South Africa Case Law

Adam and Another v Moosa (A20/2023)

Adam and Another v Moosa (A20/2023) [2024] ZAWCHC 117 (19 April 2024)

Court

Western Cape High Court, Cape Town

Case number

A20/2023

Judges

Ndita, Henney, Nziweni

The court found that the AOD, when interpreted holistically and in light of the operative clauses, context, and conduct of the parties, imposed personal liability on both appellants for the debt owed to the respondent. The repeated use of first-person pronouns, renunciation of legal exceptions, provision of personal domicilium addresses, and payment from personal funds all pointed to an intention to bind themselves personally. The second appellant was never a director of Cream Magenta and could only have signed in his personal capacity. The AOD constituted a credit guarantee under section 8(5…

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• Acknowledgment Of Debt
• Personal Liability
• Credit Guarantee
• National Credit Act
• Contract Interpretation

P.B.M.C v L.J.C (65996/2016; 65993/2016)

P.B.M.C v L.J.C (65996/2016; 65993/2016) [2021] ZAGPPHC 516 (12 August 2021)

Court

North Gauteng High Court, Pretoria

Case number

65996/2016; 65993/2016

Judge

Basson

The High Court held that a divorce settlement made an order of court binds the defendant, rejects NCA and prescription defences, and orders compliance and costs.

• Divorce Settlement Agreement
• Suretyship
• Prescription
• Credit Guarantee
• Enforcement Of Judgment Debt
• Divorce-settlement-agreement

Mustek Limited v Mutual and Federal Risk Financing (Pty) Ltd (2017/41419)

Mustek Limited v Mutual and Federal Risk Financing (Pty) Ltd (2017/41419) [2019] ZAGPJHC 235 (29 July 2019)

Court

South Gauteng High Court, Johannesburg

Case number

2017/41419

Judge

Sutherland

The court found that the plaintiff failed to prove any mistake by the defendant in the drafting of the guarantee. The evidence demonstrated that the inclusion of the suspensive condition was a deliberate act by the defendant, motivated by the lack of payment of the premium and provision of collateral. There was no common and continuing intention to issue an unconditional guarantee at the time the contract was concluded. The facts and probabilities supported the defendant's position that the guarantee would only be effective upon fulfilment of the condition. Accordingly, the requirements for r…

Source excerpt

• Rectification Of Contract
• Credit Guarantee
• Contractual Intention
• Mistake In Contract
• Unconditional Vs Conditional Guarantee

Jacobs v De Klerk and Another (984/2019)

Jacobs v De Klerk and Another (984/2019) [2019] ZAFSHC 112 (4 July 2019)

Court

Free State High Court, Bloemfontein

Case number

984/2019

Judge

S.G. Meintjes

The court found that the resignation agreement and the acknowledgement of debt relate to an underlying loan agreement that is exempted from the National Credit Act. The first defendant did not receive any loan or credit from the plaintiff; his obligation arose from his undertaking to pay the second defendant's admitted indebtedness. Applying the principles from Ratlou and Ribeiro, the agreements in question are credit guarantees, but since the underlying loan agreement is exempted from the Act, these agreements are also exempted. The plaintiff is not required to register as a credit provider,…

Source excerpt

• Acknowledgement Of Debt
• Credit Agreements Exemption
• National Credit Act
• Summary Judgment
• Credit Guarantee

Shaw and Another v Mackintosh and Another (267/17)

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

Court

Supreme Court of Appeal

Case number

267/17

Judges

Shongwe, Wallis, Dambuza, Mathopo, Davis

The Supreme Court of Appeal held that the appellants’ undertaking was a credit guarantee tied to a transaction outside the NCA, so the appeal failed.

