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[2026] ZAGPJHC 371
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Hbgschindlers Attorneys and Notaries v Glen Acre 16 (Pty) Limited and Another (2025/045713) [2026] ZAGPJHC 371 (19 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number: 2025-045713
1.
NOT REPORTABLE
2.
NOT OF INTREST TO OTHER JUDGES
Date:
Khaba AJ
In
the matter between:
HBGSCHINDLERS
ATTORNEYS AND NOTARIES
ApplicanT
And
GLEN
ACRE 16 (PTY)
LIMITED
[In
business
Rescue]
First Respondent
MARK
VAN
HOUTEN
Second Respondent
In re:
HBGSCHINDLERS
ATTORNEYS AND NOTARIES
Plaintiff
And
GLEN
ACRES 16 (PTY) LIMITED
[In
Business
Rescue]
First Defendant
MARK
VAN HOUTEN
Second Defendant
Neutral
Citation
:
HBG Schindlers Attorneys and Notaries v Glen Acres
16 (Pty) Ltd (In Business Rescue) & Mark Van Houten (045713-2025)
[2026]
ZAGPJHC ------ (19 March 2026)
Coram
:
Khaba AJ
Heard
:
10 February 2026
Delivered
:
19 March 2026 – 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 for
hand-down is deemed to be 19 March 2026.
Summary:
Application for Summary Judgment – whether the requirements
contained in Rule 32(1) and (2) of the Uniform Rules of Court
have
been satisfied – No facts pleaded to support bona fide defence
–
Application granted.
ORDER
1. The second
respondent’s point
in limine
is dismissed.
2. The application
for summary judgment is granted against the second respondent.
3. The second
respondent is ordered to pay the applicant the sum of R 800 190.39
4. Interest on the
aforesaid amount at a rate of 2% per month, compounded from date of
first demand to date of payment.
5. The second
respondent is ordered to pay the costs of this application on the
scale as between attorney and client scale,
including cost consequent
upon the employment of senior counsel, such costs to be taxed on
scale C.
JUDGMENT
KHABA
AJ:
Introduction:
[1]
This is an
opposed application for summary judgment. The applicant,
HBGSchindlers Attorneys and Notaries
("Schindlers"),
a
firm of attorneys, instituted action against the first and second
respondents for the recovery of legal fees in the amount of
R800,190.39. The first respondent, Glen Acre 16 (Pty) Ltd
("Glen
Acre")
,
is cited as being under business rescue. No relief is sought against
the first respondent at this stage. The claim against the
second
respondent, Mr. Mark van Houten
("Van
Houten")
,
is founded upon a deed of suretyship contained within a written fee
agreement concluded on 19 May 2022.
[2]
The second
respondent has filed a plea and an affidavit resisting summary
judgment. The first respondent's attorneys filed a notice
of
withdrawal on 25 November 2025, and the first respondent was not
represented in these proceedings.
[3]
The applicant
launched an application for summary judgment against the second
respondent in terms of Rule 32(1) and (2) of the Uniform
Rule of
Court. The relief sought is for payment of the capital sum, of R
800 190.39 (eight hundred thousand, one hundred and
ninety rand
and thirty-nine cents); interest at the rate of 2% per month
compounded from the date of first demand, and costs on
the attorney
and client scale.
[4]
The
second respondent has opposed the application, raising a point
in
limine
concerning
the adequacy of the verifying affidavit, and substantive defences
based on the nature of the claim and the validity
of the suretyship.
The
Factual Background:
[5]
The material
facts, as gleaned from the pleadings and the voluminous annexures,
are largely common cause. On or about 19 May 2022,
the applicant and
the first respondent concluded a written fee agreement
(the
"fee agreement").
The second respondent signed the fee agreement on behalf of the first
respondent in his capacity as its sole director.
[6]
The
first page of the fee agreement contains a clear and prominent
notification:
"
The
client will instruct Schindlers from time to time in respect of the
client's requirements for legal advice and assistance and
Schindlers
and the client's relationship will be governed in each such
instruction by the terms and conditions set out in this
letter of
engagement,
which
incorporates a suretyship
.
"
(Emphasis
added).
[7]
Clause 35 of
the fee agreement, under the bold heading
"SURETYSHIP",
provides as follows:
"
35.1
Notwithstanding anything to the contrary herein contained, if the
Client is a legal entity, the Representative (the 'Surety')
hereby
binds himself/herself as surety and co-principal debtor in solidum
with the Client, in favour of Schindlers, for the due
and proper
performance of all of the obligations of the Client in terms of this
Agreement."
