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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 39324/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
29/09/2025
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA LIMITED Plaintiff
and
OLYMPIA DEVELOPMENT CC First Defendant
DEIRDRE YVETTE O’REILLY N.O. Second Defendant
ANTONIOS KAVAKOS Third Defendant
DIMITROS KARAKIZOS Fourth Defendant
MELETIOS KOUFIS Fifth Respondent
JUDGMENT
Mahosi, J
Introduction
[1] This is an application for summary judgment brought by the plaintiff in terms
of Rule 32 of the Uniform Rule against the third defendant for payment of the sum of
R717 201.93, together with interest and costs, arising from an alleged breach of a
suretyship agreement. The plaintiff also seeks an order to declare the immovab le
property described as: Erf 1 […] Noordheuwel Extension 4 Township Registration
Division I.Q., The Province Of Gauteng, measuring 1760 (One Thousand Seven
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Hundred and Sixty) square metres, held by Deed of Transfer number T47737/2005
(“the Property”) executable.
[2] The defendants, all represented by the same attorneys, entered an
appearance to defend. However, only the t hird r espondent filed a plea.
Consequently, the plaintiff is pursuing summary judgment solely against him and
default judgment against the first, second, fourth and fifth respondents.
Background facts
[3] The facts, as gleaned from the particulars of the claim and the affidavit
resisting summary judgment, are largely common cause. On 08 August 2005, the
plaintiff and the first defendant, a close corporation, entered into a written home loan
agreement. In this regard, the plaintiff advanced a sum of R785 000.00 to the first
defendant to finance its core business of property development.
[4] As security for the debt, a mortgage bond w as registered in favour of the
plaintiff. Crucially, as a further condition of the loan, the members of the close
corporation were required to ex ecute deeds of suretyship. The second, third , fourth,
and fifth defendants, being member s at the time, signed an unlimited deed of
suretyship in favour of the plaintiff, binding themselves as co-principal debtors for the
obligations of the first defendant.
[5] It is not disputed that the first defendant has defaulted on its repayment
obligations, resulting in the outstanding balance claimed. The third defendant admits
to signing the suretyship agreement and does not dispute the terms of either the
principal home loan agreement or the suretyship.
Defence raised
[6] The third defendant ’s defence to the claim is singular. He avers that at the
time of signing the suretyship (and presently), he was married in community of
property and was unaware of the legal requirement for his spouse's consent to the
suretyship. He alleges that he was not requested to indicate his marital status, and
the document presented to him for signature did not contain a line for indicating his
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marital status at the time of signing. He asserts that the word "unmarried", which
appears under his name on the suretyship document, was inserted, seemingly with a
typewriter, after he had signed it. He denies any knowledge of when or by whom this
insertion was made. In conclusion, he argues that in the absence of his spouse’s
written consent, the suretyship is void and unenforceable against him.
Legal framework
[7] The principles governing summary judgment applications are trite. The Court
must determine whether the defendant has disclosed a bona fide defence. The
defendant need not deal fully with the merits of the case or set out a defence that
would probably succeed at trial. It is sufficient if the defendant swears to a defence
which, if established at trial, would constitute a good defence to the action. The
defence must be stated with sufficient clarity and completeness to enable the Court
to conclude that it is not "vague or sketchy" or "inherently and seriously
unconvincing".
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[8] The legal issue at the heart of the third respondent's defence is the application
of section 15(2)(h) of the Act, which provides that a spouse married in community of
property requires the written consent of the other spouse to enter into a suretyship
agreement. In Strydom v Engen Petroleum Limited
2
“The requirement that spousal consent be obtained before concluding certain
defined financial transactions as set out in ss 15(2) and (3) of the Act cannot
be read in isolation. Section 15(6) says expressly that in respect of certain of
those transactions, including binding oneself as surety, section 15(2) does not
apply if the act in question is performed in the ordinary course of the spouse’s
business, trade or profession. What one knows therefore is that ss 15(2) and
(3) operate in respect of some, but not other, financial transactions depending
on whether or not they are performed in the ordinary course of the spouse’s
on whether or not they are performed in the ordinary course of the spouse’s
business, trade or profession. Accordingly it does not suffice for a person
seeking to rely on s 15(2) (h) to say that they were married in community of
property and that their spouse did not consent to the transaction to bring
1 See: Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A); Breitenbach v Fiat SA (Edms) Bpk
1976 (2) SA 226 (T).
