Compaan v Dorbyl Structural Engineering (Pty) Ltd t/a Brownbuilt Metal Sections

• Judge: McCreath J, Myburgh AJ and Heyns AJ
• Judgment Date: 13 May 1983
• Hearing Date: 04 May 1983
• Court: Transvaal Provincial Division

McCreath J:

In the Court a quo the respondent in the present appeal was granted summary judgment against the appellant for payment of the sum of R28 619,92. The present appeal is against the judgment and the order made.

The respondent's cause of action is summarised in the judgment of the Court a quo in the following terms:

McCreath J

"The plaintiff's summons alleges that a certain company is indebted to it in the sum of R43 619,92; that the company undertook to make payment thereof by way of seven instalments of R5 000 each and a final instalment of R8 619,92; that the company drew and issued to the plaintiff a series of eight postdated cheques for these amounts, payable as from 1 March 1982 and on the 1st of each succeeding month up to October A 1982; that it was agreed that in the event of any one cheque not being met on due date the full amount then outstanding would immediately become due and payable; that this was endorsed on the cheques; that the fourth cheque in the series, namely the one due on 1 June 1982, was presented for payment but was dishonoured and that in consequence thereof the full amount then outstanding, namely R28 619,92, became immediately B due and payable. Then comes the following allegation:

'7.

The defendant bound himself in writing as surety and co-principal debtor for and on behalf of the company for its liability to plaintiff, such suretyships appearing on the reverse of annexures A - E.'

Those annexures are the cheques in question."

The reference in the above passage to the fact that the aforesaid cheques were "issued to the plaintiff" could not have been intended to mean that the respondent was the payee in C terms of the cheques. It is alleged in the summons that the cheques were made payable to the appellant's attorneys and each of the cheques reflect the payee as being "Damant, Bostock and Co (Trust a/c)".

In his answering affidavit to the application for summary judgment the appellant denied that he had bound himself as D surety and co-principal debtor to the respondent and that any valid and enforcable deed of suretyship existed between him and the respondent. The appellant alleged that the formalities in respect of a contract of suretyship as prescribed in s 6 of the General Law Amendment Act 50 of 1956 had not been complied with. It was inter alia stated by the appellant that the terms E of the alleged deed of suretyship were not contained in any written document signed by the appellant and that the parties to the said deed had not been identified. At the hearing of the application in the Court a quo this defence was not relied upon nor did it constitute any of the grounds of appeal contained in the notice of appeal originally filed on behalf of the F appellant.

In a notice of amendment filed prior to the hearing of the appeal the said defence was, however, again raised. The amendment was...