SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 118205/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE: 29/9/2025
In the matter between: -
PREVANCE CAPITAL (PTY) LTD Applicant
(REGISTRATION NUMBER: 2005/02277/07)
and
IVAN ALLAN EDWARD PRETORIUS First respondent
(IDENTITY NUMBER: 7[…])
ALLEYROADS HOLDINGS (PTY) LTD Second respondent
(REGISTRATION NUMBER: 2013/106070/07)
J U D G M E N T
DELIVERED: This judgment was handed down electronically by circulation to
the parties’ legal representatives by e- mail and publication on CaseLines. The
date and time for hand-down is deemed to be 10h00 on 29 September 2025.
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F. BEZUIDENHOUT AJ:
INTRODUCTION
[1] The applicant applies for a money judgment against the first and second
respondents, jointly and severally, the one paying the other to be
absolved, for the sum of R2 839 782.74, founded on suretyships and
guarantee agreement s allegedly signed by the first respondent in his
personal and representative capacity.
[2] The respondents dispute the signature on the agreement s and contend
that this raises a n irresoluble dispute of fact on motion that was
foreseeable by the applicant. The applicants deny that the dispute raised
by the respondents is genuine and bona fide.
[3] The applicant, for the first time in its replying affidavit, referenced and
attached a report seemingly prepared by an expert document examiner .
The respondents objected to the replying affidavit on the basis that it
contained impermissible evidence that was new. During argument, the
applicant abandoned its reliance on this evidence.
THE APPLICANT’S CASE
[4] On the 23 rd of July 2021 the applicant signed a loan agreement with a
company known as Paumat (Pty) Ltd in terms whereof the applicant
advanced to this company an amount of R2.3 million.
[5] On the 16th of August 2022 this Court granted a money judgment against
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Paumat (Pty) Ltd and it is common cause that this company is now in final
liquidation.
[6] As security for the loan, Paumat (Pty) Ltd provided the applicant with a
deed of suretyship and guarantee agreement provided by Planet Waves
372 (Pty) Ltd.
[7] On the 17th of April 2023 this Court granted a judgment for the payment
of R2 839 782.74 against Planet Waves 372 (Pty) Ltd.
[8] It is averred by the applicant that the first and second respondents
executed written suretyships and guarantee agreements in favour of the
applicant for the due and timeous fulfilment of the obligations by Planet
Waves 372 (Pty) Ltd towards the applicant.
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[9] The applicant relies on the confirmatory affidavit deposed to by Mr Christo
Jonker, a manager of the applicant who, accordingly to the applicant,
personally witnessed the suretyship s and guarantee agreements being
signed by the first respondent and also signed as a witness . Mr Jonker in
the confirmatory affidavit merely confirmed the correctness of the content
of the founding affidavit insofar as it relate d to him . Accordingly, the
applicant argued that the denial by the respondents of the first
respondent’s signature, was not bona fide or genuine.
[10] The applicant did not seek a referral to oral evidence in its papers or
during the hearing of this application.
THE RESPONDENTS’ CASE
[11] The first respondent denies having signed any of the written suretyships
and guarantee agreements and alleges fraud committed in respect of
these documents and in respect of a resolution purportedly passed by the
board of directors dated the 8th of August 2019 authorising the second
respondent to execute a suretyship and guarantee in favour of the
applicant.
[12] The respondents contend that the motion court is an inappropriate forum
to resolve the dispute raised by them. It is the respondents’ case that
prior to the commencement of legal proceedings and consequent upon
letters of demand by the applicant to the respondents, the respondents
specifically and clearly disavowed the entering into of these agreements.
More specifically, the signature of the first respondent in his personal
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capacity as well as his representative capacity in respect of the second
respondent was denied and it is alleged that they are forgeries.
[13] In pursuance of the claim of forgery, the respondents reported the fraud
at the Sandton police station under CAS 446/6/2023.
[14] The respondents criticize the applicant’s reliance on the affidavit of
Mr Jonker and assert that such reliance exacerbates the existence of the
dispute of fact. The respondents base their assertion on the following: -
[14.1] No detail is given as to Mr Jonker’s knowledge of who the first
respondent actually is. The question is asked as to how
Mr Jonker knows that the person who signed the agreement
was in fact the first respondent;
[14.2] No detail is given as to how it came about that Mr Jonker
allegedly witnessed the first respondent signing the
agreements;
[14.3] No detail is given as to where Mr Jonker allegedly witnessed
the alleged signature of the agreements;
[14.4] No detail is given as to when Mr Jonker witnessed the alleged
signature of the agreements. This is particularly relevant
according to the respondents as the agreements were all
signed on different days by the respective parties.
