IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 12954/23
In the matter between
PREFERENCE CAPITAL (PTY) LTD APPLICANT
AND
OONAGH VICTORIA HUNTER RESPONDENT
Date of Hearing: 19 November 202 4
Date of Judgment: 20 January 2025 (to be delivered via email to the respective
counsel)
JUDGMENT
THULARE J
[1] The applicant sought summary judgment against the respondent in the amount of
R765 000-00 by virtue of a guarantee concluded by the respondent in favour of the
applicant in respect of monies lent and advanced to a private company, Rainbow Real
Estate ( Pty) Ltd (the company) of which the respondent was the sole director. The
respondent opposed the application on two grounds, the one being the alternative to the
other. First, she admitted signing the loan agreement on behalf of the company but
disputed th e signature on the guarantee. In the alternative, should it be found that she
signed the guarantee, she claimed that she should not be held to that agreement
because she did not have the intention to do so, and signed it in error (iustus error).
[2] The r espondent’s defence was that the then director of the debtor, Guy de Wiew had
approached her to assist him with the debtor to overcome the legal restraints placed
upon it and him personally as a result of a restraint of trade. She naively trusted De
Wieuw and concluded a verbal agreement with him that she would be placed as an
interim director of the debtor whilst De Wieuw continued to run the debtor. She would
sign any formal documents required to be signed o n behalf of the debtor and she would
not be requ ired to bind herself to be liable for whatsoever reason for the liabilities of the
debtor. In the event that she would incur any liability as a result of her being a director or
as a resul t of her signing any document upon the request of De Wieuw, he would
indemnify her against such claims. During the end of March 2023 De Wieuw informed
her that he has on behalf of the debtor secured a loan from the applicant and she was
requested to sign the loan agreement when she was contacted by the applicant. At no
stage was she informed that she would be required to sign a guarantee binding her as
surety and co -principal debtor in favour of the applicant. She was told she would be
asked only to sign a loan agreement. Had she been told that she would be required to
bind herself for the liabilities of the debtors, she would have refused to sign the
documents to be presented by the applicant. The respondent joined and instituted a
conditional third -party claim against De Wieuw in the action against her by the applicant.
Therein the respondent prayed for an orde r that in the event that the applicant’s claim
succeeded against her, that De Wieuw indemnify her in such amount as she was
ordered to pay, together with the costs of defending the action and an order that De
Wieuw pay the respondent’s costs occasioned by the third-party proceedings.
[3] The representative of the applicant, Chanel McGeer, had at the time of the signing of
the loan agreement advised the respondent that she was, as representative of the
debtor, s igning a loan agreement and merely pointed out where the respondent had to
append her signature in such capacity. The respondent was not given a reasonable
opportunity to peruse the documents presented to her and had trusted the
representation of Chanel Mc Geer that it was merely a loan agreement that was being
signed. In the event that the court found that she signed the guarantee, which she
denied, she pleaded that at the time of signing, she was merely acting in her capacity as
representative of the debto r and was unaware that the documents included a
guarantee. She did not notice, nor was she alerted that she was asked to sign a
guarantee. She believed that she was merely signing the relevant pages of the loan
agreement in her capacity as representative o f the debtor. She had no intention to bind
herself, by way of a guarantee or otherwise, for the debts of the debtor and in the
circumstances the guarantee was signed in error.
[4] In argument, amongst others, the respondent drew the court’s attention to the detail
of the circumstances around the alleged signature of the guarantee, which according to
her could not be determined on the papers . These included the certificates of signature
filed by the applicant as part of the annexures to the summons. The lo an agreement
and the guarantee each had its own certificate. What could only be clarified through
evidence by McGeer only, according to the respondent, was why the timestamp for both
the signatures of the respondent was at the same time, to wit, 4 April 2023 at 03
minutes and 18 seconds past 10 . The respondent suggests that this was humanly
impossible as the loan agreement consisted of 11 pages and the guarantee cons isted of
7 pages. Most importantly, although in its pleadings the documents were set apart to be
distinct with a certificate of signature and a certificate of balance between them to make
them separate, at the bottom of the page they appear to run as one d ocument from
page 1 of 18 to page 18 of 18. This, according to the argument, appears to support the
respondent’s case that only one document was submitted to her for signature, and she
was made to believe that it was the loan agreement only. F urther argument was that
McGeer was not the deponent to the applicant’s case and the applicant’s case required
answers, and that could only be done if the claim was referred for evidence .
[5] It is not for this court to determine the dispute of facts on the merits of the principal
case. This court is only concerned with an assessment of whether the p leaded defence
was genuinely advanced .1 The guarantee was allegedly signed digitally . Having regard
to the issue around the timestamp , it seems to me that it is amongst others MsGeer who
can shed light on the manner in which the guarantee was presented and allegedly
signed , as well as expert evidence, to prove that the respondent signed the guarantee.
As things stand now in the light of the denial , the certificate of signature remains
extrinsi c hearsay evidence . The responden t will be denied the procedural right to
pursue her third -party claim against De W ieuw if summary judgment is granted. This will
close the door for her in this action to join De Wieuw and pursue her prayer for
indemnity . If it is found that the respondent signed the guarantee, the question whether
she did so because of misrepresentations by either or both De Wieuw and McGeer can
only be answered having considered the evidence, and not from the papers before me.
The questio n whether McGeer made an innocent or fraudulent misrepresentation to the
respondent that she was signing only the loan agreement and not both the loan
agreement and the guarantee and conducted the signing in such a manner that caused
the respondent to be unaware of the guarantee before signature, can be determined
having regard to the evidence of McGeer, amongst others . Or put simply otherwise, did
either or both De Wieuw and McGeer induce the guarantee ? I am unable to determine
this question on the papers only. I am persu aded that the respondent raised a bona fide
defence.
[6] For these reasons I make the following order :
(a) Summary judgment is refused.
(b) the respondent is granted leave to defend the action.
(c) costs in the cause.
1 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) para 23 and 24.
_________________________
DM THULARE
JUDGE OF THE HIGH COURT