IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No : 19204 /23
In the matter between:
MOMENTUM METROPOLITAN LIFE LIMITED Applicant
and
LAVENDER HILL TRADING 544 CC First Respondent
NOLUVUYO ALICIA MAKALUZA Second
Respondent
Coram: NUKU J
Heard on: 18 February 2025
Delivered on : 11 March 2025
JUDGMENT
NUKU, J
\;l>Ic,
1- , .1. .... . -
~ ~ ;.; ~
C .;s
~ ... ~
le ()J SO\;\
[1] This is an application for summary judgment against the second respondent , who
bound herself in terms of a written deed of suretyship ( Deed of Suretyship ) dated 16
September 2022, jointly and severally as surety and co -principal debtor to the applicant
for due payment by the first r espondent of all amounts payable by the first respondent to
the applicant arising from whatsoever cause.
[2] Alleging failure to pay by the first respondent, the applicant instituted an action
against both respondents for the payment of a sum of R1 279 248 ,03, interest on the
aforesaid amount at the rate of 11,25% per annum a tempore more and costs on an
attorney and client scale. The r espondents delivered their notice of intention to defend
as well as their plea whereafter the applicant brought an application for summary
judgment against both respondents.
[3] In opposing the application for summary judgment, the respondents raised two
defences, the first being that this court lacks jurisdiction and the second being that the y
are not able to comment on the correctness of the amount claimed because of the
applicant’s failure to provide the first respondent with statements contemplated in the
agreement between the applicant and the first respondent.
[4] The application came before Salda nha J on 24 May 2024 who postponed it
without a date in addition to which he made the following orders, namely:
‘(b) The defendants shall file their Rule 28 (1) notice in order to amend their
plea, within 5 days of this order, whereafter the rules in respect of
amendment of pleadings as contained in Rule 28 will apply;
(c) The plaintiff shall be entitled to:
i. Re-enrol the current application for summary judgment should the
defendants fail to (a) deliver their notice of intention to amend in
terms of rule 28 (1) in time, or (b) fail to make any subsequent
application to effect the amendment in time (if an objection to a
proposed amendment is made by the plaintiff), or (c) if such
application is dismissed, or …’
[5] The respondents duly filed their Rule 28 (1) notice to which the applicant
objected. The respondents, however, failed to apply for leave of the court to amend their
plea. This prompted the applicant to re -enrol the application for summary judgment as it
was entitled to do in terms of the order referred to above. On 1 October 2024, this being
the date when the matter was re -enrolled to, the matter was postponed to 7 November
2024 for hearing on the semi -urgent roll.
[6] On 7 November 2024, the respondents delivered a second notice of intention to
amend their plea in terms of Rule 28 (1). The amendment sought to be made to the
respondents’ plea only related to the second respondent and because of that, the
application in respect of the second respondent was postponed without a date and an
order similar to the one made by Saldanha J above was made. The applicant was
afforded 10 days to object to the proposed amendment as well as leave to re -enrol the
application for summary judgment i n the event of the second respondent either not
pursuing an application for leave to amend or being refused leave to amend.
[7] The applicant duly filed its objection after which the second respondent took no
further steps to apply for leave to amend. The applicant re -enrolled the matter , again, as
it was entitled to do so in terms of the order that postponed the application on 7
November 2024, and this is when the matter came before me in motion court on 18
February 2025.
[8] The only defences that had been pleaded when I heard the matter were the two
defences referred to in paragraph [3] above. Mr Randall, who appeared for the second
respondent advised that the second respondent had abandoned these two defences
and that instead, he was instructed to make submission s on a legal point regarding the
validity of the Deed of Suretyship .
[9] The legal point regarding the validity of the Deed of Suretyship, in short, was that
it is invalid for lack of compliance with section 6 of the General Law Amendment Act 50
of 1956 (General Law Amendment Act) read with section s 13, 37 and 38 of the
Electronic Communications and Transactions Act 25 of 2002 (ECTA) .
[10] Section 6 of the General Law Amendment Act deals with the formalities in
respect of contracts of suretyship and provides, in the relevant part, 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 …”
[11] In the relevant parts, s ection 13 of ECTA provides that:
‘1. Where the signature of a person is required by law and such law does not
specify the type of signature , that requirement in relation to a data
message is met only if an advanced electronic signature is used.
2. Subject to subsection (1), an electronic signature is not withou t legal force
and effect merely on the grounds that it is in electronic form .’
[12] ECTA defines the term electronic signature to mean “ data attached to ,
incorporated in, or logically associated with other data and which is intended by the user
to serve as a signature ” and the term advanced electronic signature to mean “an
electronic signature which results from the process which has been accredited by the
authority as provided for in section 37 ”. The term data is defined to mean “ electronic
representation of information in any form .” Section 37 and 38 deal with accreditation of
products and services as well as the criteria for accreditation, both of which are not
releva nt to the prese nt application, it being common cause that the electronic signature
used by the second respondent when signing the Deed of Suretyship is not an
electronic signature that resulted from the process which has been accredited by the
authority as provided for in section 37.
