SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2024-104181
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes
Date: 03 June 2026
In the matter between:
FINTECH UNDERWRITING (PTY) LTD Plaintiff
and
AFROFROCS (PTY) LTD First Defendant
OWINO, MILLICENT AKINYI Second Defendant
JUDGMENT
DU PLESSIS J
Introduction
[1] The plaintiff seeks summary judgment against the defendants jointly and
severally for payment of outstanding rentals, return of a photocopier, interest, and
costs on the attorney -and-client scale. The defendants oppose the application on
both procedural and substantive grounds.
[2] The plaintiff's case is that the first defendant concluded a written Master
Agreement of Hire with Sunlyn Rentals (the cedent) for the rental of a photocopier.
The agreement was ceded to the plaintiff under a master cession agreement. The
second defendant bound herself jointly and severally as surety and co -principal
debtor under a written guarantee. The cedent purchased the photocopier from
Document Excellence (Pty) Ltd, the supplier and vendor, at the first defendant’s
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instance and request, and caused delivery thereof to the first defendant. The cedent
thereafter ceded the rental agreement to the plaintiff.
[3] The first defendant fell into arrears, and the plaintiff accordingly seeks
payment of the outstanding and future rental instalments. The second defendant is
sued as guarantor.
[4] The defendants deny that any valid agreement was concluded with Sunlyn.
Their case is that they contracted with Document Excellence (Pty) Ltd, and that this
agreement was cancelled by agreement in March 2022, alternatively June 2022, a
cancellation that was accepted by Document Excellence. They further deny that any
valid cession was concluded in favour of the plaintiff.
[5] In the affidavit resisting summary judgment, the defendants raise both
procedural points, and set out their defences.
Procedural objections: defective application
[6] The defendant s submit that the summary judgment application is a nullity
because, when it was served on 5 June 2025, it did not contain a stated hearing date
as required by the Rules. A subsequent notice of set -down allegedly does not cure
the defect. They also state that the time limit for a complaint application expired on 9
June 2025.
[7] Rule 32(2)(c) mandates that the notice of application for summary judgment
must state that "the application will be set down for hearing on a stated day not being
less than 15 days from the date of the delivery thereof". This is a formal requirement
designed to give the defendant adequate notice to prepare opposition. Although
strict adherence to Rule 32 is usually necessary due to the serious consequences of
the remedy, courts do condone technical irregularities that do not prejudice any
party, as undue fo rmalism should be avoided. The question is rather whether there
was substantive compliance with the requirements.
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[8] In this case, the defendants did not seek to have the irregularity set aside and
instead participated in the proceedings, thereby implicitly waiving, or at least
condoning, any procedural defect. They have not shown any real prejudice because
of this omission, which they would struggle to, as they have received adequate
notice of the application and had an opportunity to oppose on the merits. There was
further substantive compliance with the purpose of the Rule, namely to give the
defendant fair notice and an opportunity to defend , which they did . The procedural
point is accordingly dismissed.
The merits
[9] Summary judgment exists to prevent defendants with no genuine defence
from using the court process as an instrument of delay, thereby causing loss to
plaintiffs with clear and enforceable rights. The procedure does not shut out a
defendant with a real, triable defence. 1 Courts have always been trusted to protect
such a defendant. But where the defence is hollow or a sham, the plaintiff is entitled
to swift, final relief without the expense of a full trial. The test, as formulated in
Maharaj v Barclays National Bank Ltd ,2 is simply whether the defendant has
sufficiently disclosed a defence that is both bona fide and good in law: if yes,
summary judgment must be refused; if no, it must be granted.
Defence: denial of the agreement
[10] The defendants dispute the validity of the rental agreement, contending that
its terms do not reflect what was agreed between the first defendant and Document
Excellence, with whom they say all initial negotiations took place and from whom a
financial proposal was received and the goods delivered. However, they place no
signed agreement with Document Excellence before the court . They instead rely on
a proposal , which is not a binding contract between them and the financier. By
contrast, the signed Master Agreement of Hire sets out the machine, the monthly
contrast, the signed Master Agreement of Hire sets out the machine, the monthly
rental, the term, and the escalation mechanism, as per the proposal. The defendants
do not allege that this document was not signed on their behalf.
1 See Joob Joob Invetments (Pty) Ltd v Stocks Mavundla Zek Joint Venture [2009] ZASCA 23; 2009 (5) SA 1
(SCA) ; [2009] 3 All SA 407 (SCA) para 30 onwards.
