Incorprated General Insurance Ltd. v Cement Distributors (South Africa) (Pty) Ltd. (185/1988) [1989] ZASCA 131 (29 September 1989)

Incorprated General Insurance Ltd. v Cement Distributors (South Africa) (Pty) Ltd. (185/1988) [1989] ZASCA 131 (29 September 1989)

The court found that the evidence clearly established that the cement was sold and delivered to Meesterbouers, not Hipermark, and that Beukes was duly authorised to purchase on behalf of Meesterbouers. The appellant's first defence was therefore without merit. Regarding the second defence, the court held that the term 'security' in clause 16.1 of the deed of arrangement must be interpreted in its restricted sense as defined in the Insolvency Act, which does not include a deed of suretyship. The context of the deed, its references to insolvency procedures, and the statutory protection afforded by section 311(3) of the Companies Act all support this interpretation. There was no evidence...

Citation
[1989] ZASCA 131
Parties
Appellant: Incorporated General Insurances Limited; Respondent: Cement Distributors (South Africa) (Proprietary) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 1989
Case Number
185/1988
Procedural Posture
Civil Appeal / Appeal From Judgment of Witwatersrand Local Division
Outcome
Appeal dismissed with costs.
Judges
Botha, Vivier, Milne
Legal Topics
Suretyship, Deed of Arrangement, Interpretation of Contracts, Cession of Claims
Commercial and Corporate Civil Procedure Suretyship Deed of Arrangement Interpretation of Contracts Cession of Claims

Case Brief

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Parties

Incorporated General Insurances Limited

Appellant

Cement Distributors (South Africa) (Proprietary) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of Witwatersrand Local Division

Legal Issues

  1. 1 Whether the cement was sold and delivered to Meesterbouers or to Hipermark.
  2. 2 Whether the respondent ceded its rights under the deed of suretyship to the offeror in terms of the deed of arrangement.
  3. 3 Whether the term 'security' in the deed of arrangement includes a deed of suretyship.

Ratio Decidendi

The court found that the evidence clearly established that the cement was sold and delivered to Meesterbouers, not Hipermark, and that Beukes was duly authorised to purchase on behalf of Meesterbouers. The appellant's first defence was therefore without merit. Regarding the second defence, the court held that the term 'security' in clause 16.1 of the deed of arrangement must be interpreted in its restricted sense as defined in the Insolvency Act, which does not include a deed of suretyship. The context of the deed, its references to insolvency procedures, and the statutory protection afforded by section 311(3) of the Companies Act all support this interpretation. There was no evidence...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.