Fivaz v ABSA Bank Bpk. (77/97) [1999] ZASCA 81 (10 November 1999)

Fivaz v ABSA Bank Bpk. (77/97) [1999] ZASCA 81 (10 November 1999)

The court found that there was no unequivocal evidence that Volkskas, through Jacobs or otherwise, represented to the appellant that a new lease agreement had already been concluded. The appellant's own testimony did not support such a representation, and Jacobs denied making any such statement. The conduct relied upon by the appellant, namely the acceptance of payment and delivery of the property, was consistent with an interim arrangement and did not amount to a representation releasing the appellant from his suretyship. Accordingly, the appeal could not succeed.

Citation
[1999] ZASCA 81
Parties
Appellant: Philip John Fivaz; Respondent: ABSA Bank Beperk
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
10 November 1999
Case Number
77/97
Procedural Posture
Civil Appeal / Appeal
Outcome
The appeal is dismissed with costs.
Judges
Van Heerden, Vivier, Howie, Scott, Melunsky
Legal Topics
Suretyship, Representation by Conduct, Contractual Release
Commercial and Corporate Suretyship Representation by Conduct Contractual Release

Case Brief

Summary, issues, holding and outcome

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Parties

Philip John Fivaz

Appellant

ABSA Bank Beperk

Respondent

Procedural Posture

Civil Appeal / Appeal

Legal Issues

  1. 1 Whether Volkskas made a representation to the appellant that a new lease agreement had been concluded between McGregor and Volkskas.
  2. 2 Whether the appellant was released from his suretyship obligations by such representation or conduct.
  3. 3 Whether conduct by Volkskas could constitute a representation leading to the appellant's release.

Ratio Decidendi

The court found that there was no unequivocal evidence that Volkskas, through Jacobs or otherwise, represented to the appellant that a new lease agreement had already been concluded. The appellant's own testimony did not support such a representation, and Jacobs denied making any such statement. The conduct relied upon by the appellant, namely the acceptance of payment and delivery of the property, was consistent with an interim arrangement and did not amount to a representation releasing the appellant from his suretyship. Accordingly, the appeal could not succeed.

Court Disposition

The appeal is dismissed with costs.

Orders

  • The appeal is dismissed with costs.