South Africa Case Law

Standard Bank of South Africa Ltd v Clulow and Another (12161/2018)

Standard Bank of South Africa Ltd v Clulow and Another (12161/2018) [2024] ZAGPPHC 909 (6 September 2024)

Court

North Gauteng High Court, Pretoria

Case number

12161/2018

Judge

Janse Van Nieuwenhuizen

The court found that the plaintiff proved the defendant's indebtedness under the suretyship agreement by producing a certificate of balance that, despite not explicitly stating 'manager,' was signed by a person whose managerial capacity was confirmed by extrinsic evidence. The certificate sufficiently identified the amount due and the date of indebtedness. The defendant's limitation and termination defences failed due to lack of evidence of the debt amount at the relevant date and absence of written release or cancellation by the plaintiff. The prescription defence was rejected because the de…

Source excerpt

• Suretyship
• Certificate Of Balance
• Prescription Act
• General Law Amendment Act Section 6
• Release Of Surety
• Costs Order

Hard Hats Equipment Hire (Pty) Ltd v K2014137790 (Pty) Ltd Rhino Civils and Another (1319/2019)

Hard Hats Equipment Hire (Pty) Ltd v K2014137790 (Pty) Ltd Rhino Civils and Another (1319/2019) [2024] ZAGPJHC 380 (12 March 2024)

Court

South Gauteng High Court, Johannesburg

Case number

1319/2019

Judge

Vally

The High Court held that a prior interlocutory order did not decide the suretyship issue, and that the suretyship complied with section 6 of the General Law Amendment Act.

• Suretyship
• General Law Amendment Act Section 6
• Formalities Of Contract
• Accessory Contract
• Rectification
• Enforceability Of Suretyship

Radiant Group (Pty) Ltd v Xelmar (Pty) Ltd and Another (2018/3067)

Radiant Group (Pty) Ltd v Xelmar (Pty) Ltd and Another (2018/3067) [2022] ZAGPJHC 189 (31 March 2022)

Court

South Gauteng High Court, Johannesburg

Case number

2018/3067

Judge

E F Dippenaar

The High Court held that the plaintiff failed to prove a valid suretyship against the second defendant, and estoppel could not cure the statutory defect.

• Suretyship
• General Law Amendment Act Section 6
• Estoppel
• Accessory Obligation
• Company Conversion
• Costs Orders

Covidien Proprietary Limited v Dinaledi Medical Proprietary Limited and Others (15259/2015)

Covidien Proprietary Limited v Dinaledi Medical Proprietary Limited and Others (15259/2015) [2017] ZAGPPHC 658 (9 October 2017)

Court

North Gauteng High Court, Pretoria

Case number

15259/2015

Judge

M W Msimeki

Summary judgment was granted on a suretyship debt after the court held the surety deed satisfied section 6 formalities and rejected defences of prejudice and iustus error.

• Suretyship
• General Law Amendment Act Section 6
• Summary Judgment
• Contractual Formalities
• Summary-judgment
• Contract-formalities

Esterhuizen v Stan Rio Pipe and Steel (Pty)Limited (64166/2015)

Esterhuizen v Stan Rio Pipe and Steel (Pty)Limited (64166/2015) [2016] ZAGPPHC 636 (22 July 2016)

Court

North Gauteng High Court, Pretoria

Case number

64166/2015

Judge

Vilakazi

The court found that the deed of suretyship was valid, as the identity of the principal debtor was clearly ascertainable from the agreement. The applicant signed in both capacities, as director and as surety, and the defence of invalidity was dismissed. The business rescue plan did not suspend the applicant's obligations as surety, as there was no provision in the plan affecting the rights of the respondent against the surety. The applicant failed to demonstrate a reasonable prospect of success on appeal, and no other compelling reasons were presented for granting leave to appeal.

Source excerpt

• Summary Judgment
• Suretyship
• Business Rescue
• General Law Amendment Act Section 6

Van Den Berg and Others v Firstrand Bank Limited t/a Wesbank (A170/2015)

Van Den Berg and Others v Firstrand Bank Limited t/a Wesbank (A170/2015) [2015] ZAGPPHC 967 (25 November 2015)

Court

North Gauteng High Court, Pretoria

Case number

A170/2015

Judges

C Pretorius, W Tlhapi, N Ranchod

High Court appeal on whether suretyship forms signed in blank complied with section 6 of the General Law Amendment Act.

• Suretyship
• General Law Amendment Act Section 6
• Contract Formalities
• Extrinsic Evidence
• Interpretation Of Written Instruments
• Contract-formalities

De Beer v Standard Bank of South Africa and Others (A 31/2014)

De Beer v Standard Bank of South Africa and Others (A 31/2014) [2014] ZAWCHC 117 (8 August 2014)

Court

Western Cape High Court, Cape Town

Case number

A 31/2014

Judges

Davis, Le Grange, Fortuin

The High Court set aside summary judgment, holding that the suretyship did not comply with section 6 because it failed to identify the debtor in writing.

• Summary Judgment
• Suretyship
• General Law Amendment Act Section 6
• Extrinsic Evidence
• Contractual Certainty
• Summary-judgment

Lynne & Main Incorporated v Leven (3162/2006)

Lynne & Main Incorporated v Leven (3162/2006) [2009] ZAKZPHC 41 (9 September 2009)

Court

Kwazulu-Natal High Court, Pietermaritzburg

Case number

3162/2006

Judge

Msimang

The court found that the deed of suretyship signed by the defendant complied with section 6 of the General Law Amendment Act, as it was in writing and signed by the surety. The description of the principal debt, although general and referring to 'unlimited' amounts, was sufficient and did not render the agreement invalid. The absence of a specified ceiling does not invalidate the suretyship. The court rejected the defendant's argument that the agreement was unconscionable, finding no provision contrary to public policy, law, or morality, and noting that the terms were standard for banking sur…

Source excerpt

• Suretyship
• Cession Of Judgment Debt
• General Law Amendment Act Section 6
• In Duplum Rule
• Public Policy Contracts

Wallace v 1662 G & D Property Investments CC

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

Court

High Courts - Gauteng

Case number

2006/8251

Judge

Levenberg

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 evidenc…

Source excerpt

• Suretyship
• General Law Amendment Act Section 6
• Contract Formalities
• Rectification
• Extrinsic Evidence

Industrial Development Corporation of SA (Pty) Ltd v Silver (419/2001)

Industrial Development Corporation of SA (Pty) Ltd v Silver (419/2001) [2002] ZASCA 112; [2002] 4 All SA 316 (SCA); 2003 (1) SA 365 (SCA) (20 September 2002)

Court

Supreme Court of Appeal

Case number

419/2001

Judges

Nienaber, Harms, Olivier, Scott, Streicher

The Supreme Court of Appeal held that incorporation by reference is permissible in contracts of suretyship governed by section 6 of the General Law Amendment Act 50 of 1956. The deed of suretyship in question, although not naming the principal debtor, referred to a loan agreement that did identify the principal debtor and gave rise to the debt secured. Extrinsic evidence is admissible to identify the loan agreement as the one referred to in the deed of suretyship, provided such evidence does not relate to prior negotiations or consensus. The Court distinguished between cases where extrinsic e…

Source excerpt

• Suretyship
• Incorporation By Reference
• Extrinsic Evidence
• General Law Amendment Act Section 6