2 1976 (1) SA 418.
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[11] The contract provides that only its written terms bind the financier , and that
any prior or collateral understandings are of no force unless recorded in the
agreement. It further records that the defendants were referred to the financier by the
vendor, that the financier purchased the goods from the vendor at the defendants’
special instance and request, and that the financier assumes no responsibility for the
suitability or quality of the goods. The defendants in turn guarantee the vendor’s title,
indemnify the financier again st any claims or losses arising from defects in title,
delivery or the goods themselves (even after cancellation of the agreement), and
undertake, in the event of any cession, sale or transfer of ownership, to hold the
goods on behalf of any cessionary or purchaser and to comply with that party’s
instructions.
[12] The denial of the agreement is not a bona fide defence. There is no denial
that the document was signed . There is thus no denying that the agreement exist s.
The terms are clear that only the terms of that agreement bind the plaintiff, which
leads to the next defence: that what is in the agreement is not what they agreed
upon with Document Excellence.
Defences: misrepresentation, cancellation, and breach
[13] The defendants allege that a representative of Document Excellence
misrepresented that the rental agreement would be linked to a service and printing
agreement with specific printing costs, and that the defendants would have an option
to acquire ownership of the goods. On the strength of this alleged misrepresentation ,
the defendants purported to cancel the "Document Excellence Agreement" in 2022.
[14] These are not bona fide defences . The rental agreement is clear and explicit:
it covers only the rental of the equipment, which remains the ownership of the
supplier at all times. It represents the entire agreement between the parties. Any
statements not explicitly included in the agreement are not binding. The agreement
statements not explicitly included in the agreement are not binding. The agreement
also excludes any claims arising from the supplier's alleged representations
regarding a separate printing contract or a purchase option.
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[15] Vanessa Burger, whom the defendants themselves identified as their contact,
appears in the attached emails to be an accounts executive for the cedent, not for
Document Excellence. Her email address and electronic signature support this.
Thus, the defendants' own documents conflict with the claim that all interactions
were solely with Document Excellence.
[16] The description of the goods, agreed rentals, and rental period in the
'authority to pay' letter are identical to those in the rental agreement. Importantly, the
defendants have not attached the supposed printing agreement. No document is
presented to the court that shows the terms of the alleged printing contract, the
representations made, or the specific printing costs claimed to have been
misrepresented. Their pleading on this point lacks detail. So, too, is there no proof of
the cancellation of the alleged agreement.
[17] Even if I accept that there was a separate printing agreement with Document
Excellence that was legitimately cancelled, this does not affect the rental
agreement.3 The two agreements are separate. Cancelling a printing service
arrangement does not cancel the rental obligation owed to Sunlyn and its cessionary
for the equipment financing.
[18] The misrepresentation, cancellation, and breach defences do not constitute
bona fide triable issues.
Defence: guarantee
[19] The second defendant denies that a valid guarantee was concluded.
However, like the denial of the rental agreement, she does not deny signing the
guarantee undertaking. The plea states the nature of the defence , namely invalidity,
without disclosing any grounds upon which invalidity is said to rest. A bare denial of
validity, unsupported by any factual basis,4 does not constitute a bona fide defence.
3 Slip Knot Investments 777 (Pty) Ltd v Du Toit 2011 (4) SA 72 (SCA) para 8.
4 Breitenbach v Fiat SA 1976 (1) SA 418 (A) at 426.
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Defence: cession
[20] The defendants deny that the rental agreement was validly ceded to the
plaintiff. As outsiders to the cession agreement between the cedent and the plaintiff,
the defendants have no standing to challenge the terms or the plaintiff's compliance
with th em as between cedent and cessionary .5 Future rights can be ceded in
anticipando,6 and third parties cannot interfere in a cession arrangement that does
not affect their position. The cession does not alter the first defendant's obligations ; it
merely changes to whom payment must be made. This defence is without merit.
Defence: Deponent’s personal knowledge
[21] The defendants challenge the deponent's authority and personal knowledge,
as a Senior Legal Coordinator at Sasfin. The relationship between Sasfin and the
plaintiff, as the administrator of its portfolio, is explained in the founding affidavit. The
DocuSign completion certificate reflects Sasfin's administrative function in relation to
the plaintiff's book. Authority to depose to an affidavit in motion proceedings does not
require separate authorisation. It is the institution and prosecution of the proceedings
that must be authorised. 7 Furthermore, if the defendants wished to challenge the
deponent's authority, the proper mechanism was Rule 7. They did not avail
themselves of it. This point fails.
