IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 6535/ 2024
In the matter between
MOUSSA BABA APPLICANT
AND
NEDBANK LIMITED RESPONDENT
Heard: 11 June 2025
Delivered: 11 July 2025
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JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
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THULARE J
ORDER
(a) The application for leave to appeal is dismissed.
(b) The applicant to pay the costs on attorney and client scale as envisaged in the
suretyship agreement.
[1] This is an opposed application for leave to appeal against the whole judgment by an
Acting Justice whose term had ended at the time of the service of the application. The
sole ground for leave to appeal was that the court erred in finding that the principal debt
was not extinguished by the payment of the purchase price of the immovable property
to the attorneys of the respondent and therefore that the appli cant’s liability as surety
has not been discharged.
[2] Bestinver Company South Africa (Pty) Ltd (Bestinver) purchased property in Hyde
Park (the property) and the respondent loaned Bestinver R15 million to finance the sale.
The applicant signed as surety and co -principal debtor to the Bestinver loan . The surety
was limited to R15 million plus interests and costs on attorney and client scale. From
about November 2020 Bestinver failed to pay the monthly instalments to the respondent
thereby breaching the ag reement and entitling the respondent to claim payment of the
balance outstanding together with interests and costs. Bestinver’s indebtedness to the
respondent exceeded R16 million. The respondent’s case was that as surety and co -
principal debtor, the appli cant was jointly and severally liable for the debt owed by
Bestinver, subject only to the limit stipulated in the deed of suretyship. It was further the
respondent’s case that it was entitled to judgment against the applicant regardless of
the litigation b etween the applicant’s father and Bestinver’s liquidators which concerned
an amount of R14 million which was held in trust by the respondent’s attorneys as a
stakeholder.
[3] The applicant sought the dismissal of the respondent’s claim or alternatively th e stay
of the application pending the outcome of an application lodged by his father and
another company, Elite Vision, against the liquidators of Bestinver , which was filed in
the Gauteng High Court. According to the applicant, his father and Elite Vision sought a
declarator confirming that his family, and not Bestinver, were the true intended
recipients of the R14 million advanced by Elite Vision. Elite Vi sion was a company
wholly owned by the Baba family. According to the applicant, Enderby Finance Ltd
(Enderby), a company incorporated in the British Virgin Islands provided the Baba
family with a short -term loan of R15 million and it was agreed that the fu nds would be
deposited into Elite Vision, and that the Baba’s were to utilize the funds for the purchase
price of the property. A now deceased liquidator of Bestinver had agreed to Elite
Vision’s offer to purchase the property and to that end the full purc hase price of R14
million was paid to the respondent’s attorney’s trust account in addition to transfer duty
and other related costs for the transfer. The father delayed with the provision of FICA
documents and the liquidators raised a query regarding the nature and purpose of the
Elite Vision payment into Bestinver. The liquidators withdrew from the sale. The
disputed sale involving Elite Vision is the foundation of the litigation in Gauteng.
[4] The court granted the judgment sought to be appealed agains t in favour of the
respondent against the applicant for payment of R15 million together with interest and
costs on attorney and client scale. I am not persuaded that the appeal would have any
reasonable prospects of success or that there was some other com pelling reason why
the appeal should be heard [section 17(1)(a0 of the Superior Courts Act, 2013 (Act No.
10 of 2013) (the SUCA)]. The contract of suretyship was accessory to the contractual
relationship between the creditor and the principal debtor as wel l as the principal
debtor’s obligations under it [Van Zyl v Auto Commodities (Pty) Ltd (279/2020) [2021]
ZASCA 67 (3 June 2021) para 11]. The obligations of the surety are the same as that of
the principal debtor [ Kilroe -Daley v Barclays National Bank Ltd 1984 (4) SA 609 (a) at
622H -623H; Neon and Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SA 463
(A). A creditor’s claim against a surety and co -principal debt or is contingent on the
principal debtor’s default [ Trans -Drakens berg Bank Ltd v The Master and Others 1962
(4) SA 417 (N) at 422. The principal debtor’s inability to pay , arising out of insolvency
and liquidation is a contingency for which a creditor takes a surety [CF Forsyth & JT
Pretorius Caney’s The Law of Suretyship in South Africa 6ed (2010) 119 with reference
to Voet 46.1.39 ]. The fact that R14 million may possibly be recovered and may be
available did not help the applicant. The respondent was entitled to claim from the
respondent the moment the debt became due [ Consolidated Textile Mills Ltd v Weiniger
1961 (3) SA 335 (O) at 338A -D]. For these reasons the order was made.
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DM THULARE
JUDGE OF THE HIGH COURT