REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-100304
DATE: 21 NOVEMBER 2025
In the matter between:
FIRSTRAND BANK LIMITED Applicant
and
MARK FRAME First Respondent
JULIAN FRAME Second Respondent
Coram: Adams J
Heard: 18 November 2025
Delivered: 21 November 2025 – This judgment was handed down
electronically by circulation to the parties' representatives by email,
by being uploaded to CaseLines and by release to SAFLII. The date
and time for hand-down is deemed to be 12:30 on 21 November
2025.
Summary: Monetary judgment – application for – the respondents bound
themselves as sureties for and co-principal debtors with their company in favour
(1) NOT REPORTABLE
(2) NOT OF INTEREST TO OTHER JUDGES
I I L_ ___ _
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of the applicant – company defaulted on a facility agreement concluded between
it and the applicant –
The respondents contend that ‘the contents of the suretyships’ were never
explained to them – they ‘were under the impression that such documents formed
part of the general facility agreement’ – they did not believe that they can be held
jointly and/or severally liable as personal debtors’ – had they been aware of the
contents of the suretyships, they would not have signed the sureties and bound
themselves personally. –
Respondents’ defences rejected – the court held that the respondents’ f actual
assertions should and could be rejected out of hand as unsustainable – caveat
subscriptor – a person, who signs a contract, is taken to be bound by the ordinary
meaning and effect of the words which appear over or under his signature –
Defence raised by respondents amounts to one of mistake or iustus error – to
prevail only when she or he can show that he or she was misled as to the nature
of the document or as to the terms which it contains – no such case made out on
the evidence before court in casu –
Judgment granted in favour of the applicant against the respondents,
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ORDER
Judgment is granted in favour of the applicant against the first and the second
respondents, jointly and severally, the one paying the other to be absolved, as
follows: -
(1) The first respondent shall pay to the applicant the sum of R11 575 059.17,
with the second respondent’s joint and several liability for such sum limited
to R2 500 000.
(2) The respondents shall pay i nterest on the aforesaid amounts at the prime
rate (currently 11.75%) plus 2% per annum, calculated daily, compounded
monthly in arrears from 24 August 2024 to date of payment, both days
inclusive.
(3) The respondents shall pay the applicant’s c osts of the application on the
attorney and own client scale, including Counsel’s charges as contemplated
in Uniform Rule of Court 67A(3), read with rule 69, on scale ‘C’ as against
the first respondent and on scale ‘B’ as against the second respondent.
JUDGMENT
Adams J:
[1]. This is an opposed application by the applicant for a monetary judgment
against the first and the second respondents , jointly and severally, for payment
of the sum of R11 575 059.17, plus interest thereon and costs of suit. The
applicant’s cause of action is based on suretyships executed by the first and the
second respondents in favour of the applicant for the debts of Frame Leisure
Trading (Pty) Limited (‘FLT’). FLT’s indebtedness to the applicant is for an amount
of R11 575 059.17 and arises from a written Facility Agreement concluded
between it and the applicant on 3 October 2023 parties.
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[2]. The first respondent concluded a written limited suretyship agreement with
the applicant on 17 June 2021 in terms of which he bound himself as surety in
solidum for and as co -principal debtor , jointly and severally as an ongoing
obligation with FLT, for the payment by FLT of all monies owing by it to the
applicant. The suretyship is limited to R15 million plus interest and costs.
[3]. Similarly, the second respondent concluded multiple written limited
suretyship agreements with the applicant (on 23 June 2009, 21 December 2009,
20 April 2010 and 29 September 2010) in terms of which he bound himself as
surety in solidum for and as co -principal debtor , jointly and severally as an
ongoing obligation with FLT, for the payment by FLT of all monies owing by it to
the applicant. The suretyships were limited to a total of R2.5 million plus interest
and costs and related charges.
[4]. FLT has breached the Facility Agreement by, inter alia, failing to settle the
outstanding balance that is due thereunder and by entering into business rescue.
About that there is no dispute. T he applicant accordingly claims the outstanding
amount from the respondents under the suretyships, who oppose the application
on the following bases: (a) First, the respondents contend that the deponent to
the applicant’s founding affidavit did not have authority to act on its behalf .
(b) Secondly, the respondents contend that personal knowledge of the facts by
the deponent to the applicant’s founding affidavit ‘has yet to be established ’.
