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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )
Case number: 381/2023
In the matter between:
SOUTH AFRICA SECURITISATION PROGRAMME Plaintiff
(RF) LIMITED
and
T ABRAHAMS TRANSPORT SERVICES (PTY) LTD First d efendant
KAUTHAR ABRAHAMS Second defendant
JUDGMENT DELIVERED ON 22 MAY 2025
VAN ZYL AJ :
Introductio n
1. This is an opposed application for summary judgment. The plaintiff sues for
payment of rental owing on a rental contract1 and guarantee concluded by the
second defendant on behalf of the first defendant during March 2022 . In
terms of the rental contract, the first defendant leased a printer/copier
machine from the plaintiff for a period of 60 months. In terms of the
guarantee, the second defendant renounced the benefits of division and
excussion and, as a result, the se cond defendant is liable to the plaintiff in the
amounts for which the first defendant is liable.2
2. The plaintiff sues as cessionary . The defendants contracted with an entity
known as Sunlyn (Pty) Ltd. The contract was ceded to Sasfin Bank Ltd in
terms of a standing arrangement between Sunlyn and Sasfin. On 17 May
2022, the plaintiff acquired the rental contract from Sasfin by way of cession.
3. The primary ground on which the plaintiff relies for relief is the so -called
caveat subscriptor principle which in essence binds the defendants to the
content of the contract regardless of whether the y were aware of the content
thereof . The general principle in our law is that when a person signs a
contractual document, he or she agrees to be bound by the contents of the
document.3 In George v Fairmead (Pty) Ltd4 it was stated that:
“When a man is asked to put his signature to a document, he cannot fail to
realise that he is called upon to signify, by doing so, his assent to whatever
words appear above his signature. In cases of the type of which the three I
have mentioned are examples ; the party who seeks relief must convince the
Court that he was misled as to the purport of the words to which he was thus
signifying his assent. That must, in each case, be a question of fact, to be
decided on all the evidence led in that particular case ."
4. The defendants’ defence is broadly that the particular facts of this matter
1 The provisions of the National Credit Act 34 of 2005 and the Consumer Protection Act 68 of
2008 are not applicable to the agreement, because of the nature of the agreement and the
first defendant’s net asset value or annual turnover.
2 I refer to the “defendants” throughout this judgment, on the understanding that the second
defendant acted on the first def endant’s behalf at all material times.
3 See Christie The Law of Contract in South Africa (5ed, 2006) pp 174 -179.
4 1958 (2) SA 465 (A) at 47 2A-B. Emphasis supplied.
provide an exception to the caveat subscriptor rule, and therefore raise a
triable issue which necessitates the refusal of summary judgment. Various
other defences arise in the circumstances.
5. I reiterate the broad principles applicable to summary judgment application s,
and consider the merits of the defen dants’ defence s thereafter.
The principles applicable to summary judgment applications
6. The purpose of Rule 32 is to prevent a plaintiff’s claim, when based upon
certain causes of action, from being delayed by what amounts to an abuse of
the process of the court. The plaintiff is allowed to apply for judgment to be
entered summarily against the defendan t, thus disposing of the matter without
putting the plaintiff to the expense of a trial. The procedure is not intended to
shut out a defendant who can show that there is a triable issue applicable to
the claim as a whole from placing his or her defence bef ore the court .5
7. Rule 32(3)(b) provides that a defendant in summary judgment proceedings
may “ satisfy the court by affidavit …, 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 t hat the defendant has a bona fide defence to the action; such
affidavit or evidence shall disclose fully the nature and grounds of the defence
and the material facts relied upon therefor ”.
8. In Breitenbach v Fiat SA (Edms) Bpk6 the Court held as follows in relation to
the defendant’s affidavit:
“… no more is called for than this: that the statement of material facts be
sufficiently full to persuade the Court that what the defendant has alleged, if it
is proved at the trial, will constitute a defence to the plaintiff's claim . What
I would add, however, is that if the defence is averred in a manner which
appears in all the circumstances to be needlessly bald, vague or sketchy, that
5 Majola v Nitro Securitisation 1 (Pty) Ltd 2012 (1) SA 226 (SCA) at 232F –G.
6 1976 (2) SA 226 (T) at 228D -E. Emphasis added.
will constitute material for the Court to consider in relation t o the requirement
of bona fides” .
