THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 211/2014

Reportable
In the matter between:

IAN KILBURN

APPELLANT
and
TUNING FORK (PTY) LTD

RESPONDENT

Neutral citation:
Kilburn v Tuning Fork (Pty) Ltd [2015] ZASCA 53 (27 March
2015)
Coram:
Cachalia, Mhlantla, Saldulker JJA and Gorven and Meyer AJJA
Heard:
23 February 2015
Delivered:
27 March 2015
Summary:

Suretyship – Interpretation – apparent conflict between heading
and detailed provisions of deed of suretyship not real when effect is given to each
and every word, read in context and taking into account the circumstances in which it
came into existence.

________________________________________________________________
ORDER
_______________________________________________________________
On appeal from: Gauteng Local Division, Johannesburg (Mbha J sitting as court
of first instance):
(a)
The appeal succeeds with costs.
(b)
The order of the court below is set aside and substituted as follows:
„The application against the second respondent is dismissed with costs.‟

_________________________________________________________________
JUDGMENT
_________________________________________________________________
Saldulker JA et Meyer AJA (Cachalia and Mhlantla JJA and Gorven AJA
concurring):
[1] On 13 December 2013, the Gauteng Local Division, Johannesburg (Mbha J)
granted judgment against the appellant (the surety) in favour of the respondent (the
creditor). This appeal against that judgment is with the leave of the court below and
concerns the interpretation of a deed of suretyship.
[2] It is important to understand the factual matrix within which the deed of
suretyship came into existence. McCarthy Limited (McCarthy) conducted the
importation and distribution of Yamaha motorcycles, marine products, power
products, golf cart parts and accessories, musical instruments, audio visual products
and intelligent machinery under the trade names Yamaha Distributors, Balanced
Audio, Global Music, Music Inc, After Market Products and Hawker Richardson. On
3 June 1993 McCarthy and Kilburn Auto Enterprises (Pty) Ltd t/a Johannesburg
Yamaha (Kilburn Auto) concluded a dealership agreement in terms of which Kilburn
Auto was appointed as an authorised dealer with the right to purchase products for
retail sale from McCarthy‟s Yamaha Distributors division on certain terms and
conditions.
[3] With effect from 1 January 2011, McCarthy sold these business divisions to
the respondent, Tuning Fork (Pty) Ltd (Tuning Fork), a wholly owned subsidiary of

the Bidvest Group Limited. All risk in, and benefits flowing from, the agreement
passed to Tuning Fork on 1 July 2011. The internal structures and operating
activities of the trading divisions remained the same, except that Tuning Fork
reduced the number of divisions from six to five. Music Inc fell away.
[4] The trading divisions operate distinct businesses in the sense that they sell
and market different products. Each division is run by its own general manager,
credit controller, sales personnel and employees.  Separate contracts are concluded,
distinct bank accounts are operated, invoices issued and stationery used. Only
dealers having entered into dealership agreements appointing them as Yamaha
dealers are permitted to purchase products from the Yamaha Distributors division
whereas all traders are at liberty to purchase products from the After Market
Products division. Products and services sold by the Yamaha Distributors division
are not readily available to its After Market Products division customers „unless they
are Yamaha dealers who are permitted to purchase competing products or operate
other businesses.‟ This is so because Tuning Fork itself is subject to the constraints
of its agreement with the Yamaha Motor Corporation.
[5] Kilburn Auto was also a customer of the After Market Products division and
operated an accounting facility with the latter, with its credit limit at R20 000 for
goods purchased from that division. This credit facility was unsecured.  In an email
dated 16 May 2011, the After Market Products division required Kilburn Auto to
complete a new credit application form and to furnish it with security in the form of a
deed of suretyship. The reason given was that the After Market Products division
had „moved out from under McCarthy Limited and [was] now Tuning Fork Limited
trading as After Market Products.‟ Attached to the email were a number of After
Market Products documents, including that division‟s credit application form, deed of
suretyship and credit application procedure and guidelines for the completion of the
credit application and the deed of suretyship. Each of the attached documents was
identified and described in the email as peculiar to the After Market Products
division.
[6] The credit application incorporated standard terms and conditions subject to
which all purchases were to be made from After Market Products by a „customer . . .
which has been granted credit in terms of this application‟.  The relationship created