(c) Thirdly, the respondents contend that ‘the contents of the suretyships ’ were
never explained to them. They ‘were under the impression that such documents
formed part of the general facility agreement’, so the contention goes, therefore,
‘[they] do not believe that [they] can be held jointly and/or severally liable as
personal debtors’. Had they been aware of the contents of the suretyships, so the
argument is concluded, they would not have signed the sureties and bound
argument is concluded, they would not have signed the sureties and bound
themselves personally. And (d) Fourthly, the respondents baldly deny the extent
of the indebtedness due to the applicant.
[5]. During the hearing of the application before me on 18 November 2025,
Ms Darby, Counsel for the respondents, did not pursue with any vigour the
5
defences raised by them, except for the ground of opposition relating to the
averment that they were blissfully unaware of the fact that they were binding
themselves personally as sureties and co -principle debtors for the FLT’s
indebtedness to the bank. And that, in my view, was for good reason. The simple
point is that the other three defences have little to no merit and were all stillborn.
[6]. Briefly, as regards t he respondents’ contention that the deponent to the
applicant’s founding affidavit did not have authority to act on its behalf , that
defence is, as submitted by Mr Costa, who appeared on behalf of the applicant,
misplaced. In that regard, one needs look no further than Eskom v Soweto
Council1, which is authority for the proposition that if an attorney is authorised to
bring an application on behalf of the applicant, the application necessarily is that
of the applicant. If such authority is questioned or challenged, the procedure to
be followed is that provided for in uniform rule of court 7(1). The deponent to an
affidavit need not be authorised by the party concerned to depose to the affidavit.
It is the institution of the proceedings and the prosecution thereof that must be
authorised.
[7]. Thus, the respondents’ contention that the proceedings are not authorised
falls to be dismissed.
[8]. As for the submission that the deponent to the applicant’s founding
affidavit (Ms Whiteley) does not have the personal knowledge to depose to the
said affidavit, same is equally without merit. She is employed by the applicant as
a recoveries manager and she states in the founding affidavit that ‘[b] y virtue of
my position within the applicant [i.e. as recoveries manager], I have acquired
personal knowledge of the applicant’s claim against the respondents, and the
respondents’ financial standing with the app licant. I was personally involved in
attempts to recover the indebtedness of the respondents and [FLT]. For purposes
attempts to recover the indebtedness of the respondents and [FLT]. For purposes
1 Eskom v Soweto Council 1992 (2) SA 703 (W) at 705D-H.
6
of this application, I have also perused and considered the annexures to this
affidavit’.
[9]. These allegations are , in my view, more than sufficient to prove that
Ms Whiteley has personal knowledge of the facts in the matter. I am bolstered in
this conclusion by the authorities in case such as Rees & Another v Investec Bank
Limited2 and Shackleton Credit Management (Pty) Limited v Microzone Trading
88 CC & Another3.
[10]. In Rees, the SCA held as follows: -
‘[14] Ms Ackermann relied on the information at her disposal which she obtained in the
course of her duties as the bank's recoveries officer, to swear positively to the
contents of her affidavit. It is not in dispute that in the discharge of her duties as
such she would have had access to the documents in question and upon a perusal
of those documents she would acquire the necessary knowledge of the facts to
which she deposed in her affidavit on behalf of Investec … …
[15] … As stated in Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A), “undue
formalism in procedural matters is always to be eschewed ” and must give way to
commercial pragmatism. At the end of the day, whether or not to grant summary
judgment is a fact -based enquiry. Many summary judgment applications are
brought by financial institutions and large corporations. First -hand knowledge of
every fact cannot and should not be required of the official who deposes to the
affidavit on behalf of such financial institution or large corporation.’
[11]. The respondents’ defence that Ms Whiteley does not have personal
knowledge of the facts deposed to, therefore, also falls to be dismissed.
[12]. Lastly, I make short thrift of the defence relating to the quantum of the
applicant’s claim. As envisaged by the Facility Agreement, the applicant provided
a certificate signed by a manager of the Bank (whose appointment, qualification
or authority need not be proved) stating the amount of the client’s indebtedness
or authority need not be proved) stating the amount of the client’s indebtedness
2 Rees & Another v Investec Bank Limited 2014 (4) SA 220 (SCA).
3 Shackleton Credit Management (Pty) Limited v Microzone Trading 88 CC & Another 2010 (5) SA 112
(KZP).