9. The defendant who elects to deliver an affidavit in opposition to a summary
judgment application must thus show that they have a bona fide defence to
the action. They must fully disclose the nature and grounds of the defence,
and the material facts relied upon and which they genuinely desire and intend
to adduce at trial. The facts should not be inherently and seriously
unconvincing and should, if true, constitute a valid defence.7 A bona fide
defence is accordingly one that is good in law, and that is pleaded with
sufficient particularity.8 The defendant’s prospects of success are irrelevant to
the enquiry.9
10. The word “may” in Rule 32(5) confers a discretion on the Court, so that even if
the defendant’s affidavit does not measure up fully to the requ irements of
subrule (3)(b), the Court may nevertheless refuse to grant summary judgment
if it thinks fit .10 The discretion is not to be exercised capriciously, so as to
deprive a plaintiff of summary judgment when he or she ought to have such
relief.11
11. If it is reasonably possible that the plaintiff’s application is defective or that the
defendant has a good defence, the issue must be decided in favour of the
defendant.12 If, on the material before it, the Court sees a reasonable
possibility that an injustice may be done if summary judgment is granted, that
is a sufficient basis on which to exercise its discre tion in favour of the
defendant.13
12. Have the defendants met this standard in the present matter?
7 1976 (2) SA 226 (T) at 227G -228B; Standard Bank of South Africa v Friedman 1999 (2) SA
456 (C) at 461I -462G.
8 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426C -D.
9 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) para 13.
10 First National Bank of South Africa Ltd v Myburgh 2002 (4) SA 176 (C) at 180D –E.
11 Jili v Firstrand Bank Ltd 2015 (3) SA 586 (SCA) at para [13] .
12 Arend v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) at 305C -F.
13 First National Bank of South Africa Ltd v Myburgh supra at 184H.
The defen ces
13. In their plea and affidavit resisting summary judgment, the defendants have
raised essentially four defences :
13.1. First, that they had no opportunity to read the contract before
signing it ;
13.2. Second, that the rental contract contained unusual clauses which
should have been brought to the ir attention prior to signature , but
were not ;
13.3. Third , that the agent who negotiated the contract with the
defendants materially misrepresented to the m that the fee shown
on the contract was the entire monthly expense that was being
contracted fo r, and deliberately omitted to inform them that
additional costs w ould be incurred per copy or print . Had the
defendants known of the additional expenses, they would not have
concluded the contract ; and
13.4. Fourth, that the exemption clauses in the contract are so onerous
and one -sided that they offend against public polic y.
The defendants did not read the contract before signing it
14. There are several important facts that are undisputed. The first is that the
plaintiff was not a party to the conclusion of the contract . As indicated earlier,
the plaintiff sues as cessionary. It can therefore not testify as to what
occurred during the contract negotiations and the subsequent conclusion of
the rental contract and guarantee .
15. It is further not disputed that the copier ma chine provided to the first
defendant was not in a working order from the outset , and that this was
brought to the attention of the vendor, an outlet known as Seven Degrees. It
is common cause that the vendor did not take any steps to re medy the
situation . The defendants plead that the defective machine has not been
used since, and is being stored at the defendants’ business premises.
16. It is, thirdly, common cause that the rental contract did not specifically refer to
the further charges that would be incurred on a “per print” basis. No schedule
for such costs was attached to the contract or to the founding papers.
17. As indicated, the plaintiff relies on the caveat subscriptor principle in
contending that the plea raises no triable issue. It refers to Motsw ane v BMW
Financial Services,14 in which the debtor alleged that he had not read the
document that he had signed with the claimant finance company to purchase
a vehicle. The debtor said that the finance company informed him that he
should simply sign the agreement which he had not read and he would "drive
a fancy car". The Court found that he had consented to the terms of the
agreement and that this was confirmed by his conduct in making payments
under the agreement.
