A B and Another v Pridwin Preparatory School and Others (1134 of 2017) [2018] ZASCA 150 (1 November 2018)

Companies Act 71 of 2008 – whether special fee for remuneration
of business rescue practitioner outside of s 143 prohibited – special fee agreed
with creditor of company under business rescue – whether void for illegality
or contrary to public policy – business rescue practitioner’s duties under ss 75
and 76 considered.

The enforcement of terms of lease agreements leading to their termination was not contrary to public policy as being unconscionable in the particular circumstances of the case.

Contract – agreement not to sue – pactum de non petendo anticipando – enforcement thereof not against public policy.

Usurious transactions – what constitutes – common law requirement of extortion, oppression, or something akin to fraud – judicial power to refuse enforcement of contractual provisions that are against public policy

Leave to appeal – section 17 of Superior Courts Act 10 of 2013 – the threshold for leave to appeal – refusal of.

Civil Procedure – Appeal – implementation of appealed order – section 18(3) of Superior Courts Act 10 of 2013.

Practice and procedure – special leave to appeal – refusal by two
judges of the Supreme Court of Appeal (SCA) – s 17(2)(f) of the Superior Courts Act 10 of 2013 – referral of order refusing special leave to court for reconsideration and, if necessary, variation.
Appeal – application for special leave to appeal to the SCA – requirements for grant thereof – test not satisfied by establishing existence of only reasonable prospects of success but existence of special circumstances also required. Contract – enforcement of – general rule that contracts enforceable unless enforcement unconscionable or contrary to public policy.

Special leave to appeal – law of contract – enforcement of provision in loan agreement – failure to pay all rates, taxes, water and electricity charges (municipal charges) in respect of the immovable property constituting an event of default – whether the enforcement of provision in loan agreement between first applicant and respondent to accelerate payment and to execute against first applicant’s immovable property based upon its failure to pay municipal charges would be unconscionable and contrary to public policy.

Loan and royalty agreements arising from loan; whether interest disguised as royalty; whether royalty agreement contra bonos mores; whether in duplum rule applies.

Contract law – whether the eviction order was properly granted – whether the respondents had a right to cancel the lease agreement – whether their conduct amounted to repudiation of the agreement – whether court should have developed the common law in accordance with constitutional norms and values to refuse the eviction.