[8]
The clause
continues by setting out the terms of the suretyship and includes a
renunciation of the benefits of excussion, division,
and others.
Critically, clause 35.2.5 places the onus on the surety, should they
dispute the indebtedness, to prove that the amount
is not owing.
[9]
Between 31
May 2022 and 25 January 2024, the applicant rendered legal services
to the first respondent. Invoices were rendered monthly.
The first
respondent never disputed any of the charges. Despite demand,
the first respondent failed to pay the outstanding
amount of
R800,190.39, as certified by a certificate of balance signed by a
partner of the applicant on 26 March 2025.
[10]
Formal demand
was made upon the second respondent in his capacity as surety on 17
January 2025. The second respondent
failed to make
payment, prompting the applicant to issue summons on 01 April 2025.
[11]
The second
respondent delivered a plea on 13 June 2025, essentially denying that
he bound himself as surety, alleging that the fee
agreement was
illegible, and claiming that the suretyship constituted a
"trap
for the unwary"
and was therefore void. The second respondent also denied that
the fees were reasonable.
[12]
The applicant
thereafter launched this summary judgment application. The affidavit
in support is deposed to by Ms. Lindelwa Magwaza,
a candidate
attorney in the employ of the applicant and a member of the legal
team handling the matter. Ms. Magwaza states that
she was personally
involved in drafting the summons and that the facts contained in her
affidavit are within her personal knowledge.
A resolution by the
partners of the applicant firm, authorising her to depose to the
affidavit, is attached in her founding affidavit.
[13]
In his
affidavit resisting summary judgment, the second respondent
reiterates his plea. The second respondent admits signing the
fee
agreement on behalf of the first respondent but contends that he did
not read it and he was unaware it contained a suretyship. The
second respondent contends that he was never informed that he would
become a personal surety and that had he known, he would not
have
signed. The second respondent further submits that the claim for
legal fees is not a liquidated amount and falls outside the
scope of
Rule 32.
The
issues for Determination:
[14]
The crisp
issues for determination by this court are:
[14.1]
Whether the verifying affidavit deposed to by Ms. Magwaza
meets the requirements of Uniform Rule 32(2)
(the
point
in
limine
);
[14.2]
Whether the applicant has satisfied the requirements under
Rule 32 for summary judgment to be granted;
[14.3]
Whether the second defendant has disclosed a
bona fide
defence
to the action which is good in law; and
[14.4]
The appropriate order as to costs.
The
evaluation of Point in Limine: The verifying Affidavit; Substance
Form and the Rise of Institutional Knowledge:
[15]
The
second respondent's point
in
limine
invites
this court to engage with one of the most persistently litigated
aspects of Rule 32: the requisite quality of knowledge
that a
deponent must possess to
"swear
positively to the facts."
[16]
Mr.
Bhima, counsel on behalf the second respondent, submitted with vigour
that the application is fatally defective. He argued that
Ms.
Magwaza, a candidate attorney, cannot
"swear
positively to the facts"
as
required by Rule 32(2). Mr. Bhima contended that she lacks personal
knowledge of the facts, particularly those occurring before
her
employment, and that her affidavit fails to verify the cause of
action properly. Mr. Bhima relied heavily on the principles
enunciated in
Maharaj
v Barclays National Bank Ltd
1976
(1) SA 418 (A)
[1]
and
FirstRand
Bank Ltd v Beyer
2011
(1) SA 196
(GNP)
[2]
the court held:
Rule
32(2)(a) and (b) require that the affidavit be made by the plaintiff
or "by any other person who can swear positively
to the facts
verifying the cause of action and the amount, if any, claimed…”.
[17]
The
locus classicus on this point remains
Maharaj
v Barclays National Bank
Ltd
,
where the court held that while the deponent need not be the
plaintiff themselves, they must have personal knowledge of the facts.
The court held that the mere assertion that one can swear positively
is insufficient; the affidavit must contain facts from which
the
court can conclude that the deponent has the requisite knowledge.
[18]
However,
the jurisprudence has developed to adopt a practical,
substance-over-form approach.
In
Barclays
Western Bank Ltd v Bill Jonker Factory Services (Pty) Ltd and
Another
1980
(1) SA 929 (SE)
[3]
,
Addleson J held that the rule does not require the deponent to have
personal knowledge of every fact that makes up the cause of
action,
such as historical negotiations. The knowledge must relate to the
facts upon which the cause of action is based, which
are primarily
those contained in the plaintiff's own documents and records.
