Marais and Others v Varicor Nineteen (Pty) Ltd t/a BP Atlantic

Varicor Nineteen (Pty) Ltd trading as BP Atlantic (BPA) supplied bulk diesel to the Albertinia Dekriet Trust under a credit and supply agreement concluded in 2001, supported by a suretyship signed by Ms Christina Susanna Müller. In 2003, BPA and Ms Müller discussed establishing a diesel depot at the same premises in Albertinia, with increased storage capacity and sales to the public. The Trust later fell into substantial arrears for diesel supplied between 2003 and 2008. BPA sued the trustees of the Trust for the outstanding balance and Ms Müller personally as surety. The appellants contended that the 2003 depot arrangement constituted a new oral agreement with Ms Müller in her personal capacity, thereby releasing the Trust from liability. BPA alleged that the depot arrangement was merely an extension of the existing 2001 agreement with the Trust.

The appeal was dismissed with costs, confirming that the Trust remained liable for the outstanding diesel supplied and that Ms Müller was bound as surety.

The case is significant for South African contract law as it clarifies how courts determine the identity of contracting parties in circumstances where business arrangements evolve over time. It underscores the importance of objective evidence and parties’ conduct in establishing consensus, and confirms that an expansion or variation of business operations does not, without clear agreement, create a new contracting entity or novate an existing contract.