IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 20467/24
Before: The Hon. Mr Acting Justice Montzinger
Hearing: 12 August 2024
In the application between:
APOLLON PROPERTY FUND (PTY) LTD
(Registration number: 2017/333373/07)
Plaintiff
and
WORLD FOCUS 2138 CC
(Registration number: 2008/255160/23)
First Respondent
MOHAMED OSMAN ABDI
Second Respondent
REASONS FOR GRANTING SUMMARY JUDGEMENT
Montzinger AJ
Summary Introduction
1. This matter concerns an application by the plaintiff, Apollon Property Fund
(Pty) Ltd, for summary judgment against the first defendant, World Focus 2138 CC,
and the second defendant, Mohamed Osman Abdi, who stood surety for the f irst
defendant’s obligations. The plaintiff’s claim arises from the alleged breach of a
written lease agreement concluded between the plaintiff and the first defendant.
2. The plaintiff was unable to successfully serve process on the second
defendant. It then elected to rather pursue judgement against the second defendant
by virtue of an existing surety agreement. The second defendant appointed attorneys
and defended the action and the application for summary judgement. However, on
the eve of the hearing o f the summary judgement the second defendant’s attorneys
withdrew.
3. At the hearing of the matter nobody appeared on behalf of the second
defendant. Ms. Nel appeared on behalf of the plaintiff. The matter proceeded in the
second defendant’s absence.
4. The chronology of events leading to th e application for summary judgement
started on 5 December 2019, when the plaintiff and the first defendant entered into a
written commercial lease agreement concerning the property situated at 98 Long
Street, Cape Town. The lease was initially set to commence on 1 February 2020 but
was subsequently amended by an addendum to rather start on 23 March 2020. The
first defendant was granted a two -month rental -free period, with the obligation to
start paying rent from 1 June 2020. The lease was for a term of five years, subject to
an annual rental escalation of 8% starting from the second anniversary of the starting
date.
5. The first defendant took occupation of the property but failed to meet its rental
and other financial obligations under the lease. Specifically, from March 2021 to
October 2021, the first defendant failed to make timely payments, resulting in arrears
amounting to R 1 ,585,767.07. Despite subsequent partial payments totalling R
738,847.28, a significant amount remained outstanding.
6. The plaintiff's attorneys issued a demand for the outstanding amount on 3
November 2021, but the first defendant continued to default on its obligations.
Consequently, by May 2022, the arrears had increased to R 1,194,368.71. The
plaintiff, having exhausted attempts to secure payment, ultimately cancelled the
lease agreement on 26 May 2022.
7. Despite the cancellation, the first defendant remained in occupation of the
property until 31 October 2022. For this period, the plaintiff claimed an additional
sum of R 1,251,715.35 for rent and other charges, which the first defendant failed to
pay.
8. On the same day the lease was concluded, the second defendant signed a
deed of suretyship, binding himself as surety and co -principal debtor for all the first
defendant's obligations under the lease. The plaintiff now seeks to enforce this
suretyship to recover the outstanding amounts.
9. The lease agreement contained an arbitration clause; however, due to the
defendants’ non -compliance, the arbitration process failed. The plaintiff then
instituted the current action. Although a plea was filed the second defendant did not
rely on an alternative dispute resolution alternative to halt the present proceedings.
10. Only the second defendant took part in the litigation. After being served with a
notice of bar, the second defendant filed a plea, wherein he disputed the amounts
claimed by the plaintiff and raised a defence based on an alleged verbal agreement
that purportedly absolved the defendants from liability under the lease.
11. The plaintiff, asserted that the second defendant's plea lack ed merit and did
not raise a bona fide defence. It therefore seeks summary judgment for the amounts
claimed, together with interest and costs.
12. The issues before this Court are twofold:
12.1 Whether the plaintiff has made out a case for summary judgment.
12.2 Whether the second defendant’s plea and opposing affidavit disclose d
a bona fide defence that would warrant the refusal of summary judgment.
13. I start by briefly restating the principles applicable to a court’s approach when
dealing with a summary judgement application. I will then analyse the plaintiff’s claim
and the defences raised by the second defendant and evaluate whether the
defendant should be granted leave to defend the main action.
The legal principles
14. The legal principles governing summary judgment are well -established and
had been consistently applied and endorsed across numerous decisions over the
years. Given their settled nature, it is unnecessary to restate every specific aspect of
these principles. A substantial body of case law provides clear directives on the
requirements and considerations for granting summary judgment, even in the face of
the recent amendments to the summary judgment procedure.