[19]
More
recently, in
Stamford
Sales & Distribution (Pty) Ltd v Metraclark (Pty) Ltd
2014
JDR 1125 (SCA)
[4]
,
the Supreme Court of Appeal confirmed that:
“…
as
long as there is direct knowledge of the material facts underlying
the cause of action, which may be gained by a person who has
possession of all of the documentation, that is sufficient”.
The enquiry is fact-based and considers the contents of the
verifying
affidavit together with the other documents properly before the
court.”
[20]
Applying
these principles to the present matter, I find the second
respondent's point
in
limine
to
be without merit. Ms. Magwaza’s affidavit must be read in its
entirety and in context. She states the following:
[21.1]
She is a member of the applicant’s legal team working on
the matter.
[21.2]
She was personally involved in the drafting of the summons.
[21.3]
She has been involved in all legal transactions subsequent to the
summons.
[21.4]
She attests that the facts in her affidavit are within her personal
knowledge and are true and correct.
[21]
Critically,
her verification is not based on a distant memory of events, but on
the comprehensive documentary record that forms
the backbone of the
applicant’s case. Ms. Magwaza references and attaches the fee
agreement, the invoices, the demand, and
the certificate of balance.
The cause of action is a written contract. Ms. Magwaza’s
knowledge is derived from a thorough
perusal of these documents,
which are within her custody as part of the legal team.
[22]
The nature of
a law firm’s claim for fees is particularly suited to
verification by a legal practitioner involved in the matter,
even if
they are a candidate attorney. The facts are primarily documentary.
To require a partner who personally interacted with
the client in
2022 to depose to the affidavit would be to elevate form over
substance, a result our courts have consistently sought
to avoid. Ms.
Magwaza has a direct and professional knowledge of the files and the
history of the matter. She is, in the words
of the
Stamford
Sales
case,
a person who has "
possession
of all of the documentation"
and can thus verify the cause of action.
[23]
Ms. Magwaza's
affidavit must be evaluated against this evolved standard. Ms.
Magwaza is not a mere conduit for hearsay. She is a
legal
professional engaged in the active management of the litigation. She
has possession of the fee agreement, the invoices, the
certificate of
balance, and the correspondence. Ms. Magwaza attests to facts that
are, in their essence, documentary. The creation
of the contract in
2022, the rendering of services, the failure to pay - these are not
events requiring eyewitness testimony. They
are facts evidenced by
documents, and a deponent who has studied those documents and can
attest to their authenticity and meaning
is properly described as one
who can
"swear
positively."
[24]
The second
respondent’s criticism that Ms. Magwaza
"practises
as an attorney"
while being a candidate attorney is an unfortunate and pedantic
attack on her professional standing. It does not go to the heart
of
her ability to verify the facts. The resolution passed by the
partners of the firm authorising her to act confirms her authority
to
depose to the affidavit on behalf of the firm
[25]
The second
respondent’s submission that a candidate attorney cannot
possess such knowledge is not only legally unsustainable
but reflects
a misunderstanding of the hierarchical structure of a modern law
firm. Candidate attorneys are often the front-line
custodians of
litigation files, possessing a granular familiarity with the
documentation that partners, burdened with broader managerial
responsibilities, may lack. To disqualify their evidence would be to
privilege status over substance, a result our courts have
consistently eschewed.
[26]
In
Standard
Bank of South Africa Ltd v Secatsa Investments (Pty) Ltd and
Others
1999
(4) SA 229
(C) at 234B-C
[5]
,
the court held that "the court must be satisfied, prima facie,
that the deponent is such a person"
-
that is, a person who can swear positively. The court is entitled to
draw inferences from the deponent's position and the nature
of the
facts deposed to. Ms. Magwaza's position as a member of the legal
team, her involvement in drafting the summons, and her
detailed
knowledge of the documentary record collectively establish,
prima
facie,
that she possesses the requisite knowledge.
[27]
Consequently,
the second respondent’s point
in
limine
is
dismissed. The verifying affidavit complies substantially, if not
strictly, with the requirements of Rule 32(2). The deponent
is a
person who can, and does, swear positively to the facts of the
applicant's cause of action.
