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Case No 404/91

IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION

In the matter between:

DIRK HENDRIKUS JURGENS (Snr) 1st Appellant

DIRK HENDRIKUS JURGENS (Jnr) 2nd Appellant
GEERT DIRK JURGENS 3rd Appellant

JURGENS BODIES CARAVANS & TRAILERS

COMPANY (PTY) LIMITED 4th Appellant

TEREXKO LIMITED 5th Appellant

CORNELIS PETRUS SWART 6th Appellant

and

VOLKSKAS BANK LIMITED Respondent

CORAM: HOEXTER, HEFER, GOLDSTONE, JJA et HOWIE, KRIEGLER, AJJA

HEARD: 18 August 1992

DELIVERED: 17 September 1992

JUDGMENT

HOEXTER, JA

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HOEXTER, JA
In an application for summary judgment ("the application") made in the Witwatersrand Local Division Lazarus J (whose recent untimely death is a loss keenly felt by the profession) granted judgment in favour of the respondent against the six appellants, jointly and severally, for payment of R2,9 million, interest thereon, and costs. With leave of Eloff JP the appellants appeal to this court against the said orders.
The fourth and fifth appellants are two of a number of companies within the Jurgens Group ("the group") which has its offices at Jurgens House in Kempton Park. The first, second, third and sixth appellants are directors of the companies within the group. One of the companies in the group is Jurgens Landgoed (Edms) Beperk ("the principal debtor") which is in liquidation.

The principal debtor was a client of the
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respondent at its Kempton Park branch. The respondent advanced money to the principal debtor by way of overdraft facilities. As security for the overdraft the respondent from time to time required the first, second, third and sixth appellants, both personally and in their representative capacities as directors of the fourth and fifth appellants, to sign various bank guarantee documents. During March 1991 the respondent instituted an action against the six appellants and the wife of the sixth appellant ("Mrs Swart"), jointly and severally, for payment of an amount in excess of R8 ½ million, together with interest thereon, and costs. The respondent's summons alleged that the sum claimed had been advanced by it to the principal debtor by way of the aforementioned overdraft, and that the appellants and Mrs Swart had bound themselves to the respondent as sureties and co-principal debtors in respect of the principal debtor's aforesaid indebtedness.

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Annexed to the summons were copies, respectively marked "A", "B" and "C", of three contracts of suretyship. The appellants and Mrs Swart gave notice of intention to defend the action, whereupon the respondent made the application. The application was resisted by all the defendants to the action, the main opposing affidavit ("Swart's affidavit") being deposed to by the sixth appellant. At the hearing the application against Mrs Swart was withdrawn.
Swart's affidavit raised a number of grounds of objection to the application. However, in argument before Lazarus J only two defences were put forward. The second defence related to the amount of the principal debtor's indebtedness to the respondent. It succeeded to the extent that it induced the learned judge (1 ) to grant summary judgment in the lesser amount of R2,9 million and (2) to give leave to the appellants to defend in respect of the balance claimed. The first defence was that each of

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the three suretyships reflected in Annexures "A", "B" and "C" to the summons, and on which the respondent's action was founded, failed to comply with the provisions of sec 6 of the General Law Amendment Act No 50 of 1956 ("the Act") as amended by sec 34 of Act No 80 of 1964. Lazarus J held that the first defence was legally unsound. The correctness or otherwise of that finding is the sole issue in this appeal.
The factual basis of the first defence is the following. Each of Annexures "A", "B" and "C" is a printed bank form headed by the name of the respondent and designed for completion as a contract of suretyship by the filling in of appropriate blank spaces and by signature by or on behalf of a surety or sureties. Annexure "A", which bears the sub-heading "WAARBORG DEUR TWEE OF MEER BORGE -ONBEPERK" is intended for suretyships undertaken by natural persons. Annexures "B" and "C" each bear the sub-heading

