In the High Court of South Africa 
Western Cape High Court, Cape Town

In the matter between

and

Judgment delivered: 8 February 2010 
S. OLIVIER AJ

2. Mr Searra was in default of appearing. I am satisfied that sufficient notice had been given to him of the hearing on 2 February 2010. Mr Hugo, who appeared for the Plaintiff, handed up the original cheque and then addressed me on the merits of his client's claim and the defences raised on affidavit by Mr Searra.

4. Mr Searra, states in his affidavit, that

(a)he appended his second signature to the cheque as he was told that if the cheque was presented and dishonoured he would be locked up.
(b) he thus signed the cheque a second time.

(d) He had not intended to bind himself as a surety.

"If a bill or an acceptance is materially altered, the liability of all parties who were parties to the bill at the date of alteration and who did not assent to it, must be regarded as if the alteration had not been made, but any party who has himself made, authorised or assented to the alteration, and all subsequent endorsers are liable on the bill as altered."

10. FR Malan, AN Oelofse, W le R de Vos, JT Pretorius & C J Nagel Provisional Sentence on Bills of Exchange, Cheques and Promissory Notes (I986) 203ff ('Malan et al Provisional Sentence') point out that the liability of an aval is one of the few branches of the law of negotiable instruments where Roman Dutch wisselrecht may still be relevant, that the precise extent of the liability is uncertain and requires recourse to both the common law and statute.

"(T)he liability of a person signing a promissory note as a surety without renouncing the beneficium excussionis is illiquid, precluding the grant of provisional sentence thereon. The manifest reason is that extrinsic evidence is required to prove the excussion of the principal debtor or exemption therefrom .... Putting it in another way more germane to the present case: once the surety raises the beneficium excussionis, the liquidity of his liability is destroyed.

"But in the interests of commerce and, one may add, in order to revive the very good principles of our common law, the signer of an aval should be liable as a surety and co-principal debtor. "

 

"Accordingly, and by virtue of the provisions of section 54A(4), these common law benefits are no longer available to a signer of an aval who signs a bill of exchange, cheque or promissory note, provisional sentence may now be granted against the signatory".

"Section 54A(4) provides for the liability of the signer of the aval to be joint and several with that of the person for whom he has given his aval ... Where he is surety for the acceptor his liability is coextensive with that of the acceptor, the main or principal debtor on the instrument. Because he is liable in solidum with the principal debtor, his liability is no longer illiquid since, following the older jurisprudence, he is deemed to have waived the common-law benefits of the surety."
21. I am satisfied that under section 54A the liability of Mr Serrea is in solidum with the First Defendant, his liability is no longer illiquid, and that provisional sentence may be taken against him.

26. Mr Deyzel states as follows in his affidavit at paragraph 14.5:

"Ek het egter wel van Searra vereis dat hy die tjek in sy persoonlike hoedanigheid as borg moes teken, as voorwaarde vir die soeke na 'n oplossing by wyse van verdere onderhandelinge. De Kok het by hierdie geleentheid die konsep van aanspreeklikheid as borg op 'n tjek aan Searra verduidelik waarna Searra die tjek as borg geteken het, en inderdaad ook die woorde 'as surety op die tjek geskryf het. Hierdie woorde is dus wel deur Searra op die tjek geskryf en met die voile bewussyn van die implikasie daarvan. Hy het dit gedoen in my en De Kok se teenwoordigheid."

27. Mr Hugo accepted that I could take judicial notice of the fact that Mr de Kok is now deceased and that only Mr Deyzel would be available to testify at the trial. Leaving aside questions of the admissibility of Mr de Kok's affidavit, I am satisfied that, on a proper preponderance of probabilities, the defence raised by Mr Searra will not succeed.

Provisional sentence is granted against the Second Defendant in the amount of R228 000,00 together with interest at 15,5% per annum to run with effect from 12 November 2008 to date of payment, together with costs.

SVEN OLIVIER AJ
Acting Judge of the High Court