The
Liquidated Amount Debate; Reconciling Tredoux and Fee Agreement:
[28]
The second
respondent's contention that a claim for professional fees falls
outside Rule 32 because it requires taxation raises
profound
questions about the nature of liquidated claims and the intersection
between contractual freedom and regulatory oversight
of the legal
profession.
[29]
In
Tredoux
v Kellerman
2010
(1) SA 160 (C)
[6]
at
para [15],
Griesel J (as he then was) held that claims for professional fees,
"Involve
an enquiry into the nature and extent of the professional services
rendered, the reasonableness of fees charged, and
so on. These are
not mere matters of
calculation
;
they are matters for taxation."
[30]
The
Supreme Court of Appeal in
Blakes
Maphanga Inc v Outsurance Insurance Co Ltd
2010
(4) SA 232 (SCA)
[7]
endorsed this proposition, holding that "a client is entitled to
taxation of his or her attorney's account." These authorities
establish a default rule: in the absence of agreement, an attorney's
claim for fees is unliquidated and must be taxed.
[31]
However,
these authorities do not, and cannot, displace the foundational
principle of freedom of contract. Where parties have
agreed
upon
the fees, whether by reference to hourly rates or a fixed fee, the
claim becomes liquidated. The enquiry shifts from
an objective
assessment of reasonableness to a contractual determination of
compliance with the agreed terms
[32]
The fee
agreement
in
casu
is a paradigm of contractual specificity. It sets forth hourly rates,
the basis of charging (six-minute increments), and the obligation
to
pay disbursements. The invoices rendered pursuant to this agreement
reflect these contractual parameters. The first respondent,
represented by the second respondent received these invoices monthly
and raised no objection. The debt is therefore not only quantified
but contractually admitted by conduct.
[33]
The
certificate of balance, annexed as "
POC12"
and signed by a partner of the applicant, operates as a contractual
mechanism for evidencing the debt. In terms of clause 32.6
of the fee
agreement, such certificate constitutes
"prima
facie proof of the obligation or amount of the indebtedness."
The second respondent's plea admits that the certificate is annexed
but does not challenge its contents. This admission, coupled
with the absence of any timely objection to the invoices, renders the
amount liquidated for the purposes of Rule 32.
[34]
In
the instant case, the amount claimed is neither unascertained nor
unliquidated. The parties entered into a written fee agreement
which
set out the rates at which the applicant would charge for its
services. The applicant rendered invoices on a monthly
basis in accordance with that agreement. Critically, the second
respondent admits, and the papers confirm, that the first
respondent
never
disputed any of the invoices
at
the time they were rendered. The debt is quantified and based on
an agreement. It is only now, in an attempt to resist
summary
judgment, that the second respondent vaguely alleges the fees were
not reasonable.
[35]
The
certificate of balance, signed by a partner of the applicant in terms
of the agreement, constitutes
prima
facie
proof
of the amount owed. The amount is therefore liquid, as it is
capable of prompt ascertainment from the agreement
and the invoices.
[36]
The
cases cited by the second respondent are distinguishable. In
Tredoux
,
the claim was for professional fees where there was no agreement as
to the amount. The court was at pains to point out that "a
client is entitled to taxation of his or her attorney's account"
in
the absence of an agreement
.
Where, as here, there is a written fee agreement and a series of
rendered and undisputed invoices, the amount is liquidated. To
hold
otherwise would be to render Rule 32 impotent in every
attorney-client fee dispute, a result never intended by the
rule-makers.
The
Bona Fides of the Respondent’s Case:
[37]
The central
question is whether the second respondent has satisfied the court
that he has a
bona
fide
defence to the action. The amended Rule 32 requires the defendant to
disclose fully the nature and grounds of the defence, and
the
material facts relied upon therefor. The court must consider the
plea together with the affidavit resisting summary judgment.
A
defendant is not required to prove their defence, but they must set
out facts which, if proved at trial, would constitute a good
defence
in law. Bald denials and sketchy propositions are insufficient.
[38]
The
second respondent’s defence can be distilled into two main
propositions. Firstly, that he was unaware of the suretyship
clause
and was misled, rendering the obligation void
ab
initio
on
the basis of
iustus
error
.
Secondly, that he never waived the benefits of excussion and
division. I deal with these in turn.
The
Defence of Iustus Error:
[39]
Mr.
Bhima, counsel on behalf of the second respondent, placed heavy
reliance on the Supreme Court of Appeal decision of
Brink
v Humphries & Jewell (Pty) Ltd
2005
(2) SA 419 (SCA)
[8]
.
