Engen Petroleum Limited v Macla Commodities (Pty) Ltd and Others (130797/2023) [2025] ZAGPJHC 1334 (9 July 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1334 | Noteup | LawCite sino index ## Engen Petroleum Limited v Macla Commodities (Pty) Ltd and Others (130797/2023) [2025] ZAGPJHC 1334 (9 July 2025) Engen Petroleum Limited v Macla Commodities (Pty) Ltd and Others (130797/2023) [2025] ZAGPJHC 1334 (9 July 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1334.html sino date 9 July 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG Case Number: 130797/2023 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: NO 09/07/2025_ In the matter between: ENGEN PETROLEUM LIMITED First Applicant and MACLA COMMODITIES (PTY) LTD First Respondent THEODOR WILHELM VAN DER HEERVER N.O Second Respondent duly appointed business rescue practitioner of TRADEWITH 55 (PTY) LTD (Registration number: 2013/125243/07) DANIEL TERBLANCHE N.O Third Respondent the duly appointed business rescue practitioner of TRADEWITH 55 (PTY) LTD (Registration number: 2013/125243/07) Neutral Citation:  Delivered : By transmission to the parties via email and uploading onto Case Lines the Judgment is deemed to be delivered. JUDGMENT SENYATSI J Introduction [1] This is an opposed application for payment of a book debt that the applicant claims it is owed. The basis of the claim is that the debt arises from the books of Tradewith 55 (Pty) Ltd (in business rescue) (“Tradewith”). No relief is sought against the second and the third respondents, the business rescue practitioners of Tradewith and no relief is sought against the latter. They are cited as the parties who may have interest in the litigation. Background [2] The applicant conducts its business as seller of fuel and related products. It avers that it supplied fuel and related products to Tradewith. Tradewith provided the applicant with a cession of book debts as security for the due fulfilment of, among other things, its payments obligations towards the applicant, in respect of fuel sold and delivered. Tradewith was placed into business rescue by an order of court on 4 May 2023. At the time of being placed into business rescue, Tradewith was indebted to the applicant in the sum of R169 million. [3] The applicant avers that the first respondent is one of Tradewith’s debtors and that it is indebted to Tradewith in the sum of R141 719.72 which is it claiming from the first respondent in terms of the cession of book debts. [4] The applicant states that it has for a few years supplied Tradewith with petroleum products and concluded a Reseller Agreement with Tradewith in terms of which the latter would resell the petroleum products to its customers which included the first respondent. [5] The cession of book debts agreement with Tradewith was concluded in Nelspruit during 7 August 2015. Although the applicant commenced the collection of its book debts prior to Tradewith being place into business rescue, so it avers, Tradewith still remains significantly indebted to it post business rescue.  The entire book debt of Tradewith was called up by the applicant through its attorneys on 23 April 2023 due to the default in payments by Tradewith. A further letter of demand was sent to the first respondent for R219 315 .53 which the applicant avers was reflected in the Tradewith book debt’s age analysis. The debt was reduced by the first respondent and reflected in the books of Tradewith the balance of R141 719.72 which amount is the subject of the litigation before this court. The respondent was notified of the cession of book debt through a demand letter on 19 April 2023. Consequently, so avers the applicant, the first respondent was aware of the existence of the cession. [6] The first respondent disputes the demand for payment on several grounds. Frist, it contends that there is no prima facie case made of the amount owed because the applicant relies on inadmissible hearsay evidence. It contends that the applicant does not know the workings between Tradewith and the first respondent. The first respondent argues that it ordered 10 000 litres of diesel on 12 April 2023 but was told by Tradewith that it should hold back the payment and only pay once it received the diesel. It contends that it could not and did not collect the diesel and for that reason, it claims that it does not owe the amount claimed. [7] Secondly, the first respondent contends that no prima facie case has been made against it that it owes the amount alleged. It contends therefore that the collection is in violation of section 133 of the Companies Act, 2008 . [8] Thirdly, the applicant has failed to obtain the consent of the joint business rescue practitioners to collect the debt which belongs to Tradewith and that the collection