2 [2013] 1 ALL SA 563 (SCA).
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themselves within the ambit of the section. That is because the section only
operates in certain limited circumstances. If they wish to rely upon it they must
bring themselves within the full range of operation.”
[9] It is apparent from the above authority that being married in community of
property does not invalidate a suretyship signed by a spouse without the requisite
consent of the other spouse. The Court will examine the substance of the transaction
and its relevance to the signatory's business context.
Evaluation
[10] The plaintiff’s claim is founded squarely on the wri tten suretyship agreement.
The third defendant does not deny signing the document. His defence turns entirely
on the state of the document when he signed it, and specifically, whether it indicated
his marital status. If his version that the document was “doctored” after he signed it
to falsely reflect him as unmarried, thereby circumventing the protective provisions of
the Act, is proven at trial, it would undoubtedly constitute a complete defence. A
creditor cannot, after the fact, alter a contract to remove a statutory impediment to its
enforceability. Additionally, if he was and/or is married in community of property, the
Court still needs to determine whether the sur erytiship was signed in the ordinary
course of his business, trade or profession.
[11] Considering the above, I do not find the defence to be "inherently and
seriously unconvincing". It raises a triable issue of fact that is central to the validity of
the plaintiff’s cause of action. The credibility of the third defendant’s assertion and
the resolution of the factual dispute it creates are matters for the trial court. They
require viva voce evidence, cross -examination, and possibly expert evidence
regarding the document itself.
Conclusion
[12] In the circumstances, I am satisfied that the third defendant has disclosed a
bona fide defence. Whether his version will ultimately prevail is not for this Court to
bona fide defence. Whether his version will ultimately prevail is not for this Court to
determine at this stage. Therefore, t he requirements for granting summary judgment
have not been met.
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[13] Concerning the applicati on for default judgment against the first, second,
fourth, and fifth defendants , I have taken into consideration the pleadings and
evidence, and I am satisfied that the plaintiff has established a case for the
application to be granted.3
Order
[14] Accordingly, the following order is made:
1. The application for summary judgment against the third respondent is
refused.
2. The third respondent is granted leave to defend the main action.
3. The costs of the summary judgment application shall be costs in the
cause of the main action.
4. The application for default judgment against the first, second, fourth
and fifth respondents is granted in the following terms:
4.1. Payment of the amount of R717 201.93;
4.2 Interest on the aforesaid amount at the rate of 6.820% per
annum from 19 July 2021 to the date of payment, both dates
inclusive;
4.3 The immovable property described as: Erf 1 […] Noordheuwel
Extension 4 Township Registration Division I.Q., The Province
Of Gauteng, measuring 1760 (One Thousand Seven Hundred
and Sixty) square metres held by Deed of Transfer number
T47737/2005 (“the Property ”), is declared executable for the
aforesaid amount;
4.4 The issuing of a writ of execution in terms of Rule 46 as read
with 46A for the attachment of the property is authorised;
3 Rule 31(2) (a) provides:
“Whenever in an action the claim or, if there is more than one claim, any of the claims is not
for a debt or liquidated demand and a defendant is in default of delivery of notice of intention
to defend or of a plea, the plaintiff may set the action down as provided in subrule (4) for
default judgment and the court may, after hearing evidence, grant judgment against the
defendant or make such order as it deems fit.”
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4.5 The reserve price is set at R700 000.00 for the sale of the
property at a sale in execution; and
5.5 The first, second, fourth and fifth respondents must pay the
plaintiff’s costs on the attorney and client scale, jointly and
severally, the one paying the other to be absolved.
_______________________________
D. Mahosi
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Date of Hearing: 04 August 2025
Date of Judgment: 29 September 2025
Appearances:
For the Applicants: Adv. Z Raqowa
Instructed by: Ramsay Webber Attorneys
For the third respondent: Adv JW Kloek
Instructed by: Blake Bester De Wet & Jordaan Incorporated Attorneys
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