Jayber (Pty) Ltd v Miller and Others

• Jurisdiction: South Africa
• Judge: Van Reenen J
• Judgment Date: 27 November 1979
• Citation: 1981 (2) SA 403 (W)
• Hearing Date: 11 November 1979
• Court: Witwatersrand Local Division

Van Reenen, J.:

The plaintiff was the erstwhile lessor of certain property which it had leased to a company, Hi Fi Car Radio TV (East Rand) (Pty) Ltd, for a definite period of five years, the lease due to terminate on 28 February 1979.

The three defendants had bound themselves as "sureties and coprincipal debtors" jointly and severally and in solidum with the lessee to the lessor for the

Van Reenen J

"due and proper performance by the lessee of all obligations from whatsoever cause arising which the lessee may now or at any time hereafter be or become bound to perform to or in favour of the lessor".

A The lessee company was provisionally wound up on 11 April 1978 and on 18 May 1978 the provisional liquidator terminated the lease in terms of s 37 (1) of the Insolvency Act 24 of 1936.

By that time the company was (so avers the plaintiff) in arrears with payment of the rental due in the amount of R435,48. Furthermore, the B lease had in terms of the lease agreement still some eight or nine months to run before its expiry, and the plaintiff avers that it has on this score suffered damages in the sum of R7 064,52.

It is now claiming payment from the defendants as sureties of these two amounts.

No evidence was placed before me, the parties seeking my decision on a C question of law in terms of Rule of Court 33 (4).

The defendants contend that the deed of suretyship does not cover any damages or loss occasioned by the so-called "statutory intervention" of the liquidator. For this proposition Mr Fine relied strongly on the decision of FRANKLIN J in D Strydom v Goldblatt 1976 (2) SA 852 (W) in which a similar defence was raised. But the learned Judge was at pains to point out that the deed he had to construe differed from the more usual form, which is the one I have to consider. At 854F he says:

"Mr Zulman also pointed out that the deed of suretyship does not use the phrase commonly used in deeds of suretyship - 'from whatsoever cause arising' - which language might well have been wide enough to cover statutory intervention."

E It is thus clear that FRANKLIN J did not intend his decision to cover deeds such as the one I have before me.

It is true that a deed of suretyship must strictly be interpreted (see, eg, Patel v Patel and Another 1968 (4) SA 51 (D)) but aids to construction are only to be invoked if the deed is not clear. When the deed is clear, F it has to be applied even if its terms are very wide.

In Pizani...