Intercontinental Exports (Pty) Ltd v Fowles (85/98) [1999] ZASCA 15; [1999] 2 All SA 304 (A) (23 March 1999)

Intercontinental Exports (Pty) Ltd v Fowles (85/98) [1999] ZASCA 15; [1999] 2 All SA 304 (A) (23 March 1999)

The Supreme Court of Appeal held that the deed of suretyship, although ineptly drafted, was formally valid as it identified the creditor, principal debtor, and surety ex facie the document. The court distinguished the present facts from cases where the principal debtor and surety were the same person or legal entity, which would render the suretyship invalid. Here, the names, though similar, were not identical, and even if they were, extrinsic evidence could be admissible to establish that they referred to different persons. The court found that the requirements of section 6 of the General Law Amendment Act 50 of 1956 were satisfied, making the suretyship capable of rectification. On...

Citation
[1999] ZASCA 15
Parties
Appellant: Intercontinental Exports (Pty) Ltd; Respondent: F T Fowles
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
23 March 1999
Case Number
85/98
Procedural Posture
Civil Appeal / Appeal From Refusal of Default Judgment and Rectification in the Witwatersrand Local Division
Outcome
Appeal allowed with costs; order of the court a quo set aside and substituted with rectification and judgment for the appellant.
Judges
Mahomed, Smalberger, Howie, Plewmann, Farlam
Legal Topics
Suretyship, Rectification, Formal Validity, Costs Award, Attorney and Client Costs
Commercial and Corporate Civil Procedure Suretyship Rectification Formal Validity Costs Award Attorney and Client Costs

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 19 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Intercontinental Exports (Pty) Ltd

Appellant

F T Fowles

Respondent

Procedural Posture

Civil Appeal / Appeal From Refusal of Default Judgment and Rectification in the Witwatersrand Local Division

Legal Issues

  1. 1 Whether the deed of suretyship is formally valid in terms of section 6 of the General Law Amendment Act 50 of 1956.
  2. 2 Whether the deed of suretyship is capable of rectification to reflect the true agreement between the parties.
  3. 3 Whether the court retains discretion regarding costs despite an attorney and client costs clause.

Ratio Decidendi

The Supreme Court of Appeal held that the deed of suretyship, although ineptly drafted, was formally valid as it identified the creditor, principal debtor, and surety ex facie the document. The court distinguished the present facts from cases where the principal debtor and surety were the same person or legal entity, which would render the suretyship invalid. Here, the names, though similar, were not identical, and even if they were, extrinsic evidence could be admissible to establish that they referred to different persons. The court found that the requirements of section 6 of the General Law Amendment Act 50 of 1956 were satisfied, making the suretyship capable of rectification. On...

Court Disposition

Appeal allowed with costs; order of the court a quo set aside and substituted with rectification and judgment for the appellant.

Orders

  • The appeal is allowed with costs.
  • The order of the court a quo is set aside and substituted with judgment for the plaintiff against the defendant for: (a) Rectification of the deed of suretyship by substituting 'Security Depot (Proprietary) Limited' for 'Mr Frank Fowles and' in clause 1.2 and deleting clause 2 in its entirety; (b) Payment of...