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South Africa decisions
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Power Guarantees (Pty) Ltd v Set Square Developments (Pty) Ltd and Others (26234/2021) [2024] ZAGPJHC 291 (18 April 2024)
The High Court dismissed an application to stay execution pending appeal, finding no proper cross-appeal was before it and no prima facie right to relief.
Dr Fekeni and Others v Lombard Insurance Company Limited and Another (43891/19) [2024] ZAGPJHC 84 (2 February 2024)
The High Court dismissed claims under a construction guarantee and a counterclaim, holding the demand was non-compliant and business rescue did not trigger the clause relied on.
Millenium Aluminium and Glass Services CC and Others v Group Five Construction (Pty) Ltd and Another (693/2021) [2022] ZASCA 180 (14 December 2022)
The court held that a construction guarantee was properly called up and dismissed the appeal, finding the demand complied with the guarantee’s terms.
Industrial Development Corporation, SA LTD v Sibiya (2021/15789) [2022] ZAGPJHC 933 (24 November 2022)
The court held that the guarantee agreement created a primary, autonomous obligation on the respondent, independent of the underlying debt owed by Keka. The respondent's liability was triggered only upon delivery of a guarantee claim notice, which constituted a condition precedent to payment. Prescription of the applicant's claims commenced from the date of delivery of the demand claim notice, not from the date Keka's debt became due. The respondent's reliance on prescription, res judicata, and issue estoppel was rejected for claims not included in the earlier demand notice, as the present pr…
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Eskom Holdings SOC Ltd v Santam Ltd and Another (44268/19) [2022] ZAGPJHC 1045 (12 August 2022)
The High Court held that Eskom’s demand under a performance guarantee complied with all contractual requirements, and ordered Santam to pay the guaranteed sum plus interest and costs.
Fast Track Contracting (Pty) Ltd v Constantia Insurance Company Limited and Others (22474/2018) [2018] ZAGPJHC 633 (14 December 2018)
The court held that the guarantee in question was an autonomous instrument, and liability under it was absolute provided the documentary requirements were met. The payment advice, written demands, and supporting documents complied with clause 4 of the guarantee. The change of name from Group Five Coastal to Group Five KZN did not affect the entitlement to payment, as the company remained the same juristic person. There was no suggestion of fraud, and disputes relating to the underlying construction contract were irrelevant to the guarantor's liability. Accordingly, the application for an inte…
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Coface South Africa Insurance Co Ltd v East London Own Haven t/a Own Haven Housing Association (050/2013) [2013] ZASCA 202; [2014] 1 All SA 536 (SCA); 2014 (2) SA 382 (SCA) (2 December 2013)
The Supreme Court of Appeal held that the construction guarantee issued by Coface was unconditional and autonomous, and must be honoured upon proper demand by the beneficiary, regardless of disputes under the principal construction contract. The only permissible defence to payment under such a guarantee is fraud, which was not alleged or proven in this case. The court found that the majority decision in Dormell Properties v Renasa Insurance NNO was clearly wrong and reaffirmed the established principle that disputes relating to the underlying contract do not affect the liability of the guaran…
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First Rand Bank Ltd v Brera Investments CC (385/2012) [2013] ZASCA 25; 2013 (5) SA 556 (SCA) (25 March 2013)
The Supreme Court of Appeal held that the payment guarantee issued by First Rand Bank was an independent obligation, not accessory to the underlying contract between the respondent and the contractor. Liability under the guarantee arose upon the respondent's compliance with the demand procedure set out in clause 3, specifically the failure of the contractor to issue a payment certificate within seven days of demand. The subsequent issuance of a payment certificate for a lesser amount did not affect the appellant's liability, as the trigger event for payment had already occurred. The court rej…
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Denel Soc Ltd v Absa Bank Ltd and Others (19910/2011) [2013] ZAGPJHC 102; [2013] 3 All SA 81 (GSJ) (4 March 2013)
High Court interdicts payment under specified counter-guarantees, holding the demands were not compliant with the guarantees’ terms and refusing immediate payment pending Indian proceedings.
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