Dormell Properties 282 CC v Bamberger

Dormell Properties 282 CC, as landlord, accepted a written offer to lease premises from Edulyn (Pty) Ltd in September 2008. The offer to lease contained a clause (clause 10) providing that the person signing on behalf of the tenant would guarantee the tenant’s obligations. Mr Bamberger, the sole director of Edulyn, signed the offer to lease on its behalf. A further written lease and an attached deed of suretyship were later signed by Bamberger, but not by Dormell. Edulyn failed to pay rental, leading Dormell to cancel the lease and sue Edulyn and Bamberger jointly and severally in the magistrates’ court for arrear rental and damages for holding over. Dormell’s particulars of claim relied on the later deed of suretyship, annexed as if incorporated, but did not expressly plead the suretyship clause in the offer to lease. The magistrates’ court granted judgment against both defendants. On appeal, the High Court set aside the judgment against Bamberger, holding that the deed of suretyship was invalid because it was attached to an unsigned and thus invalid lease. Dormell appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel.

The case affirms the strict importance of proper pleading in South African civil procedure, particularly in claims based on suretyship. It underscores that a creditor must plead clearly the precise contractual basis relied upon and cannot shift its case on appeal. The judgment also highlights the procedural and substantive importance of the benefit of excussion and prejudice to sureties when pleadings are defective.