between such customer and After Market Products is stated to be „that of a
Customer buying as an independent contractor from AFTER MARKET PRODUCTS
and reselling to end-users and other re-sellers.‟  In addition, the credit application
included an undertaking that the credit manager of the After Market Products division
would be notified in writing of any changes to certain particulars furnished in the
form.
[7] On 24 May 2011, Kilburn signed the credit application form on behalf of
Kilburn Auto and the deed of suretyship and submitted them to the After Market
Products division. The heading of the required deed of suretyship reads as follows-
„DEED OF SURETYSHIP – TUNING FORK (PTY) LTD T/A AFTER MARKET PRODUCTS‟
and the introductory and other relevant provisions thus-
„I, the undersigned, (full name of the “Surety”) IAN KILBURN Identity Number
6711215130085 do hereby bind myself irrevocably as Surety and co-principal Debtor in
solidum and jointly and severally with KILBURN AUTO ENTERPRISES (PTY) LTD
9302973/07 (“the Debtor”) to and in favour of Tuning Fork (Pty) Ltd Registration No:
2010/001048/07 (“the Creditor”) its successors in title or assigns:-
1. For the due fulfillment by the Debtor of all its obligations to the Creditor of whatsoever
nature and howsoever arising, whether already incurred or which may from time to time
hereafter be incurred, as a continuing surety, and notwithstanding any change in or
temporary extinction of such obligations and without limiting the generality of the
aforegoing, for the payment of all monies which are due or may become due and owing
from time to time, whether for damages or otherwise, by the Debtor to the Creditor in
terms of or arising out of the enforcement, breach or cancellation of any agreement
between the Creditor and the Debtor.
. . .
6. The Surety acknowledges and understands that this document constitutes a personal
Deed of Suretyship, which renders him/her personally liable for the debts of the principal
debtor.‟
[8] It is common cause that Kilburn Auto breached the terms of the dealership
agreement, and failed to make payment to Tuning Fork of the outstanding invoices
issued by the Yamaha Distributors division amounting to R808 883.01 as at
29 August 2012 plus interest thereon at the rate of 15.5% per annum. As a result,
Tuning Fork launched an application in the high court in which it claimed payment of
that amount, as well as ancillary relief, and costs jointly and severally from Kilburn

Auto as the principal debtor and from Kilburn as surety. Kilburn Auto did not oppose
the application and default judgment was granted against it.
[9] Kilburn however opposed the application. He contended that Kilburn Auto had
discharged its principal indebtedness to Tuning Fork that had arisen from purchases
made from the After Market Products division and that he, as surety, was accordingly
not liable under the deed of suretyship. It was common cause that the indebtedness
of Kilburn Auto in respect of the After Market Products division had been discharged.
Tuning Fork contended that the terms found in the body of the deed of suretyship are
widely worded and cover any indebtedness that had arisen from purchases made by
Kilburn Auto from any of its other trading divisions, and in particular its Yamaha
Distributors division. The interpretation contended for by Tuning Fork found favour
with the high court. It held that the words „AFTER MARKET PRODUCTS‟ used in the
heading of the deed of suretyship were no more than the usage of a trading name,
merely intended to enhance the identification of Tuning Fork. Because there is only
one legal person, the high court held that the creditor in terms of the deed of
suretyship is Tuning Fork and not any one of its trading divisions. It therefore granted
an order against Kilburn as well.
[10] Before us, the issue now to be decided is whether Tuning Fork has a
contractual right derived from the deed of suretyship to recover from Kilburn, as
surety, the indebtedness that arose from the purchases made on credit by Kilburn
Auto from Tuning Fork‟s Yamaha Distributors division. This requires a proper
construction of the deed of suretyship. Its provisions must be interpreted in
accordance with the established principles of interpretation. (See Natal Joint
Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18;
Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
2014 (2) SA 494 (SCA) para 12.)
[11] As to the language used in the deed, the words „DEED OF SURETYSHIP‟
that appear in the heading obviously identify the nature of the document. The words
„TUNING FORK (PTY) LTD‟ when read in context with the introductory paragraph of
the deed of suretyship refer to the creditor. Only Tuning Fork (Pty) Ltd and not any of
its business divisions can legally be the creditor as the high court held. Divisions
operating within the same juristic entity are not in law regarded as distinct or

severable or as separate personalities. (See Two Sixty Four Investments (Pty) Ltd v
Trust Bank 1993 (3) SA 384 (W) at 385F-G.)
[12] The words „T/A AFTER MARKET PRODUCTS‟ are also included in the
heading of the deed of suretyship.  Contextually we know that Tuning Fork trades
under the names of five separate and distinct divisions. What then was intended by
the inclusion of this particular trading name in the heading of the deed of suretyship?
[13] Tuning Fork raised three contentions. First, that the heading conflicts with the
body of the deed of suretyship. Secondly, that the words „T/A AFTER MARKET
PRODUCTS‟ were included for purely administrative purposes and did not affect the
construction of the deed. Thirdly, that the context in which the deed came into
existence was a neutral factor.
[14] In dealing with the first contention, Tuning Forks relied on a dictum of Cloete
JA in Sentinel Mining Industry Retirement Fund & another v WAZ Props (Pty) Ltd &
another 2013 (3) SA 132 (SCA) para 10, where he said, „. . . where a heading
conflicts with the body of the contract, it must be the body of the contract which
prevails because the parties' intention is more likely to appear from the provisions
they have spelt out than from an abbreviation they have chosen to identify the effect
of those provisions‟. Cloete JA went on to say, however, that „. . . where the heading
and the detailed provisions can be read together, that should be done. And in the
present case, they can.‟ They can also be read together in the present matter. The
apparent conflict between the heading and the detailed provisions of the deed of
suretyship disappears when they are read together.
[15] Turning to the second contention, Tuning Fork‟s argument is that these words
are meaningless or superfluous and in the words of their counsel, merely
„administrative‟; any one or none of the five trading names could have been included
in the heading. This contention in our view is flawed, as it militates against the
longstanding precept of interpretation that every word must be given a meaning. A
court should not conclude, without good reason, that words in a single document are
tautologous or superfluous. (See National Credit Regulator v Opperman & others
2013 (2) SA 1 (CC) para 99; African Products (Pty) Ltd v AIG South Africa Ltd 2009
(3) SA 473 (SCA) para 13.) In the present matter the words are not meaningless or