18. Motswane has distinguishing features when compared to the present matt er.
In Motswane , the appellant had been in possession of the motor vehicle since
2008 or 2009 (summary judgment was granted against him in 2023) and even
went to the extent of putting himself under debt review. He had initially paid
diligently towards the agreement, and did not challenge the payment
breakdown provided by the respondent in the course of the litigation between
them. In contending that he had not read the agreement, he did not say what
terms of the agreement would have caused him not to sign the agreement,
had he read it.
19. In the present matter the machine was defective from the outset, and not used
over an extended period of time. The defendants have taken issue with the
payment schedule relied upon by the plaintiff. They have also identif ied the
clauses in the contract that would have persuaded them not to sign it, had
14 [2025] ZANWHC 1 (6 January 2025).
they know n what the true position was.
20. It is clear from the pleadings and from the oral argument presented that the
defendants did not read the contract at all before signing it. The reason for
this omission is the foundation underpinning the three further specific
defences referred to above. The defendants say , in their plea, that the
contract “ was shoved at them to sign by th e vendor, who demanded
immediate signature. Had they been afforded an opportunity to properly read
the contents of [the contract] they would have refused to sign same ”.
21. The defendants plead further that the contract “ is largely unreadable and
illegible due to the very small and blurred font, and that they, in any event,
would have been unable to read the contents” .
22. The plaintiff argues that this defence is not properly pleaded, it being too
sparse. I think, however, that the plea paints an adequate picture , at least to
prevent the grant of summary judgment. The copy of the contract contained in
the court file , especially page 2 which contains the “ Terms of business ”, is
densely typed in single spacing , and indeed difficult to read , especially in
hurried circumstances . I include a half -page extract to illustrate the point:
23. Page 1 is clearer, the salient part being typed in capital letters. A trial court
should nevertheless be given the opportunity of evaluating oral evidence
regarding the circumstances in which the contract was signed together with
the manner in which it wa s presented to the defendants .
24. The further defences raised, and the p laintiff’s contentions in relation thereto,
must be considered against th is background.
25. The plaintiff ’s argument in relation to all of the defences is that, had the
defendants read the contract, they would have seen what it entailed. This is
of course correct – the defences are indeed excluded by the contract . The
argument however ignores the defendants’ plea to the effect that they had no
opportunity of considering the contract before signing it, and further that
certain clauses contained in the contract were not pointed out to them.
The contract contains unusual clauses
26. Clause 6 o f the rental contract states that , if the consumer wants any
protection for defective goods, he or she needs to conclude a separate
contract with the vendor of the goo ds. The clause reads as follows:
“This Agreement applies only to the hiring of the goods, which you have
accepted ‘a is’ and the rental does not include any payment in respect of
licensing, service or maintenance or any other charges. There is no licensing,
service or maintenance agreement between you and us, and if you require
one it should b e obtained from the vendor of the goods. You agree that any
dispute in respect of the goods, their licensing, maintenance or any other
agreement that you may have, will not entitle you to cease complying with
your obligations in terms of this Agreement an d any such dispute will not
entitle you to withhold any rental payments” .
27. This is , so the defendants argue, an unusual type of clause in a rental
contract , and should have been brought to the defendants’ attention prior to
signature. This would have enab led them to decide to conclude such
separate contract before commencing with the lease . The defendants say that
a clause exempting the owner of goods from any liability whatsoever, when
the owner is renting those goods to a consumer and expecting the consumer
to conclude a separate contract in order to safeguard its rights , is not a
standard clause to be expected in such contracts.
28. The defendants refer, too, to the exemption clauses in the contract , of which
they were not made aware . The se include clauses 3a, b, and c on the first
page of the contract, and clause 25(2) on page 2 which states that the
defendants agre e “that all warranties implied by the common law are excluded
and that no representations of any nature have been made by or on behalf of
us”. Clause 3 reads as follows:
“3. You hereby indemnify us:
a. Against any legal responsibility for any claim that may be made
against us;
b. For any loss that we may sustain from any breach of any of the
aforesaid provisions or for the failure of the vendor to pass
ownership of the goods or deliver the good to us; and
c. From any other loss which we may suffer in relation to the goods
of whatsoever nature and howsoever arising and whether or not
you are at fault in relation thereto ”.
