110 CONSTRUING WHETHER A GUARANTEE IS ACCESSORY OR INDEPENDENT IS KEY MICHELLE KELLY-LOUW* Professor of Law, University of South Africa ABSTRACT It is important to construe correctly what type of guarantee is involved in a particular matter, because different types give rise to different principles and consequences that may be vital in determining the outcome of a case. erefore, when a court is confronted with a matter involving an instrument described as a ‘guarantee’ or that contains a payment obligation/undertaking it is advisable for the court to determine early in the case whether it constitutes an accessory guarantee or independent guarantee, and certainly before dealing with any other important issues concerning the instrument. is question is not determined by the instrument’s label, title, name or heading, but rather its essence and construction. e judgment delivered in Kuehne & Nagel Ltd v Moncada Energy Group SRL [2016] ZAGPJHC 26 (19 February 2016) illustrates this point well. It forms the focal point of this contribution. ********** I INTRODUCTION Oſten we don’t take the time to thank people enough, particularly those who have played an important role in our lives. For nearly two decades, Jopie has fulfilled different roles in my life and academic career from being my colleague, promoter of my doctoral thesis, mentor, academic father and, most importantly, my friend. Jopie first introduced me to the law of demand guarantees and letters of credit in 2002. He persuaded me to conduct research in this area of law at a time when South Africa had limited literature and case law available on demand guarantees, standby letters of credit and (to some extent also) commercial letters of credit. With his guidance, expert legal knowledge and support I completed my doctoral thesis in 2008 entitled ‘Selective Legal Aspects of Bank Demand Guarantees’. In James Levine’s words: ‘I was lucky that I met the right mentor … and teacher … at the right moment’. erefore, I can think of no better way to honour and pay tribute to him in this publication, than writing something on demand guarantees. When one deals with an instrument in which the term ‘guarantee’ is used, it is imperative to determine what the nature of the instrument is, and particularly, whether the payment obligation or undertaking embodied in the instrument * BIuris LLB LLM LLD (Unisa) & Dip Insolvency Law and Practice (SARIPA) (UJ). Jopie Pretorius Festschrift.indb 110 2017/09/28 4:59 PM