amount to preferential treatment of the applicant against the general body of creditors of Tradewith. [9] In reply to the controversies raised by the first respondent, the applicant firstly persists that it is owed the amount claimed and produced the documentary record of the collection of the diesel from Tradewith by the first respondent through Pieter. The record shows that Pieter collected the diesel between the 14 th to the 17 th of April 2023. The applicant also produced the record of the consent granted to it by the joint business rescue practitioners on the basis that the enforcement of the cession of book debts was done in April 2023 before Tradewith went into business rescue in May 2023. [10] The applicant filed its replying affidavit late, that is, six weeks after the period permitted by the rules of this court and seeks condonation for the late filing thereof. This is dealt with in the replying affidavit. The applicant contends on the issue of condonation that it sought through its attorneys, an indulgence to deal with the defences raised by the first respondent relating to the non-delivery of the diesel. The first respondent’s attorneys, so contends the applicant, did not take issue with the request. It states that as soon as the records of Tradewith were made available to it, it provided the replying affidavit. The issues for determination [11] The issues for determination are firstly, whether the applicant has made out a case relating to condonation for the late filing of the replying affidavit; secondly it must be determined whether on merits, the case has been made to prove and enforce the payment of debt against the respondent on the basis of an enforcement of its cession of book debts in sucuritatem debiti to be able to recover against the first respondent. Thirdly, it needs to be determined whether the defence raised by the first respondent that the applicant relies on the alleged inadmissible hearsay evidence is sustainable under these circumstances. Fourthly, whether the alleged failure to obtain the statutory consent of the joint business rescue practitioners is sustainable under the circumstances. The legal principles and reasons Condonation of the late filing [12] The filing of the replying affidavit in the motion proceeding is regulated by Rule 6(5) of the Uniform Rules which requires the applicant to file its replying the within 10 days of receipt of the answering affidavit from the respondent. It is common course that the applicant filed its replying affidavit out of time, in fact, it was late by almost two months but that this was after the respondent granted the applicant to file the replying affidavit out of time. [13] In the absence of an agreement between the parties for indulgence to file the replying sworn statement within the prescribed time frame, Rule 27(1) applies. This Rule provides that in the absence of agreement between the parties, the court may upon application on notice and good cause shown, make an order extending or abridging any time prescribed by these rules or by an order of court or fixed by an order extending or abridging any time for doing any act or taking step in connection with any proceedings of any nature whatsoever upon such terms as to it seems meet. There is no time bar within which condonation can be applied for and the court has a discretion to grant or refuse condonation of late compliance with the procedural requirements. [14] It is trite that an application for condonation is required to be made as soon as the party concerned realises that the rules have not been complied with. [1] Negligence on the part of a litigant’s attorney will not necessarily exonerate the litigant. [2] In Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein, and Others [3] , Hoexter JA referred to the following: “ Oft-repeated judicial warning that there is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence, or the insufficiency of the explanation tendered”. [15] In as much as an applicant for condonation is seeking an indulgence from the court, he is required to give a full and satisfactory explanation for whatever delays have occurred. [4] [16] In Silber v Ozen Wholesalers (Pty) Ltd [5] Schreiner JA said in relation to procedural relief: “ The meaning of “good cause” in the present sub-rule, like that of the practically synonymous expression ‘sufficient cause’ which was considered by this Court in Cairn’s Executors v Gaarn , 1912 A.D. 181 , should not lightly be made the subject of further definition. For to do so may inconveniently interfere with the application of the provision to cases not at present in contemplation. There are many decisions in which the same or similar expressions have been applied in the granting or refusal of different kinds