REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2024 -029976
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED : NO
Judge Dippenaar
In the matter between:
STANDARD BANK OF SOUTH AFRICA LTD APPLICANT
and
RETHABILE MATLALENG RAMODIBEDI FIRST RESPONDENT
NAPO EDWARD RAMODIBEDI SECOND RESPONDENT
27 JUNE 2025
Page 2
JUDG MENT
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by e -mail and uploading it onto the electronic platform .
The date and time for hand -down is deemed to be 10h00 on the 27th of
JUNE 2025.
DIPPENAAR J:
[1] This is an opposed motion in which the applicant sought a monetary judgment or
specific performance of a settlement agreement concluded with the respondents on 31
October 2022.
[2] The applicant contended that it was entitled to such relief based on common cause
facts. Those facts were the following. The first respondent and Mr Peter Dikhuba
executed written guarantees in favour of the applicant as security for the indebtedness of
Mendi Trading and Investments (Pty) Ltd to the applicant. Mendi Trading defaulted on its
payment obligations to the applicant and the full outstanding amount of some R4 million
became due and payable to the applicant. The respondents entere d into a settlement
agreement with the applicant for payment of the outstanding amount due by Mendi
Trading. A portion of the funds were paid by the respondents. The respondents refuse to
settle the outstanding full balance.
[3] The respondents raised two defences . The f irst, that the relief sought by the
applicant amounts to ‘double dipping’ because the applicant already has a judgment
against Mr Dikhuba for the same debt being claimed against them. It was submitted that
if judgment were granted against the respondents, this would entitle the applicant to two
amounts of the same debt unless it abandoned the Dikhuba judgment or consented to Mr
Page 3
Dikhuba’s re scission of that judgment. The second, raised i n the alternative if the first
defence fail ed, that the settlement agreement lacks fairness and is contrary to public
policy.
[4] The notion that the judgment against Mr Dikhuba releases the respondents from
their obligations under the guarantee or the settlement agreement, is misguided. It is trite
that a guarantee is an independent, original and unqualified undertaking by the guarantor
to pay money to the creditor on a certain date or the happening of a certain e vent. It is
not an accessory or ancillary contract, not an undertaking that the principal debtor will
perform its obligations. 1A guarantor’s obligation under a guarantee is independent of the
principal debtor’s obligation and it indemnifies the creditor f rom any los ses, while a surety
is only liable for losses resulting from the principal debtor’s breach of a valid contract.
Useful guidance is found in case law applicable to suretyships .2
[5] In terms of the present guarantee, the applicant contracted with ea ch of the
sureties independently and separately, as was done in the case of the suretyships in Absa
Investments (Pty) ltd v Smit .3 It was held:
‘The applicant thus has the right to select which of the guarantors he will, in the first instance
single out to pay the secured debt. By doing this he has not released any of the other sureties.
If the selected surety does not pay in full or sufficiently expeditiously, the creditor can select
one of the remaining sureties. So in turn he can collect from all and they are only released
from their obligation to the creditor after the secured debt is paid in full. It is only when this
has happened that sureties can settle accounts among themselves….the creditor is not
subject to any of the equities and his chances to collect from any of the remaining sureties
1 List v Jungers 1979(3) SA 106 (A) at 119E -G.
2 Sapirstein and Others v Anglo African Shipping Co (SA) Ltd 1978 (4) S A 1 (A) at 11G -H.
3 Absa Investments (Pty) ltd v Smit 1980 (1) SA 897 (C) at 902B -E.
Page 4
should not be prejudiced by the sureties litigatin g among st themselves before he has had the
secured debt paid in full’.
[6] It was an express term of the guarantee (c lauses 1.1.1 and 1.1.1.1) that the first
responde nt (who signed the guarantee with the written consent of the second respondent)
and Mr Dikhuba jointly and severally guaranteed and undertook as principal and
independent obligations to the applicant the due, punctual and full payment of all the
debts of M endi Trading.
[7] The judgment against Mr Dikhuba has no bearing on the several obligations of the
respondents in circumstances where there has been no payment in terms of such
judgment. It was not contended that Mr Dikhuba has paid. To the contrary, the facts reveal
that he is seeking to rescind the judgment granted against him.
[8] The settlement agreement did not novate the obligations of the respondents under
the guarantee. The respondents acknowledged this in clause 10.1. Their liability was joint
and severa l with that of Mr Dikhuba. In terms of clause 1.1.7 read with clause 3, the
respondents admitted their liability to the applicant, together with interest and costs.
Under clause 2.4, the respondents admitted that they are jointly and severally liable with
each other, the principal debtor, Mendi Trading and any other guarantor, being Mr
Dikhuba , for the underlying debt (being that of Mendi Trading). In terms of clauses 2.8
and 2.9, the settlement agreement was an indulgence granted to the respondents and
the applicant would have been entitled to proceed with legal action to seek payment .
[9] The alleged defence of double dipping does not avail the respondents . Neither
does their reliance on Standard Bank v the Master of the High Court , where the facts are
entirely distinguishable from the present .4 In the present instance, the issue of double
4 Standard Bank v the Master of the High Court Bloemfontein and Others [2024] ZAFSHC 164 (22 May
2024) .
Page 5
payment does not arise. Any judgment against the respondents would be joint and several
with the judgment obtained by the applicant against Mr Dikhuba. I conclude tha t the
defence lacks merit and falls to be rejected. The fact that the judgment is joint and several
with the judgment against Mr Dikhuba will be expressly stated in the order.
[10] I turn to the respondent’s alternative defence that the settlement agreement lac ks
fairness and is contrary to public policy.
