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come into play when parole is being considered. These considerations
are not always available to the public to help them understand why
parole may have been granted.

Can a surety be released by the prejudicial
conduct of a creditor?
June 2017

“I agreed to stand surety for my brother-in-law in one of his
business deals. He however failed to meet his obligations and
the creditor sold of his beach house on an execution sale.
However, the house was sold in my view for far less than it was
worth and now there is a shortfall which the creditor wants me
to stand in for. If they had sold his house for its full value, there
wouldn’t be a shortfall. Surely I can’t be held responsible for
the shortfall?”

Where assets are sold by a creditor at a fraction of its value, it does
prejudice a surety. But, it does not automatically mean that the creditor
acted unlawfully. There is no principle in our law that states that should a
creditor’s actions in respect of the principal debtor prejudice a surety, the
surety can be released from its obligations under the deed of suretyship.
The only instance where a surety can be released (totally or partially)
is where there has been a breach of a legal duty or obligation by the
creditor that was required from the creditor in terms of the principal
agreement (e.g. loan agreement) and/or the deed of suretyship.
If, however, a creditor’s actions are in line with the provisions of the
principal agreement and deed of suretyship, the prejudice caused
is something that was consented to by the surety, as most deeds of
suretyship require that the surety is bound as surety and co-principal
debtor for the debts arising from whatever cause. The creditor’s actions
Litigation can therefore not be seen as a breach of any obligation or legal duty
and the surety will not be released from its obligations. Our courts have
been very strict in recent judgments stating that sureties cannot expect
to be released from a surety merely because there is a shortfall and the
onus of proving that the creditor acted unlawfully vests with the surety.
The rights of a surety against the creditor are also very limited, with the
surety having a right of recourse against the principal debtor for any
moneys paid on behalf of the principal debtor by the surety.

There is still a duty on any creditor to mitigate damages that are suferred
and to take the necessary steps to ensure that the creditor does not
contribute to the damages. Should a surety be of the opinion that the

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