In that matter, the appellant signed a credit application form on
behalf of his company. At the bottom of the form, above the
signature, were densely printed paragraphs which included a
suretyship. The court found that the furnishing of a misleading
document,
without more, could constitute a misrepresentation. The
form was described as "
a
trap for the unwary,"
and the appellant’s mistake was held to be
iustus
,
rendering the suretyship void.
[40]
Counsel
on behalf for the applicant, Mr. Uys SC, argued that
Brink
is
distinguishable and that the second respondent, as a sophisticated
businessman, cannot rely on such a defence. He invoked
the
caveat
subscriptor
principle,
citing
George
v Fairmead (Pty) Ltd
1958
(2) SA 465 (A)
[9]
and
Afrox
Healthcare Beperk v Strydom
2002
(6) SA 21 (SCA)
[10]
,
for the proposition that a person who signs a contract is bound, even
if they failed to read it, unless they can show fraud or
misrepresentation.
[41]
The
facts of
Brink
bear
close scrutiny. The appellant, a farmer, signed a credit application
form on behalf of his company. The form was presented
to him as a
standard credit application. At the foot of the document, in dense
print, were paragraphs containing a suretyship.
There was no
indication on the face of the document that signing would entail
personal liability. The Supreme Court of Appeal held
that the
respondent's conduct in furnishing a misleading form, without drawing
attention to the suretyship, induced a fundamental
mistake. Cloete JA
stated at paragraph 15:
"The
form was a trap for the unwary and the appellant was caught by it."
[42]
I
am of the view that the second respondent’s reliance
on
Brink
is
misplaced, and the facts of this case are poles apart from those
in
Brink
.
A comparison of the documentation is instructive. In
Brink
,
the suretyship clause was buried at the bottom of a page, in a block
of dense text, and there was no indication on the face of
the
document that signing it would entail a personal suretyship. The
document was presented as a simple credit application.
[43]
In
casu,
the position is markedly different. The very first page of the fee
agreement contains a plain-language warning:
"
which
incorporates a suretyship
."
This
is not a "
trap
for the unwary";
it is a neon sign for the wary. Any person of ordinary intelligence,
let alone a sole director of a company developing a
multi-million-rand
sectional title scheme, would be put on notice
that their personal liability might be engaged.
[44]
Furthermore,
the suretyship clause itself is contained under its own bold,
capitalised heading:
"
SURETYSHIP
". It
is not hidden in fine print. It is a standalone provision of the
contract.
[45]
The
second respondent’s evidence that he did not read the agreement
is fatal to his defence. In
George
v Fairmead (Pty) Ltd 1958 (2) SA 465 (A)
[11]
,
the court held that an error is not
iustus
if
it is caused by the party’s own failure to exercise reasonable
care. The second respondent was given a
document that
clearly stated it contained a suretyship. The second respondent chose
not to read it. The second respondent cannot
now complain that he was
misled. The
caveat
subscriptor
rule
applies with full force.
[46]
Moreover,
the second respondent’s assertion that he is a "
sophisticated
businessman"
undermines
his defence. The second respondent admitted under oath that he has
signed
"dozens,
if not hundreds"
of
documents as a director. The second respondent knew that if he
was to stand surety, he would normally sign a separate deed.
This
very knowledge should have prompted him to enquire why the fee
agreement contained a reference to a suretyship. The second
respondent’s failure to do so was a negligent omission. A
mistake induced by one’s own negligence is not
iustus
.
[47]
The
second respondent’s statement that "
I
was misled by the applicant in signing the fee agreement"
is
a bare allegation, devoid of any supporting facts. There is no
suggestion that anyone from the applicant firm made any
representation to him, innocent or fraudulent, about the nature of
the document. The only
"misleading"
conduct he points to is the content of the document itself. But as I
have found, the document was not misleading. It was transparent.
In
George
v Fairmead (Pty) Ltd
[12]
,
the Appellate Division held that an error is not
iustus
if
it is due to the party's own failure to exercise reasonable care. The
second respondent's failure to read a document that
plainly warned
him of its contents constitutes precisely such a failure. He cannot
invoke his own negligence to avoid his obligations.
[48]
The
Constitutional Court in
Beadica
231 CC and Others v Trustees, Oregon Trust and Others
2020
(5) SA 247 (CC)
[13]
reaffirmed the centrality of
pacta
sunt servanda
to our legal order. While acknowledging that public policy may, in
extreme cases, justify a departure from this principle, the
court
emphasised that such cases are exceptional. This is not such a case.