[11] The respondents did not in their answering papers make out a proper basis for
such defence. It was contended that the applicant claiming the same debt from different
people, where the first respondent has sat isfied ‘her portion’ lacks fairness and is contrary
to public policy. The defence was thus squarely predicated on the respondents’
interpretation of the settlement agreement. That interpretation lacks merit and is not
supported by the text, context or purp ose of the agreement.
[12] Neither the guarantee nor the settlement agreement referred to any ‘portions’ and
no apportionment between the respective guarantees was agreed on. The agreements
expressly refer to liability being joint and several. The respondent’s arbitrary sel ection of
what a proper apportionment should be does not pass muster. It is an issue between
them and Mr Dikhuba to resolve once the full outstanding debt is paid.
[13] The suggestion that to the extent that the applicant has not fully exhausted it s
remedies against Mr Dikhuba, the enforcement of the settlement agreement is unfair, also
does not pass muster, given the express terms of the agreements and the relevant legal
principles already referred to.
Page 6
[14] The Constitutional Court in Beadica 231 CC and Others v Trustees, Oregon Trust
and Others5 made it clear that pacta sunt servanda remains an important principle in our
law. The selective quotations there in relied on by the re spondents do not a ssist their case.
[15] In Beadica , with reference to its earlier judgment in Barkhuizen v Napier ,6 the
Constitutional Court confirmed the recognition that public policy in general requires
parties to honour contractual obligations that have been freely and voluntarily undertaken.
This is because the principle of pacta sunt servanda is ‘a profoundly moral principle, on
which the coherence of any society relies ’.
[16] It is not necessary to repeat all the relevant principles enunciated in Beadica . In
the present instance, apart from alleging a d ifferent shareholding in Mendi Trading and
the existence of a judgment against Mr Dikhuba, the re spondents have fallen far short of
discharging their onus of illustrating why the terms of the settlement agreement or the
guarantee or its enforcement would be unfair or unreasonable in the given circumstances.
The respondents have further failed to explain their breach of the settlement agreement.
[17] If any disputes arise between the respondents and Mr Dikhuba, they are to be
resolved between those parties in due course. They do not involve the applicant and do
not constitute a barrier to the applicant’s entitlement to relief.
[18] The respondent submitted that t he enforcement of the settlement agreement
would, to the extent that the applicant has not fully exhausted its remedies against Mr
Dikhuba, be unfair, unreasonable and unduly harsh. In applying the two staged enquiry ,
the respondents fail on each score. In consider ing the agreement and whether it is so
unreasonable on its face, as to be contrary to public policy , it cannot be concluded that
the respondent has established their case . The settlement agreement is reasonable. In
5 Beadica 231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA 247 (CC) paras 35 -37.
6 Barkhuizen v Napier 2007 (5) SA 323 (CC).
Page 7
considering whether, in all the circumstance of the particular case, it would be contrary to
public policy to enforce the settlement agreement, the respondents similarly fail. They
have , simply put, failed to discharge their onus to demonstrate why its enforcement would
be unfair and unr easonable in the given circumstance. The respondents have similarly
failed to set out any cogent reasons for the ir non-compliance with the settlement
agreement .
[19] Given the present facts, public policy and the principle of pacta sunt servanda
dictates that the settlem ent agreement and the guarantee must be honoured.
[20] The respondents alleged that they concluded the settlement agreement ‘on the
basis and understanding’ that the applicant would only proceed against them after
exhausting its remedies against Mr D ikhuba. No factual basis was however pleaded for
these allegations. At best they amount to an allegation of unilateral mistake or error and
no basis was pleaded entitling the repsondents to resile from the agreement on th e narrow
basis available at law. 7 It is accordingly not necessary to entertain the issue further. The
allegation is further directly contradictory to the wording of both the guarantee and the
settlement agreement, which militates against its veracity and cogency.
[21] I conclude that the appli cant has made out a proper case for relief and that the
respondents have not established any valid defence. It follows that the applicant is entitled
to judgment as sought .
[22] There is no reason to deviate from the normal principle that costs follow the resu lt.
In terms of the agreements, the respondents are liable for costs on the scale as between
attorney and client.
7 In compliance with the requirements set out in National and Overseas Distributors Corporation (Pty) Ltd
v Potato Board 1958 (2) SA 473 (A) at 479G -H
Page 8
[23] In the result, the following order is granted:
[24] Judgment is granted against the first and second respondents, jointly and
severally, the one p aying the other to be absolved for:
[1] Payment of the amount of R704 095.48;
[2] Interest in the amount in [1] above at the rate of 9.25% per annum from the
commencement date along with additional penalty inter est of 4.00% per annum from
the maturity date (14 March 2022), both calculated daily in arrears.
[3] The costs as agreed in terms of clause 9.1.1 of the settlement agreement, in the
amount of R6 900.00
[4] The applicant’s costs of suit on the scale as between attorney and own client
[5] This judgmen t will be joint and several with any judgment granted in favour of the
applicant against Mr P Dikhuba arising out of the guarantee s here in iss ue.
_____________________________________
EF DIPPENAAR
JUDGE OF THE HIGH COURT
JOHANNESBURG
HEARING
DATE OF HEARING : 22 and 24 APRIL 2025
DATE OF JUDGMENT : 27 JUNE 2025
Page 9
APPEARANCES
APPLICANT ’S COUNSEL : Adv. E. Furstenburg
APPLICANT’S ATTORNEYS : Claassen Inc.
RESPONDENT’ S COUNSEL : Adv. M Yonela
RESPONDENT ’S ATTORNEYS : Mvana & Associates