15. For instance, in Tumileng Trading 1, the court reaffirmed the established
principles laid down in earlier cases such as Maharaj2 and Joob Joob Investments 3.
The court in Tumileng Trading specifically noted that, despite the procedural
amendments, the core principles remain intact, ensuring that summary judgment is
granted only where the absence of a bona fide defence is evident, and the necessity
for a full trial is not substantiated.
16. With that in mind a court, when evaluating a request for summary judgement,
begins by ensuring that the procedural requirements outlined in rule 32 of the
Uniform Rules of Court have been satisfied.
17. The plaintiff must file an affidavit that verifies the cause of action and asserts
that the defendant has no bona fide defence, as confirmed in Maharaj. This affidavit
must be properly served and meet all formalities, including the timeliness of its filing .
Once procedural compliance is established, the burden shifts to the defendant to
present an affidavit disclosing fully the nature and grounds of the defence, along with
the material facts relied upon, as required by rule 32(3)(b).
1 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) (“ Tumileng
Trading”),
2 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) (“Maharaj’)
3 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA)
18. The defendant’s affidavit must demonstrate a bona fide defence that is legally
cognisable and factually supported, as underscored in Breitenbach4. The court then
scrutinises the defendant’s allegations to determine whether the defence is bona
fide, plausible and substantial enough to warrant a trial.
19. Even if the defendant’ s defence appears weak or insubstantial, the court
retains a residual discretion to refuse summary judgment. This discretion, highlighted
in Tumileng Trading allows the court to consider whether granting summary
judgment might result in an injustice, parti cularly where there is a reasonable
possibility that a fuller exploration of the issues at trial could reveal a valid defence.
This discretion ensures that summary judgment is granted only in cases where the
absence of a bona fide defence is clear and unequivocal.
20. In the context of summary judgment and the liability of a surety the court must
consider whether a valid surety agreement has been concluded. This the court must
do so by carefully evaluating the formal requirements set forth by the law. Acc ording
to the General Law Amendment Act 50 of 1956, for a suretyship agreement to be
valid, the terms must be embodied in a written document signed by or on behalf of
the surety. This includes the identification of the three necessary parties: the creditor,
the principal debtor, and the surety5.
21. In respect of the liability of a surety suffice to state that the principle of l iability
of the surety for the debt of the principal debtor is equally well -established in our law.
A suretyship agreement, by its nature, involves the surety binding himself to the
creditor to fulfil the obligations of the principal debtor should the latt er default . In
Incentive Labour the court held that a surety is jointly and severally liable with the
principal debtor for the debt, provided the terms of the suretyship agreement are
clear and meet the statutory requirements.
4 Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) (“Breitenbach”)
5 See Inventive Labour Structuring (Pty) Ltd v Corfe 2006 (3) SA 107 (SCA) for an exposition on this
issue. (“Incentive Labour”)
22. A surety’s liability arises directly from the suretyship contract and is contingent
upon the principal debtor’s failure to satisfy the debt. In Botha6 the court, by way of
example to illustrate the principle, reiterated that once the suretyship is properly
executed and the principal debtor defaults, the surety is liable for the debt as
stipulated in the agreement.
Procedural aspects of the application
23. Having reviewed the plaintiff’s application for summary judgment, I am
satisfied that all procedural requirements under rule 32 of the Uniform Rules have
been duly complied with. The plaintiff has filed the necessary affidavit, verifying the
cause of action and asserting that the defendant lacks a bona fide defence.
24. The application for summary judgement was served in accordance with the
rules, and no procedural irregularities have been raised or identified. With the plaintiff
having satisfied the procedural prerequisites, the focus of the court’s inquiry then
shifts to consider whether the plaintiff has p leaded a cognisable and sustainable
case and thereafter the defendant’s response is considered.
The defences raised and the responses thereto
25. The defendant has raised several defences in response to the plaintiff’s claim.
I could distil more or less the following defences.
26. First, the second defendant asserts that he lacks knowledge regarding the
computation of the amounts claimed by the plaintiff. This defence challenges the
accuracy of the plaintiff’s accounting and suggests that the second defendant is
unable to verify the sums claimed. The defence hinges on a general denial of
knowledge rather than a substantive challenge to the figures presented.