• National Credit Act
• Credit Guarantee
• Suretyship
• Statutory Interpretation
• National-credit-act
• Credit-guarantee

Real People (Pty) Ltd v LVK Trading (Pty) Ltd t/a Chesanyama Boksburg and Another (39782/2017)

Real People (Pty) Ltd v LVK Trading (Pty) Ltd t/a Chesanyama Boksburg and Another (39782/2017) [2017] ZAGPPHC 635 (22 September 2017)

Court

North Gauteng High Court, Pretoria

Case number

39782/2017

Judge

HR FOURIE

The court held that the summary judgment application was properly brought within the fifteen-day period prescribed by Rule 32(2), as delivery is defined as both service and filing. The defendants' point in limine was dismissed. The second defendant's defence regarding lack of knowledge of the amount claimed was found not to be bona fide, as she had abandoned the business and made no effort to ascertain the indebtedness. The argument that the plaintiff failed to mitigate its damages by not perfecting the notarial bond was rejected, as the plaintiff was enforcing a contractual right to repaymen…

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• Summary Judgment
• Credit Guarantee
• Suretyship Vs Guarantee
• Mitigation Of Loss

Weelson v Waterlinx Pool and Spa (Pty) Ltd In re: Waterlinx Pool and Spa (Pty) Ltd v Right Stuff Hardware CC t/a Kings Paint & Hardware Pool Company (13904/ 2007)

Weelson v Waterlinx Pool and Spa (Pty) Ltd In re: Waterlinx Pool and Spa (Pty) Ltd v Right Stuff Hardware CC t/a Kings Paint & Hardware Pool Company (13904/ 2007) [2013] ZAGPJHC 47 (1 March 2013)

Court

South Gauteng High Court, Johannesburg

Case number

13904/ 2007

Judge

S Mia

The court dismissed rescission of a default judgment, finding no proper basis under Rules 42(1)(a) or 31(2)(b), but corrected a duplication in the order.

• Rescission Of Judgment
• Default Judgment
• Proper Service
• Uniform Rules Of Court
• Credit Guarantee
• Condonation

CAPX Finance (Pty) Ltd v Edwards and Another (A779/10)

CAPX Finance (Pty) Ltd v Edwards and Another (A779/10) [2012] ZAWCHC 84 (13 March 2012)

Court

Western Cape High Court, Cape Town

Case number

A779/10

Judges

Fortuin, Erasmus

The court held that the plaintiff's claim was based on breach of contract, specifically the undertaking by the defendants, and not on damages for negligent misrepresentation. The undertaking given by the defendants, although conditional upon the registration of transfer, fell within the definition of a credit guarantee under section 8(5) of the National Credit Act. The conditionality of the undertaking did not exclude it from the scope of the Act, as established in relevant case law. Since the principal agreement between Suntele and the plaintiff was subject to the NCA, the undertaking was al…

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• National Credit Act
• Credit Guarantee
• Exception Procedure
• Rectification Of Contract
• Undertaking By Conveyancer

Frans Jacobus Kruger h/a Kruger Attorneys v Property Lawyer Services (Edms) Bpk (420/2010)

Frans Jacobus Kruger h/a Kruger Attorneys v Property Lawyer Services (Edms) Bpk (420/2010) [2011] ZASCA 80 (27 May 2011)

Court

Supreme Court of Appeal

Case number

420/2010

Judges

Mpati, Brand, Lewis, Malan, Tshiqi

The Supreme Court of Appeal held that the letter of undertaking furnished by the appellant was not an independent obligation to pay the respondent regardless of the availability of sale proceeds. Instead, the undertaking was to pay the respondent from the proceeds of the sale of the properties upon registration of transfer. The factual context and the wording of the undertaking, as well as the bridging request and mandate to pay, made it clear that payment was conditional upon the receipt of sale proceeds. The cession of proceeds by the client to the respondent further reinforced that payment…

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• Bridging Finance
• Construction Of Undertaking
• Credit Guarantee
• National Credit Act
• Cession Of Proceeds

Ribeiro and Another v Slip Knot Investments 777 (Pty)

Ribeiro and Another v Slip Knot Investments 777 (Pty) [2010] ZASCA 174 (2 December 2010)

Court

Supreme Court of Appeal

Case number

661/09

Judges

Mpati, Cachalia, Tshiqi, R Pillay, K Pillay

The Supreme Court of Appeal held that a settlement agreement guaranteeing earlier unsecured obligations was a credit guarantee, not a new credit agreement, so the NCA did not apply.

• National Credit Act
• Credit Guarantee
• Suretyship
• Large Agreement Exclusion
• Novation
• Mortgage Agreement