29. The defendants argue that a clause that absolves a party of any liability
arising in any way whatsoever, even if the liability is not the fault of the
consumer, is overly broad to the point of being draconian. The S upreme Court
of Appeal (“S CA”) dealt with a similar clause in Freddy Hirsch Group (Pty) Ltd
v Chickenland (Pty) Ltd.15 In deciding that the clause offended ag ainst public
policy, the SCA stated the following:16
“In Johannesburg Country Club v Stott & another Harms JA observed:
15 2011 (4) SA 276 (SCA). The clause read as follows: “ The Customer indemnifies and holds
the Company harmless against all claims, loss, damage, expense or proceedings of
whatsoever nature against or on the part of the Company arising out of the sale or distribution
of the goods whether defective or not for any reason whatsoever. ”
16 Freddy Hirsch supra para 23. Em phasis supplied.
‘The conduct sought to be exempted from liability may involve criminal liability,
however, and the question is whether a contractual regime that permits such
exemption is compatible with constitutional values, and whether growth of the
common law consistently with the spirit, purport and objects of the Bill of
Rights requires its adaptation’. but thought it unnecessary, in t he light of the
proper reading of the contractual exclusion encountered there, to determine it.
Of clause 4.6, Blieden J said: ‘this is not a limitation of liability clause, it is an
indemnity by the “Customer” for any claims by third parties which may be
lodged against the “Company” for losses suffered because of the company’s
fault or ‘for any reason whatsoever”. Counsel for the defendant referred to this
clause as “Draconian”. I would say this is an understatement.’
In my view the provision is so gratuit ously harsh and oppressive that public
policy could not tolerate it. Or, in the language of the majority judgment
in Sasfin v Beukes, it is '... clearly inimical to the interests of the community, . .
. or run[s] counter to social or economic expedience ...'”
30. The defendants argue that c lause 3 of the contract is so overly broad that it
offend s against public policy . Counsel remarked, as an aside, that clause
25(2) of the contract stipulates that no warranties have been made. This,
however, flies in the face of how Sunlyn was conducting its business. The
contract was concluded based on the representations of the ag ent who
negotiated with the defendants. It is against public policy for a company to be
able to have an agent make any number of warranties to induce a contract,
and then contractually renege on all those warranties through standard fine
print terms and co nditions.
31. The defendants did not expressly raise the public policy defence in their plea.
It can therefore not be considered as a bona fide defence for the purposes of
resisting the summary judgment application.17 The clauses in question,
however, seem to be of the kind which a trial court may consider should have
been pointed out to the defendants before signature.
17 See AHMR Hospitality (Pty) Ltd t/a Bakenhof Winelands Venue v Da Silva 2024 (3) SA 100
(WCC) at para [14]. I do not venture into a consideration of whether the trial court can mero
motu raise the issue of public policy.
32. The plaintiff argues that the impugned clause s are not unusual and, had the
defendants re ad the contract, they would have seen it. They have themselves
to blame for their situation.
33. The SCA has looked past the caveat subscriptor rule in matters where
unusual clauses were found to be present in contracts. In Mercurius Motors v
Lopez ,18 for example, it was stated that :
“An exemption clause such as that contained in clause 519 of the conditions of
contract, that undermines the very essence of the contract of deposit, should
be clearly and pertinently brought to the attention of a custome r who signs a
standard instruction form, and not by way of an inconspicuous and barely
legible clause that refers to the conditions on the reverse side of the page in
question .”
34. Returning to clause 6 of the contract, I agree with the submission made by th e
defendants’ counsel that a clause that requires the consumer to conclude a
further contract with a supplier who is no longer the owner of an item, before
the consumer would have any recourse if the rented items were defective and
not fit for purpose , should be brought to the attention of the consumer. The
defendants aver that this was not done, and since they were not given a
reasonable chance of re ading the contract before signing it, they did not
realise what the position was . This is a triable iss ue.
35. In fact , the following extract from the judgment of a Full Court of this Division
in Something Different Concepts and Shows CC and another v South African
Securitisation Programme (RF) Ltd and others20 resonates as being apposite :
“[29] In our law, there is no general obligation on an offeror to enquire
18 2008 (3) SA 572 (SCA) para 33.