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to the bank. This, as per the agreement, is prima facie proof of the amount which
FLT owes to the Bank under the Facility Agreement. The suretyship agreements
contain similar provisions.
[13]. That, in my view, spells the end of that defence raised on behalf of the
defendant and same accordingly falls to be dismissed.
[14]. That brings me back to the main ground of opposition raised by the
respondents, that being the respondents’ contention that they ‘were under the
impression that [the suretyships] formed part of the general facility agreement ’
and that they did not realise that they were binding themselves personally as
sureties. In the context of this matter and in the bigger scheme of things, this
factual assertion, simply by being stated, can and should be rejected . I explain
why in the paragraphs which follow.
[15]. As submitted on behalf of the applicant, the respondents’ suggestion that
they did not know that they were required to bind themselves as sureties for FLT’s
indebtedness to the applicant is untenable . Schedule 2 of the Facility Letter
states, in clear and unequivocal terms, that FLT will procure a suretyship from
the first respondent for an amount of R15 million and four suretyships from the
second respondent totalling R2,5 million (i.e. for R500,000, R1 million, R500,000
and R500,000). That is exactly what occurred and are the exact suretyships
which the applicant relies upon in the present application for its claims against
the respondents.
[16]. Moreover, it is trite and a sound principle of our law that a person, who
signs a contract, is taken to be bound by the ordinary meaning and effect of the
words which appear over or under his signature. That principle is the caveat
subscriptor rule. In that regard, in George v Fairmead (Pty) Limited 1958 (2) SA
465 (A), it was held as follows: -
‘When a man is asked to put his signature to a document, he cannot fail to realise that
‘When a man is asked to put his signature to a document, he cannot fail to realise that
he is called upon to signify, by doing so, his assent to whatever words appear above his
signature. In cases of the type of which the three I have mentioned are examples, the
8
party who seeks relief must convince the Court that he was misled as to the purport of
the words to which he was thus signifying his assent. That must, in each case, be a
question of fact, to be decided on all the evidence led in that particular case. I see no
difference in principle between the case where the allegation is a misdescription of the
document and one where it is a misrepresentation of its contents; the misdescription of
the document – as when a man is told he is merely signing a receipt for a cheque when
the document contains a guarantee – is material only in so far as it gives a misleading
indication of what the document contains.’ (Emphasis added).
[17]. The respondents’ defence is that, notwithstanding their signatures on the
suretyships, they lacked the intention to be bound, and therefore that no
agreements of suretyship were concluded.
[18]. The defence raised by the respondents (a mistake or iustus error) would
prevail in circumstances as those prescribed in Tesoriero v Bhyjo Investments
Share Block (Pty) Limited4, in which it was held as follows: -
‘The general principle, where a person who has signed a contract and wishes to escape
liability on the ground of justified error as to the nature or contents of the document, is
that he or she must show that he or she was misled as to the nature of the document or
as to the terms which it contains by some act or omission (where there is a duty to inform)
of the other contracting party. The misrepresentation need not have been fraudulent or
negligent. The duty to inform would or could arise where the document departs from what
was represented, said or agreed beforehand or where the other party realises or should
realise that the signatory is under a misapprehension or where the existence of the
provision or contract is hidden or not apparent by reason of the way in which it is
incorporated in a document or where the provision, not clearly presented, is unusual or
incorporated in a document or where the provision, not clearly presented, is unusual or
would not normally be found in the contract presented for signature.’
[19]. The facts in the matter before me could not be further from the
circumstances described in Tesoriero. The suretyships in casu were not part of a
bundle of documents forming part of the Facility Agreement. They were
concluded years before and are self -standing documents. It therefore cannot
possibly be that, as alleged by them, the respondents were under the impression
4 Tesoriero v Bhyjo Investments Share Block (Pty) Limited 2000 (1) SA 167 (W).
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that the suretyships formed part of the Facility Agreement . Moreover, the
respondents have not provided any evidence regarding the circumstances
surrounding their signing of the suretyships (all of which were done on different
dates prior to the conclusion of the Facility Agreement).
