Deyzel v Fastpulse Trading 461 and Another (2043/09) [2010] ZAWCHC 651 (8 February 2010)

Deyzel v Fastpulse Trading 461 and Another (2043/09) [2010] ZAWCHC 651 (8 February 2010)

The court found that the plaintiff had discharged the onus of proving Mr Searra's second signature and the addition of the words 'as surety' in his own handwriting. Section 54A of the Bills of Exchange Act renders the signer of an aval jointly and severally liable with the principal debtor, and such liability is no longer illiquid, allowing for provisional sentence. The defence of material alteration would only succeed if the words 'as surety' were added after Mr Searra signed, but the affidavits and evidence support the plaintiff's version that Mr Searra knowingly appended the words at the time of signing. The probabilities of success in the principal case favour the plaintiff, and the...

Citation
[2010] ZAWCHC 651
Parties
Plaintiff: Marthinus Johan Deyzel; Defendant: Fastpulse Trading 461 (Pty) Ltd; Defendant: Raymond Paul Searra
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
8 February 2010
Case Number
2043/09
Procedural Posture
Provisional Sentence Application / Final Determination of Provisional Sentence Against Second Defendant
Outcome
Provisional sentence granted against the second defendant for the amount claimed, with interest and costs.
Judges
S Olivier
Legal Topics
Bills of Exchange, Suretyship, Aval Liability, Material Alteration, Provisional Sentence, Beneficium Excussionis
Commercial and Corporate Bills of Exchange Suretyship Aval Liability Material Alteration Provisional Sentence Beneficium Excussionis

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 6 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Marthinus Johan Deyzel

Plaintiff

Fastpulse Trading 461 (Pty) Ltd

Defendant

Raymond Paul Searra

Defendant

Procedural Posture

Provisional Sentence Application / Final Determination of Provisional Sentence Against Second Defendant

Legal Issues

  1. 1 Whether the second defendant, Mr Searra, is liable as surety by virtue of his second signature on the cheque.
  2. 2 Whether the insertion of the words 'as surety' constitutes a material alteration under the Bills of Exchange Act.
  3. 3 Whether provisional sentence may be granted against the second defendant as an aval under section 54A of the Bills of Exchange Act.

Ratio Decidendi

The court found that the plaintiff had discharged the onus of proving Mr Searra's second signature and the addition of the words 'as surety' in his own handwriting. Section 54A of the Bills of Exchange Act renders the signer of an aval jointly and severally liable with the principal debtor, and such liability is no longer illiquid, allowing for provisional sentence. The defence of material alteration would only succeed if the words 'as surety' were added after Mr Searra signed, but the affidavits and evidence support the plaintiff's version that Mr Searra knowingly appended the words at the time of signing. The probabilities of success in the principal case favour the plaintiff, and the...

Court Disposition

Provisional sentence granted against the second defendant for the amount claimed, with interest and costs.

Orders

  • Provisional sentence is granted against the Second Defendant in the amount of R228,000.00 together with interest at 15.5% per annum from 12 November 2008 to date of payment, together with costs.