Durity Alpha (Pty) Ltd. v Vagg (498/89) [1991] ZASCA 20; 1991 (2) SA 840 (AD); [1991] 2 All SA 146 (A) (21 March 1991)

Durity Alpha (Pty) Ltd. v Vagg (498/89) [1991] ZASCA 20; 1991 (2) SA 840 (AD); [1991] 2 All SA 146 (A) (21 March 1991)

The court held that Durity Alpha failed to discharge the onus of proving that, at the time the debtor incurred the debt, the seller was acting as Durity's agent. The written agreement (exh G) was signed after the relevant date and there was no evidence of an express or tacit agency contract in force when the debt arose. The failure to call Trusler, who signed the agreement on behalf of both parties, was fatal to Durity's case. The court found that the evidence did not support the existence of an agency relationship or a valid suretyship covering the debt, and thus the magistrate's decision in favour of Vagg was correct.

Citation
[1991] ZASCA 20
Parties
Appellant: Durity Alpha (Proprietary) Limited; Respondent: W A Vagg
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 March 1991
Case Number
498/89
Procedural Posture
Civil Appeal / Appeal From the Natal Provincial Division, Following Judgment in the Magistrate's Court for Durban.
Outcome
Appeal dismissed with costs, including costs of the application for leave to appeal.
Judges
Hoexter, Smalberger, Milne, Steyn, Kumleben
Legal Topics
Suretyship, Agency, Tacit Contract, Double Representation
Commercial and Corporate Civil Procedure Suretyship Agency Tacit Contract Double Representation

Case Brief

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Parties

Durity Alpha (Proprietary) Limited

Appellant

W A Vagg

Respondent

Procedural Posture

Civil Appeal / Appeal From the Natal Provincial Division, Following Judgment in the Magistrate's Court for Durban.

Legal Issues

  1. 1 Whether Durity Alpha (Pty) Ltd. was entitled to rely on the deed of suretyship signed by Vagg.
  2. 2 Whether the seller acted as agent for Durity at the time the debtor incurred the debt.
  3. 3 Whether a tacit contract of agency existed between Durity and the seller at the relevant time.

Ratio Decidendi

The court held that Durity Alpha failed to discharge the onus of proving that, at the time the debtor incurred the debt, the seller was acting as Durity's agent. The written agreement (exh G) was signed after the relevant date and there was no evidence of an express or tacit agency contract in force when the debt arose. The failure to call Trusler, who signed the agreement on behalf of both parties, was fatal to Durity's case. The court found that the evidence did not support the existence of an agency relationship or a valid suretyship covering the debt, and thus the magistrate's decision in favour of Vagg was correct.

Court Disposition

Appeal dismissed with costs, including costs of the application for leave to appeal.

Orders

  • The appeal is dismissed with costs, including the costs of the application for leave to appeal.