SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no: 6535/2024
In the matter between:
NEDBANK LIMITED Applicant
and
MOUSSA BABA Respondent
Court: Acting Justice E Nel
Heard: 22 April 2025
Delivered: 25 April 2025
JUDGMENT
NEL AJ:
1. The present matter is an opposed application in terms whereof the applicant
seeks payment of the sum of R 15 000 000.00 together with interest and costs of
suit from the respondent in his capacity as surety and co -principal debtor for the
debts of Bestinver Company South Africa (Pty) Ltd (now in liquidation)
(“Bestinver”) .
2. On 18 July 2011 the applicant and Bestinver, both duly represented, concluded a
written l oan agreement in terms whereof the applicant loaned and advanced the
sum of R 15 000 000.00 to Bestinver. It was a further term of the loan agreement
that Bestinver would be liable for interest at the prevailing prime interest rate from
time to time less 1% per annum . The loan was to be repaid in 240 monthly
instalments of R 125 523.01 (inclusive of the monthly service fee; and subject to
fluctuation in the prime interest rate). The first instalment was due on the first day
of the month following the mon th during which the loan or part thereof had been
advanced to Bestinver. The agreement furthermore provided that in the event of
Bestinver breaching any of its terms, the applicant would be entitled to claim
repayment of the balance outstanding under the loan, which would become
immediately due and payable. Pursuant to the loan agreement two mortgage
bonds were registered over immovable property owned by Bestinver in favour of
the applicant for the sums of R 9 500 000.00 and R 1 500 000.00 respectively.1
This was in addition to an existing mortgage bond over the immovable property in
favour of the applicant in the sum of R 3 000 000.00.
3. The applicant alleges that Bestinver from or about 7 November 2020 failed to
effect payment of the monthly instalments to the applicant, thereby breaching the
agreement , and entitling it to claim payment of the balance outstanding together
with interest and costs of suit.
4. Furthermore, on 17 June 2021, I granted an order placing Bestinver under final
liquidati on.
1 The immovable is described as Portion 141 (a portion of portion 36) of the farm Zandfontein No. 42,
Registration division I.R., the province of Gauteng, measuring 1,1434 (one comma one four three
four) hectares, held by Deed of Transfer No. T[...] (“the immovable property”) .
5. The applicant attached a certificate of balance, as provided for in the loan
agreement, to its founding papers , which states that Bestinver is indebted to the
applicant in the sum of R 16 313 121.26 together with interest thereon at the
prevailing pri me interest rate less 4.75% per annum2 from 15 February 2024 to
date of final payment.
6. On 28 June 2011 , the respondent concluded a suretyship agreement in favour of
the applicant in terms whereof he bound himself, jointly and severally as surety
and co -principal debtor in solidum with Bestinver, limited to the sum of R 15 000
000.00 plus interest and legal costs on the attorney and client scale. The
respondent also renounced the benefit of excussion.
7. The applicant, as it did in respect of Bestinver, at tached a certificate of balance,
as provided for in the suretyship agreement, to its founding papers , which
provides that the respondent is indebted to the applicant in the sum of
R 15 000 000.00 together with further interest thereon at the rate of 7% per
annum (being the prevailing prime interest rate less 4.75%) as from 15 February
2024 to date of final payment.
8. It is evident that Bestinver was a juristic entity and that the loa n agreement it
concluded with the applicant constituted a large agreement as defined in section
9(4) of the National Credit Act 34 of 2005 (“the NCA”). In accordance with section
4(1)(b) of the NCA its provisions therefore did not apply to the loan agreem ent,
and consequently in terms of section 4(2)(c) it does not apply to the suretyship
agreement.
9. The applicant accordingly seeks the relief set out in paragraph 1 above.
2 I was informed by Mr. de Wet , who appeared on behalf of the applicant , that this lower interest rate,
than the one provided for in the loan agreement, was charged by the applicant when Bestinver went
into liquidation.
