Philip John Fivaz v ABSA Bank Beperk

The appellant, Philip John Fivaz, had bound himself as surety in respect of obligations arising from a lease arrangement involving Volkskas Bank (later ABSA Bank) and a third party, McGregor. Fivaz alleged that he was released from his suretyship because a new lease agreement had allegedly been concluded between Volkskas and McGregor. He contended that a representative of Volkskas, Jacobs, had made a representation to this effect, alternatively that Volkskas had created such an impression by its conduct, including accepting payment from McGregor and delivering the leased asset to him. ABSA Bank denied that any such representation was made or that a new lease had been concluded.

The appeal was dismissed with costs.

The case reaffirms the strict requirements for establishing estoppel in South African law, particularly the need for a clear and unequivocal representation. It also confirms that a surety will not be released from liability absent proof of such a representation or a concluded new agreement, and that acceptance of payment or interim performance does not, without more, amount to a representation releasing a surety.