THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 2023-102518
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED -
tt Chagendt as.
Date (CLpre
C4
In the matter between:
ROWNETIC MINERAL & MINING RESOURCES (PTY) LTD Plaintiff
and
ATLEGANG ASSET MANAGEMENT (PTY) LTD First Defendant
CAROL SIZAKELE MONNAKGOTLA Second Defendant
JUDGMENT
ELS AJ
[1] The plaintiff instituted action against the defendants for the payment of an
amount of R6,823,243.95.
[2] The plaintiff formulated its claim against the first defendant as a contractual
claim in terms of which the plaintiff rendered transport services to the first defendant.
The agreement relied upon by the plaintiff is annexed to the particulars of claim as
“RM3”.
[3] The plaintiff's claim against the second defendant is based on a suretyship
22's
agreement. This document, at least on the pleaded case, is a document separate
from the aforesaid written agreement. The suretyship is annexed to the particulars
of claim as “RM65”.
[4] The claim against the second defendant is pleaded as follows in paragraph
4.5 of the particulars of claim:
“On or about 22 March 2023 and at Pretoria, the Second Defendant,
in writing bound herself as surety and co-principal debtor with the First
Defendant for the due and punctual performance by the First
Defendant of the obligations under the agreement. The surety
agreement, is attached hereto marked as annexure “RM5”, of which
the terms and conditions should be read herein as if specifically
pleaded.”
[5] The document annexed as “RM5” has the following heading: “CUSTOMER
CREDIT APPLICATION’.
[6] The only part of “RM5” that refers to a suretyship is the following that appears
close to the bottom of the document:
“SURETY (Compulsory for a CC, Trust, partnership or natural person)
The undersigned hereby binds myself/our-selves as surety for and on
behalf of the applicant for the full payment on demand to Rownetic
Mineral & Mining Resources.”
[7] Rule 23(3) requires an excipient to state “clearly and concisely’ the ground
or grounds of exception. The only real ground of exception raised by the plaintiff is
contained in paragraph 12 of the notice of exception:
“12. Given that the nature and amount of the principal debt which
the second defendant purportedly stood surety for, an essential
term in a deed of suretyship, is neither stated nor capable of
ascertainment by reference to the provisions of the document,
the purported deed of suretyship does not comply with the
o3-
statutory formalities embodied in section 6 of the General Law
Amendment Act 50 of 1956. The provision requires that ‘the
terms thereof are embodied in a written document signed by or
on behalf of the surety’. Non-compliance with statutory
formalities renders the deed of suretyship invalid.”
[8] | Onmy reading of paragraph 12 the excipient stated that the suretyship relied
upon in the particulars of claim is invalid because it does not comply with the
provisions of section 6 of the General Law Amendment Act, 50 of 1956 (“the Act”),
in particular on the basis that the “nature and amount of the principal debf’ is not
reflected in the deed of suretyship.
[9] Section 6 of the Act provides as follows:
“No contract of suretyship entered into after the commencement of this
Act, shall be valid, unless the terms thereof are embodied in a written
document signed by or on behalf of the surety: Provided that nothing
in this section contained shall affect the liability of the signer of an aval
under the laws relating to negotiable instruments.”
[10] What is meant by the words “the terms’ in section 6 of the Act was explained
as follows in Sapirstein and others v Anglo African Shipping Co. (SA) Ltd 1978
(4) SA 1 (A) at p 12B-D:
“What s 6 requires is that the ‘terms’ of the contract of suretyship must
be embodied in the written document. It was contended by counsel for
plaintiff that this meant that the identity of the creditor, of the surety
and of the principal debtor, and the nature and amount of the principal
debt, must be capable of ascertainment by reference to the provisions
of the written document, supplemented, if necessary, by extrinsic
evidence of identification other than evidence by the parties (i.e. the
creditor and the surety) as to their negotiations and consensus. | agree
with this contention.”
(the emphasis is my own)
[11] In Lategan and another NNO v Boyes and another 1980 (4) SA 191 (T)