10. The respondent filed a notice of intention to oppose the application but failed
to file opposing papers timeously ,3 which prompted the applicant to bring a
chamberbook application to compel the respondent to do so. An order was
accordingly granted on 21 June 20244 compelling the respondent to file opposing
papers within 5 da ys of service of the order on his attorneys of record. On 24
June 2024 , the respondent’s attorney of record, Mr. Waleed Saban, filed an
affidavit in which he stated that the respondent would be out of the country from
22 June 2024 to 5 July 2024 and accor dingly requested an indulgence until
August 2024 to file opposing papers. The chamberbook order was served on the
respondent’s attorneys of record, shortly thereafter.5
11. The respondent failed to file opposing papers as directed in the order granted
on 21 June 2024, and the applicant therefore set the matter down on the third
division unopposed motion court roll on 15 August 2024 . On that date the matter
was postponed by agreement for hearing on the semi -urgent roll on 30 October
2024,6 and the respond ent was once again ordered to file opposing papers, if any,
by 10 September 2024. Despite the provisions of the latter order the respondent
only filed opposing papers on 19 September 2024.
12. The papers were not accompanied by a condonation application, how ever, the
respondent in the opposing affidavit itself seeks condonation for the late filing
thereof. The reasons for the late filing of the opposing affidavit are so closely
linked to the grounds of opposition to the applicant’s claim that it is best to s imply
deal with them together.
13. The respondent admits that he concluded the suretyship agreement, and
does not deny that Bestinver is indebted to the applicant in the sum of
3 The application was served upon the respondent on 30 April 2024. The respondent delivered a
notice of in tention to oppose the application on 6 May 2024 with the result that his opposing papers
were due on 28 May 2024.
4 The order was issued on 28 June 2024.
5 The date of receipt is not clear on the receipt stamp of the respondent’s attorneys of record;
however, it is evident that the order was issued on 28 June 2024, and filing sheet has a date stamp
on of 1 July 2024, and the order was presumably served on or about such date.
6 The matter was not allocated for hearing on 30 October 2024 and was instead postponed for
hearing to 22 April 2025.
R 16 313 121.26 in accordance with the aforementioned loan agreement. The
respondent however attempts to escape liability for the reasons that follow.
14. Ahmadou Baba, who the respondent describes as “ the patriarch of the Baba
family ” and who is his father, was the sole s hareholder in Bestinver . A company,
called Elite Vision Investments (Pty) Ltd (“Elite Vision”), which is wholly owned by
the respondent’s family, and one of the liquidators of Bestinver (namely the late
Cloete Murray N.O.) concluded a deed of sale in term s whereof Elite Vision would
purchase the immovable property from Bestinver for a purchase price of R 14 000
000.00. It was a further term of the agreement that Elite Vision would have to
comply with the relevant provisions of the Financial Intelligence C entre Act 38 of
2001 (“FICA”) .
15. Kim Warren Inc t/a KWA Attorneys (who are also the applicant’s attorneys of
record in the present matter) were appointed as the conveyancing attorneys in the
deed of sale, and Elite Vision had paid the full purchase price to KWA Attorneys at
the date of signature of the deed of sale . The transfer fees were also paid over to
KWA Attorneys in March 2023 . No date of transfer was specified in the deed of
sale and it simply provide d that transfer would be effected as soon as rea sonably
practicable , and after Elite Vision had complied with the conditions contained in
the deed of sale (although no conditions other than FICA compliance are
contained therein), and subject to the parties complying with their obligations in
terms of th e agreement, inter alia , to effect payment of all costs, rates, taxes and
other charges due to the local authority .
16. From the deed of sale it is evident that it was concluded on 10 January 2023
(although the respondent’s opposing affidavit states 10 Januar y 2022 – this is
clearly a typographical error) . The respondent states that because Ahmadou
Baba was based in Cameroon “ there was a lapse in time for the required FICA
documents to be obtained and made available ”, and that “ for some inexplicable
reason th e liquidators appeared to have withdrawn from the sale ” despite all
requirements having been met for the sale to Elite vision to proceed. The
respondent states further that unbeknownst to him the liquidators of Bestinver had
raised a query regarding the n ature and purpose of Elite Vision ’s payment in
respect of the sale of the immovable property , and as a result there is now
pending litigation between Ahmadou Baba and Elite Vision against the liquidators
of Bestinver in the Gauteng High Court (which has be en transferred to the
Western Cape High Court). The respondent states further that Ahmadou Baba
and Elite Vision “ seek a declarator confirming that the Baba’s are indeed the true
intended recipients of the R 14 million advance d by Elite Vision and that it was
never the latter’s intention to make Bestinver the beneficial owner of the funds ”.