[15] In their answering affidavit, the respondents informed the Court that the
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original suretyships and guarantee agreements were requested from the
applicant on the 18th of January 2024, but no response had been received
by the time the answering papers were filed. In reply, the applicant
brushed off this request as a delaying tactic.
[16] The respondents aver that once it is denied that the first respondent did
not sign the suretyships and guarantee agreements, it should be the end
of the matter . It was argued on behalf of the respondents that the
applicant’s election to pursue relief on motion in the face of its knowledge
of the pre -existing dispute relating to the first respondent’s signature ,
constitutes an abuse of process.
[17] At worst, according to the respondents, the applicant ought to have been
aware of the dispute since the delivery of the answering affidavit. The
applicant could have sought a referral of the issue of the disputed
signatures to oral evidence then. It however elected not to do so and
accordingly the applicant disregarded the legal position that it has a duty
to request a referral to oral evidence as soon as the dispute of fact arises.
[18] In the circumstances, the respondents seek a dismissal of the application
coupled with a punitive costs order . According to the respondents, the
applicant elected to forge ahead with an application which is clearly
fraught with factual disputes.
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DELIBERATION
[19] It was held by the Supreme Court of Appeal (“SCA”) in Namasthethu
Electrical (Pty) Ltd v City of Cape Town 1, that it is trite law that fraud is
conduct which vitiates every transaction known to the law. In affirming
this principle, the SCA, in Esorfranki Pipelines (Pty) Ltd and Another v
Mopani District Municipality and Others 2, referred with approval to Lord
Denning's dicta in Lazarus Estates Ltd v Beasley3, when he said:
“No court in this land will allow a person to keep an advantage which he
has obtained by fraud. No judgment of a court, no order of a Minister, can
be allowed to stand if it has been obtained by fraud. Fraud unravels
everything. The court is careful not to find fraud unless it is distinctly
pleaded and proved; but once it is proved it vitiates judgments, contracts
and all transactions whatsoever . . .”
[20] Fraud unravels everything – that is our law. 4 If fraud is proven in this
dispute between the applicant and the respondents, it will unravel the
applicant’s claim.
[21] The S CA said the following when fraud is raised during motion
proceedings:5
1 2020 JDR 1279 (SCA).
2 [ 2014] ZASCA 2; [2014] 2 All SA 493 (SCA) para 11.
3 Lazarus Estates Ltd v Beasley [1956] 1 QB (CA) at 712.
4 Moropa and Others v Chemical Industries National Provident Fund and Others
2022 JDR 1875 (GJ); par. [53].
5 Loomcraft Fabrics CC v Nedbank Ltd and Another 1996 (1) SA 812 (A); p. 822 G.
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“…fraud will not lightly be inferred, particularly when, I should add, it is
sought to be established in motion proceedings. As far as the
various disputes of fact are concerned, it must not be overlooked that the
appellant sought a final order. To succeed it accordingly had to show that
it was entitled to an order on the basis of the facts alleged by Perfel,
together with the admitted facts in the affidavits filed on its own behalf,
subject only to any denial by Perfel being insufficient to raise 'a real,
genuine or bona fide dispute of fact' (see Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd J 1984 (3) SA 623 (A) at 634E-635C).”
[22] Ordinarily it would be expected of a litigant to clearly and unambiguously
deal with each and every fact it wishes to place in dispute. However,
depending on the matter even as little as a bare denial will meet the
requirement of raising a bona fide dispute of fact:-
6
“[13] A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied that the party who purports to raise the
dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed. There will of course be instances where
a bare denial meets the requirement because there is no other way
open to the disputing party and nothing more can therefore be
expected of him. But even that may not be sufficient if the fact
averred lies purely within the knowledge of the averring party and
no basis is laid for disputing the veracity or accuracy of the
averment. When the facts averred are such that the disputing party
6 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA) at
paragraph [13].
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must necessarily possess knowledge of them and be able to provide
an answer (or countervailing evidence) if they be not true or
accurate but, instead of doing so, rests his case on a bare or
ambiguous denial the court will generally have difficulty in finding
that the test is satisfied. I say 'generally' because factual averments
seldom stand apart from a broader matrix of circumstances all of
which needs to be borne in mind when arriving at a decision.”
