Ndubu and Others v First Rand Bank Limited t/a Wesbank (1113/2016) [2017] ZASCA 61 (26 May 2017)

Ndubu and Others v First Rand Bank Limited t/a Wesbank (1113/2016) [2017] ZASCA 61 (26 May 2017)

The court found that none of the three offers to purchase the vehicles were rejected by Wesbank or the liquidators. The first offer was withdrawn before any acceptance or rejection, the second was conditional on finance which was not obtained, and the third was submitted after the vehicles had already been sold. The appellants failed to prove any breach or prejudice by Wesbank that would release them from liability as sureties. The court further held that Wesbank complied with its obligations under the Insolvency Act and that the sale of the vehicles was valid. The appellants' miscellaneous defences, including those based on public policy and constitutional grounds, were without merit....

Citation
[2017] ZASCA 61
Parties
Appellant: August Nthako Ndubu; Appellant: Joao Manuel Vicente Da Encarnacao; Appellant: Quantum Leap Investments 221 (Pty) Ltd; Appellant: Tube-Mech Services (Pty) Ltd; Respondent: First Rand Bank Limited t/a Wesbank
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 May 2017
Case Number
1113/2016
Procedural Posture
Civil Appeal / Appeal From Gauteng Local Division of the High Court, Johannesburg
Outcome
Appeal dismissed.
Judges
Lewis, Tshiqi, Majiedt, Swain, Coppin
Legal Topics
Suretyship Liability, Mitigation of Damages, Release of Surety, Insolvency Act Application, Public Policy Defence, Credit Agreements
Banking and Finance Civil Procedure Commercial and Corporate Suretyship Liability Mitigation of Damages Release of Surety Insolvency Act Application Public Policy Defence +1 more

Case Brief

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Parties

August Nthako Ndubu

Appellant

Joao Manuel Vicente Da Encarnacao

Appellant

Quantum Leap Investments 221 (Pty) Ltd

Appellant

Tube-Mech Services (Pty) Ltd

Appellant

First Rand Bank Limited t/a Wesbank

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Local Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether the appellants, as sureties, are released from liability due to alleged prejudicial conduct by the creditor in not accepting offers to purchase the vehicles.
  2. 2 Whether Wesbank failed to mitigate its damages by not accepting the offers.
  3. 3 Whether public policy or constitutional principles require the release of the sureties.

Ratio Decidendi

The court found that none of the three offers to purchase the vehicles were rejected by Wesbank or the liquidators. The first offer was withdrawn before any acceptance or rejection, the second was conditional on finance which was not obtained, and the third was submitted after the vehicles had already been sold. The appellants failed to prove any breach or prejudice by Wesbank that would release them from liability as sureties. The court further held that Wesbank complied with its obligations under the Insolvency Act and that the sale of the vehicles was valid. The appellants' miscellaneous defences, including those based on public policy and constitutional grounds, were without merit....

Court Disposition

Appeal dismissed.

Orders

  • The appeal is dismissed.
  • The appellants are to pay the costs of the appeal jointly and severally, the one paying the others to be absolved.