Shaw and Another v Mackintosh and Another

In 2009 the first respondent, Mackintosh, lent R2 million to Mabili Search & Selection (Pty) Ltd. In October 2012, Mabili and Mackintosh concluded a written acknowledgement of debt regulating repayment and interest. Clause 5 of the agreement provided that the appellants, Shaw and Taylor, bound themselves jointly and severally as co‑principal debtors with Mabili for Mabili’s indebtedness. Mabili later defaulted and was liquidated. Mackintosh obtained judgment against Mabili and then sued the appellants based on clause 5. The appellants contended that their liability arose from a credit transaction governed by the National Credit Act 34 of 2005 (NCA) and that Mackintosh’s failure to register as a credit provider rendered the agreement void.

The appeal was dismissed with costs, and the judgment against the appellants stood.

The case clarifies the distinction under the National Credit Act between a credit transaction and a credit guarantee, particularly where parties bind themselves as co‑principal debtors. It confirms that a credit guarantee falls outside the NCA if the underlying credit transaction is itself not subject to the Act, limiting attempts to invoke the NCA to avoid liability in suretyship‑type arrangements.