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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

Case Number : 045157/ 2023




In the matter between:

In the matter between:
FIRSTRAND BANK LIMITED Applicant
and

NIZAMUDEEN NOOR MOHAMED AYOB First Respondent

SHANNA GANI Second Respondent

Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e- mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand- down is deemed to be 15 April 2025 .

Summary - Applicable principles - Admissibility of video footage regarding completion
of suretyships in term s of the Regulation of Interception of C ommunications and
Provision of Communication - Related Information Act 70 of 2002. (1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
______________ _________________________
DATE SIGNATURE
2


JUDGMENT


BAQWA, J
Introduction [1] The applicant (FirstRand) seeks a monetary judgment against the first and
second respondents (Ayob and Gani) in their capacity as sureties for Hanmar Beleggings (Pty) Ltd (Hanmar). Hanmar was previously known as Rashida
Manufacturing (Pty) Ltd.
[2] The respondents oppose the application.
The Facts
[3] Hanmar and First Rand entered into a written loan agreement (the first loan
agreement) in term s of which:
3.1 FirstRand agreed to advance R 25.2 million to Hanmar, which, together
with interest , was repayable over a term of 60 months.
3.2 The first and second respondents would each execute a suretyship
limited to R 13 million as security for Hanmar’s obligations under the first loan
agreement.
3.3 An event of default would occur if Hanmar defaulted in respect of any
other agreement Hanmar might have with FirstRand upon occurrence of which FirstRand would have the right , upon notice, to accelerate or place on
demand payment of all amounts owing and all such amounts would
immediately become due and payable.
3.4 A certificate signed by a manager of First Rand would be prima facie
proof of the amount owing by Hanmar.

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[4] On 30 November 2020, and at Pretoria, Hanmar and First Rand entered into a
second written loan agreement (the second loan agreement) in terms of which
FirstRand agreed to advance R 10 million to Hanmar. The first and second
respondent s would each execute a suretyship for Hanmar’s obligations under the
second loan agreement , and the remaining terms and conditions of the second loan
agreement are the same as the first loan agreement.
[5] On 21 October 2021, at Pretoria, FirstRand and Hanmar concluded a facility
agreement (the facility agreement) in term s of which :
5.1 FirstRand offered Hanmar a short -term direct facility for the sum of R 8
million (repayable on demand) and an asset finance facility in the amount of R
15 million.
5.2 A breach of the agreement would occur if the limit was exceeded or in
the event of non- payment of any amount due under the facility agreement , in
which event , FirstRand would be entitled to accelerate payment and claim
payment of all outstanding amounts.

[6] From February 2020 to August 2022, FirstRand and Hanmar concluded 10
instalment sale agreements , but due to a breach, FirstRand terminated the
instalment sale agreements.
Suretyships
[7] On 21 October 2021, the first and second respondents each executed an
unlimited suretyship in favour of First Rand. In terms of the suretyships :
7.1 The first and second respondents bound themselves to and in favour of FirstRand as suret ies in solidum for and as co- principal debtors, jointly and
severally , as an ongoing obligation and with Hanmar, for the due payment
by Hanmar to First Rand of all monies which Hanmar may , at the time or
from time to time , owe to First Rand from whatever cause and however
arising.
7.2 A certificate signed by any First Rand manager would be prima facie
evidence of the indebtedness of the respondents or Hanmar , and would be
sufficient for purposes of any application, action, judgment or order.
4

[8] The suretyships contained all the terms and conditions of the suretyships
given by the first and second respondents to First Rand, and no cancellation,
amendment, addition or alteration of , or to the provisions thereof , would be of force
and binding unless made in writing and signed by the parties.
Breach
[9] Hanmar breached the terms of the facility and asset finance agreements in
that it exceeded the overdraft limit and failed to make payment of amount due in terms of the asset finance facility.
[10] FirstRand addressed a letter to Hanmar on 19 December 2022 demanding
that the breaches be remedied, which Hanmar failed to do.
[11] As a result of Hanmar’s failure, First Rand demanded payment from the
respondents on 14 February 2023.

[12] As a result of a meeting between First Rand’s attorney, the first respondent
and Hanmar’s legal representative on 22 February 2023, FirstRand, Hanmar and the
first and second respondents concluded a written agreement (the memorandum of
agreement) on 15 March 2023.
[13] The memorandum of agreement acknowledged all the agreements entered
into between FirstRand and the respondents , including the unlimited suretyships and
that the indebtedness was due and payable. In the agreement , Hanmar and the
respondents undertook to pay the amounts owing between 8 March 2023 and 30 June 2023.
[14] The initial payment of R 335 089.02 was made on 8 March 2023, but
thereafter , there were no further payments.
[15] On 6 April 2023, the directors of Hanmar resolved to commence business
rescue proceedings in respect of Hanmar.
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[16] FirstRand applied for the setting aside of the business rescue resolution and
for the provisional winding up of Hanmar , which was granted on 7 June 2023 with a
return date of 31 July 2023.
[17] After a few extensions of the rule nisi, the provisional order for the winding up
of Hanmar was confirmed on 3 October 2023.
[18] The present application was launched on 15 May 2023.
Respondent s answering affidavit
[19] In the answering affidavit to the liquidation application, it is admitted that
Hanmar exceeded the overdraft facility by R 512 886 and the content s of the
memorandum of agreement are also admitted. Hanmar ’s indebtedness is not
disputed.

