Demata Trans just wanted to buy some trucks. The seller sent an invoice with banking details. A fraudster changed the banking details on the invoice from the seller’s details to the details of one Anelisa Mboto. Demata Trans ends up paying R2 million to her instead of the seller. Mboto transfers the loot to a bank account operated by crypto exchange Altcoin. Altcoin allocates the funds to Mboto’s Altcoin accounts, and she lets loose on the brave new world of bitcoin and ethereum. Demata Trans gets an interim preservation order over the Altcoin accounts. Some of the R2 million has disappeared in the ether [that’s a crypto joke], but some still survives in Rand and in crypto. Demata Trans sues Altcoin and Mboto. Demata Trans’s first claim is under the actio ad exhibendum, which is a life sentence in Azkaban a property owner’s delictual claim against a thief or bad faith possessor for wrongful disposal, consumption, or destruction of property (or conversion, as the English call it). Altcoin: but that’s no good here because this is all electronic credits and debits and newfangled crypto, not corporeal property. Gauteng Division, Johannesburg: substance over form, so Demata Trans just needs to show “preserved assets” that “remain subject to a proprietary claim recognized by law.” [Your summarist wonders, though, if this conflates a delictual claim for the value of disposed, consumed, or destroyed property under the actio ad exhibendum and a proprietary claim under the rei vindicatio]. Court: also the SCA held in Nissan that “the ordinary incidents of banking cannot deprive a victim of theft or fraud of an otherwise valid proprietary remedy.” [Your summarist notes that Nissan is probably the hardest case in the law reports—dedicated readers may seek enlightenment from the oracle, Helen Scott—but Nissan is definitely not a case about a proprietary remedy; it is about a personal remedy in unjustified enrichment that arises precisely because the bank owns money deposited into banks accounts (including into a thief’s account), so there is no rei vindicatio but the thief has no personal claim to the funds in his account, so the bank is enriched]. Court: Demata Trans has a claim to recover the Rand and crypto in the accounts, based on a claim that is in “substance … proprietary”. [Your summarist sighs]. Court: but Demata Trans has no claim for the balance of the R2 million because it does not make out a case in delict.

I scream, you scream, we all scream for a strict standard of review under the Arbitration Act. The appellant opens a franchised Paul’s Homemade Ice Cream shop in Menlyn. The franchise agreement with Paul’s has a restraint of trade and an arbitration clause. The appellant starts a competing business. Paul’s sues. The appellant’s argument that Paul’s should have arbitrated is upheld. They go to arbitration. Uno reverse! The appellant objects to the arbitrator’s jurisdiction based on section 52 of the Consumer Protection Act (“[p]owers of court to ensure fair and just conduct, terms and conditions”). The arbitrator dismisses the objection and makes an award for Paul’s. Paul’s applies to enforce the award. The appellant gets a stay pending its application to declare the arbitration clause void for contravening the Consumer Protection Act. Gauteng High Court, Pretoria: section 52 bites only if other remedies in the Act are insufficient, and there’s no reason why an arbitrator cannot decide that question (and, in any event, the appellant did not properly plead its objection to jurisdiction in the arbitration). Also, the arbitration clause binds a surety, so sureties beware.

Haasfontein, a commercial farm, concludes credit agreements with Unigro. As security, Unigro requires a life insurance policy over Bezuidenhout, Haasfontein’s director, and a cession of crop proceeds. Unigro cedes its rights under the credit agreements, including the security, to the Land Bank. Haasfontein defaults. After negotiations, the Land Bank issues “guarantee requirements”, and the “guarantee amount” is later paid. Haasfontein argues that payment of the guarantee amount extinguished the underlying debt. Gauteng Division, Pretoria: properly interpreted, the guarantee (and payment of the guaranteed amount) did not extinguish the debt (and so the security lives on). But wait there’s more! The life insurance policy says, “[n]o transfer of any rights on a long-term insurance policy (any type of cession) will be allowed unless [the insurer] has been notified in writing of the cession before the occurrence of the risk event.” Bezuidenhout notified the insurer about the cession to Unigro, but Unigro didn’t notify the insurer about the further cession to the Land Bank. Bezuidenhout: no notification, no valid cession. High Court: nope, while the policy requires notification before cession, the policy does not clearly require notification as a condition for validity of the cession.

From England, your summarist’s most favourite topic: private international law. Like under South African law, a foreign money judgment is not directly enforceable in England (at least not under common law). Instead, a claimant can sue on the foreign judgment as a debt. But can a foreign judgment be the basis for a bankruptcy petition? Under s.268 of the Insolvency Act, a debtor is deemed to be unable to pay his debts if the creditor serves a demand for payment of a debt and the debtor does not pay (like a sequestration equivalent of s.345(1)(a) of the 1973 Companies Act). Court of Appeal: a foreign judgment is not that kind of “debt” because a foreign judgment has no direct operation in England, so it cannot be a basis for a bankruptcy petition. Supreme Court: wrong, a foreign judgment is a debt and it can be the basis for a bankruptcy petition because a foreign judgment is, to English eyes, an obligation to pay like any other obligation (and the rule that a foreign judgment has no direct operation just means that you can’t execute on the foreign judgment without more).

And more from England, a good summary (at paras 47-49) of the law on that favourite pastime of the English courts: ordering people to stop litigating anywhere else.

And still more from England, it’s only an arbitral award if it comes from the Champagne region in France, otherwise it’s just a sparkling procedural order. A claimant in an arbitration applies for interim measures. The tribunal refuses the application in a procedural order. The claimant appeals under s.68 of the Arbitration Act. Commercial Court: not an award, so no appeal (and PS you fancy silks are real good but please let your juniors argue).

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