Defence: Certificate of Balance and quantum
[22] The defendants deny the certificate of balance on the basis that it was signed
by a Sasfin representative rather than a director of the plaintiff. For the reasons set
out above regarding the Sasfin -Fintech relationship, this objection is without merit.
Clause 13 of the agreement provides that a certificate signed by any manager or
other authorised person shall be proof of indebtedness. Nothing turns on the
description in the DocuSign certificate.
[23] The defendants correctly point out, however, that the certificate includes
[23] The defendants correctly point out, however, that the certificate includes
charges not provided for in the rental agreement , specifically, untaxed legal fees and
5 Absa Bank Bpk v C L von Abo Farms BK en Andere 1999 (3) SA 262 (O); 274E-G.
6 First National Bank of SA Ltd v Lynn NO 1996 (2) SA 339 (A) at 358 to 359.
7 Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA);624G-H.
7
NSF/process fees. The plaintiff conceded as much. Certificates of balance may be
handed up at the hearing and adjusted, 8 which confirms the court's power to grant
summary judgment for a reduced amount where certain components of the claim are
not supportable. The appropriate course is to deduct these impermissible charges
rather than to refuse summary judgment altogether.
[24] The defendants raise a further point relating to the rental escalation schedule,
contending that the statement of account increases monthly rentals before the
anniversary date stipulated in the agreement. The plaintiff's counsel addressed this
by pointing to clause 7 of the rental agreement, which provides for fluctuation s in the
rental amount with the prime interest rate. It is not the anniversary date that drives
escalation but the movement in the prime rate. The defendants have not engaged
with clause 7 in their opposition. This aspect of the quantum defence is not
established.
[25] However, as conceded by the plaintiff, the claim amount must be reduced to
exclude the following:
a. Untaxed legal charges: R10,246.50
b. NSF/process fees and other charges: R632.50
c. Once these impermissible items are deducted, the supportable claim
for rental instalments and VAT thereon, as reflected in the detailed
annexure to the particulars of claim, is R79,516.00.
Defences: Demand and NCA
[26] The defence that no demand was made for the relief is without merit as the
summons constitutes a demand.9
[27] The NCA defence is equally unsustainable. The first defendant is a juristic
person whose asset value or turnover exceeded the statutory threshold. The
defendants themselves admit this in the plea. A rental agreement under which
8 Rossouw and Another v First Rand Bank Ltd t/a FNB Homeloans (Formerly First Rand Bank of South Africa
Ltd) [2010] ZASCA 130 par 47.
9 Middelburgse Stadsraad v Trans-Natal Steenkoolkorporasie Bpk 1987 (2) SA 244 (T) at 249B to G
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ownership never passes to the user is furthermore not a lease for purposes of the
NCA.
Conclusion
[28] The plaintiff has verified the cause of action and the amount, supported by a
defensible rental figure, and has shown that the defences raised present no genuine
triable issues. This is because the core of the defendants’ opposition is a
misconceived reliance on a separate arrangement with the supplier , Document
Excellence, which is not supported by the defendants’ own annexures. There is no
bona fide defence that is good in law. Summary judgment should accordingly be
granted, at the reduced quantum to exclude impermissible charges.
Costs
[29] The rental agreement provides for costs on an attorney -and-own-client scale.
The respondents' defences on liability were plainly without merit and disclosed no
reasonable prospect of success. The applicant is entitled to costs on the contractual
scale, but only on Magistrate’s Court scale, due to the amount claimed.
Order
[30] Accordingly, the following order is made:
1. Summary judgment is granted as follows:
a. The First Defendant must return 1 x W[...] with serial number
3[...] forthwith to the Plaintiff.
b. The Defendants are to pay the Plaintiff, jointly and severally,
the one paying the other to be absolved, the sum of
R79 516,00.
c. The amount in 1(b) shall bear interest at the prime interest
rate plus 6% per annum from 13 August 2024 to the date of
payment.
d. The Defendants are to pay the Plaintiff’s costs on the scale
as between attorney and client, such costs to be taxed on
the Magistrates’ Court scale.
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____________________________
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
17 March 2026
Date of judgment:
3 June 2026
For the applicant:
JG Botha instructed by ODBB
For the respondent:
RJN Brits (attorney) instructed by VR Law