[23] The first respondent stated repeatedly under oath in the answering papers
that it is not his signature appearing on the suretyships and guarantee
agreement and that Mr Jonker on behalf of the applicant could not have
witnessed him signing these documents. The respondents requested the
originals to view them. This request fell on deaf ears. Charges of fraud
were laid with the SAPS and are being investigated. In my view, this is an
instance where a bare denial meets the requirement because there is no
other way open to the respondents and nothing more can therefore be
expected of them.
[24] It is apparent that there are disputes of fact. I am not persuaded that the
applicant had made out a case on the papers that it is entitled to a final
order.
[25] In light of the authorities which I have referred to above, it is not possible
for me to make any determination on the papers as to the relief sought by
the applicant.
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[26] Rule 6(5)(g) of the Uniform Rules of Court provides:-
‘Where an application cannot properly be decided on affidavit the court
may dismiss the application or make such order as it deems fit with a
view to ensuring a just and expeditious decision. In particular, but
without affecting the generality of the aforegoing, it may direct that oral
evidence be heard on specified issues with a view to resolving any dispute
of fact and to that end may order any deponent to appear personally or
grant leave for such deponent or any other person to be subpoenaed to
appear and be examined and cross -examined as a witness or it may refer
the matter to trial with appropriate directions as to pleadings or definition
of issues, or otherwise.” (emphasis added)
[27] When counsel for the applicant was confronted by the respondents with
the possibility that its claim could be dismissed in light of disputes on the
papers, it remained steadfast in its stance that the dispute was not bona
fide or genuine.
[28] It is well established that while the Court has a discretion in deciding
whether to allow a referral to oral evidence, the court will dismiss an
application if the applicant should have realised when launching his
application that a serious dispute of fact, incapable of resolution on the
papers, was bound to develop. While a dismissal of the application, which
would be tantamount to an order for absolution from the instance, is
certainly a possibility, in my view, it would not ensure a just and
expeditious decision and would cause a delay in the finality of the dispute
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between the parties.
[29] Having considered the dispute of facts, the potential witnesses to be
called and the possible leading of expert evidence, I am of the view that
it would be in the interests of justice that the matter is referred to trial
rather than oral evidence so that the evidence led can be considered by
the trial court in totality and the necessary credibility finding can be made.
COSTS
[30] It is a trite principle of our law that a court considering an order of costs
exercises a discretion which must be exercised judicially. 7 The scale of
attorney and client sought by the respondents against the applicant is an
extraordinary one which should be reserved for cases where it can be
found that a litigant conducted itself in a clear and indubitably vexatious
and reprehensible manner.8
[31] Although the applicant ought to have foreseen the dispute of fact from the
outset and issued summons in the matter , I do not find the circumstances
extraordinary to justify a punitive costs order as sought by the
respondents.
ORDER
I accordingly grant an order in the following terms: -
7 Ferreira v Levin NO and Others; Vreyenhoek and Others v Powell NO and Others [1996]
ZACC 27 ; 1996 (2) SA 621 (CC); Motaung v Makubela and Another, NNO; Motaung v
Mothiba NO 1975 (1) SA 618 (O) at 631A.
8 Plastic Converters Association of South Africa on behalf of members v National Union of
Metalworkers of SA [2016] 37 2815 (LAC) at para [46].
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1. The matter is referred to trial.
2. The notice of motion and founding affidavit will stand as simple summons.
3. The answering affidavit will stand as the notice of intention to defend.
4. The applicant will deliver its declaration within 20 days of this order.
5. The applicant is to pay the costs of this application.
F BEZUIDENHOUT
ACTING JUDGE OF
THE HIGH COURT
DATE OF HEARING: 5 March 2025
DATE OF JUDGMENT: 29 September 2025
APPEARANCES:
On behalf of applicant: Adv L Bodlani
langabodlani@advocates.co.za.
Instructed by:
Swartz Weil Van der Merwe Greenberg
Incorporated
(011) 486-2850
lauren@swvginc.co.za /
audrey@swvginc.co.za.
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On behalf of respondent: Adv C Thompson
cethompson@live.co.za.
Instructed by:
NHL Incorporated
(010) 440-0151
nicholas@lazattorneys.com /
rowan@lazattorneys.com