Volkskas Spaarbank Bpk. v Van Aswegen (601/88) [1990] ZASCA 57; 1990 (3) SA 978 (AD); [1990] 2 All SA 395 (A) (30 May 1990)

Volkskas Spaarbank Bpk. v Van Aswegen (601/88) [1990] ZASCA 57; 1990 (3) SA 978 (AD); [1990] 2 All SA 395 (A) (30 May 1990)

The court held that, at the time the letter of 26 May 1982 was written, both the principal debt and the suretyship obligation had already prescribed. Therefore, no existing debt remained for the defendant to acknowledge or undertake to pay. Any new liability could only arise from a new agreement, which required both an undertaking and acceptance thereof. The court found that neither the content of the letter nor the subsequent conduct of the plaintiff demonstrated acceptance of the defendant's undertaking. The plaintiff continued to refer to the defendant's liability under the suretyship, indicating an absence of intention to accept a new, less favourable undertaking. The court concluded...

Citation
[1990] ZASCA 57
Parties
Appellant: Volkskas Spaarbank Beperk; Respondent: H J Van Aswegen
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 May 1990
Case Number
601/88
Procedural Posture
Civil Appeal / Appeal From Decision of the Orange Free State Provincial Division
Outcome
Appeal dismissed with costs.
Judges
Joubert, Van Heerden, Steyn, Eksteen, Smuts
Legal Topics
Acknowledgment of Debt, Suretyship, Prescription, Formation of Contract
Civil Procedure Commercial and Corporate Acknowledgment of Debt Suretyship Prescription Formation of Contract

Case Brief

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Parties

Volkskas Spaarbank Beperk

Appellant

H J Van Aswegen

Respondent

Procedural Posture

Civil Appeal / Appeal From Decision of the Orange Free State Provincial Division

Legal Issues

  1. 1 Whether the contents of the letter dated 26 May 1982 constitute an acknowledgment of debt and undertaking to pay, creating a separate cause of action in favour of the plaintiff against the defendant.
  2. 2 Whether acceptance of the defendant's undertaking was necessary for the formation of a new agreement and cause of action.
  3. 3 Whether the plaintiff accepted the defendant's undertaking, expressly or tacitly.

Ratio Decidendi

The court held that, at the time the letter of 26 May 1982 was written, both the principal debt and the suretyship obligation had already prescribed. Therefore, no existing debt remained for the defendant to acknowledge or undertake to pay. Any new liability could only arise from a new agreement, which required both an undertaking and acceptance thereof. The court found that neither the content of the letter nor the subsequent conduct of the plaintiff demonstrated acceptance of the defendant's undertaking. The plaintiff continued to refer to the defendant's liability under the suretyship, indicating an absence of intention to accept a new, less favourable undertaking. The court concluded...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.