Botha (now Grissel) and Another v Finansredit (Pty) Ltd. (133/87) [1989] ZASCA 56; [1989] 2 All SA 401 (A) (19 May 1989)

Botha (now Grissel) and Another v Finansredit (Pty) Ltd. (133/87) [1989] ZASCA 56; [1989] 2 All SA 401 (A) (19 May 1989)

The Supreme Court of Appeal held that the suretyship agreements complied with the formal requirements of section 6 of the General Law Amendment Act 50 of 1956, as all essential terms were embodied in the written documents signed by the appellants. The challenged clauses, including clause 7, were not contrary to public policy or unconscionable in the commercial context of the parties' dealings. The evidence did not establish any waiver or release of the appellants from their suretyship obligations, as no written consent was given by the respondent as required by the agreements, and administrative errors or internal control sheets could not override the decisions of the credit committee....

Citation
[1989] ZASCA 56
Parties
Appellant: C E Botha (now Griesel); Appellant: Verwoerdburg Beleggings (Pty) Ltd; Respondent: Finanscredit (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
19 May 1989
Case Number
133/87
Procedural Posture
Civil Appeal / Appeal From Transvaal Provincial Division; Judgment Delivered After Hearing on 13 March 1989
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Hoexter, Nestadt, Milne, F H Grosskopf, Nicholas
Legal Topics
Suretyship, Contract Formalities, Public Policy, Waiver of Rights, Conventional Penalties Act, Credit Facilities
Commercial and Corporate Civil Procedure Suretyship Contract Formalities Public Policy Waiver of Rights Conventional Penalties Act Credit Facilities

Case Brief

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Parties

C E Botha (now Griesel)

Appellant

Verwoerdburg Beleggings (Pty) Ltd

Appellant

Finanscredit (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Transvaal Provincial Division; Judgment Delivered After Hearing on 13 March 1989

Legal Issues

  1. 1 Whether the suretyship agreements were void ab initio due to non-compliance with section 6 of the General Law Amendment Act 50 of 1956.
  2. 2 Whether the suretyship agreements or any clauses therein were contrary to public policy or contra bonos mores.
  3. 3 Whether the respondent waived its rights under the suretyship agreements against the appellants.

Ratio Decidendi

The Supreme Court of Appeal held that the suretyship agreements complied with the formal requirements of section 6 of the General Law Amendment Act 50 of 1956, as all essential terms were embodied in the written documents signed by the appellants. The challenged clauses, including clause 7, were not contrary to public policy or unconscionable in the commercial context of the parties' dealings. The evidence did not establish any waiver or release of the appellants from their suretyship obligations, as no written consent was given by the respondent as required by the agreements, and administrative errors or internal control sheets could not override the decisions of the credit committee....

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs consequent upon the employment of two counsel.