27. Secondly, the second defendant relies on an alleged verbal agreement
purportedly concluded between the plaintiff and the first defendant, represented by
6 Botha v Mibit and Another (2238/2021) [2022] ZAECQBHC 9 (19 May 2022)
the second defendant. The second defendant asserts that, under this verbal
agreement, the plaintiff agreed to absolve the defendants from liability under the
lease agreement in exchange for the first defendant vacating the property. The terms
of this alleged agreement included allowing the subtenants to remain on the property
under new rental agreements directly with the plaintiff and foregoing any claims for
arrears or damages against the first defendant and by extension the second
defendant.
28. The third defence involves the defendants ’ claim that "improvements" were
made to the rental property. The second defendant suggests that these
improvements were part of the negotiations leading to the agreement and that the
plaintiff’s failure to account for these improvements should be considered in
evaluating the amounts claimed.
29. The plaintiff highlighted the following difficulties with the defences raised:
29.1 Firstly, regarding the defendant's assertion of lacking knowledge about
the computation of the amounts claimed, the plaintiff argues that this defence
is fundamentally flawed. The plaintiff has provi ded a detailed statement of
account, outlining every debit and credit, including rental charges, rates,
taxes, and payments made by the defendant. This level of detail should have
enabled the defendant to either admit or specifically dispute the amounts
claimed. Instead, the defendants ’ claim of ignorance, without any
substantiated evidence or direct challenges to the figures, appears to be a
mere tactic to delay proceedings rather than a legitimate defence. The court,
as the plaintiff contends, should view this as an insufficient response that fails
to meet the standard of a bona fide defence as required by rule 32(3)(b).
29.2 Secondly, the plaintiff addresses the defendants’ reliance on an alleged
verbal agreement that purportedly absolved the defendants from any liability
under the lease agreement. Ms Nel argued, consistent with the papers, that
this defence is not only implausible but also unsupported. The plaintiff
highlights that the alleged agreement lacks commercial sense, as it would
involve the plaintiff writing off substantial sums —over R 3 million —without
receiving anything of value in return, such as vacant occupation of the
property. The plaintiff thus contends tha t the defence is contrived and does
not raise a genuine issue for trial.
29.3 Lastly, the plaintiff points out the inconsistencies within the second
defendant’s opposing affidavit, particularly concerning the alleged verbal
agreement. The affidavit lacks the specificity and coherence necessary to
establish the existence of this verbal agreement . The affidavit fails to provide
key details, such as the terms of th e subtenants’ rental agreements or the
legal basis for the termination of those agreements. The plaintiff asserts that
the vague and contradictory nature of the second defendant's statements
further undermines the credibility of the defence, suggesting tha t it is not bona
fide but rather an attempt to obfuscate the issues and delay the inevitable
judgment.
30. In conclusion, the plaintiff argues that the defences raised by the second
defendant do not meet the threshold required to resist summary judgment. The
defences are either vague, implausible, or unsupported, thereby failing to establish a
bona fide defence that would justify the second defendant being granted leave to
defend.
Evaluation
31. Upon examination, the defences raised by the second defendant fall short of
the benchmark. The second defendant's claim of lacking knowledge about the
calculation of the amounts owed is unsubstantiated and devoid of specific factual
allegations. The second defendant failed to pinpoint any particular discrepancie s or
errors in the plaintiff's detailed statement of account, nor does he offer an alternative
accounting or framework to challenge the plaintiff's figures. Such a generalised
denial, lacking in specificity, does not satisfy the requirement of a bona fide defence
as it does not engage with the plaintiff's allegations.
32. Furthermore, the second defendant's reliance on an alleged verbal agreement
that purportedly absolved him from liability is equally deficient. The defence is
predicated on vague assertion s without the support of concrete evidence or
documentation. Critical details such as the terms of the alleged agreement, the
circumstances under which it was purportedly concluded, and any corroborative
communications are conspicuously absent. In Breitenbach, the court emphasi sed
that a defence based on allegations of an oral agreement must be presented with
clarity and particularity to be considered bona fide. The second defendant's failure to
meet this standard renders the defence untenable.
33. Additionally, the invocation of property "improvements" as a defence also
lacks the requisite detail and substantiation. The second defendant does not
delineate the nature, extent, or value of these alleged improvements, nor does he
elucidate how they impa ct his obligations under the lease agreement. Without such
information, the court is unable to assess the materiality or substance of this claim.
As per the principles outlined in Standard Bank of SA Ltd v El -Naddaf and
Another 1999 (4) SA 779 (W), a defen ce that is speculative or lacking in factual
grounding does not qualify as bona fide.
