Wallace v 1662 G & D Property Investments CC [2007] ZAGPHC 135; 2008 (1) SA 300 (W) (8 June 2007)

Wallace v 1662 G & D Property Investments CC [2007] ZAGPHC 135; 2008 (1) SA 300 (W) (8 June 2007)

The court held that both suretyships failed to comply with section 6 of the General Law Amendment Act because neither document identified the principal debtor by name or by reference to any other written instrument. The omission of the debtor's identity constituted a failure to record an essential term of the suretyship. The court distinguished the authorities relied upon by the plaintiff, noting that in those cases the debtor was either named or could be identified by reference to another document. In this case, the plaintiff's proposed extrinsic evidence would amount to inadmissible evidence of consensus or negotiation, which the statute was designed to exclude. Rectification was not...

Citation
[2007] ZAGPHC 135
Parties
Plaintiff: William Francis Wallace; Defendant: 1662 G & D Property Investments CC
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
8 June 2007
Case Number
2006/8251
Procedural Posture
Civil Trial / Separate Issue Determined Under Rule 33(4)
Outcome
Plaintiff's action dismissed; suretyships declared invalid for non-compliance with section 6 of the General Law Amendment Act.
Judges
Levenberg
Legal Topics
Suretyship, General Law Amendment Act Section 6, Contract Formalities, Rectification, Extrinsic Evidence
Commercial and Corporate Suretyship General Law Amendment Act Section 6 Contract Formalities Rectification Extrinsic Evidence

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 6 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

William Francis Wallace

Plaintiff

1662 G & D Property Investments CC

Defendant

Procedural Posture

Civil Trial / Separate Issue Determined Under Rule 33(4)

Legal Issues

  1. 1 Whether the deeds of suretyship comply with section 6 of the General Law Amendment Act, 50 of 1956.
  2. 2 Whether the failure to identify the principal debtor by name renders the suretyships invalid.
  3. 3 Whether extrinsic evidence or rectification can cure the omission of the debtor's identity.

Ratio Decidendi

The court held that both suretyships failed to comply with section 6 of the General Law Amendment Act because neither document identified the principal debtor by name or by reference to any other written instrument. The omission of the debtor's identity constituted a failure to record an essential term of the suretyship. The court distinguished the authorities relied upon by the plaintiff, noting that in those cases the debtor was either named or could be identified by reference to another document. In this case, the plaintiff's proposed extrinsic evidence would amount to inadmissible evidence of consensus or negotiation, which the statute was designed to exclude. Rectification was not...

Court Disposition

Plaintiff's action dismissed; suretyships declared invalid for non-compliance with section 6 of the General Law Amendment Act.

Orders

  • Both of the suretyships attached as Annexures 'P1' and 'P2' to the particulars of claim are declared invalid as they do not comply with section 6 of the General Law Amendment Act, 50 of 1956.
  • The action is dismissed.