[20] In opposition to this application, the respondent s contend that the suretyships
do not comply with the provisions of the General Law Amendment Act 50 of 1956,
which requires that suretyships must be executed in writing. This defence is
premised on the allegation that the suretyships were executed electronically and that
electronic signatures do not comply with section 37 and 38 of the Electronic
Communications and Trans actions Act 25 of 2002 (ECTA).
The General Law Amendment Act
[21] Section 6 of the General Law Amendment Act provides that “No contract of
suretyship entered into after the commencement of this Act, shall be valid, unless the
terms thereof are embodied in a written document signed by or on behalf of the
surety. ”
[22] There can be no doubt that the sureties in question were signed in
manuscript , as this is demonstrated in the evidence before this court. The signat ures
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do not constitute electronic representation of information in any form within the
definition of “data”.
[23] Section 1 of the ECTA defines an “electronic signature” as data attached to,
incorporated in, or logically associated with other data and which is intended by the user to serve as a signature;
23.2 “data” as electronic representations of information in any form ;
23.3 an “advanced electronic signature” as an electronic signature which
results f rom a process which has been accredited by the A uthority as provided
for in section 37.
[24] In this case, the respondents merely allege that the documents were executed
electr onically, but the evidence suggest s otherwise. More importantly , however, they
do not deny the execution of the surety ships. Even with regard to the Memorandum
of Agreement , the first respondent refers to it as a settlement agreement.
[25] FirstRand submits , and I am inclined to accept , that legally , the respondents
have precluded themselves from raising any defences by consenting to and
attaching their signatures to the settlement agreement.
[26] The respondents have also purported to rely on defences in the liquidation
application, but I do not think it necessary to consider those defences as they were
unsuccessful.
Supplementary Answering Affidavit
[27] In the main answering affidavit , Gani purported to raise a defence to the effect
that she had signed the suretyship in a foreign country (Dubai). In the supplementary
affidavit , however, she denies that she signed the suretyship at all . She states that
her signature was forged by an employee of the principal debtor (Hanmar), one
Kendridge Moswane, who confirms this allegation under oath.
[28] Secondly, she states , on behalf of the first respondent , that the suretyship
executed by her contains misrepresentations by FirstRand. She further alleges , in
7
furtherance of this contention, that “the alleged originals of the “ suretyship” must be
scrutinized.”

[29] Thirdly, Gani alleges that the debt owing to FirstRand has been reduced by
payments to FirstRand after the institution of this application.
Supplementary Replying Affidavit
[30] FirstRand delivered a replying affidavit to the supplementary answering
affidavit on 16 October 2024, in which the depo nent therein explains that when the
suretyships annexed to the founding affidavit were signed, restrictions under the
Disaster Management Act 57 of 2002 were in place due to the Covid 19 pandemic .
[31] On 21 October 2021, a virtual meeting was held on the Microsoft Teams
platform between Sharon Crowie of FirstRand, Ayob, Gani and Jawed Gani (the
husband of Gani) . The meeting was recorded and the recordal thereof was made
available to this Court and the respondents.

[32] Ayob and Gani were known to C rowie because of previous interactions
between them. During the meeting, Ayob identified the suretyship that C rowie had
sent to him to sign. Upon Crowie’s request, Ayob turned the camera of his computer
to make the suretyship visible.

[33] Ayob signed the suretyship and completed the date and place of signature, as
well as Ayob’s address , manually. Crowie witnessed him do so.
[34] Gani was also a partici pant in the virtual meeting and the suretyship which
had been sent to her was also identified. She signed it in manuscript in full view of
the camera , and she initialled each page of the document comprising six pages.
[35] The suretyships were then sent back to Crowie by email , and FirstRand is not
in possession of the original s which remained with the respondents.

