Incredible Sand (Pty) Ltd v Vos (2376/2018) [2018] ZAGPPHC 698 (28 September 2018)

Incredible Sand (Pty) Ltd v Vos (2376/2018) [2018] ZAGPPHC 698 (28 September 2018)

The court found that the suretyship agreement, although not expressly naming the principal debtor, sufficiently incorporated the acknowledgement of debt by reference. The acknowledgement of debt was signed on the same day and at the same meeting as the suretyship agreement, and it clearly identified Bucon Development and Construction (Pty) Ltd as the debtor. The court accepted that incorporation by reference is permissible and that the requirements of section 6 of the General Law Amendment Act were met. Consequently, the applicant established locus standi as a creditor of the respondent, who is bound as surety and co-principal debtor for the debt owed by Bucon. The applicant proved a...

Citation
[2018] ZAGPPHC 698
Parties
Applicant: Incredible Sand (Pty) Ltd; Respondent: Anette Vos
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 September 2018
Case Number
2376/2018
Procedural Posture
Urgent Application / Application for Provisional Sequestration; Unopposed Motion Court
Outcome
Provisional sequestration order granted against the respondent's estate.
Judges
Van der Schyff
Legal Topics
Provisional Sequestration, Suretyship, Incorporation by Reference, General Law Amendment Act Compliance
Civil Procedure Banking and Finance Provisional Sequestration Suretyship Incorporation by Reference General Law Amendment Act Compliance

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Parties

Incredible Sand (Pty) Ltd

Applicant

Anette Vos

Respondent

Procedural Posture

Urgent Application / Application for Provisional Sequestration; Unopposed Motion Court

Legal Issues

  1. 1 Whether the suretyship agreement complies with section 6 of the General Law Amendment Act and is valid.
  2. 2 Whether the applicant has locus standi as a creditor of the respondent based on the suretyship agreement.
  3. 3 Whether the acknowledgement of debt is incorporated by reference into the suretyship agreement, thereby identifying the principal debtor.

Ratio Decidendi

The court found that the suretyship agreement, although not expressly naming the principal debtor, sufficiently incorporated the acknowledgement of debt by reference. The acknowledgement of debt was signed on the same day and at the same meeting as the suretyship agreement, and it clearly identified Bucon Development and Construction (Pty) Ltd as the debtor. The court accepted that incorporation by reference is permissible and that the requirements of section 6 of the General Law Amendment Act were met. Consequently, the applicant established locus standi as a creditor of the respondent, who is bound as surety and co-principal debtor for the debt owed by Bucon. The applicant proved a...

Court Disposition

Provisional sequestration order granted against the respondent's estate.

Orders

  • The estate of the respondent is placed under provisional sequestration.
  • The respondent or any interested person is called upon to advance reasons, if any, why the court should not order the final sequestration of the estate at 10h00 on 15 January 2019.