Swanepoel N.O and Another v Standard Bank of South Africa Limited (20366/2013) [2013] ZAGPPHC 411 (5 December 2013)

Swanepoel N.O and Another v Standard Bank of South Africa Limited (20366/2013) [2013] ZAGPPHC 411 (5 December 2013)

The court found that the trust, as cited in the agreements, lacked legal personality and could not contract with the plaintiff. Only trustees, acting jointly and as authorized by the trust deed, can bind the trust estate. The plaintiff's particulars of claim were found to be embarrassing and lacking necessary averments, as the agreements were void ab initio and no legal rights or duties flowed from them. The suretyship agreement was invalid due to the absence of a valid principal obligation and the impermissible situation of the third defendant standing as surety for his own debt. The exception was correctly taken and upheld.

Citation
[2013] ZAGPPHC 411
Parties
Applicant: Gerhardus Joshua Swanepoel N.O; Applicant: Gerhardus Joshua Swanepoel; Respondent: Standard Bank of South Africa Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 December 2013
Case Number
20366/2013
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception upheld; particulars of claim struck out with costs.
Judges
Hughes
Legal Topics
Trust Law, Legal Personality, Suretyship, Cause of Action, Pleadings Exception
Civil Procedure Commercial and Corporate Trust Law Legal Personality Suretyship Cause of Action Pleadings Exception

Case Brief

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Parties

Gerhardus Joshua Swanepoel N.O

Applicant

Gerhardus Joshua Swanepoel

Applicant

Standard Bank of South Africa Limited

Respondent

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose the necessary averments to sustain a cause of action.
  2. 2 Whether the trust, as cited, had legal personality to contract with the plaintiff.
  3. 3 Whether the suretyship agreement is valid in the absence of a principal obligation.

Ratio Decidendi

The court found that the trust, as cited in the agreements, lacked legal personality and could not contract with the plaintiff. Only trustees, acting jointly and as authorized by the trust deed, can bind the trust estate. The plaintiff's particulars of claim were found to be embarrassing and lacking necessary averments, as the agreements were void ab initio and no legal rights or duties flowed from them. The suretyship agreement was invalid due to the absence of a valid principal obligation and the impermissible situation of the third defendant standing as surety for his own debt. The exception was correctly taken and upheld.

Court Disposition

Exception upheld; particulars of claim struck out with costs.

Orders

  • The exception is upheld with costs on a party and party scale, including the employment of senior counsel.
  • The particulars of claim are struck out.