ABSA Bank Ltd v T I Vermaak Trust and Others (CA151/2006 , 50/2006) [2006] ZAECHC 59 (3 November 2006)

ABSA Bank Ltd v T I Vermaak Trust and Others (CA151/2006 , 50/2006) [2006] ZAECHC 59 (3 November 2006)

The magistrate erred in placing the onus on the appellant to prove that the respondent was not misled regarding the deed of suretyship. The correct legal position is that the respondent, who alleges a defence to enforcement of the contract, bears the burden of proof. The evidence did not establish any recognised defence, and the respondent was aware he was signing a deed of suretyship for an unlimited amount. The caveat subscriptor rule binds the respondent to the terms of the document he signed, and the appeal must succeed.

Citation
[2006] ZAECHC 59
Parties
Applicant: ABSA Bank Limited; Respondent: T I Vermaak Trust; Respondent: Sanet Vermaak; Respondent: Johannes Jacobus Blignaut; Respondent: Andries du Toit Vermaak
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
3 November 2006
Case Number
CA151/2006
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court
Outcome
Appeal upheld; judgment of the court below set aside and replaced with judgment in favour of the appellant.
Judges
C. Plasket, B. Sandi
Legal Topics
Suretyship, Burden of Proof, Caveat Subscriptor, Contractual Defences
Civil Procedure Commercial and Corporate Suretyship Burden of Proof Caveat Subscriptor Contractual Defences

Case Brief

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Parties

ABSA Bank Limited

Applicant

T I Vermaak Trust

Respondent

Sanet Vermaak

Respondent

Johannes Jacobus Blignaut

Respondent

Andries du Toit Vermaak

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court

Legal Issues

  1. 1 Whether the respondent was under a misapprehension regarding the deed of suretyship he signed.
  2. 2 Whether the onus of proof rested on the appellant or the respondent regarding the validity of the suretyship.
  3. 3 Whether the magistrate correctly applied the law regarding the burden of proof and the caveat subscriptor rule.

Ratio Decidendi

The magistrate erred in placing the onus on the appellant to prove that the respondent was not misled regarding the deed of suretyship. The correct legal position is that the respondent, who alleges a defence to enforcement of the contract, bears the burden of proof. The evidence did not establish any recognised defence, and the respondent was aware he was signing a deed of suretyship for an unlimited amount. The caveat subscriptor rule binds the respondent to the terms of the document he signed, and the appeal must succeed.

Court Disposition

Appeal upheld; judgment of the court below set aside and replaced with judgment in favour of the appellant.

Orders

  • The appeal succeeds, with costs, and the judgment of the court below is set aside.
  • Judgment is granted against the fourth defendant, jointly and severally with the first, second and third defendants for payment of the sum of R185,642.75.