Case Comments: Prejudice and the Surety

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Author: JT Pretorius
• Pages: 381-387
• Citation: (2005) 17 SA Merc LJ 381
• Date: 16 August 2019

Prejudice and the Surety

JT PRETORIUS

University of South Africa

1 Introduction

The decision in Bock & Others v Duburoro Investments (Pty) Ltd (2004 (2)

SA 242 (SCA)) is a bit of a storm in a teacup.

First some background. Wessels (JW Wessels The Law of Contract vol II

2 ed (1951) by AA Roberts (1951) (‘Wessels’) in pars 4289-4367 at 1056ff)

deals with the discharge of the surety by the subsequent acts of the creditor to

which the surety was no party. He refers specif‌i cally to instances of a material

variation of the terms of the principal contract and remarks that according

to some of the older commentators, every variation of the principal contract

liberated the surety from liability (idem in par 4294). Wessels then points out

(in par 4295) that this is not our law:

‘We [in South Africa] adopt the principle that the creditor may improve the position of the

surety but he may not render his liability more burdensome. Hence, the creditor and the debtor

have no right to prejudice the position of the surety by altering the terms and conditions of the

principal contract without his consent and still seek to hold him liable.’

DIE REGSPOSISIE VAN ’N VERKOPER BY UITWINNING 381

(2005) 17 SA Merc LJ 381

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