Du Toit en 'n Ander v Barclays Nasionale Bank Bpk. (53/1983) [1984] ZASCA 148; [1985] 3 All SA 326 (AD) (28 November 1984)

Du Toit en 'n Ander v Barclays Nasionale Bank Bpk. (53/1983) [1984] ZASCA 148; [1985] 3 All SA 326 (AD) (28 November 1984)

The court held that the debts under the suretyship agreements had not prescribed, as the agreements covered future debts and the overdraft account fluctuated with payments and advances. The description of the principal debtor as 'Hugo Amos du Toit and/or Goedemoed Boerderye' was sufficiently certain, and the use of 'and/or' did not render the agreements invalid. The court found no evidence of misrepresentation or non-disclosure by the bank, accepting the trial judge's credibility findings that Du Toit was aware of what she signed. Roux's argument that he stood surety for his own debt failed, as the partnership account was never opened and he did not become a principal debtor. The court...

Citation
[1984] ZASCA 148
Parties
Appellant: Carolina Maria Du Toit; Appellant: Daniël Gerhardus Roux; Respondent: Barclays Nasionale Bank Beperk
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 November 1984
Case Number
53/1983
Procedural Posture
Civil Appeal / Appeal From the Provincial Division, Cape of Good Hope
Outcome
The appeal is dismissed. Each appellant is ordered to pay half of the costs of the appeal.
Judges
Rabie, Botha, Hefer, Wessels, Smalberger
Legal Topics
Suretyship, Prescription Act, Contractual Interpretation, Misrepresentation, Identity of Principal Debtor
Commercial and Corporate Civil Procedure Suretyship Prescription Act Contractual Interpretation Misrepresentation Identity of Principal Debtor

Case Brief

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Parties

Carolina Maria Du Toit

Appellant

Daniël Gerhardus Roux

Appellant

Barclays Nasionale Bank Beperk

Respondent

Procedural Posture

Civil Appeal / Appeal From the Provincial Division, Cape of Good Hope

Legal Issues

  1. 1 Whether the debts claimed under the suretyship agreements had prescribed under the Prescription Act.
  2. 2 Whether the description of the principal debtor in the suretyship agreements rendered them invalid under section 6 of the General Law Amendment Act.
  3. 3 Whether the suretyship agreements were void due to alleged misrepresentation or non-disclosure by the bank.

Ratio Decidendi

The court held that the debts under the suretyship agreements had not prescribed, as the agreements covered future debts and the overdraft account fluctuated with payments and advances. The description of the principal debtor as 'Hugo Amos du Toit and/or Goedemoed Boerderye' was sufficiently certain, and the use of 'and/or' did not render the agreements invalid. The court found no evidence of misrepresentation or non-disclosure by the bank, accepting the trial judge's credibility findings that Du Toit was aware of what she signed. Roux's argument that he stood surety for his own debt failed, as the partnership account was never opened and he did not become a principal debtor. The court...

Court Disposition

The appeal is dismissed. Each appellant is ordered to pay half of the costs of the appeal.

Orders

  • The appeal is dismissed.
  • Each appellant shall pay one half of the costs of the appeal.