17. The crux of the respondent’s opposition is that the applicant will not be
prejudiced should the present matter be postponed pending finalization of the
aforementioned litigation as KWA Attorneys, being the applicant’s attorneys of
record, hold R 14 000 000.00 in their trust account. Moreover, the respo ndent
contends that should Ahmadou Baba be successful in such litigation, the funds
currently held by KWA Attorneys would be paid over to the applicant in settlement
of its claim. The respondent accordingly denies that he is “ currently liable ” to pay
the applicant as Elite Vision remains a willing buyer and has already made the full
purchase price available.
18. In an attempt to explain the delay of the fling of his papers, t he respondent
states that he is based in Dubai and was unaware of the fact that the re was a
difficulty with the sale of the immovable property, and therefore thought that the
matter was being resolved. For that reason, he did not see the need to further
oppose the present application, and by that one must presume that he did not see
the need to file any opposing papers. He states that his siblings are based all
over the world making it difficult to keep abreast of all developments regarding the
family business, and that he is not fully aware of the current status of all of the
family’s litigation in South Africa. He has however now had to return to South
Africa to deal with this matter. He does not state when, but at some point he was
alerted to the fact that the sale of the immovable property was not proceeding.
There were unsuccessf ul settlement negotiations between the parties between
the period of 5 September 2024 and 11 September 2024, as a result , the
applicant’s attorneys had agreed to an extension to 16 September 2024 for the
filing of the respondent’s opposing papers. As stat ed above, the opposing papers
were only filed on 19 September 2024, being three court days later.
19. On 17 April 2025, one court day prior to the hearing of the matter, the
respondent’s attorneys of record emailed a “ supplementary condonation affidavit ”
to Ms. Lizette Potgieter. Such affidavit was filed without the leave of the court,
however, it does further and better explain the reasons for the delay in the
respondent’s filing of his opposing affidavit. Although the parties had agreed to
his affidavit being filed on 16 September 2024, the respondent’s attorney of record
sent him the draft affidavit via WhatsApp on 17 September 2024. The respondent
intended on getting the affidavit commissioned at the South African Consulate in
Dubai, but later discover ed that he could only attend at the Consulate’s Office by
making an appointment online. This the respondent was not able to do timeously,
and he elected to rather fly back to South Africa and had the affidavit
commissioned the following day, being 18 Sept ember 2024. The commissioned
affidavit was sent via WhatsApp to the applicant’s attorney of record on the same
date.
Condonation for the late filing of the opposing papers:
Explanation of default:
20. Condonation of the non -observance of court orders and rules is not a mere
formality. A party seeking condonation must satisfy the court that there is sufficient
or good cause for excusing the non -compliance. Whether condonation should be
granted or not is a matter of discretion that has to be exercised ha ving regard to
all the circumstances of the particular case.7 It is trite that an applicant in an
application for condonation must provide a reasonable explanation of their default
and show that they have a bona fide defence to the claim against them.8
21. In the present matter the applicant submits that the respondent ought to
provide a full explanation of his default from the date that his opposing affidavit
was due on 28 May 2024 to the filing thereof on 19 September 2024. I don’t
7 See Gumede v Road Accident Fund 2007 (6) SA 304 (C) at para [7].
8 See Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O) at 476 (later repeated in De Witts Auto Body
Repairs (Pty) Ltd v Fedgen Insurance Co Ltd 1994 (4) SA (E) 705 at 708H.
agree. Once the order was taken by agreement on 15 August 2024 setting out
the further time line of the matter, and therein directing the respondent to file his
opposing affidavit by 10 September 2024, the slate was wiped clean so to speak,
and in my view the respondent only has to show a reasonable explanation of his
default from 10 September 20 24 to 19 September 2024.
22. Moreover, as set out above, the applicant had granted the respondent an
extension of time, despite the provisions of the order granted on 15 August 2024,
to file his opposing affidavit by 16 September 2024. I am of the view that the
respondent has set out sufficient reasons explaining the lateness in the filing of his
opposing affidavit.