19 Clause 5 (the exemption clause ) read as follows: “ I/we acknowledge that MERCURIUS shall
not be liable in any way whatsoever or be responsible for any loss or damages sustained from
fire and/or burglary and/or unlawful acts (including gross negligence) of their representatives,
agents or employees. ”
20 [2024] ZAWCHC 103 (19 April 2024) paras 29 -37. Emphasis su pplied.
whether or not the other party to the contract has read and understood the
offer documentation accepted by him or her…. He must do so, however,
where there are terms that could not reasonabl y have been expected in the
contract …
[31] In the present matter, the question is whether the second appellant had
reason to believe that the documents she had to sign contained a guarantee
agreement which made her personally liable in the event her Com pany (the
first appellant) defaulted and whether the respondents had reason to believe
that the second appellant would have been prepared to sign the agreement if
she had known that she was about to incur personal liability in the event the
principal debto r defaulted …
[32] It is common cause that the second appellant signed the Master Rental
Agreement and the guarantees. The second appellant averred that it was
never brought to her attention that the Master Rental Agreement contained a
Guarantee Agreement. The second appella nt stated further that when she
signed the documents presented to her, she particularly signed and initialled
where the third respondent asked her to sign and initial.
[34] It must be stressed that the second appellant asserted in her affidavit
resisting s ummary judgment that the Guarantees were surreptitiously hidden
in the body of the agreement to extend personal liability to her when she
signed the Master Rental Agreement. In other words, at the critical moment
when the agreement was signed, the fact tha t there was a guarantee in the
pack of documents presented to her was hidden. This defence, in my view,
raises a triable issue .
[35] More pertinently, in paragraph 27 of the affidavit resisting summary
judgment, the second appellant asserted that the third respondent's
representative had presented the agreement and other documents to her,
asked her to initial and sign the document, and did not advise her that the
documents contained the guarantee. However, based on her interaction with
the third respondent 's representative, the second appellant assumed that no
guarantee was contained in the pack of documents. The assumption that
there was no guarantee in the pack of documents was based on the second
appellant's interaction with the third respondent's repres entative before she
could sign the agreement.
[36] In my opinion, the second appellant should have been granted leave to
defend so that she could clarify the basis for her assumption through evidence
during the trial proceedings. Furthermore, … where a contract contains an
onerous term that one would not expect to find in a contract, there exists a
duty upon the offeror to bring the incorporation of the condition to the attention
of the offeree
[37] In addition, it is apposite to remind ourselves that the law recognises that
it would be unconscionable for a person to enforce the terms of a document
where he misled the signatory, whether intentionally or not … Where such a
misrepresentation is material, the signatory can rescind the contract because
of the misrepresentation, provided he can show that he would not have
entered into the contract if he had known the truth …”
36. This is a somewhat lengthy quote but the circumstances referred to by the
Full Cour t are reminiscent of the facts in the present matter. A similar
approach is thus warranted.
Material misrepresentation
37. The defendants complain that they were induced to conclude the contract on
the basis of misrepresentations21 made to them by the agent who negotiated
the Sunlyn contract, in particular that there would be no fees payable apart
from the monthly amount for the r ental of the machine. The agent worked at
an outlet of the vendor, Seven Degrees.
38. In Brink v Humphries & Jewell (Pty) Ltd22 the SCA found that a mistake
induced by misrepresentation, whether innocent or deliberate, overruled the
caveat subscriptor principle and rendered the contract void ab initio. In that
matter, a credit application contained a surety clause which was not rea dily
noticeable, and which was not conveyed to the party signing the contract. This
misrepresentation by omission was found to be material, as the signing party
21 See SPF and another v LBCC T/A LB and another [2016] ZAGPPHC 378 (20 April 2016) para
14.
