JPS Nominees (Pty) Ltd v Kruger

• Jurisdiction: South Africa
• Judge: FS Steyn J
• Judgment Date: 13 June 1975
• Citation: 1976 (1) SA 89 (W)
• Hearing Date: 24 April 1975
• Court: Witwatersrand Local Division

F. S. Steyn, J.:

In this matter the plaintiff claimed against G defendant as cessionary of the claim arising out of a written deed of suretyship of J. Perkel, Silverman & Co., acting for and on behalf of various nominees.

Exception was taken to plaintiff's declaration in that the deed of suretyship is invalid inasmuch as it does not comply with sec. 6 of Act 50 of 1956, in that it fails to disclose the H identities of the principal creditors and, further, in that the alleged cession of J. Perkel, Silverman & Co. to plaintiff is invalid because the cedents had no rights in their own name under the deed of suretyship, and consequently could not cede such rights.

Para. 3 of the plaintiff's declaration reads:

'On 21 December 1970 and at Johannesburg, the defendant entered into a written agreement of suretyship in terms whereof he bound himself jointly and severally as surety in solidum and co-principal debtor for the repayment on demand of all sums of money which certain Highbury Estates (Pty.) Ltd. might then or from time to time thereafter owe to

F S Steyn J

certain J. Perkel, Silverman and Co. (acting for and on behalf of various nominees) from whatsoever cause.'

It is to be noted that the terms in which plaintiff's cause of action is set out in the summons reads:

'(a)

A Payment of the sum of R32 000 being the amount owing in terms of a written deed of suretyship dated 21 December 1970 in terms whereof the defendant guaranteed payment of all moneys owing from time to time by Highbury Estates (Pty.) Ltd. to J. Perkel, Silverman and Co. acting for and on behalf of various nominees.'

without placing the qualifying clause 'acting for and on behalf B of...' in brackets.

On behalf of excipient, Mr. Melamet argued that the amount which defendant guaranteed was lent to the principal debtor, Highbury Estates (Pty.) Ltd., by the nominees of J. Perkel, Silverman & Co. in terms of the further particulars to plaintiff's claim, reading as follows:

'2.

C Ad para. 4:

(a)

The said sum was lent on 2 January 1971 to Highbury Estates (Pty.) Ltd. by J. Perkel, Silverman and Co., acting as aforesaid.'

To give meaning to the words 'acting as aforesaid', reference must be made to para. 4 of plaintiff's declaration which is amplified by the further particulars. Para. 4 of the declaration in turn used the D same phrase, 'J. Perkel, Silverman & Co. acting as aforesaid', and in para. 4 of the declaration the words...