of procedural relief. It is enough for present purposes to say that the defendant must at least furnish an explanation of his default sufficiently full to enable the Court to understand how it really came about, and to assess his conduct and motives.” Good cause usually comprehends the prospects of success on the merits of a case, for obvious reasons. [6] [17] It has often been stated by our courts that the rules are there for the court and not the court for the rules. This means that compliance with the rule is not required for its own sake, but to prevent prejudice to the other party. Therefore, procedural objections can only be entertained where they demonstrate genuine prejudice to the objecting party. A party may not object, for the sake of objection or to obtain a delay or some tactical advantage. Rule 30and 30A both require the objecting party to show genuine prejudice which arises from the non-compliance complained of. [18] “ Prejudice”, in this context does not refer to a party being unable to address the matters raised on their merits- it relates to prejudice in the preparation of the that party’s case. In Trans-African Insurance Co Ltd v Maluleka [7] , which was followed in Life Healthcare Group (Pty) Ltd v Mdladla and Another [8] and followed recently in N v N [9] the court said the following: “ No doubt parties and their legal advisers should not be encouraged to become slack in the observance of the rules, which are an important element in the administration of justice. But on the other hand technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.” This court agrees and states more importantly, that each case must be determined on its own facts. [19] The applicant stated that on receipt of the answering affidavit from the respondent, it had to obtain information from Tradewith to deal with the averments made by the respondent to enable it to reply thereto. It contends that no prejudice was suffered by the respondent because of filing the replying affidavit out of the timelines provided by the rules. [20] Our Constitutional Court has held that the standard for considering an application for condonation is the interests of justice. [10] Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case.  Factors that are relevant to this enquiry include but are not limited to the nature of the relief sought, the extent and cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation for the delay, the importance of the issue to be raised in the intended appeal and the prospects of success. [21] In its reply, the respondent raises the issue of non-compliance with rule 6(5). However, what it fails to mention is that its own attorneys had agreed on its behalf to give the indulgence for no compliance with the time limits. This is so because when the request was sent to the respondent’s attorney on 17 th April 2024 for an indulgence to file the replying affidavit out of the timelines provided by the rules, the respondent agreed. There is no evidence that it refused or placed the applicant on terms. The objection was only filed when the replying affidavit was received and there is not submission by the respondent that it suffered prejudice because of the delay. Consequently, the court exercises its discretion in favour of condoning the late filing of the replying affidavit. [22] Having considered the reasons advanced for filing the replying affidavit out of time as well as the authorities quoted above, I am of the view that it is in the interest of justice to allow the condonation under the circumstances of this case. I am fortified with this view, because no prejudice will be suffered by the respondent if condonation for the late filing of the replying affidavit is allowed. Prima facie case [23] In its opposing affidavit, first the respondent contends that the applicant failed to make out a prima facie case on the ground that it did not allege and prove the agreement and its terms concluded between Tradewith and the first respondent and the fact that the first respondent failed to act in terms of the agreement. [24] The applicant relied on the deed of cession of book debts clause 2 of which provides as follows: “ The Distributor hereby cedes, transfers and makes over to Engen all the Distributor’s right, title and interest in and to the Debts (as defined in clause 2) as a continuing general covering security for the due performance and discharge of every obligation and indebtedness from whatsoever cause and howsoever arising which the Distributor may now or at any time hereafter have toward Engen; and without limiting the generality of the foregoing, whether such indebtedness be a direct, indirect or contingent liability; whether it be matured or not; whether it may be or may have been incurred by the