Interpretation of suretyships and the Constitution

• Jurisdiction: South Africa
• Pages: 127-140
• Author: Pretorius, J.
• Date: 24 December 2019
• Published date: 24 December 2019
• Citation: 2019 Acta Juridica 127

127

Interpretation of suretyships and the

Constitution

JOPIE PRETORIUS*

There seem to be dierent approaches to the interpretation of contracts.

These approaches have a bearing on the certainty of contracts and a

disregard of the evidentiary part of the parol evidence rule. This is

especially the case in the law of suretyship, where creditors are no longer

certain that the surety will adhere to the bargain that he contracted for.

This essay examines two similar Supreme Court of Appeal cases where

the outcomes were dierent.

I INTRODUCTION

I have known Danie Visser since 1971. We met as rst-year students

at the University of Pretoria. We became very close friends and we

have maintained contact over the years. He is for me the example

of what an academic should be and, in many ways, he inspired me

throughout my own academic career. Many other contributors

will attest to his intellect, integrity and hard work. He is a highly

respected academic and it is an honour for me to write this small

contribution to celebrate his remarkable career.

The contract of suretyship is one of the most ancient contracts

known to Western civilisation.1 Despite its ancient origins, suretyship

still plays an extremely important part in commercial life today.

* BIur is (Pretoria) LLB (Natal) LLM (Cape Town) LLM (London) LLD (RAU);

Attorney; Emeritus Professor of Law, University of South Africa; Extraordinary

Professor of Law, University of the Wester n Cape; Visiting Professor at the University

of Johannesburg; and Life Member of Clare Hall, University of Cambridge.

I would like to thank Professor Michelle Kelly-Louw and Dr FE Myburgh for their

comments on the drafts of this contribution. Any faults and shortcomings are mine.

I would also like to thank Professor Helen Scott for her patience and support.

1 C Forsyth & J Pretor ius Caney’s The Law of Suretyship in South Africa

6 ed (2010) 1; D Phillipson ‘Development of the Roman law of debt security’

(1968) 20 Stanford LR 1230; R Zimmermann The Law of Obligations (1990) 114;

C Forsyth ‘Suretyship’ in R Zimmer mann & D Visser (eds) Southern Cross: Civil

Law and Common Law in South Africa (1996) 417; I Kocsis & M Olechowski

‘Suretyship in German and Polish law: A comparative analysis’ (2006) 31 Review of

Central and East European Law 331; T Hewitson Suretyship – The Origin and History

of the Conception (unpublished LLD thesis, University of Adelaide, 1923) 11.

2019 ACTA 127

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