Cecil Nurse (Pty) Ltd v Nkola (176/2006) [2007] ZASCA 154; [2007] SCA 154 (RSA); [2008] 1 All SA 428 (SCA); 2008 (2) SA 441 (SCA) (28 November 2007)

Cecil Nurse (Pty) Ltd v Nkola (176/2006) [2007] ZASCA 154; [2007] SCA 154 (RSA); [2008] 1 All SA 428 (SCA); 2008 (2) SA 441 (SCA) (28 November 2007)

The Supreme Court of Appeal held that the original suretyship agreement, duly signed and presented by the respondent, created a binding contract of suretyship for all present and future obligations of FMMC to the appellant. The respondent's subsequent amendments constituted no more than a proposal for variation, which required the appellant's written consent under clause 6 of the agreement. There was no evidence of such written consent, and the appellant's representatives with authority denied any agreement to the amendments. Lindsay's letter did not constitute consent and was sent before the amended document was faxed. The respondent failed to discharge the onus of proving that the...

Citation
[2007] ZASCA 154
Parties
Appellant: Cecil Nurse (Pty) Ltd; Respondent: Bongile Nkola
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 November 2007
Case Number
176/2006
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal upheld with costs, including costs of two counsel. The order of the court below is set aside and substituted with dismissal of the respondent's appeal with costs.
Judges
Scott, Van Heerden, Maya
Legal Topics
Suretyship, Contractual Variation, Burden of Proof, Written Agreement Requirement
Commercial and Corporate Civil Procedure Suretyship Contractual Variation Burden of Proof Written Agreement Requirement

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 8 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Cecil Nurse (Pty) Ltd

Appellant

Bongile Nkola

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the respondent's liability as surety was governed by the original or amended suretyship agreement.
  2. 2 Whether the appellant consented in writing to the amendments limiting the respondent's liability.
  3. 3 Whether the appellant discharged the onus of proving the terms of the contract relied upon.

Ratio Decidendi

The Supreme Court of Appeal held that the original suretyship agreement, duly signed and presented by the respondent, created a binding contract of suretyship for all present and future obligations of FMMC to the appellant. The respondent's subsequent amendments constituted no more than a proposal for variation, which required the appellant's written consent under clause 6 of the agreement. There was no evidence of such written consent, and the appellant's representatives with authority denied any agreement to the amendments. Lindsay's letter did not constitute consent and was sent before the amended document was faxed. The respondent failed to discharge the onus of proving that the...

Court Disposition

Appeal upheld with costs, including costs of two counsel. The order of the court below is set aside and substituted with dismissal of the respondent's appeal with costs.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the court below is set aside.