Venter en 'n Ander v Nedperm Bank Beperk (344/95) [1997] ZASCA 70 (11 September 1997)

Venter en 'n Ander v Nedperm Bank Beperk (344/95) [1997] ZASCA 70 (11 September 1997)

The Supreme Court of Appeal found that the probabilities favoured the respondent's version: there was no express or implied agreement to limit the suretyship liability to R15,000 per bond. The appellants were actively involved in the project and stood to benefit from its success, making it unlikely that they would have insisted on a strict limitation. The documentary evidence, including the wording of the suretyship forms and the absence of any reference to a limitation, supported the bank's case. The appellants failed to discharge the onus of proving a prior agreement or common intention to limit liability. Rectification was therefore refused. The alternative defence of justus error was...

Citation
[1997] ZASCA 70
Parties
Appellant: Charles Johannes Beaurain Venter; Appellant: Willie du Plessis; Respondent: Nedperm Bank Beperk
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
11 September 1997
Case Number
344/95
Procedural Posture
Civil Appeal / Appeal From Full Bench of Transvaal Provincial Division
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Van Heerden, Smalberger, Nienaber, Howie, Plewman
Legal Topics
Suretyship, Rectification of Contract, Justus Error, Bank Lending Practices
Commercial and Corporate Banking and Finance Suretyship Rectification of Contract Justus Error Bank Lending Practices

Case Brief

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Parties

Charles Johannes Beaurain Venter

Appellant

Willie du Plessis

Appellant

Nedperm Bank Beperk

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench of Transvaal Provincial Division

Legal Issues

  1. 1 Whether the suretyships signed by the appellants were limited to R15,000 per bond or were unlimited in scope.
  2. 2 Whether there was a prior oral agreement to limit the suretyship liability.
  3. 3 Whether rectification of the suretyship documents is justified based on the parties' common intention.

Ratio Decidendi

The Supreme Court of Appeal found that the probabilities favoured the respondent's version: there was no express or implied agreement to limit the suretyship liability to R15,000 per bond. The appellants were actively involved in the project and stood to benefit from its success, making it unlikely that they would have insisted on a strict limitation. The documentary evidence, including the wording of the suretyship forms and the absence of any reference to a limitation, supported the bank's case. The appellants failed to discharge the onus of proving a prior agreement or common intention to limit liability. Rectification was therefore refused. The alternative defence of justus error was...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.
  • The order of the Full Bench is confirmed: the appellants are jointly and severally liable as sureties and co-principal debtors for all amounts owed by the principal debtor to the respondent bank.