REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
(1) REPORTABLE: NO
{2) OF INTEREST TO OTHE
(3) REVISED : NO
... ~. J~~~ .. : ..
DATE
In the matter between:
FIRST NATIONAL BANK LIMITED
and
BLACKTEL (PTY) LIMITED
(Registration No . 2017 /318346/07)
JOHANNES VANWYK
MOKOSE J
JUDGMENT
CASE NO: 2023 -130215
Plaintiff
1st Defendant
2nd Defendant
[1] The plaintiff claims payment from the defendant based on a concluded deed of suretyship in
which the second defendant bound himself as surety and co-co-principal debtor to the first defendant.
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The plaintiff's claim is premised on an overdrawn account which as of 19 September 2023 was
overdrawn by the amount of R491 412,34.
[2] The second defendant was cited as surety, the deed of suretyship having been signed by him
on 17 September 2019. In his affidavit resisting summary judgment the second defendant prem ised
his defence on an exit agreement wherein he resigned as director and shareholder of the first
defendant. He alleges that the directors and shareholders of the first defendant absolved and
irrevocably released him from the first respondent and specifically from any and all guarantees and
suretyships. He further denies any liability to the plaintiff.
[3] In the pleadings, the defendant does not claim to be released from the suretyship. He claims
indemnification from the liability by third parties. In his submissions, counsel for the second defendant
contends that his client has caused to serve the third party notice together w ith annexures on these
third parties in terms of Rule 13 of the Uniform Rules of Court claiming indemnification from the
relevant third parties. No proof of such service was filed in the papers.
[4] It is trite that in summary judgment applications the defendant must advance his or her
defence with a sufficient degree of clarity to enable the court to ascertain whether he has deposed to
a defence which, if proved at trial, wou ld constitute a good defence to the action.1
[S] In his affidavit resisting summary judgment, the defendant is adamant that he is not liable for
the plaintiff's claim. He contends that the default event occurred after the conclusion of the exit
agreement. At that stage, he had severed all ties with the first defendant and is accordingly absolved
from liability. The second defendant contends further that he relies on advice that Rule 13 gives him
rights to avoid the multiplicity of actions. As such, the second defendant contends that there is a
triable issue.
1 Breytenbach v Fiat SA (Edms) Bpk 1972 (2) SA 226 at 227G to 228B
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[6) The court in the case of Joob Joob Investments v Stocks Mavundla Zek Joint Venture2 held the
following:
"[31} So too in South Africa, the summary judgment procedure was not intended to 'shut (a defendant)
out from defending: unless it was very clear indeed that he had no case in the action. It was intended
to prevent sham defences from defeating the rights of parties by delay, and at the same time causing
great loss to plaintiffs who were endeavouring to enforce their rights.
{32} The rationale for summary judgment proceedings is impeccable. The procedure is not intended to
deprive a defendant with a triable issue or a sustainable defence of his or her day in court. After almost
a century of successful application in our courts, summary judgment proceedings can hardly continue
to be described as extraordinary. Our courts, both first instance and at appellate level, have during
that time rightly been trusted to ensure that a defendant with a triable issue is not shut out. In the
Maharaj case at 425G - 426£, Corbett JA was keen to ensure, first, an examination of whether there
has been sufficient disclosure by a defendant of the nature and grounds of his defence and the facts
upon which it is founded. The second consideration is that the defence so disclosed must be both bona
fide and good in law. A court which is satisfied that this threshold has been crossed is then bound to
refuse summary judgment. Corbett JA also warned against requiring of a defendant the precision
apposite to pleadings. However, the learned Judge was equally astute to ensure that recalcitrant
debtors pay what is due to a creditor.
{33} Having regard to its purpose and its proper application, summary judgment proceedings only hold
terror and are 'drastic' for a defendant who has no defence. Perhaps the time has come to discard
these labels and to concentrate rather on the proper application of the rule, as set out with customary
clarity and elegance by Corbett JA in the Maharaj case at 425G - 426£"
clarity and elegance by Corbett JA in the Maharaj case at 425G - 426£"
[7] It is evident from the case law quoted above that a defendant is not required to show that its
defence is likely to prevail. The test, even after the amendment to rule 32, is whether the defendant
has disclosed a bona fide defence that is good in law. If so, the application for summary judgment
must be refused.
[8] I have considered the papers and note firstly, that the third-party proceedings in terms of Rule
13 and its service have not been filed in the court file. It was confirmed by counsel for the second
2 2009 (5) SA 1 (SCA) at para 31 -33
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defendant that they had not been filed and therefore cannot be considered by the court. Furthermo re,
there is no evidence that the affidavit resisting summary judgment was served on the third parties.
Accordingly, I am of the view that there exists a triable issue for the second defendant to answer to.
The defence raised by the second defendant fails to raise a triable issue and it further fails to disclose
the nature and grounds of his defence and the facts upon which it is founded.
[9] Furthermore, a look at the suretyship agreement and in particular Clause 19 thereof, provides
that the second defendant is not entitled to be released from the suretyship w ithout the consent of
the plaintiff. The plaintiff contends that no such consent w as granted. Furthermore, there is no
evidence that the plaintiff wa s notified of the exit agreeme nt nor wa s it a party to such exit agreement.
(10] Accordingly, I am of the view that the defences raised by the second defendant were raised in
an attempt to defeat the rights of the plaintiff by delay. Th e defences are neither bona fide nor good
in law.
(11] The following order is granted:
(i} Payment in the sum of R49 1 412,34 plus interest at the rate of PRIM E plus 10.25% from 19
September 2023 to date of payment.
(ii) Costs of suit.
For the Applicant:
On instructions of:
Adv J Minnar
Hammond Pole M ajola Attorneys
Of South Africa,
Gauteng Division, Pretoria
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For the Second Respondent: Adv D De Kock
Frankim Attorneys On instructions of:
Date of Hearing: 28 August 2025
Date of Judgement: 8 Septembe r 2025
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