GUARANTEE OR SURETYSHIP: THEIR DIFFERENCES MATTER
Standard Bank of South Africa Ltd v Wardkiss Property Holdings (Pty) Ltd (9324/22) [2023] ZAKZPHC 153 (19 December 2023)
The distinction “often turns on a knife edge”, says academics, and telling a guarantee apart from a suretyship is vital before committing yourself to either. The judgment below is a practical illustration of the differences and consequences. This in the context of a company that signed a document, titled ‘guarantee,’ in respect of a related entity’s obligations to a bank. When the latter was liquidated, the company sought to escape liability, arguing that the terms of the document was really that of a suretyship; that the legal requirements for signature of a suretyship were not complied with and that the document was therefore invalid.
The Judgment
Summary of the Judgment
A SPAT IS NO GREEN LIGHT TO PULL THE CARPET FROM UNDER A STATE OF AFFAIRS
Bodies Under Construction CC and Others v Permasolve Investments (Pty) Ltd (19457/2023) [2023] ZAWCHC 326 (20 December 2023)
Believing that you are entitled to charge your tenants added contributions for costs arising from a generator (or any other service rendered to the leased property) is one thing. So is your conviction that your right to do so is provided for in an agreement. But it is quite another thing to, unilaterally, deprive your tenant of his decade long use of the generator; and it is also unlawful, as this judgment shows. Of particular legal interest is the Court’s recognition that the facts established that the use was so closely linked to the tenant’s possession of the premises that it constituted quasi possession, which made it possible for the tenant to launch spoliation proceedings.