[20]. What is more is that each suretyship agreement is headed ‘Suretyship’ in
bold and in a larger font than the rest of the text so as to make it more prominent.
The most cursory of glances at these documents would and should have alerted
the signatory to exactly what the nature of the document was. Furthermore, the
first page of the suretyship signed by the first respondent contains the following
inscription in bold directly above the first respondent’s name and identity number:
‘SURETYSHIP
This document contains IMPORTANT LEGAL INFORMATION – read this carefully. The
obligations on you may be very burdensome. DO NOT sign this document if you have
any doubts about the exact meaning and effect of these obligations or of any other
wording herein or if you do not understand the risk and scope of this document. We
strongly recommend that you obtain independent legal advice before you sign this
document.’
[21]. The suretyships signed by the second respondent contain similar
provisions in a style similar to that in the suretyship by the first respondent. All of
the suretyships by the second respondent contain the following inscription
immediately above the second respondent’s signature: -
‘BY THE SURETY (WHERE THE SURETY IS A NATURAL PERSON)
IMPORTANT: The obligations imposed upon the Surety pursuant to this suretyship may
be very burdensome. Should the surety harbour any doubts regarding the exact meaning
and effect of these obligations, we advise that independent legal advice should be taken
prior to signature hereof.’
[22]. It would, therefore, have been abundantly clear to any reasonable
signatory exactly what the nature of the documents were, and that independent
signatory exactly what the nature of the documents were, and that independent
legal advice should be sought before signing if there were any doubts regarding
the exact meaning and effect of the obligations which the signatory was agreeing
to. The respondents do not present any evidence in their answering affidavit
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about anything that prevented them from reading the suretyships – they do not
even allege that they did not read them – or from discussing them with their legal
representatives.
[23]. Moreover, i nsofar as the respondents contend that the contents of the
suretyships were never explained to them, this is of no assistance to them. There
was no obligation on the applicant to explain the contents of the suretyships to
the respondents. ‘To hold otherwise would be to introduce a degree of
paternalism in our law of contract at odds with the caveat subscriptor rule ’.5 A
contracting party is generally not bound to inform the other party of the terms of
the proposed agreement6. He must only do so if there are terms that could not
reasonably have been expected in the contract7.
[24]. This is not the case in the present matter. The documents are titled
‘Suretyship’ and there are no terms contained therein which could not reasonably
have been expected to have been included in a deed of suretyship. What did the
respondents think they were signing? They do not say. It is obvious that they
must have known they were signing suretyships.
[25]. For these reasons, I am of the view that the grounds of opposition as
raised by the respondents are devoid of merit.
[26]. Judgment should therefore be granted in favour of the applicant against
the respondents. As regards costs, same should follow suit. And, in that regard,
the agreements between the parties provided for the award of costs on the scale
as between attorney and client in favour of the applicant.
5 Hartley v Pyramid Freight (Pty) Ltd t/a Sun Couriers 2007 (2) SA 599 (SCA) at para 9.
6 Slip Knot Investments 777 (Pty) Ltd v Du Toit 2011 (4) SA 72 (SCA) at para 12.
7 Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA).
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Order
[27]. In the result, Judgment is granted in favour of the applicant against the first
and the second respondents, jointly and severally, the one paying the other to be
absolved, as follows: -
(1) The first respondent shall pay to the applicant the sum of R11 575 059.17,
with the second respondent’s joint and several liability for such sum limited
to R2 500 000.
(2) The respondents shall pay i nterest on the aforesaid amounts at the prime
rate (currently 11.75%) plus 2% per annum, calculated daily, compounded
monthly in arrears from 24 August 2024 to date of payment, both days
inclusive.
(3) The respondents shall pay the applicant’s c osts of the application on the
attorney and own client scale, including Counsel’s charges as contemplated
in Uniform Rule of Court 67A(3), read with rule 69, on scale ‘C’ as against
the first respondent and on scale ‘B’ as against the second respondent.
______________
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
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HEARD ON: 18 November 2025
JUDGMENT DATE: 21 November 2025
FOR THE APPLICANT: M T A Costa
INSTRUCTED BY: Cox Yeats Attorneys, Umhlanga
FOR THE FIRST AND THE
SECOND RESPONDENTS: F A Darby
INSTRUCTED BY: Snaid & Morris Attorneys Inc,
Morningside, Sandton