Nedbank Ltd. v Van Zyl (349/88) [1990] ZASCA 12; 1990 (2) SA 469 (AD); [1990] 4 All SA 637 (AD) (15 March 1990)

Nedbank Ltd. v Van Zyl (349/88) [1990] ZASCA 12; 1990 (2) SA 469 (AD); [1990] 4 All SA 637 (AD) (15 March 1990)

The Supreme Court of Appeal held that under South African law, a contract of suretyship is accessory and must relate to a principal obligation owed by another. Where a spouse married in community of property purports to stand surety for the debt of the other spouse, they are in fact standing surety for their own debt, as both are joint debtors for obligations incurred during the marriage. Such a contract is a nullity and unenforceable. The dissolution of the marriage and community of property did not retrospectively validate the suretyship, nor did the evidence establish liability for post-nuptial debts. The appeal was dismissed as the bank failed to prove that the respondent was liable...

Citation
[1990] ZASCA 12
Parties
Appellant: Nedbank Limited; Respondent: Magrieta van Zyl
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 March 1990
Case Number
349/88
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment
Outcome
Appeal dismissed with costs.
Judges
Corbett, Hefer, Nestadt, FH Grosskopf, Nicholas
Legal Topics
Suretyship, Community of Property, Accessory Obligation, Nullity of Contract
Commercial and Corporate Civil Procedure Suretyship Community of Property Accessory Obligation Nullity of Contract

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 4 Authorities cited 14 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Nedbank Limited

Appellant

Magrieta van Zyl

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment

Legal Issues

  1. 1 Whether a wife married in community of property can validly enter into a contract of suretyship for her husband's debt.
  2. 2 Whether a person can stand surety for their own obligation under South African law.
  3. 3 Whether the dissolution of marriage and community of property affects the enforceability of the suretyship contract.

Ratio Decidendi

The Supreme Court of Appeal held that under South African law, a contract of suretyship is accessory and must relate to a principal obligation owed by another. Where a spouse married in community of property purports to stand surety for the debt of the other spouse, they are in fact standing surety for their own debt, as both are joint debtors for obligations incurred during the marriage. Such a contract is a nullity and unenforceable. The dissolution of the marriage and community of property did not retrospectively validate the suretyship, nor did the evidence establish liability for post-nuptial debts. The appeal was dismissed as the bank failed to prove that the respondent was liable...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.