To hold the suretyship unenforceable would be to sanction
the second
defendant's negligence and to undermine the reliability of written
agreements.
[49]
I
therefore find that the second respondent has failed to establish a
defence of
iustus
error
.
The second respondent is bound by the terms of the agreement that he
signed. The second respondent’s purported mistake was
not
justifiable in the circumstances.
The
Defence Regarding Waiver of Benefits:
[50]
The second
respondent’s plea denies that he waived the benefits of
excussion and division. This issue need not detain us long.
[51]
The
second respondent bound himself as a "
surety
and co-principal debtor
in
solidum
."
In
Neon
& Cold Cathode Illuminations (Pty) Ltd v Ephron
1978
(1) SA 463 (A)
[14]
,
the Appellate Division held that the consequence of a surety
undertaking liability as a co-principal debtor is that they tacitly
renounce the ordinary benefits available to a surety, such as
excussion and division, and become liable jointly and severally with
the principal debtor.
[52]
By agreeing
to be a co-principal debtor, the second respondent effectively waived
these benefits. The express renunciation in the
agreement merely
confirms the legal position. This defence, even if it had not been
abandoned in the opposing affidavit, is bad
in law.
The
Overall Assessment of the Defence:
[53]
The
second respondent’s plea and resisting affidavit are replete
with bald denials and unsubstantiated allegations. The second
respondent denies binding himself as surety yet admits signing the
agreement. The second respondent claims the agreement was illegible
yet makes no attempt to obtain a legible copy and admits he did not
read it anyway. The second respondent disputes the reasonableness
of
the fees yet provides not a single particular of why they are
unreasonable. The second respondent raises a defence of
iustus
error
yet cannot point to a single representation made to him.
[54]
In
NPGS
Protection and Security Services CC and Another v FirstRand Bank
Ltd
2020
(1) SA 494 (SCA)
[15]
,
“the court held that a defendant cannot content themselves with
bald denials; something more is required.” The
second respondent has failed to clear this hurdle. The second
respondent has not disclosed a defence which is both
bona
fide
and good in law.
[55]
The applicant
has made out a clear and unanswerable case. The second respondent’s
appearance to defend, in the face of such
clear contractual
provisions and his own admissions, can only be interpreted as a
tactic to delay the inevitable.
The
Suretyship Clause: Interpretation and Renunciation of Benefits:
[56]
The
proper interpretation of clause 35 of the fee agreement requires this
Court to apply the established canons of contractual interpretation.
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593 (SCA)
[16]
,
Wallis JA held that interpretation is a unitary exercise, requiring
the court to consider the language of the provision in the
light of
the contract as a whole and the factual matrix.
[57]
Clause 35.1
is unequivocal: "
the
Representative (the 'Surety') hereby binds himself/herself as surety
and co-principal debtor in solidum with the Client."
The second respondent is the representative. The second respondent
signed the agreement. The language admits of no ambiguity.
[58]
The
consequences of this undertaking are well-established. In
Neon
& Cold Cathode Illuminations (Pty) Ltd v Ephron
1978
(1) SA 463 (A)
[17]
,
Trollip JA held:
“…
generally,
the only consequence …that flows from the surety also
undertaking liability as a co-principal debtor is vis-à-vis
the creditor he thereby tacitly renounces the ordinary benefits
available to a surety such as those of excussion and division and
becomes jointly and severally liable with the principal debtor.’
.".
[59]
The express
renunciation in clauses 35.2.1 to 35.2.5 merely codifies the legal
position. The second respondent's denial that he
waived these
benefits is, with respect, legally irrelevant. The waiver is effected
by operation of law upon his agreement to be
a co-principal debtor.
No separate or conscious waiver is required.
[60]
I pause to
note that clause 35.2.5 places the onus on the surety, should they
dispute the existence of the debt, to prove that the
amount is not
owing. The second respondent has made no attempt to
discharge this onus. The second respondent’s
vague assertion
that the fees are
"not
reasonable"
is precisely the type of bald denial that Rule 32 is designed to
expose.
The
Resting Affidavit: The Study in Inadequate Disclosure:
[61]
The second
respondent's affidavit resisting summary judgment provides this Court
with an opportunity to reflect on the quality of
disclosure required
by Rule 32(3)(b). The rule requires the defendant to "
disclose
fully the nature and grounds of the defence and the material facts
relied upon therefor."
