Fourlamel (Pty) Ltd v Maddison

• Jurisdiction: South Africa
• Judge: Holmes JA, Trollip JA, Muller JA, De Villiers JA and Miller JA
• Judgment Date: 05 November 1976
• Citation: 1977 (1) SA 333 (A)
• Hearing Date: 24 September 1976
• Court: Appellate Division

Miller, J.A.:

The respondent was the second of three defendants sued by the appellant in the Witwatersrand Local Division for payment of R3 670,13. The amount claimed represented rental said to be due and owing to appellant by the first defendant in F terms of an agreement of lease concluded between the appellant and itself. The respondent and the third defendant were alleged in the summons to be jointly and severally liable with first defendant, by reason of their having bound themselves to the appellant

"in terms of a written deed of suretyship executed by them G at Johannesburg on 1 August 1973",

as sureties and co-principal debtors for the due payment

"of all sums of money then or in the future owing by the first defendant to the plaintiff from whatsoever cause arising".

Judgment by default was entered against the first and third defendants. The respondent having entered appearance to defend H the action, the appellant applied, in terms of Rule 32 of the Uniform Rules of Court, for summary judgment against him. Notwithstanding respondent's opposition thereto, the relief sought was granted, whereupon the respondent successfully appealed to the Full Bench of the Transvaal Provincial Division, which set aside, with costs, the order made by the Court of first instance and substituted therefor an order refusing summary judgment, reserving the costs. The Court a quo granted the appellant leave to appeal against its decision to this Court.

Miller JA

The application for summary judgment was supported by an affidavit, substantially in the form prescribed by Rule 32 (2), by one Davidoff, the manager of the appellant company. One of the objections raised by the respondent to the grant of summary A judgment was that Davidoff did not have "personal knowledge" of the matters alleged in the summons and was, therefore, not such a person as was able to "swear positively to the facts verifying the cause of action", as required by Rule 32 (2). That objection was rightly not persisted in on appeal and it need not again be mentioned. The respondent's defence on the B merits was that the document entitled "Suretyship", and admittedly signed by him, was not a "valid agreement of suretyship" between the appellant and himself, by reason of the provisions of sec. 6 of the General Law Amendment Act, 50 of 1956 (as amended by sec. 34 of Act 80 of 1964), which is in these terms:

"No contract of suretyship entered into after the commencement of this Act shall be valid, unless the terms thereof are C 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".

The "deed of suretyship" referred to in the summons, upon which the appellant founded its claim against the respondent and the third defendant, is in the form of a printed letter addressed to the appellant, whose name and address are type-written above D the opening paragraph, which reads thus:

"I/We, the undersigned,

Norman Ridley Maddison and Redmond Orpen

do hereby bind myself/ourselves jointly and severally in your favour as surety/sureties and co-principal debtor/s in solidum with

Penguin Heating and Air Conditioning (Pty.) Ltd.

E (hereinafter called 'the debtor') for the due and punctual payment of all sums of money which the debtor may now and from time to time hereafter owe to you, from whatsoever cause arising, which, without detracting from the generality of the aforegoing, shall include claims acquired by cession from others from time to time, to which cession/s we hereby irrevocably furnish our authority and agreement, and for the due and punctual performance of all other obligations, F howsoever arising, which the debtor may now and from time to time hereafter be bound to perform in your favour."

The first names of the respondent (Maddison) appear to have been written in ink, as does the first name of the third defendant (Orpen). Their surnames, as also the name of the principal debtor (the first defendant) appear to have been typed in. For the rest, the whole of the body of the "document" (I shall refer to it as such in this judgment) consisting of G some eleven paragraphs, is exclusively in print, save only for the place and date of execution, which are written in ink. The document was admittedly signed at the foot thereof by the respondent and the third defendant, and by two witnesses who appear to have signed their names opposite that of the third H defendant. The respondent's signature does not appear, ex facie the document, to have been witnessed. The concluding paragraph of the document, which alone of the paragraphs following upon the opening paragraph might be relevant for present purposes, reads as follows:

"I/We hereby select domicilium citandi et executandi for all purposes hereunder at the leased premises referred to in the deed of lease annexed hereto."

(The question whether any agreement of lease was in fact annexed to the document will be later considered.) In his affidavit filed in reply to the application for summary judgment, the respondent does not deny that

Miller JA

the document in its present form substantially reflects the verbal agreement originally concluded but avers that he signed the document not on 1 August 1973, as therein reflected, but on 17 November 1972 (which is the date upon which the first defendant concluded the agreement of lease between itself and A the appellant and when the respondent signified his willingness to go surety for the first defendant); that when he appended his signature, the name of the third defendant did not appear on the document, nor had the third defendant signed it; that neither the name of the appellant nor that of the first defendant appeared on the document at the time of B his signature. He claims, therefore, that what he signed was not a written agreement or undertaking of suretyship in favour of the appellant in respect of the first defendant's indebtedness, but "a blank form".

The essential issue between the parties in this Court, as it also appears to have been in both of the Courts below, is C whether, if the printed document was in blank in the respects alleged by respondent at the time of his signing thereof, the unilateral insertion thereafter, by another, of the missing details, resulted in a contract of suretyship

"the terms (whereof) are embodied in a written document signed by or on behalf of the surety",

within the meaning and effect of those words in sec. 6 of Act D 50 of 1956. The learned Judge in the Court of first instance held that a valid contract of suretyship had resulted but the Court a quo held that it had not.

Central to the argument advanced by Mr. Slomowitz, for the appellant, was the difference between the wording of sec. 6 and that of other well known enactments requiring contracts to be in writing if they are to be valid and enforceable; for E example, contracts for the sale of land (sec. 1 of Act 71 of 1969 and its predecessor, sec. 1 (1) of Act 68 of 1957; sec. 30 of Proc. 8 of 1902 (T) and sec. 49 of Ord. 12 of 1902 (0) and agreements of hire-purchase (sec. 4 of Act 36 of 1942). Although counsel conceded that the Legislature might have had a generally similar purpose in mind in enacting the provisions F relating to contracts for the sale of land and the provisions relating to contracts of suretyship (cf. Northern Cape Co-operative Livestock Agency Ltd. v...