Lynne & Main Incorporated v Leven (3162/2006) [2009] ZAKZPHC 41 (9 September 2009)

Lynne & Main Incorporated v Leven (3162/2006) [2009] ZAKZPHC 41 (9 September 2009)

The court found that the deed of suretyship signed by the defendant complied with section 6 of the General Law Amendment Act, as it was in writing and signed by the surety. The description of the principal debt, although general and referring to 'unlimited' amounts, was sufficient and did not render the agreement invalid. The absence of a specified ceiling does not invalidate the suretyship. The court rejected the defendant's argument that the agreement was unconscionable, finding no provision contrary to public policy, law, or morality, and noting that the terms were standard for banking suretyships. The in duplum rule applied, limiting the plaintiff's claim to twice the judgment debt...

Citation
[2009] ZAKZPHC 41
Parties
Plaintiff: Lynne & Main Incorporated; Defendant: Jane Leven
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
9 September 2009
Case Number
3162/2006
Procedural Posture
Civil Trial / Judgment After Trial
Outcome
Plaintiff's claim succeeds, subject to the in duplum rule and costs awarded on the Magistrates' Courts tariff.
Judges
Msimang
Legal Topics
Suretyship, Cession of Judgment Debt, General Law Amendment Act Section 6, In Duplum Rule, Public Policy Contracts
Commercial and Corporate Suretyship Cession of Judgment Debt General Law Amendment Act Section 6 In Duplum Rule Public Policy Contracts

Case Brief

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Parties

Lynne & Main Incorporated

Plaintiff

Jane Leven

Defendant

Procedural Posture

Civil Trial / Judgment After Trial

Legal Issues

  1. 1 Whether the deed of suretyship complies with section 6 of the General Law Amendment Act.
  2. 2 Whether the description of the principal debt in the suretyship is sufficient.
  3. 3 Whether the suretyship agreement is unconscionable and contrary to public policy.

Ratio Decidendi

The court found that the deed of suretyship signed by the defendant complied with section 6 of the General Law Amendment Act, as it was in writing and signed by the surety. The description of the principal debt, although general and referring to 'unlimited' amounts, was sufficient and did not render the agreement invalid. The absence of a specified ceiling does not invalidate the suretyship. The court rejected the defendant's argument that the agreement was unconscionable, finding no provision contrary to public policy, law, or morality, and noting that the terms were standard for banking suretyships. The in duplum rule applied, limiting the plaintiff's claim to twice the judgment debt...

Court Disposition

Plaintiff's claim succeeds, subject to the in duplum rule and costs awarded on the Magistrates' Courts tariff.

Orders

  • The defendant is ordered to pay the plaintiff the sum of R80,078.46 together with interest thereon at 20.5% per annum from the date of judgment to date of payment.
  • The defendant is ordered to pay the costs of the action on the scale as between attorney and client, to be taxed in terms of the tariff of costs of the Magistrates' Courts.