superfluous. Thus, the meaning that the high court attributed to the concluding words
of the heading - „T/A AFTER MARKET PRODUCTS‟ - that they are intended to
enhance the identification of the creditor, has no basis in its language or context.
[16] The third contention was that the context in which the deed came into being is
a neutral factor. Linguistically, when these words are read in isolation and in the
context of the body of the deed of suretyship, it may be thought that they are not
clear. However clarity is achieved when the language is considered in the light of the
relevant factual matrix, including the purpose of the deed of suretyship and the
circumstances in which it came to be prepared and produced. And it is clear that the
deed of suretyship came into existence only because security was required for
Kilburn Auto to buy goods on credit from the After Market Products division. Kilburn
was rendered personally liable on the terms set out in the deed of suretyship for only
the debts incurred by Kilburn Auto in purchasing goods on credit from the After
Market Products division. Whilst there is, in law, only one creditor, there is nothing to
prevent a suretyship securing only certain debts due to that creditor.
[17] To conclude, we hold that there is no conflict between the heading and the
body of the deed of suretyship. When effect is given to all the words in the deed of
suretyship, and account is taken of the circumstances in which it came into
existence, the liability of Kilburn is limited to those debts incurred by Kilburn Auto in
its purchases from the After Market Products division of Tuning Fork. This means
that the appeal must succeed and the order of the high court holding Kilburn liable
for the debts of Kilburn Auto to the Yamaha Products division must be set aside.
[18] In the result the following order is made:
(a)
The appeal succeeds with costs.
(b)
The order of the court a quo is set aside and replaced with:
„The application against the second respondent is dismissed with costs.‟

_____________________
H SALDULKER
JUDGE OF APPEAL

__________________

PA MEYER
ACTING JUDGE OF APPEAL

APPEARANCES:
Appellant
C Acker
Instructed by:
Grant Rae Attorney, Edenvale
Phatshoane, Bloemfontein

Respondent
A Subel SC with J Lourens

Instructed by:

Werksmans Incorporated, Sandton

Symington & De Kok, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

27 March 2015

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Kilburn v Tuning Fork (Pty) Ltd (211/2014) [2015] ZASCA 53

MEDIA STATEMENT

Today, the Supreme Court of Appeal (SCA) upheld the appeal by Ian Kilburn (the appellant) and set
aside the order of the Gauteng Local Division, Johannesburg.  The issue before the SCA was the
correct interpretation of a deed of suretyship, executed by the appellant for the due fulfilment by the
principal debtor, Kilburn Auto Enterprises (Pty) Ltd t/a Johannesburg Yamaha (Kilburn Auto), of its
obligations to the creditor, Tuning Fork (Pty) Ltd (the respondent).
The respondent operated under a number of business divisions. The trading divisions operate distinct
businesses in the sense that they sell and market different products.  Each division is run by its own
general manager, credit controller, sales personnel and employees.  Separate contracts are
concluded, distinct bank accounts are operated, invoices issued and stationery used.  Kilburn Auto
had independent dealings with two of these divisions, being the Yamaha Distributors division and the
After Market Products division.  Kilburn Auto failed to pay an amount of around R800 000 owing in
respect of invoices issued by the Yamaha Distributors division.  The respondent sued for breach of
contract, citing both Kilburn Auto as the principal debtor, and the appellant as surety.  The appellant
denied liability on the basis that the suretyship did not cover this debt.
The SCA held that when effect is given to all the words in the deed of suretyship, and account is
taken of the circumstances in which it came into existence, the liability of the appellant as surety is
limited to those debts incurred by the principal debtor, Kilburn Auto, in its purchases from the
respondent’s After Market Product’s division.  The deed of suretyship came into existence only
because security was required for Kilburn Auto to buy goods on credit from the After Market Products
division.
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