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"WAARBORG DEUR BEPERKTE MAATSKAPPY." All the blank spaces in Annexures "A", "B" and "C" have been filled in. Thus, for example, on the first page of Annexure "A" there have been inscribed, in typescript, the name of the principal debtor and the names of the sixth, the first, the third and the second appellants respectively as the sureties; and on the last page of the document there have been inscribed in typescript "KEMPTON PARK" as the place,
and "13de ... DESEMBER 1988" as the date of signature by
the sureties. Thereunder appear four signatures. It is common cause that these are the signatures of the sixth, first, third and second appellants respectively. It is not common cause that such signatures were affixed on 13 December 1988. The typescript filled in on the remaining two guarantees respectively name the fourth appellant (in Annexure "B") and the fifth appellant (in Annexure "C") as the surety for the indebtedness of the principal debtor;

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and the names of the first, third and sixth appellants

(duly authorised by a board resolution) acting for and on

behalf of the surety in each case. On the last page of

each of Annexures "B" and "C" the same place (Kempton Park)
. and the same date of signature (13 December 1988) have

been typed in. Thereunder appear three signatures. It

is common cause that these are the signatures of the first,

third and sixth appellants respectively. It is not common

cause that such signatures were affixed to Annexures "B"

and "C" on 13 December 1988.

Whenever the respondent required suretyships from

the appellants the printed bank forms such as those already

described were delivered by the respondent at the group

office. According to Swart's affidavit such documents -

".... although prima facie signed on a particular date by particular persons ...."

were in fact signed -

"....from time to time by whichever of the

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signatories were then present .... in blank and in an incomplete state pending final signature by the last of the persons concerned, whereupon one of the secretaries [at the group office] would complete the documents by inserting the appropriate names."

Swart's affidavit proceeds to say that each of the
suretyships reflected in Annexures "A", "B" and "C" was so
signed, and -

".... at the time each of the signatures was appended thereto, the document was inchoate in that, in particular, none of the typescript appearing throughout the body of the document had been inserted...."

It is not expressly stated in Swart's affidavit that it was
only after the secretaries of the group had typed in all
the relevant particulars now appearing therein that
Annexures "A", "B" and "C" were delivered to the
respondent, but in the course of his judgment Lazarus J
correctly concluded that this was the obvious inference to
draw. In argument before this court it was common cause

that all three suretyships were returned to the respondent

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after they had been so completed on behalf of the
appellants.

The court below gave the first defence short

shrift. Lazarus J said the following:-

"I refer to the case of Standard Bank of South Africa v Jaap de Villiers Beleggings 1978(3) SA
955(W), where Coetzee J held that the relevant time for considering whether a suretyship is complete is the time of delivery and not the time of signature. He found that Miller JA in the case of Fourlamel (Pty) Ltd v Maddison 1977(1) SA 333 (A), had not intended to deal with the case where the suretyship was complete at the time of delivery though incomplete at the time of signature. In my respectful view this is correct, and I in any event regard myself as bound by the case."

Sec 6 of the Act is in the following terms:-

"No contract of suretyship entered into after the commencement of this Act, shall be valid, unless the terms thereof are embodied in a written document signed by or on behalf of the surety: Provided that nothing in this section contained shall affect the liability of the signer of an aval under the laws relating to negotiable instruments."

In the Fourlamel case (supra) the defendant
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surety raised the defence that the printed document which
bore his signature had been a blank form at the time when
he signed it. In delivering the unanimous judgment of this
court Miller JA (at 341 C-D) defined the essential issue
between the parties as being -

"....whether, if the printed document was in
blank in the respects alleged by respondent at
the time of his signing thereof, the unilateral
insertion thereafter, by another, of the missing
details, resulted in a contract of suretyship
'the terms (whereof) are embodied in a
written document signed by or on behalf
of the surety',
within the meaning and effect of those words in
sec 6 of Act 50 of 1956."

