Muller and Others v Botswana Development Corporation Ltd (106/2001) [2002] ZASCA 65; [2002] 3 All SA 663 (SCA); 2003 (1) SA 651 (SCA) (31 May 2002)

Muller and Others v Botswana Development Corporation Ltd (106/2001) [2002] ZASCA 65; [2002] 3 All SA 663 (SCA); 2003 (1) SA 651 (SCA) (31 May 2002)

The Supreme Court of Appeal held that, while the law and practice may allow a surety to rely on a defence available to the principal debtor, including a counterclaim, such defence must be bona fide and substantiated by material facts. In this case, the appellants failed to set out sufficient material facts in their opposing affidavit to establish a bona fide counterclaim or defence. The allegations regarding delays in advances and the effect of the interim order from the Botswana High Court were vague, unsubstantiated, and lacked factual detail. The court found that the appellants did not meet the requirements of Rule 32(3)(b) and thus failed to avoid summary judgment. The appeal was...

Citation
[2002] ZASCA 65
Parties
Appellant: George Stewart Muller; Appellant: Gregory Stewart Muller; Appellant: Maria Augusta Manzoni; Respondent: Botswana Development Corporation Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 May 2002
Case Number
106/2001
Procedural Posture
Civil Appeal / Appeal Against Summary Judgment
Outcome
Appeal dismissed with costs.
Judges
L MPATI, HOWIE, MPATI, LEWIS
Legal Topics
Suretyship, Summary Judgment, Set Off, Counterclaim, Contractual Breach
Civil Procedure Commercial and Corporate Suretyship Summary Judgment Set Off Counterclaim Contractual Breach

Case Brief

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Parties

George Stewart Muller

Appellant

Gregory Stewart Muller

Appellant

Maria Augusta Manzoni

Appellant

Botswana Development Corporation Limited

Respondent

Procedural Posture

Civil Appeal / Appeal Against Summary Judgment

Legal Issues

  1. 1 Is a surety entitled, as a matter of law, to rely on an unliquidated counterclaim to be instituted by the principal debtor against the creditor to resist a claim by the creditor against the surety.
  2. 2 Did the appellants set out a bona fide defence in their opposing affidavit sufficient to avoid summary judgment.

Ratio Decidendi

The Supreme Court of Appeal held that, while the law and practice may allow a surety to rely on a defence available to the principal debtor, including a counterclaim, such defence must be bona fide and substantiated by material facts. In this case, the appellants failed to set out sufficient material facts in their opposing affidavit to establish a bona fide counterclaim or defence. The allegations regarding delays in advances and the effect of the interim order from the Botswana High Court were vague, unsubstantiated, and lacked factual detail. The court found that the appellants did not meet the requirements of Rule 32(3)(b) and thus failed to avoid summary judgment. The appeal was...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.