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(1) Mr and Mrs Van Zyl were married in community of property. During
the subsistence of their marriage (stante matrimonio) Mrs Van Zyl
entered into a written contract of suretyship with the bank (appellant)
in terms of which she bound herself to the appellant as surety and coprincipal
debtor for the repayment on demand of all moneys owed by
her husband to the appellant on overdraft, then and from time to time
thereafter. Mr and Mrs Van Zyl were divorced two years later. After
the divorce Mr Van Zyl defaulted on his obligations to the bank and
all the appellant's endeavours to recover the amount from Mr Van Zyl
were fruitless. The bank then sued Mrs Van Zyl for the outstanding
amount, interest and costs on the basis of the deed of suretyship.
(2) The court had to decide on the nature of the liability of spouses for
joint debts since this would determine whether Mrs Van Zyl was liable
in terms of the deed of suretyship.
(3) In the court a quo it was held that spouses who are married in
community of property are co-debtors in respect of liabilities that bind
the joint estate. After the court applied this rule to the facts it held
that the principal debt (the debt to the bank in respect of the
overdraft) was the joint obligation of the spouses. By entering into the
suretyship, the wife had therefore attempted to stand surety for her
own debt. The court accordingly declared the deed of suretyship to be
unenforceable. The appellate division (now the supreme court of
appeal) upheld the decision of the court aquo.
(4) This case finally made it clear that spouses who are married in
community of property are co-debtors in respect of liabilities that bind
the joint estate.
(5) The finding is a final answer since it is a decision of the appellate
division (now the supreme court of appeal).
(6) When a person concludes a contract of suretyship he or she binds
himself or herself as surety and co-principal debtor for the repayment
on demand of all moneys from a debt the original debtor incurred. We
explain this by means of an example. Mr A borrows money from the
bank. You sign a contract of suretyship in terms of which you bind
yourself as surety and co-principal debtor for the repayment on
demand of all moneys owed by Mr A to the bank the moment Mr A is
not able to pay his debt. As soon as Mr A is not able to pay his debt,
the bank will sue you for the outstanding amount Mr A owes the
bank. You are then liable in terms of the contract of suretyship.
Antenuptial debts In respect of the discussion on antenuptial debts on page 74 in your
textbook, you should note that antenuptial debts include all contractual
and delictual debts of the husband and the wife, as well as any
maintenance liabilities (iro, eg, children from a previous marriage and even
extra-marital children).
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