Counsel for the appellant in the Fourlamel case had

submitted that sec 6 of the Act required only that the
terms of the contract of suretyship be embodied in a
written document bearing the surety's signature,
irrespective whether the orally agreed terms were so

inscribed before or after the surety appended his

signature. In rejecting this submission Miller JA

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remarked (at 341 G-H):-

"The plain, grammatical meaning of the words used in sec 6 appears to me to be clear. The section presupposes that an agreement of suretyship has been reached - 'contract of suretyship entered into' - and it provides thereafter that such agreement shall not be valid
'unless the terms thereof are embodied in a written document signed by or on behalf of the surety.' What is it that requires to be signed by the surety? It is surely the written document containing the terms of the agreement (Cf. the Afrikaans version

'....tensy die bepalings daarvan in 'n deur of namens die borg ondertekende skriftelike dokument beliggaam is'.)."

In the course of his judgment Miller JA considered what
objects sec 6 had been intended to achieve. In this
connection the learned judge of appeal pointed out the
following (at 342 in fin - 343 C) -

"However many objects the Legislature may have had in mind in enacting sec 6 of Act 50 of 1956, one of them was surely to achieve certainty as to the true terms agreed upon and thus avoid or minimize the possibility of perjury or fraud and unnecessary litigation. This is a purpose which, despite differences in wording, is common

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to the enactments relating, respectively, to contracts for the sale of land (see, e g, Wilken v Kohler, 1913 A.D. 135 at pp 142, 149; Clements v Simpson, 1971 (3) SA 1 (A.D.) at p 7) and to agreements of hire-purchase (Van Rooyen v Hume Melville Motors (Edms) Bpk., supra at p 71). The Legislature may also have been influenced by other considerations, for example, that suretyship being an onerous obligation, involving as it does the payment of another's debts, would-be sureties should be protected against themselves to the extent that they should not be bound by any precipitate verbal undertakings to go surety for another but would be bound only after their undertaking had been recorded in a written document and signed by them or on their behalf. These objects would clearly be defeated if it were left to another, after a party had appended his signature to a blank document, to insert the terms of a prior verbal agreement."
Suretyship is a bilateral jural act. See LAWSA

vol 26 par 156 at p 138. It is a contract which arises
from agreement between creditor and surety, and it involves
the acceptance of an offer. An offer is a manifestation
of the offeror's willingness to contract, made with the

intention that it shall become binding as soon as it is

accepted by the offeree. It is trite that an offer cannot

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be accepted unless and until it has been brought to the attention of the offeree. It need hardly be said that there is a fundamental difference between, on the one hand, the situation in which after a surety has signed and delivered a blank form to the creditor, the latter unilaterally completes the blank form by filling in some of the contractual terms, and, on the other hand, the situation in which the surety has signed a blank form which is then filled in, by, or for and on behalf of the surety, before the document so completed is delivered to the creditor. In the Fourlamel case this court was concerned only with the former situation.
A prerequisite for a contract of suretyship is that the offer communicated by the would-be surety to the creditor must be complete. In the instant case, so it seems to me, the appellants communicated their offers to the respondent when the documents in question, duly filled

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in, were delivered by or on behalf of the appellants to the respondent. It cannot be suggested that, on the face of them, these offers were in any respect incomplete. At that juncture they contained the terms essential for the material validity of a contract of suretyship (the identity of the creditor; the identity of the surety or sureties; and the amount of the principal debt.) These terms had been incorporated at the group office by the secretaries of the group for and on behalf of the appellants. Each such document bore the signatures of those of the appellants named therein. It is not in dispute that the suretyships thus delivered to the respondent were accepted by it.
It will be recalled that in rejecting the appellants' first defence the court a quo relied upon the judgment of Coetzee J in Standard Bank of South Africa v Jaap de Villiers Beleggings (supra), to which I shall refer

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hereafter as "the De Villiers case". There the plaintiff bank had partially filled in one of its standard printed suretyship forms. The incomplete form was then handed to the defendant surety which further filled in the form. The form was signed on behalf of the surety and handed back to the bank. At that stage there was still blank a clause which provided that the guarantee would remain in force as a continuing guarantee -