Distributor individually or jointly with others or by any firm in which the Distributor has or holds or may hereafter have or hold any interest; and whether it arises through any acts of suretyship, guarantee, warranty, indemnity or other undertaking signed by the Distributor solely or jointly with others or otherwise .” [25] It is trite that the true character of a cession in securitatem debiti depends on the intention of the parties [11] and the with the wording of the cession being the appropriate point of departure to determine such intention. [12] [26] The first respondent does not dispute the existence of the cession. It states simply that it does not owe the amount claimed because it never received the fuel upon which the claim is based. The denial is dealt with by the applicant which, in amplification of its claim, produced the delivery notes and the documentary proof of the truck driver who collected the fuel on behalf of the first respondent. To contend, as the first respondent does, that the applicant does not have personal knowledge of the dealings between Tradewith and the first respondent, is in my view, unsustainable. I hold this view because cession of book debts is an acceptable commercial reality in our country and is used frequently by lenders and entities that sell goods and services on credit. Accordingly, this court holds the view that the applicant has established a prima facie case. Failure to obtain the consent of the business rescue practitioner or leave of court [27] The first respondent raises a point that because book debts are the assets of Tradewith and that because the latter is in business rescue, the consent of the business rescue practitioner and by implication, leave of court ought to have been obtained before litigation commenced to enforce the cession of book debt against the first respondent as provided in section 133(1) of Companies Act, 2008 (the Act). [28] Section 133 of the Act contains a general moratorium on legal proceedings against a company in business rescue.  Sub-section (1) is the provision in issue.  It provides that during business rescue proceedings no legal proceedings (including enforcement action) against a company [13] may be “ commenced or proceeded with” in any forum, except with the written consent of the business rescue practitioner [14] or with the leave of the court, in accordance with such terms as the court may deem “ suitable” . [15] There are certain proceedings which are expressly exempt from such consent or leave. [16] But as none of these are of relevance or application to this matter, this aspect requires no further discussion. [29] The contention by the first respondent that action against the third respondent for the enforcement of the cession of the book debts without the consent of the business rescue practitioner. The contention is not sustainable for the reasons set out herein. Firstly, the action is not against Tradewith but a third party whose debt to Tradewith has been ceded in terms of the deed of cession of book debts. Secondly, the enforcement thereof was done before Tradewith went into business rescue in May 2023. The enforcement was done in April 2023. Thirdly and most importantly, the business rescue practitioner has indicated in their letter dated 23 March 2024 that he has no objection with the enforcement of the cession of debt because the debt was called up before Tradewith was put into the business rescue. [30] I need to also deal with the contention that the applicant did not make out a case in its founding papers and that its application must be dismissed on that basis. It is true that in motion proceedings, the applicant must make out a case in its founding affidavit. [17] It is also our law that a case should not be made in the replying affidavit. [18] [31] The first respondent contends that the application is based on specific performance and that it ought to have alleged and prove in its papers the requirements for specific performance. It contends that because the applicant has failed to refer to the requirements for specific performance, the application should be dismissed on that basis. [32] The claim based on cession of book debts is not unique in our law. In Engen Petroleum Ltd v Flotank Transport (Pty) Ltd [19] the court was concerned with the interpretation of the deed of cession of book debts that sought to be enforced by Engen against Flotank. Flotank had paid was owed to cedent of the book debt after having been notified that it needed to pay Engen instead of Windshap which had ceded all its book debts to Engen. The high court in the Northen Cape had dismissed the enforcement of the cession of book debt by Engen against Flotank. After consideration of the principles regarding the interpretation of the