Shaw and Another v Mackintosh and Another (267/17) [2018] ZASCA 53; 2019 (1) SA 398 (SCA) (29 March 2018)

Shaw and Another v Mackintosh and Another (267/17) [2018] ZASCA 53; 2019 (1) SA 398 (SCA) (29 March 2018)

The court held that the agreement between the appellants and the respondent constituted a credit guarantee as defined in section 8(5) of the National Credit Act. The obligations of the appellants arose only in relation to the admitted indebtedness of Mabili to Mackintosh, and no loan or credit was advanced to the appellants themselves. Since the underlying transaction between Mabili and Mackintosh fell outside the scope of the NCA, the credit guarantee provided by the appellants was also excluded from the operation of the Act by section 4(2)(c). The respondent was not a credit provider as defined by the NCA, and the transaction was a once-off arrangement. Accordingly, the appeal was...

Citation
[2018] ZASCA 53
Parties
Appellant: John Anthony Shaw; Appellant: Wade Graham Taylor; Respondent: Glenn William Mackintosh; Respondent: Mabili Search & Selection (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 March 2018
Case Number
267/17
Procedural Posture
Civil Appeal / Appeal From Gauteng Local Division, Johannesburg
Outcome
Appeal dismissed with costs.
Judges
Shongwe, Wallis, Dambuza, Mathopo, Davis
Legal Topics
National Credit Act, Credit Guarantee, Suretyship, Statutory Interpretation
Commercial and Corporate National Credit Act Credit Guarantee Suretyship Statutory Interpretation

Case Brief

Summary, issues, holding and outcome

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Parties

John Anthony Shaw

Appellant

Wade Graham Taylor

Appellant

Glenn William Mackintosh

Respondent

Mabili Search & Selection (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Local Division, Johannesburg

Legal Issues

  1. 1 Whether the agreement between the appellants and the respondent constitutes a credit guarantee under section 8(5) of the National Credit Act.
  2. 2 Whether the National Credit Act applies to the transaction between the parties.
  3. 3 Whether the failure of the respondent to register as a credit provider under the NCA renders the agreement void.

Ratio Decidendi

The court held that the agreement between the appellants and the respondent constituted a credit guarantee as defined in section 8(5) of the National Credit Act. The obligations of the appellants arose only in relation to the admitted indebtedness of Mabili to Mackintosh, and no loan or credit was advanced to the appellants themselves. Since the underlying transaction between Mabili and Mackintosh fell outside the scope of the NCA, the credit guarantee provided by the appellants was also excluded from the operation of the Act by section 4(2)(c). The respondent was not a credit provider as defined by the NCA, and the transaction was a once-off arrangement. Accordingly, the appeal was...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.