"..... until the .... branch of the Bank"

should receive written notice of termination and until the sums due at the date thereof should have been paid. Having received the signed document the bank in the blank space just indicated caused to be typed in on the document the words:-
"Standard Bank Centre" Relying on the suretyship, the bank sued the surety. The latter noted an exception to the claim on the ground that

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the document did not comply with sec 6 of the Act in that
at the time of its signature not all the "terms thereof"
had been embodied therein. The notice of exception stated
that the term not so embodied was contained in the words

"Standard Bank Centre" abovementioned.

Coetzee J dismissed the exception. The learned

judge held that a contract had come into existence when the
signed document, which contained all the terms material to
suretyship, had been returned to the bank. The clause in
which the words "Standard Bank Centre" had subsequently
been inscribed by the bank was irrelevant to the action and
the signed document made sense without those words. The

following observations in the judgment of Coetzee J (at 958
A-D) seem to me to be pertinent to the issue in this
appeal:-

"The question which must be answered in the first instance is when did the parties, as the declaration is framed, actually enter into em agreement of suretyship, one that had to be

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embodied in writing. It seems to me that, on the facts alleged in the declaration, such a contract could not, on any basis, have come into being until the defendant delivered the document signed by him to the plaintiff. When he took the document away, there may already have been an agreement reached between itself and the plaintiff in relation to the suretyship. It may be that the purpose of taking the document away was for the defendant to complete it in whatever way was necessary. Now if the defendant had signed it at some or other stage and kept it locked up in the privacy of its own premises, then clearly until it informs the plaintiff that such a document exists with the intention of creating a valid vinculum juris thereby, no such vinculum juris can possibly come into existence. It can only begin to exist at a moment when the defendant manifests its intention of being bound according to the tenor of the document and, on these facts, that is when it delivers that piece of paper to the plaintiff and not before. Consequently, the important point in time at which I should look, for the purposes of the exception, is the moment of delivery of this document to determine whether a valid contract came into existence at that moment."
Sec 6 of the Act requires (i) that the terms of

the contract of suretyship shall be embodied in a written
document which (ii) shall be signed by the surety. The

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function of a signature is to signify that the writing to
which it pertains accords with the intention of the

signatory. It conveys an attestation by the person signing
of his approval and authority for what is contained in the
document; and that it emanates from him. Sec 6 is silent
as to when the surety's signature must be affixed to the
document. Nothing is prescribed as to the sequence in
which completion of the document and the affixing of his
signature by the surety must occur.

The Act is similar in purpose to the English

Statute of Frauds - see Wilken v Kohler (supra) at 142.
Kindred legislation exists in the United States of America.

In regard to the antecedent signature of a document

subsequently completed, the following remarks of Corbin, on
Contracts, vol 2 (Statute of Frauds) para 522, are

instructive. At p 769 the learned author states:-

"It is not usual to sign a formal document until it is complete in form with its terms fully written out. Nevertheless, sometimes words are scratched out and new words inserted by

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interlineation or other addition, after the act of signing. The document as thus amended is quite effective to perform its ordinary functions if what is known as 'delivery' takes place after the amendment. There need be no new act of signing."

On p 770 the following is said:-

"In requiring a memorandum signed by the party to be charged, the statute of frauds makes no requirement as to the time of inscribing the signature. The court must be satisfied that the signature was intended as an authentication of the instrument in the form in which it is now afforded as evidence; but it may be satisfied of this even though the signature was inscribed before the terms of the agreement were written. This is shown by the cases holding that a name written at the beginning of a letter as the address, or a name printed on a letterhead long before the subject matter appears on the paper, may operate as a signature. In all these cases, it must be shown that the name antecedently inscribed was adopted by the party to be charged as his authenticating signature." (Emphasis supplied.)
In my view it is quite immaterial whether the

surety signs the document only after all the material terms
have been written therein or whether the surety signs the

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document first and thereafter, by his own hand or that of
his agent, completes the document by filling in the
material terms. In either case the surety's signature

serves to authenticate the document.