cession on whether it was an out-and-out cession or cession in securitatem debiti , the Supreme Court of Appeal held that Flotank was indebted to Engen and ordered it to pay the various amount claimed. [33] Having considered the authority on the enforcement of the cession of book debts, this court is of the view that there is not justifiable ground to depart from the Flotank decision. This is so because contrary to the contention that the applicant in this case failed to make out a case in its founding papers and attempted to make out a case in the replying affidavit, the applicant amplified its case based on the answering affidavit and explained why it contended that the amount was due to it by the first respondent. Consequently, the contention that the applicant’s case is based on hearsay evidence must fail. I hold this view because it would not be in the interest of justice under the circumstances of this case to hold that the cession of book debts cannot be enforced against the first respondent. Commercial transactions concluded by the parties should find favour with our courts when the circumstances of the case permit. This is one such case where the court cannot hold otherwise. Consequently, the contention raised by the first respondent must therefore fail. [34] I need to consider the argument that the amount claimed falls below the jurisdiction of the Regional Court of R200 000 and the matter should be dismissed on that ground. It is settled in our law that the High Court has concurrent jurisdiction with the lower courts. Accordingly, this contention must fail. [35] In conclusion, the court is of the view that the applicant has made out a case. Order [36] Having considered the papers, the written and oral submissions and the authorities quoted above, the following order is made: [36.1] Condonation of the late filing of the replying affidavit is granted. [36.2] The first respondent is ordered to pay the sum of R141 719.72 plus interest at a prescribed rate from 19 April 2023 to date of payment and, [36.3] The respondent is ordered to pay the costs of suit plus counsel fees at the Scale A. ML SENYATSI JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBUR G DATE APPLICATION HEARD : 14 April 2025 DATE JUDGMENT HANDED DOWN : 09 July 2025 APPEARANCES Counsel for the Applicant: Adv. K Mashishi Instructed by: Mathopo Moshimane Mulangaphuma Inc t/a DM5 Incorporated Counsel for the First Respondent: Adv Tshegofatso Kgomo Instructed by:Andraos & Hatchett I [1] See De Beer en ’n Ander v Western Bank Limited 1981 (4) SA 255 (A) at 257; Rennie v Kamby Farms ( Pty ) Ltd 1989 (2) SA 124 (A) at 129G. [2] Ferreira v Ntshingila 1990 (2) All SA 47 (A) at para 41; See Saloojee and Another , NN.O. v Minister of Community Development 1965 (2) SA 135(A) at 141. [3] 1985 (4) SA 773 (A) at 787G-H. [4] Ferreira v Ntshingila [1990] 2 All SA 47 (A) [5] 1954 (2) SA 345 (A) at 352H-353A [6] See Chetty v Law Society, Transvaal 1985 [2] SA 756 [A] at 765 B­C.] [7] 1956(2) SA 273 (A) [8] (42156/2013); [2013] ZAGPJHC 20(10 February 2014) [9] (A5050/2020); 36343/2014) ZAGPJHC 569 (16 August 2022) ## [10]Van Wyk v Unitas Hospital and Another (CCT 12/07) [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) (6 December 2007) para 20; See alsoS v Mercer[2003] ZACC 22;2004 (2) SA 598(CC);2004 (2) BCLR 109(CC) at para 4; Head of Department, Department of Education, Limpopo Province v Settlers Agricultural High School and Others2003 (11) BCLR 1212(CC) at para 11 and Brummer v Gorfil Brothers Investments (Pty) Ltd and Others[2000] ZACC 3;2000 (2) SA 837(CC);2000 (5) BCLR 465(CC) atpara 3. [10] Van Wyk v Unitas Hospital and Another (CCT 12/07) [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) (6 December 2007) para 20; See also S v Mercer [2003] ZACC 22 ; 2004 (2) SA 598 (CC); 2004 (2) BCLR 109 (CC) at para 4; Head of Department, Department of Education, Limpopo Province v Settlers Agricultural High School and Others 2003 (11) BCLR 1212 (CC) at para 11 and Brummer v Gorfil Brothers Investments (Pty) Ltd and Others [2000] ZACC 3 ; 2000 (2) SA 837 (CC); 2000 (5) BCLR 465 (CC) at para 3. [11] Grobler v Oosthuizen [2009] ZASCA 51 ; 2009 (5) SA 500 (SCA) ( Grobler ) para 11; Thorogood v Hoare 1930 EDL 354 ; Fisher v Schlemmer 1962 4 SA 651 (T); Nahrungsmittel GmbH v Otto [1992]   ZASCA 228 ; 1993 1 SA 639 (A); African Consolidated Agencies (Pty) Ltd v Siemens Nixdorf Information Systems (Pty) Ltd 1992 (2) SA 739 (C) at 744. [12] Grobler p ara 11. [13] S 133(1) [14] S133(1)(a) [15] S 133 (b) [16] S133(c-e) [17] Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635H-636B [18] SA Railways Recreation Club and Another v Gordonia Liquor Licensing Board 1953 (3) SA 256 (Cat 260A-D [19] [2022] ZASCA 98 sino noindex make_database footer start