[13] The argument on behalf of the first respondent was that applicant was required to
plead compliance with section 6 of the Gen eral Law Amendment Act as read with
section 13 (1) of ECTA because the second respondent signed the Deed of Suretyship
electronically. which requires the signature of a surety in a deed of suretyship, and it
does not specify the type of signature . The applicant’s failure to plead such compliance,
so the argument went, means that the applicant has failed to establish the validity of the
Deed of Suretyship and therefore is not entitled to judgment. Reference was made to
Massbuild1, a decision of the Gauteng Division of the High Court, Johannesburg where
Bester AJ dismissed an action against a surety based on , inter alia, plaintiff’s failure to
establish a valid and enforceable suretyship as the signature did not comply with the
provisions of section 13 (1) of ECTA.
[14] Mr Wessels, who appeared on behalf of the applicant submitted that the defence
sought to be advanced by the second respondent, in addition to it not having been
pleaded both in her plea and affidavit opposing the summary judg ment application, is
untenable because she, in her plea, has admitted to having bound herself as a surety in
favour of the applicant. In this regard, he referred the court to paragraph 14 of the plea
where, in response to allegations contained in paragraph s 13 and 14, the respondents
pleaded that “ The contents of th e paragraphs under reply is admitted in as far as it
corresponds with the provisions of the Deed of Sure tyship appended to the Particulars
of Claim and marked Annexure “D ””.
[15] There are several difficulties with the defence sought to be advanced by the
second respondent . One of these difficulties flows from the second respondent’s
abandonment of all her pleaded grounds of opposition. Rule 32 (3) (b) of the Uniform
Rules of Court requires of a respondent faced with an application for summary judgment
to “satisfy the court by way of affidavit (which shall be delivered within five days before
the day on which the application is to be heard), or with the leave of the court by oral
evidence of such defendant or of any other person who can swear positively to the fact
1 Massbuild (Pty) Ltd t/a Builders Warehouse Express, Builders Warehouse and Builders Trade Depot v
Tikon Construction and Another (6986/2017) [2020] ZAGPHJ HC (14 September 2020)
that the defendant has a bona fide defence to the action; such affidavit or evidence to
disclose fully the nature and grounds of the defence and the material facts relied u pon
therefor .” The abandonment by the second respondent of the onl y defences that she
had pleaded in the affidavit opposing the summary judgment means, in essence, that
there is no opposition to the summary judgment application.
[16] Even more problematic is the reliance by the second respondent on the
provisions of the General Law Amendment Act to argue that the Deed of Suretyship is
invalid when she, in her plea, admits having bound herself as a s urety and co -principal
debtor in favour of the applicant. The rhetorical question that one may ask is “ what then
is the second respondent disputing ” because her admission that she bound herself as a
surety in favour of the applicant must put paid to any possible ground of defence in
circumstances where the Deed of Suretyship is embodied in a written document and
has been signed by her, albeit not with an advanced electronic signature. Her argument
amounts to no more than elevating fo rm over substance. Massbuild is also of no
assistance to the second respondent because the dispute there centred on whether the
surety had signed the suretyship unlike here where the second respondent admits to
having bound herself in favour of the applica nt.
[17] There is no doubt that the second respondent has failed to satisfy the court of the
nature and grounds of her defence and the legal point she sought to rely on is bad in
law.
[18] The first respondent’s indebtedness to the applicant arose from a financial
service agreement in term of which the first respondent sold certain insurance policies,
received some commission payments which it was liable to re fund in the event of those
insur ance policies lapsing or being cancelled within a certain period of time. Certain
insurance policies that had been sold by the first respondent, in respect of which it had
received commission payments, either lapsed or were cancelled resulting in the first
respondent being obliged to pay the applicant a sum of R1 279 248. 03, which the first
respondent failed to pay.
[19] Paragraph 13 of the Deed of Suretyship made provision for the inde btedness of
the second respondent to be proven by a certificate signed by any of the applicant’s
managers or accountants. Such certificate evidencing the indebtedness of the second
respondent has, indeed, been provided and as such the applicant is entitled to summary
judgment in its favour.
[20] The Deed of Suretyship provides for costs on an attorney and client scale . That
is the bargain to which the parties bound themselves and no cogent reason has been
advanced to interfere therewith. Costs will, thus, be awarded on an attorney and client
scale including those costs that had been reserved on occasions when the matter was
postponed without the allocation of costs.
[21] In the result I make the following order:
21.1 The application for summary judgment is granted;
21.2 The second respondent is ordered to pay the applicant a sum of
R1 279 248.03 together with interest thereon at the rate of 11,25% per
annum a tempore morae ;
21.3 The second respondent shall pay the applicant’s costs on an attorn ey and
client scale including costs occasioned by the postponement of the matter
where costs in relation to such postponement had not been determined .
______ ___________________
LG NUKU
JUDGE OF THE HIGH COURT
APPEARANCES :
For the Appellant : Adv. Wessels
Instructed by : Johan Fourie: Fourie Basson & Veldman Attorneys
For the First Respondent : Adv. R Randall
Instructed by : MJ Van Rensburg: Horn Van Rensburg Attorneys