Mr Hoffman, who argued the matter on behalf of

the appellants, urged upon us that the De Villiers case had
been wrongly decided; and that, upon a proper construction
of the judgment in the Fourlamel case, Lazarus J had erred
in failing to uphold the first defence in the court below.
Counsel founded his argument on the passage which occurs at

341 G-H in the judgment of Miller JA, and in particular the
following statement:-

"What is it that requires to be signed by the surety? It is surely the written document containing the terms of the agreement."

It was said that, in so interpreting the provisions of sec

6 of the Act, this court in the Fourlamel case had laid

down without qualification the following principle of

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general application: that whenever a would-be surety
affixes his signature before completion (by whomsoever,

including the surety himself) of the document embodying the
terms of the suretyship, there can never be compliance with
the requirements of sec 6. On the other hand Mr Du
Plessis, who appeared for the respondent, submitted that no

such broad proposition of law was implicit in the actual
decision of the Fourlamel case; and that, in dealing with
the particular facts of the present case this court
was unhampered in determining the legal point here

involved. For the reasons which follow I agree with the

latter submission.

At the outset it is useful to bear in mind the

salutary reminder of the Earl of Halsbury LC in Quinn v
Leathern [1901] UKHL 2; 1901 AC 495 (HL(I)) at 506:-

"....that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not

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intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found .... that a case is only authority for what it actually decides."
1 have already indicated what the sole issue was

in the Fourlamel case. That what was decided in the
Fourlamel case was intended by the court to be confined to

its particular facts, and the only issue raised by them,
appears sufficiently, I think, from the following
observations of Miller JA when he found it necessary to
contrast the facts of the case before him with the facts in
Levin v Drieprok Properties (Pty) Ltd 1975(2) SA 397 (A).
Of the last-mentioned decision Miller JA said (at 344 A-
B):-

"In that case, after a written offer for the purchase of land had been made, the offeror's agent made an alteration to it. The Court left open the question whether, if the agent was verbally authorized to make the alteration, a valid contract of sale would have resulted from the written acceptance by the seller of the amended offer (p.409G)."

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Immediately thereafter Miller JA proceeded to say:-

"What is important to note in that connection, however, is that the question left open by the Court related to an alteration made by the offeror's agent, not by any other person. Here, the additions to the deed of suretyship were not made by the respondent or his agent." (Emphasis supplied.)

In the instant case the additions to the suretyships were
made on behalf of the appellants before they were returned
to the respondent. That was the very situation which
Miller JA was at pains to distinguish from the facts of and
the issue in the Fourlamel case. It follows, despite the
general statement made by Miller JA in the Fourlamel case
at 341 G-H (and likewise at 344 D), that on the facts
proved in the present appeal we are at liberty to state our
view of the law on the point which here arises untrammelled
by what was said in the Fourlamel case. In passing,
however, and with much deference, I am constrained to say

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that in the future this court may yet be required to reconsider the correctness of the broad proposition stated at 341 G-H of the Fourlamel case. In support of that proposition Miller JA (at 342 D-H) relied upon Van Rooyen v Hume Melville Motors (Edms) Bpk 1964(2) SA 68(C). For purposes of the present appeal it is unnecessary to decide whether that case was correctly decided. It is likewise unnecessary to venture any opinion as to whether there would still be compliance with sec 6 where the surety fills in a material term after the signed document has been delivered to the creditor. Suffice it to say that on the particular facts there assumed for the purposes of an exception, the result in the De Villiers case was correct; and that on the particular facts proven in the present case the judgment of Lazarus J is right and should not be disturbed.

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For the above reasons I consider that the appeal should be dismissed with costs, including the costs of two counsel.

G G HOEXTER, JA

Hefer, JA )

Kriegler, AJA )

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