22 2005 (2) SA 419 (SCA) .
had not intended to be bound as a surety, and the SCA refused to hold the
appellant to the term s of the contract:23
“It is true that the appellant had ample opportunity to read the form carefully
and he did not avail himself of that opportunity. But that is no answer. It is not
reasonable for a party who has induced a justifiable mistake in a signa tory as
to the contents of a document to assert that the signatory would not have
been misled had he read the document carefully ; and such a party cannot
accordingly rely on the doctrine of quasi -mutual assent. ”
39. In the present matter the defendants did no t read the contract, because they
say they did not have the opportunity to do wo. The question is therefore
whether there was a misrepresentation on the part of the contract provider,
which was the agent at Seven Degrees negotiating the Sunlyn contract. If
there was a misrepresentation, then the next question is whether the
misrepresentation was material, inducing the defendants to enter into the
contract.
40. It is common cause that the contract was ceded to Sasfin Bank from Sunl yn.
Sasfin Bank c eded it to the plaintiff thereafter . This leaves no doubt that the
plaintiff has no personal knowledge of what representations were made to
induce the contract on the part of the agent. The plaintiff argues that the
agent at the centre of this dispute (t hat is, the salesperson at Seven Degrees)
was in fact not Sunlyn’s agent, but the defendants’ own agent, as he
negotiated with Sunlyn on the defendants’ behalf. As such, there could not
have been any misrepresentation as far as the defendants are concerne d.
Precisely what the situation was is oblique. Not having been party to the
exchanges, the plaintiff does not know whether the agents of Seven Degrees
were also representing Sunlyn and whether an agency relationship existed
between Sunlyn and Seven Degr ees. The uncertainty of the situation is, in
my view, further cause for the refusal of the summary judgment application.
23 Brink supra para 11. Emphasis added.
41. This question can only be answered when evidence is led on the subject.
What cannot be disputed by the plaintiff at this stage is that the d efendants
only interacted with one person throughout the process. The contract in terms
of which Sunlyn became owner of the machine and rented it out to the
defendants was produced and provided to the defendants for signature by the
same person. There is, at least , the impression of ostensible authority on the
part of this agent , with the associated consequences for the plaintiff in the
litigation .24 The plaintiff can also not dispute that the defendants never
intended to bind themselves to further costs for each copy or print, and that
the true position was never brought to their attention.
42. In opposition to the pleaded defence of misrepresentation the plaintiff refers to
the content of clause 6 of the contract , which I have quoted earlier. This,
however, reinforces their defence of misrepresentation. The defendants have
pleaded that the agent never informed that there would be further costs on a
per print basis. Nowhere does the contract stipulate such a cost or set out a
schedule of what that cost would be. The referral to “ any other costs ” in
clause 6 is ambiguous, and does not place the defendants in a position to be
able to determine what the true costs involved in this venture are. Even had
they read the contract, they would have been none the wiser.
43. There is also no reason to doubt the defendants’ assertion that they would not
have entered into the contract had they been informed of these extra costs , as
they had an alternative option available to them . They have pleaded that they
already owned a machine where they were not bound by a “per copy” cost.
44. Whether there was a material misrepresentation by the agent (whether by
omission or commission) that induce d the contract is, in my view, a triable
issue .
The exemption clauses in the contract offend against public policy
24 See the discussion in Makate v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC) paras 42 -68.
45. This defence, which was not raised in the plea , has been dealt with . Should
the defendants wish to rely thereon they will have to amend their pleadings.
46. I have in any event found that the other defences raise triable issues. There
are further aspects that arise from both counsel’s interesting oral argument,
but it is , for the purposes of this application, not necessary to discuss those.
Conclusion
47. I am of the view that summary judgment cannot be granted in these
circumstances . The defendants have raised trial issues . It cannot be said
that the plaintiff’s claim is unimpeachable in the circumstances.
48. It is fair that costs stand over. The trial court would best be able decide , on
consideration of the matter as a whole, whether the plaintiff was justified in
seeking summary judgment.
Order
49. In the circumstances , it is ordered as follows :
1. The application for summary judgment is refused , and the
defendants are given leave to defend the action .
2. The plaintiff may replicate to the defendants’ plea within 15 days of
the date of this order, and the action shall proceed in accordance
with the Uniform Rules of Court.
3. The costs of the summary judgment application stand over for
determination at the trial.
____________________
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the plaintiff : Ms R. More , instructed by Wright Rose -
Innes Incorporated
For the defendant s: Mr A. Engelbrecht , instructed b y R. Allom
Incorporated