IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, PIETERMARITZBURG
CASE NUMBER: 15183/2024P
In the matter between:
INVESTEC BANK LIMITED APPLICANT
And
JUSTIN DAVID McGARRY RESPONDENT
JUDGMENT
P C BEZUIDENHOUT J:
[1] Applicant by way of application seeks payment of the sum of R11 329 106-05
together with interest from 1 June 2024 calculated monthly at the announced overdraft
prime rate plus 2 % per annum from 2 June 2024 to date of payment and costs on an
attorney and client scale. The application has been opposed by Respondent.
[2] The claim against Respondent is based on a guarantee signed by him on 28
February 2020 irrevocable and unconditionally guaranteeing to pay on demand as if he
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was the principal debtor. This was in respect of the sum of money which may become
owing by Hakuna Matata Fencing close corporation. There were various agreements
concluded between Applicant and Hakuna Matata. Hakuna Matata was voluntarily
wound up on 6 June 2024.
[3] Respondent disputes the certificate of balance and contends that Applicant
statements omits payments made by Hakuna Matata. It was also contended that the
original signed agreement was not attached and was digitally signed . T he original
guarantee was handed in at Court. From a reading thereof it is apparent that it is not a
suretyship but an independent obligation in the form of a guarantee. The winding up of
Hakuna Matata cannot assist Respondent as it was in a contribution state as appears
from the report of the Trustees. Although there are allegations that certain payments
were made, this has not been substantiated by any documentary proof. Respondent
contends that he thought he was signing a suretyship and not a guarantee.
[4] In terms of paragraph 8 of the guarantee “The guarantor agree s to pay IFB any
amount claimed by it as being due by the Client forthwith against receipt by the
guarantor of a written demand from IFB therefor, stating that such amount is due and
payable by the client to IFB, and without any other conditions or proof, notwithstanding
that the guarantor and /or the client may dispute the amount claimed and/or the clients
ability to make such payment. ” The statement of affairs in terms of the Companies Act
of Hakuna Matata Security Fencing CC which is attached and at page 189 of the
indexed bundle, Investec is listed as a preferent creditor in the sum of R11 000 000.00.
[5] It was submitted on behalf of Respondent that the amount is in dispute and that
payments that were made have not been reflected. Further that Respondent thought he
was signing a surety and not a guarantee. I was referred to an affidavit by one Marina
was signing a surety and not a guarantee. I was referred to an affidavit by one Marina
Angela Batista Andries employed by Respondent where at page 213 in par agraph 16
she states:
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“No individual or corporate entity besides hakuna, save as surety, is liable for the
Creditor’s claim or any part thereof.”
It was further submitted that Respondent was holding security in the sum of
R8 000 000.00. This appears from paragraph 14 at page 213 of the papers and it was
submitted that this should be set off.
[6] However, as already set out, Respondent signed a guarantee and from the report
of the Trustees it appears that it is a contribution estate. Creditors would have to make
a contribution. Except for a bold statement that the amount is in dispute due to
payments made there is no indication on the papers when the said amounts were
allegedly paid nor is there any proof of any sort attached. The fact that Respondent
thought he was signing a suretyship and not a guarantee does not take the matter any
further as it is clear from the document that it is a guarantee that it was headed
guarantee and accordingly he is bound in terms thereof.
The following order is therefore made:
1. Respondent is ordered to pay to Applicant the sum of R11 329 106-05 plus
interest on the sum of R11 329 106-05 from 1 June 2024 calculated monthly at
the a nnounced overdraft rate plus 2 % lending rate of interest charged by
Applicant, per annum from 2 June 2024 to date of final payment.
2. Costs on an attorney and client scale.
____________________
P C BEZUIDENHOUT J.
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JUDGMENT RESERVED ON: 9 SEPTEMBER 2025
JUDGMENT HANDED DOWN ON: 12 SEPTEMBER 2025
COUNSEL FOR APPLICANT: R M VAN ROOYEN
Instructed by: Edward Nathan Sonnenbergs Inc.
Durban
Ref: C Schoon/0540253
Tel: 031 536 8620
Email: cschoon@ensafrica.com
c/o: Venns Attorneys
Pietermaritzburg
Ref: N Jooste
COUNSEL FOR RESPONDENT: K BRIMIA
Instructed by: Simrithi Sharma & Associates Inc.
Ref: Mrs Sharma/MCG1/0004-M833
Tel: 031 403 0387
Email: berusha@simisharmainc.com
info@simisharmainc.com
c/o: Messenger King
c/o: N Nhlapho Attorneys
Pietermaritzburg