The claim for rectification
34. Although, there is no attack on the statutory requirements of the surety
document, the court is satisfied that the suretyship agreement in question complies
with all the necessary statutory requirements as outlined in the General Law
Amendment Act 50 of 1956. The agreement is embodied in a written document that
clearly identifies the creditor, the principal debtor, and the second defendan t as the
surety. The document has been duly signed by the second defendent, and the terms
of the suretyship are sufficiently clear and unambiguous, ensuring that the
obligations of the surety are properly articulated.
35. Consequently, the court was sati sfied that the suretyship agreement is valid
and enforceable, binding the second defendant to the debt of the first defendant.
36. The plaintiff also seeks rectification of the suretyship document to correct the
erroneous reference to the date of "5 Dece mber 2020" to the correct date of "5
December 2019." This discrepancy arose from a clerical or typographical error, as
the correct date of the lease agreement and the suretyship should reflect "5
December 2019." The intention of the parties was clearly to bind the second
defendant as surety and co -principal debtor for the obligations of the first defendant
under the lease agreement that was concluded on "5 December 2019."
37. The plaintiff should succeed with its rectification claim based on the legal
position as pronounced in PCL Consulting7.
38. In PCL Consulting , the court emphasi sed that rectification is not a separate
cause of action but rather a necessary correction to e nsure that the written
agreement accurately reflects the true agreement between the parties. The SCA
held that if the need for rectification arises from a common mistake and the
rectification sought is not disputed, the court can grant summary judgment bas ed on
the agreement as rectified. This principle supports the plaintiff's position, as the error
in the date of the agreement from "5 December 2020" instead of the correct date of
"5 December 2019" is clearly a clerical mistake that does not reflect the pa rties' true
intention.
39. Similarly, in Standard Bank v Phillip the court granted rectification in a
summary judgment context, where the issue was an incorrect domicilium address in
the loan agreement. The court found that a rectification was necessary t o reflect the
correct address and that the mistake was a mere typographical error that both
parties recognised. The court in that matter concluded that rectification did not affect
the essence of the plaintiff’s claim and thus could be granted summary judgment.
40. Applying these principles, the plaintiff's request for rectification in the current
case should succeed. The mistake is minor, does not alter the substance of the
agreement, and both parties are aware of the correct date on which the agreement
was concluded. Therefore, rectification should be granted, allowing the plaintiff to
proceed based on the corrected agreement.
7 PCL Consulting (Pty) Ltd v Tresso Trading 119 (Pty) Ltd 2007 (4) SA 68 (SCA) . A similar approach
was taken by the court in recent decision in Standard Bank of South Africa v Phillip and
Another [2023] ZAGPPHC 1210 (30 October 2023) (“Standard Bank v Phillip”)
Conclusion
41. In light of the foregoing, the defences proffered by the second defendant are
neither bona fide nor sufficient to raise a triable issue for leave to defend to be
granted.
42. The plaintiff is therefore entitled to judgment against the second defendant.
43. The second defendant's liability in this matter arises directly from his role as
surety for the first defendant’s obligations under the lease agreement. By signing the
suretyship, the second defendant unequivocally bound himself as co -principal debtor
with the first defendant, thereby assuming joint and several liability for the debts
owed to t he plaintiff. Since the suretyship agreement, complie d with all statutory
requirements and is valid and enforceable the second defendant’s attempts to
challenge his liability through the defences raised have been found to be insufficient
to prevent judgement.
44. The application for summary judgment is accordingly granted, and the second
defendant is held liable for the full amount claimed by the plaintiff, together with
interest and costs as prayed for.
45. Judgment is therefore granted as follows:
(1) Rectification of the date of the lease agreement referred to in the
preamble of the Deed of Suretyship, annexed to the plaintiff’s particulars
of claim as annexure “POC3”, by the substitution of the date “5
December 2020” with the date “5 December 2019”.
(2) Payment of the sum of:
(i) R 846 919.79 for the period of March 2021 to October 2021;
(ii) R 1 194 368.71 for the period of November 2021 to May
2022;
(iii) R 1 251 715.35 for the period of June 2022 to October 2022;
(3) Interest on the aforesaid sums at the prevailing prime interest rate
from time to time plus 2% per annum a tempora morae to the date of
final payment.
(4) Costs of suit on an attorney and client scale.
____________________________
A MONTZINGER
Acting Judge of the High Court
Appearances:
Applicants’ counsel: Mr. E Nel (in person)
Applicant’s attorney: Rubenstein Attorneys
For second defendant: No appearance