Credit Corporation of SA Ltd v Du Preez

• Jurisdiction: South Africa

Credit Corporation of SA Ltd v Du Preez
1961 (4) SA 515 (T)

1961 (4) SA p515

Citation	1961 (4) SA 515 (T)
Court	Transvaal Provincial Division
Judge	Bresler J
Heard	August 3, 1961
Judgment	September 26, 1961

Flynote : Sleutelwoorde

Principal and surety — Surety sued — Fraud by creditor and debtor alleged by him — Essential averments.

Headnote : Kopnota

If a surety wishes to assert fraud either by the creditor or the debtor he should so plead it that the plaintiff may be clearly informed of the E nature of the case he has to meet.

Case Information

Application to strike out certain paragraphs in a plea. The nature of the pleadings appears from the reasons for judgment.

D. A. Melamet, for the applicant.

J. J. Strydom, for the respondent.

Cur. adv. vult. F

Postea (September 26th).

Judgment

G Bresler, J.:

Plaintiff sues the defendant as surety and it is necessary to refer to the declaration as setting out the cause of action in the matter. Paras. 3 - 6 read as follows:

'3. On or about the 15th day of August, 1951, plaintiff entered into an agreement with one Elizabeth Wilhelmina de Beer (born Annandale), who is married out of community of property with the exclusion of marital power H to defendant and who was then carrying on business under the style of Modern Garage at Brits, in terms whereof plaintiff undertook, inter alia, to purchase, from time to time her rights in hire purchase or suspensive sale agreements, which she had entered into with her customers and to acquire the ownership in the merchandise which is the subject of such agreements.

4. It was a term of the said agreement that in the event of plaintiff finding that a debtor or obligant had not carried out the terms and conditions of any particular agreement or document whether by reason of his failure to pay regular instalments, or by reason of the operation of any law or by reason of his exercising any statutory or other right to suspend or postpone payment or to terminate any agreement or document or all or any of his obligations thereunder,

1961 (4) SA p516

Bresler J

or for any other reason whatsoever, then and in such event plaintiff would have the right, should it think fit, to call upon the said Elizabeth Wilhelmina de Beer to refund to plaintiff the balance of the purchase price paid by it to the said Elizabeth Wilhelmina de Beer in respect of such agreement, bill or note against delivery thereof to her A in which event plaintiff undertook to do all things necessary to revest the said Elizabeth Wilhelmina de Beer with the ownership in the merchandise, the subject of such agreement. The balance of the purchase price to be so refunded was to be either an amount equivalent to the balance outstanding under such agreement, bill or note as shown in the books of the plaintiff at the date on which plaintiff notified the said Elizabeth Wilhelmina de Beer that it required her to make a refund as aforesaid, or such lesser amount as plaintiff might determine after making due allowance for the fact that payment was being made earlier than as stipulated.

B 5. Defendant bound himself in writing to plaintiff, as surety and co-principal debtor, for the due fulfilment of all the obligations of the said Elizabeth Wilhelmina de Beer under said...