Sapirstein and Others v Anglo African Shipping Co (SA) Ltd

• Jurisdiction: South Africa
• Judge: Wessels ACJ, Jansen JA, Muller JA, Joubert JA and Trengove AJA
• Judgment Date: 04 July 1978
• Citation: 1978 (4) SA 1 (A)
• Hearing Date: 23 May 1978
• Court: Appellate Division

Trengove AJA:

This is an appeal against the dismissal of an exception to particulars of claim, annexed to a combined summons, in an action in which the respondent sued the appellants, jointly and severally, the one paying B the others to be absolved, for payment of the sum of R221 556,83 and costs on the scale as between attorney and client. I shall, for convenience, refer to the respondent as "the plaintiff" and to the appellants as "the defendants". The defendants' alleged indebtedness to the plaintiff is stated in the particulars of claim to arise from the following circumstances:

"(a)

Mentone Tractor Sales (Pty) Ltd (Mentone Tractor) and Mentone Car Hire (Pty) Ltd (Mentone Car Hire) are companies duly incorporated according to the laws of the Republic of South Africa.

(b)

Mentone Tractor and Mentone Car Hire respectively are the acceptor of certain bills of exchange and the drawer of certain cheques, copies of which are annexed hereto marked 'A1' to 'A12'.

(c)

D The plaintiff is the lawful holder of the said bills of exchange and cheques.

(d)

The said bills of exchange and cheques were duly presented for payment, but were dishonoured by non-payment.

(e)

Notice of dishonour was and is dispensed with as Mentone Tractor and E Mentone Car Hire respectively were the acceptors and drawers of the said bills and cheques.

9 (a)

On 1 August 1975 and at Johannesburg the defendants bound themselves in writing as sureties and co-principal debtors for all sums of money owing or which in the future might become owing by F Mentone Tractor and Mentone Car Hire to the plaintiff, howsoever arising. A copy of the deed of suretyship is annexed hereto and marked 'B'.

(b)

In terms of the deed of suretyship:

(i)

In the absence of agreement as to the rate of interest on any amount claimable from the debtor, then interest was to be G calculated at the rate of 12 per cent per annum calculated on daily balance.

(ii)

The signatories to the deed of suretyship agreed to pay attorney and client costs incurred by the plaintiff in obtaining implementation of the obligations of the sureties.

10.

In the premises, the defendants are jointly and severally liable to pay to the plaintiff the sum of R221 566,83."

The defendants' indebtedness is alleged, in a certificate issued in terms of the provisions of the deed of suretyship (annexure B), to have arisen during 1976. Annexures A1 to A9 are bills of exchange drawn on Barclays Bank International Ltd by the plaintiff, and accepted by Mentone Tractor Sales (Pty) Ltd (Mentone Tractor Sales) for amounts totalling, in all, R188 811,114; and annexures A10 to A12 are cheques drawn by Mentone

Trengove AJA

Car Hire (Pty) Ltd (Mentone Car Hire) for amounts totalling R36 755,69. Annexure B is the written contract of suretyship upon which the plaintiff's claim is based. The portion of the deed directly relevant to this appeal reads as follows:

A "Suretyship

To Anglo-African Shipping Company (SA) Ltd

Anglo-African Shipping Company (1936) Ltd

Anglo-African Shipping Company of New York, Incorporated

Anglo-African Factors (Pty) Ltd

Manufacturers Development Company (Pty) Ltd

B I/We the undersigned,

Selwyn Sapirstein

Harry Sapirstein

Lynne Securities (Pty) Ltd

Selene (Pty) Ltd

Mentone Car Hire (Pty) Ltd

C Mentone Tractor Sales (Pty) Ltd Mentone Auto Reconditioning (Pty) Ltd

Mentone Appearance Reconditioning (Pty) Ltd

do each of us hereby bind ourselves to you as sureties for and co-principal debtors in solidum with each and every of the other of us, so that each one of the undersigned hereby binds itself/himself to you as surety for and co-principal debtor in solidum with each and every of the other of the undersigned, the principal debtor in relation to each of the D undertakings as surety and co-principal debtor being hereinafter styled 'the debtor', for the payment on demand of all sums of money which the debtor may have in the past owed or may presently or in the future owe to each of you separately and individually or to your successors in title or assigns, whether such indebtedness arises from money already or hereafter to be advanced, or from promissory notes, cheques or bills of exchange already or hereafter to be made, drawn, accepted or endorsed or from E damages for breach of contract or from guarantees given or to be given by the debtor to you on behalf of third parties or guarantees given or to be given by you on behalf of the debtor, or in respect of any indebtedness which may take the place of any novated debt, even if such novation is of a debt in existence during the existence of this suretyship and the novation takes place after the termination of this suretyship, I/we shall be liable for either the said existing debt or the said novated debt at your election; or in delict or otherwise howsoever, disbursements, including interest, discount, commission, law costs, including attorney F and client costs and collection commission, stamps and all other necessary...