(1) of the Act, as no charges were attached to them. As such, the Respondent was not required to register as a credit provider. The Court upheld the decision of the court a quo, holding that the cheques in repayment of a loan are exempted from the operation of the Act and that the Respondent was entitled to invoke the provisional sentence procedure to enforce his claims.
HELD. The SCA, in determining whether sureties who also bound themselves as co-principal debtors, such as the Respondent, became co-debtors with the principal debtor (ECE), rejected the Appellant’s contentions and held that a surety and co-principal debtor does not undertake a separate independent liability as a principal debtor. The addition of the words ‘co-principal debtor’ does not change such an agreement into any agreement other than one of Suretyship. The surety does not become a co-debtor with the principal debtor, nor does he become a co-debtor with any of the co-sureties and co-principal debtors, unless same has been agreed to by the respective parties. The SCA, in determining whether the service of a summons on any of the sureties interrupts the running of prescription in favor of the others, too rejected the Appellant’s argument in this regard, and held that if it were to extend the Justinian constitution, same would constitute a considerable departure from the common law principles on the law of suretyship, and there were no persuasive reasons for the SCA to have done so. Moreover, if the principal debt became prescribed, the surety’s debt, by virtue of same, had too prescribed. As such, the SCA dismissed the appeal with costs.
HELD. Reference to Section 14 of the Act was made, which deals with, inter alia, prescription being interrupted by an acknowledgement of liability by the defendant (that is, where the Defendant makes part payment of the debt). For purposes of trial and determining whether prescription had arisen, the parties agreed that the period for prescription would be 3 years.
HELD. The sale of the house at a profit a prerequisite for all further property clauses.