[62]
In
Breitenbach
v Fiat SA (Edms) Bpk
1976
(2) SA 226 (T)
[18]
,
Colman J held that the defendant must set out facts which, if proved
at trial, would constitute a defence, the court held that:
“
The
relation to the affidavit “… no more is called for than
this: that the statement of material facts be sufficiently
full to
persuade the Court that what the defendant has alleged, if it is
proved at the trial, will constitute a defence to the
plaintiff's
claim."
[63]
The second
respondent's affidavit falls woefully short of this standard. The
second respondent’s defence that he was
"misled"
is advanced without a single particular of who misled him, what was
said, or when it was said. The second respondent’s defence
that
the fees are unreasonable is advanced without a single example of an
excessive charge or a comparison to any benchmark. The
second
respondent’s defence that he was unaware of the suretyship is
contradicted by his admission that he signed the agreement
without
reading it, despite the clear warning on the first page.
[64]
In
NPGS
Protection and Security Services CC and Another v FirstRand Bank
Ltd
[19]
,
the Supreme Court of Appeal held that:
"a
defendant cannot content him- or herself with bald denials...
Something more is required." The second respondent has
offered
nothing more. The second respondent’s affidavit is a tapestry
of bald denials, woven together with threads of self-serving
statements that are contradicted by the documentary record”.
[65]
The court
retains a discretion to refuse summary judgment even where the
defendant's affidavit is deficient, if there is a reasonable
possibility that a defence exists. However, this residual
discretion is not a licence to speculate. It must be exercised on
the
basis of the facts before the court. In this matter, there are no
basis, factual or legal, to support the existence of a defence.
Analysis:
The
Broader Reflections: Contract, Commerce and the Role of Court:
[66]
Before
concluding, I consider it appropriate to reflect on the broader
implications of this judgment. South Africa is a constitutional
democracy committed to the rule of law and the protection of
fundamental rights. Among these rights is the right to access to
courts in terms of section 34 of the Constitution. However, this
right must be exercised responsibly. It is not a licence to abuse
the
court's process through the pursuit of meritless defences.
[67]
The
law of contract is the bedrock of commercial life. It enables parties
to plan their affairs with confidence, secure in the knowledge
that
agreements seriously entered into will be seriously enforced.
The
caveat
subscriptor
rule,
properly applied, serves this purpose. It holds signatories to their
bargains and prevents them from escaping liability
through their own
carelessness.
[68]
The
doctrine of
iustus
error
serves
as an important, but limited, exception to this rule. It protects
those who are genuinely misled, not those who choose
not to read. It
shields the unwary, not the wilfully ignorant. The second respondent,
a sophisticated businessman who chose not
to read a document that
plainly warned him of its contents, falls outside the protective
ambit of this doctrine.
[69]
This judgment
should not be read as discouraging respondents’ from pursuing
legitimate defences. The doors of the court remain
open to those with
genuine triable issues. But those doors are not revolving doors,
designed to admit defendants who enter an appearance
solely to delay.
Rule 32 exists to identify and expel such defendants at an early
stage, thereby preserving judicial resources
for matters that
genuinely require adjudication.
Epilogue
:
[79]
I close with the words of Innes CJ in
Burger
v Central South African Railways
1903
TS 571
at 578
[20]
,
a passage that has echoed through our jurisprudence for over a
century:
"
A
man who signs a written agreement without reading it does so at his
own risk, and he is bound by the terms of the agreement as
though he
were aware of them."
[70]
These words
retain their force today. They remind us that contractual liability
flows from the act of signature, not from subjective
understanding.
They caution us against allowing negligence to defeat agreement. And
they anchor our law in the certainty and predictability
that commerce
requires.
Conclusion:
[71]
For
all the reasons set forth above, I am satisfied that the applicant
has made out a clear case for summary judgment. The second
respondent's point
in
limine
is
without merit. The second respondent’s substantive defences are
unsustainable in law and unsupported by the facts.
The second
respondent has failed to disclose a
bona
fide
defence, and his opposition to this application can only be
interpreted as a delaying tactic.
[72]
The orders I
have made give effect to the parties' contractual obligations, uphold
the principle of
pacta
sunt servanda
,
and serve the interests of justice by bringing finality to this
dispute.
Costs:
[73]
The
applicant's prayer for costs on the attorney and client scale,
including the costs of senior counsel to be taxed on Scale C,
requires this court to articulate the principles governing such
awards.