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[36] Crowie deposed to a comprehensive confirmatory affidavit, in which she
confirms not only what is stated in the supplementary reply in so far as it relates to
her, but also the following:
36.1 She was present at the virtual meeting with Ayob and Gani on 21
October 2021. She caused the meeting to be recorded using the recording
tool on the Microsoft Teams p latform.
36.2 Prior to the meeting, she had sent the unsigned suretyships to Ayob,
who confirmed during the meeting that he had forwarded the documents to
Gani.
36.3 She had witnessed the recor dal of the meeting and confirms the
accuracy thereof and the accuracy of the transcript of the meeting.
36.4 She was a witness to Ayob and Gani signing the suretyships and
completing the date and place of signature as well as their addresses.
36.5 Crowie also annexed to her affidavit the email under cover of which the
unsigned suretyships were sent to Ayob, together with copies of the unsigned suretyships.
36.6 She confirms that the signed surety ships emailed to her are identical to
the unsigned ones except for the manuscript signatures and insert ions made
by Ayob and Gani respectively during the virtual meeting.
The Law
[37] In terms of section 4(1) of the Regulation of Interception of Communication s
and Provision of Communication -Related Information Act 70 of 2002 (the Act) , it is
permissible for a party, other than a law enforcement officer, to intercept
communication if he or she is a party to the communication, unless it is intercepted
for purposes of committing an offence.
[38] Section 1 of the Act provides that “Communicat ion” includes direct
communication. Direct communication means oral communication between two or
more persons, which occurs in the immediate presence of all the persons
participating in that communication.

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[39] Section 1 further defines “intercept” as the aural or other acquisition of the
contents of any communication through the use of any means, including an
interception device, so as to make some or all of the content s of a communication
available to a person other than the sender or recipient of that communication.
[40] “Party to communication” is defined in section 1, for purposes of section 4 of
the Act, in the case of direct communication, to include any person participating in
such direct communication or to whom such direct communication is directed.
[41] Video material is admissible in motion proceedings . It does not, in principle,
stand on a different footing from photographs or other documentary evidence. This
was confirmed in Inter cape Ferreira Mainli ner (Pty) Ltd and Others vs Minister of
Home
[42] Affairs and Others .
1
[43] Prior the enactment of the Act, the common law prevailed. In Waste Products
Utilisation (Pty) Ltd v Wilkes and Another (Waste Products) ,
2 it was said that the
general rule is that evidence is admissible if it is relevant. It was further confirmed
that t he court does , however , retain a discretion to allow evidence, even if it was
unlawfully obtained or a person’s right to privacy was violated, if fairness and public
policy so dictate.
[44] In Waste Products ,
3 the court allowed a tape recording unlawfully obtained,
taking into account the attempts of the parties against whom the evidence was
presented, to deceive the court.
Analysis
[45] In this application, the video footage is , without doubt , relevant. The record of
the meeting was not only in the ordinary course of business and legitimate, but also

1 2010 (5) SA 367 (WCC) at para 86.
2 2003 (2) SA 515 (W) at 549J -550B and 550B -C.
3 Id at 552F -G.
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appropriate in light of the Covid 19 regulations and res trictions and Crowie, who
caused the meeting to be recorded, confirms its accuracy.

[46] The video clearly shows , for any person with an interest , Ayob and Gani
appending their signatures in manuscript to the suretyships after the suretyships had
been identified.
[47] With Crowie ’s confirmation, the attempt by the respondents to mislead the
court has been well and truly exposed.
Electronic Communication and Transaction Act (ECTA)
[48] The respondents have sought to rely on E CTA, but their reliance is misplaced
as FirstRand relies on written, physically signed suretyships. As alluded to earlier ,
they only received copies thereof as the respondents retained the originals.
[49] The electronic signatures, as alleged by the respondents , remain a mere
allegation which is unsupported by real evidence as demonstrated in the video
footage.
[50] The submission that the suretyships were transmitted by email as a data
message as defined in the ECTA does not assist the respondents ’ case in any
manner.
[51] Section 15 of the ECTA provides:
“15 Admissibility and evidential weight of data messages
(1) In any legal proceedings, the rules of evidence must not be applied so
as to deny the admissibility of a data message, in evidence:
(a) on the mere grounds that it is constituted by a data message; or
(b) if it is the best evidence that the person adducing it could reasonably
be expected to obtain, on the grounds that it is not in its original form
(2) Information in the form of a data message must be given due evidential
weight.
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(3) In assessing the evidential weight of data message, regard must be
had to-
(a) the reliability of the manner in which the data message was generated,
stored or communicated;
(b) the reliability of the manner in which the integrity of the data message
was maintained;
(c) the manner in which its originator was identified; and
(d) any other relevant factor .
(4) . . .”

[52] Despite the allegations by the respondents, the copies of the suretyships
transmitted by email remain admissible evidence in terms of section 15 of the ECTA.
They are the best evidence FirstRand could produce, and the respondents are not
prejudiced in any manner as they are in possession of the originals.
[53] It is trite that if a party is unable to produce a written contract or copy thereof,
it is legally permissible for the party to prove the contract by means of other
evidence.
4 In this application, FirstRand produced the emailed copies of the
suretyships, supported by the overwhelming evidence of Crowie. The video footage
is also a data message which is equally admissible in terms of section 15 of the ECTA.
The balance owing [54] Apart from the defences referred to above, the respondents contend that
further payments were made after the institution of this application.
[55] FirstRand accepted that six payments were made in respect of the Wesbank
account, but no payments have been made on the loan and overdraft accounts.
[56] The contention of payment is however not sustainable in that the respondents
have failed to produce any evidence regarding how much has been paid and when.