23. However, for the reasons enunciated below, the respondent has failed to set
out a bona fide defence to the applicant’s claim. The averments whi ch he has set
out do not entitle him to a dismissal of the applicant’s claim or a postponement
thereof pending finalization of the litigation between Ahmadou Baba and the
liquidators of Bestinver. What the respondent in fact seeks is an indulgence from
the applicant ; however, his averments do not amount a legal defence to the claim
of the applicant.
Merits of defence raised:
24. It is common cause that the respondent has bound himself as a co -principal
debtor with Bestinver and renounced the benefit of excus sion.
25. Mr. Botha , who appeared on behalf of the respondent , submitted during
argument , that the debt of Bestinver has been extinguished by the payment of the
purchase price of the immovable property into the trust account of KWA Attorneys.
I asked Mr. Bot ha whether he had any legal authority for such submission , and he
indicated that he did not, but that those were simply his instructions. Mr. Botha
evidently had no confidence in this argument, and neither do I.
26. Bestinver’s debt to the applicant has not been settled. Whilst a portion
thereof may be settled if Ahmadou Baba is successful in the litigation that he has
instituted against the liquidators of Bestinver, this is by no means a guarantee.9
There is also no duty wha tsoever on the applicant to await the outcome of such
litigation before proceeding against the respondent as surety and co -principal
debtor.
27. The fact that the applicant’s attorneys of record hold the R 14 000 000.00
purchase price and transfer costs in respect of the sale of the immovable property
between the liquidators of Bestinver and Elite Vision does not assist the
respondent. KWA Attorneys are holding those funds as a stakeholder and as
conveyancer in such transaction, and not for the benefit of t he applicant in the
present matter. What is evident is that irrespective of who the successful party is
in the litigation between Ahmadou Baba and the liquidators of Bestinver, th e funds
held by KWA Attorneys will not be paid directly to the applicant, bu t would rather
be paid to presumably one of the parties in that suit . Should Ahmadou Baba be
successful in such litigation , the applicant’s claim would not be settled in full but it
will rather receive a dividend from the liquidators , after deduction of t he relevant
costs and charges.
28. A surety’s obligations are coterminous with those of the principal debtor.10
Where the surety signs as co -principal debtor, as the respondent did, the addition
of those words shows that the surety is assuming the same obligations as the
principal debtor. That means that the applicant is at liberty to pursue payment of
the monies owing by Bestinver to the applicant, subject to the monetary limitation
contained in the deed of suretyship.
29. Mr. Botha argued in the alternative that the present application ought to be
postponed pending the determination of the litigation between Ahmado u Baba and
the liquidators of Bestinver. He conceded that such a request amounted to
seeking an indulgence from the applicant; an indulgence which the applicant is
not prepared to grant.
9 It is also worth pointing out that the respondent is not a party to those legal proceedings.
10 See Van Zyl v Auto Commodities (Pty) Ltd 2021 (5) SA 171 (SCA) at para [11].
30. As I have stated above, there no obligation on the applicant to fir st await
payment of any dividends from the liquidators of Bestinver .11 The applicant is fully
entitled to seek payment of the debt of Bestiver from the respondent now.
31. In the circumstances, even if I were to grant the respondent condonation for
the late filing of his answering affidavit, he has failed to set out a ny defence to the
applicant’s claim.
32. I accordingly grant the following order:
ORDER:
1. Judgment is granted in favour of the applicant and against the respondent for:
1.1 Payment of the sum of R 15 000 000.00 together with interest thereon at the
prevailing prime interest rate from time to time less 4.75% per annum ,
calculated daily and compounded monthly as from 15 February 2024 to date of
final payment both days inclusive ;
1.2 Costs of suit on the attorney and client scale.
_____________________
NEL AJ
APPEARANCES:
For applicant: Adv D R de Wet
Instructed by: Dunsters Attorneys Incorporated
For first respondent: Adv M Botha
11 See Consolidated Textile Mills Ltd v Weiniger 1961 (3) SA 335 (O) at 338 C.
Instructed by: ZS Incorporated