Onverskuldigde betaling na vermeende sessie van’n breukdeel van die vorderingsregte ingevolge’n lewensversekering – talle vrae en weinig antwoorde – aberratio ictus

In principle, the cession of a portion of a debt (also referred to as a splitting of claims) is invalid: “In my opinion the cession of part of a debt is, without the consent of the debtor, invalid” (Spies v Hansford and Hansford Ltd 1 40 TPD 1 . This principle is quali¿ed only in those instances where the parties to the intended cession had acquired the prior co-operation of the debtor who had to consent to such a splitting of claims before the cession was completed. In the absence of the fulfilment of this requirement, such perceived splitting is invalid. This means that a personal right arising from one cause of action cannot be divided and ceded to different cessionaries. The cessionary completely steps into the shoes of the cedent and not partly into one shoe – and then with only two toes. The judgment in Johannes TH van Niekerk v Liberty Group Limited ((1392/18) 2020 ZASCA 65 (15 June 2020)), however, leaves the impression that this rule had not received the necessary attention. The parties to the underlying contract for borrowing money signed a document intended to contain a cession, according to which a part (ca 25%) of the ultimate value of the policyholder’s claim against the insurer, was supposedly ceded as security for the lender’s claim against the borrower for the credit received. Neither the contract nor the judgment is clear on what exactly was agreed to, ie whether it was an out-and-out cession of the policyholder’s claim founded on the life-insurance policy taken out on the life of his aging mother, or whether it was “merely” a so-called pledge-construction form of security. The judgment is silent on whether the underlying claim was already due and payable. No evidence was produced to indicate the terms of the underlying credit agreement, but the perceived cedent as debtor throughout maintained that it was not yet due. If the cession were to be interpreted, according to the supreme court of appeal, as a pledge-constructed security cession, the pledgee is not entitled to exercise any entitlements regarding the pledged claim before the underlying claim is due and not met. The cessionary cannot enforce the right until the cedent is in default with the secured debt.