[74]
Attorney and
client costs are not punitive in the sense of punishing a litigant
for moral blameworthiness. Rather, they are awarded
in circumstances
where a litigant's conduct has been such as to warrant a mark of the
court's disapproval, or where the contract
between the parties
provides for such an award. The fee agreement in
casu
provides for costs on the attorney and client scale. This
contractual entitlement, standing alone, would justify such
an award.
[75]
However, even
absent the contractual provision, I would have awarded costs on this
scale. The second respondent's defence was, from
its inception,
devoid of merit. The second respondent signed a clear contract. The
second responded received the services. The
second respondent did not
pay. The second respondent’s, attempt to avoid liability by
claiming he did not read the document
is the very type of stratagem
that brings the administration of justice into disrepute.
[76]
The
introduction of scale C represents a significant development in our
cost’s jurisprudence. The scale is intended for matters
of
substance and complexity, where the issues warrant the engagement of
senior practitioners and the preparation of comprehensive
heads of
argument. This matter, involving as it does the interplay
between summary judgment, suretyship, and
iustus
error
,
falls squarely within that category.
[77]
The
employment of senior counsel was reasonable and necessary. The second
respondent was represented by counsel of equal seniority.
The heads
of argument filed by both sides were comprehensive and engaged with
the relevant authorities. The matter was argued over
approximately
two hours. In these circumstances, it is just and equitable that the
applicant recovers the costs consequent upon
the employment of senior
counsel.
[78]
In the circumstances, the following order is made:
1. The second
respondent’s point
in limine
is dismissed.
2. The application
for summary judgment is granted against the second respondent.
3. The second
respondent is ordered to pay the applicant the sum of R 800 190.39.
4. Interest on the
aforesaid amount at a rate of 2% per month, compounded from date of
first demand to date of payment
5. The second
respondent is ordered to pay the costs of this application on the
scale as between the attorney and client scale,
including costs
consequent upon employment of senior counsel, such costs to be taxed
on scale C.
KHABA
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
Appearances:
Counsel
for the Applicant:
Adv. J C Uys SC
Instructed
by:
HBG Schindlers Attorneys
Ref:
Lauren Squire
Tel:
011 568 8500
Email:
[email protected]
Email:
[email protected]
Emal:
[email protected]
Counsel
for the Second Respondent: Adv. R Bhima
Instructed
by:
Swanepoel van Zyl Inc
Ref:
J van Zyl/adl/JZ2615
Tel:
010 010 0108
Email:
[email protected]
Email:
[email protected]
Date
of Hearing:
10 February 2026
Date
of Judgment: 19
March 2026
[1]
Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A).
[2]
FirstRand Bank Ltd v Beyer
2011 (1) SA 196
(GNP) at para 7
[3]
Barclays Western Bank Ltd v Bill Jonker Factory Services (Pty) Ltd
and Another 1980 SA 929(SE)
[4]
Stamford Sales & Distribution (Pty) Ltd v Metraclark (Pty) Ltd
2014 JDR 1125 (SCA).
[5]
Standard Bank of South Africa Ltd v Secatsa Investments (Pty) Ltd
and Others
1999 (4) SA 229
(C) at 234B-C.
[6]
Tredoux v Kellerman
2010 (1) SA 160
(C) at para 15.
[7]
Blakes Maphanga Inc v Outsurance Insurance Co Ltd
2010 (4) SA 232
(SCA) at para 12.
[8]
Brink v Humphries & Jewell (Pty) Ltd
2005 (2) SA 419
(SCA).
[9]
George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A).
[10]
Afrox Healthcare Beperk v Strydom 2002 (6) SA 21 (SCA).
[11]
George v Fairmead (Pty) Ltd
1958 (2) SA 465
(A) at 472A.
[12]
Ibid at 471B.
[13]
Beadica 231 CC and Others v Trustees, Oregon Trust and Others
2020
(5) SA 247
(CC) at paragraph 87.
[14]
Neon & Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SA
463 (A).
[15]
NPGS Protection and Security Services CC and Another v FirstRand
Bank Ltd
2020 (1) SA 494
(SCA) at para 11.
[16]
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4)
SA 593
(SCA0 at para 18.
[17]
Neon & Cold Cathode Illuminations (Pty) Ltd v Ephron
1978 (1) SA
463
(A) at 470A-C.
[18]
Breitenbach
v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) at 228B-C.
[19]
Supra
note 8 at para 11.
[20]
Burger v Central South African Railways
1903 TS 571
at 578.