4 Absa Bank Ltd v Zalvest Twenty (Pty) Ltd and Another 2014 (2) SA 119 (WCC) at para 20.
12

Respondents ’ Authorities
[57] The respondents have relied on some authorities which are distinguish able
from the facts of this application. This is demonstrable by reference to a few of these.
56.1 In Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash and
Another ,
5 the issue was whether typewritten names at the foot of an email
constituted an electronic signature of the author , for the purposes of section
13(3) of the ECTA. The court held that it did. Spring Forest finds no
application in the present matter , which does not concern electronic
signatures and therefore does not assist the respondents.
56.2 In Massbuild (Pty) Ltd v Tik on Construction CC and Another,6 it was
common cause that the signature of the purported surety was electronically appended to the document by someone else. The signature was a scanned version of the physical signature. In this application, the issue of an electronic
signature or of someone else having appended signatures electronically for
the respondents did not arise. FirstRand relies on the manual signatures of
the respondents. The Massbuild decision is clearly distinguishable from the
present application.
56.3 In Jurgens and Others v Volks kas Bank Ltd,
7 the surety signed the
deed of suretyship. An employee of the surety then completed other details on
the suretyship on behalf of the surety. The court came to the conclusion that
the validity of the suretyship is determined when the creditor received it, not
when surety signed it. It was held in Jurgens that a suretyship is a contract
between a creditor and a surety, and which comes into existence upon the
acceptance of an offer, made with the intention that it shall become binding as soon as it is accepted by the offeree.
In this application, it is evident from Crowie’s evidence that she presented the
respondents with the suretyships. They signed the documents and
communicated that they would email them back to her. It was at that point that
the suretyships constituted valid suretyships. True to their word, the

5 2015 (2) SA 118 SCA.
6 2022 JDR 0901 (GJ).
7 1993 (1) SA 214 (A).
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respondents did send the signed suretyships back to Crowie. Jurgens does
not, theref ore, assist the respondents’ case.

Conclusion
[58] Having clearly forgotten about the recording of 21 October 2021, the
respondents embarked on a course of deceitful conduct of approbating and reprobating , which consisted of initially admitting and acknowledging their
indebtedness and even signing an acknowledgment of debt. Thereafter , they
attempted to seek refuge in the provisions of the ECTA and suggested that the
suretyships did not comply with the Act . Subsequently , they engaged in a downright
fraudulent act of denying their signatures and submitting a n affidavit by an employee
confirming that he was the person who signed the suretyships and not the respondents . I find the behaviour to be despicable, to say the least.
[59] These denials are made despite a memorandum of agreement in which the
respondent s not only admitted the execution of the suretyships but later confirmed it
under oath.
[60] In light of the above, and after considering the evidence and submissions by
counsel, I am satisfied that the applicant has made out a proper case and the
following order ensues .
Order
1 Condonation is granted for the filing of the supplementary answering
affidavit and the supplementary replying affidavit.
2 Judgment is granted in favour of the applicant against the first and second
respondent s, jointly and severally, the one paying the other to be absolved for
payment in the amounts of:
2.1 R 36 483 224.33 plus interest thereon at the rate of Prime (currently
11.50% per annum), minus 0.50% per annum, calculated daily, compounded monthly in arrears from 08 October 2024 until date of payment, both days inclusive in respect of account number 3 -[…]
2.2 R 10 436 452.53 plus interest thereon at the rate of Prime (currently
14
11.50% per annum), plus 0.25% per annum, calculated daily, compounded
monthly in arrears from 08 October 2024 until date of payment in respect of account number 3 -[…].
2.3 R 10 884 918.61 plus interest thereon at the rate of Prime (currently
11.50%), plus 3.00% per annum, calculated daily, compounded monthly in arrears from 08 October 2024 until date of payment in respect of account number 6[…].
2.4 R 6 180 017.15 together with interest thereon at 11.50% per annum,
calculated daily and compounded monthly in arrears from 7 October 2024 to date of payment, both days inclusive of asset finance facility agreement.
3. The respondents are ordered to pay the costs of this application, jointly
and severally, on an attorney and client scale.

SELBY BAQWA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA

Date of hearing: 17 October 2024
Date of judgment: 15 April 2025
APPEARANCES:
For the Applicant: Adv N Horn
Instructed by: Werksman Attorneys Inc
For the Respondent s: Adv P F Louw
Instructed by: Lacante Henn Inc Attorneys