IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION , PRETORIA)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
...... 28 May 2026 ........ .
DATE
······~···
SIGNATURE
In the matter between:
FIRSTRAND BANK LIMITED t/a
FIRST NATIONAL BANK
(Registration No: 1929/001225/06)
and
HAPPY STEVEN MAKHONGELA
ZONKE CHARITY NTOMBELA
EDUARDO PEREGRINO CASTRO
LERATO CONFIDENCE THAELE
CECILIA CASTRO
Case No: 28771/2022
Plaintiff/ Applicant
1st Defendant/Respondent
2nd Defendant/Respondent
3rd Defendant
4th Defendant/Respondent
5th Defendant
This order is made an Order of Court by the Judge whose name is reflected
herein, duly stamped by the Registrar of the Court and is submitted
electronically to the Parties/their legal representatives by e-mail. This Order is
further uploaded to the electronic file of this matter on Case Lines by the Judge
or his/her secretary. The date of this Order is deemed to be 28 May 2026.
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JUDGMENT
DU PLESSIS, AJ
INTRODUCTION
1.
1.1. Two interlocking applications for summary judgment, brought under
case number 28771/2022 by FirstRand Bank Limited trading as First
National Bank (“the plaintiff” or “the Bank”), came before me for
argument on 27 May 2026. The first is an application again st the
fourth defendant, Ms Lerato Confidence Thaele, served on 20
March 2024. The second is a subsequent application against the
first defendant, Mr Happy Steven Makhongela, and the second
defendant, Ms Zonke Charity Ntombela, served on 14 February
2025. The two applications were enrolled and argued together. They
raise overlapping legal questions and it is convenient to dispose of
them in a single judgment.
1.2. Default judgment was granted by this Court on 26 May 2025 against
the third defendant, Mr Eduardo Peregrino Castro, and the fifth
defendant, Ms Cecilia Castro, who did not deliver notices of intention
to defend or pleas. They did not appear before me, and nothing in
this judgment disturbs that order.
1.3. At the hearing the plaintiff was represented by Adv R van Dyk. The
first, second and fourth defendants were represented by Adv N
Gaffoor. Comprehensive heads of argument were filed by both
sides, together with their respective lists of authorities and a jo int
practice note. I am grateful to both counsel for the considerable
assistance they rendered, both in writing and in oral argument.
1.4. For convenience, where the context permits, I refer to the parties by
their designations in the main action — “the plaintiff” and “the first,
second, and fourth defendants ” — notwithstanding that in the
summary judgment applications they are technically the applicant
and the respondents respectively.
THE CLAIMS
2.
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2.1. The plaintiff’s claims arise from two written credit agreements
concluded between it and Setoil (Pty) Ltd (registration number
2004/020592/07) (“the principal debtor”), supported by suretyships
signed by each of the defendants. The relief sought against the first,
second and fourth defendants, jointly and severally with the third
and fifth defendants, the one paying the others to be absolved, is:
Claim 1 (Overdraft):
2.1.1. Payment of R1 145 358.26;
2.1.2. Interest thereon at the rate of prime plus 5.00%
calculated daily on the outstanding balance and
capitalised monthly in arrears from 1 February 2022 to
date of final payment; and
2.1.3. Costs of suit on the attorney-and-client scale.
Claim 2 (Loan):
2.1.4. Payment of R67 214.78;
2.1.5. Interest thereon at the rate of prime plus 7.00%
calculated daily on the outstanding balance and
capitalised monthly in arrears from 1 February 2022 to
date of final payment; and
2.1.6. Costs of suit on the attorney-and-client scale.
2.2. The first agreement is a Short -Term Direct Facility (an overdraft,)
concluded on or about 27 June 2019 at Northcliff, with a facility limit
of R1 000 000.00, repayable on demand and subject to annual
review. The second is a Revolving Loan Agreement conclud ed on
or about 30 May 2017 at Johannesburg. Both are admittedly large
agreements with a juristic person and accordingly fall outside the
ambit of the National Credit Act 34 of 2005 (“the NCA”) in terms of
section 4(1)(b) read with the relevant ministerial determination.
2.3. The suretyships ( as annexed to the particulars of claim) were
signed on different dates: the fourth defendant on 27 November
2015 ;the second defendant on 27 November 2015 ; and the first
defendant on 23 August 2018. All bind the relevant defendants as
sureties and co -principal debtors, in solidum, for the indebtedness
of the principal debtor to the plaintiff. The amount secured is
unlimited, and each suretyship is expressly described as continuing
unlimited, and each suretyship is expressly described as continuing
security for present and future debts of the principal debtor.
COMMON CAUSE FACTS
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3.
Although the affidavits resisting summary judgment contain numerous pleas of
“no knowledge”, much is common cause when the pleadings and the opposing
affidavits are read together. Each of the following is either expressly admitted
or is not put in issue on any meaningful basis: the identity of the parties, the
registration of the plaintiff as a credit provider, and the jurisdiction of this Court;
that the first, second and fourth defendants signed their respective written
suretyships; that the principal debtor was placed under voluntary liquidation, as
evidenced by the CIPC certificate annexed as “SJ4”, and that upon liquidation
the outstanding amounts under the credit facilities became immediately due,
owing and payable; that the NCA does not apply to the underlying credit
agreements; that letters of demand were properly dispatched ;that the amounts
claimed are liquidated and supported by certificates of balance signed by an
authorised official of the plaintiff ; and that the procedural chronology pleaded
by the plaintiff is correct.
THE LEGAL FRAMEWORK
4.
Summary judgment under the amended Rule 32
4.1. Rule 32 of the Uniform Rules of Court was substantively amended
with effect from 1 July 2019. Under the amended rule, a plaintiff may
apply for summary judgment only after a plea has been delivered.
The supporting affidavit must verify the cause of action and the
amount claimed, identify any point of law relied on and the facts on
which the claim is based, and explain briefly why the pleaded
defence does not raise an issue for trial. The defendant resisting
summary judgment must satisfy the Court by affidavit that there is a
bona fide defence to the action, by disclosing fully the nature and
grounds of the defence and the material facts relied upon.
4.2. The locus classicus on the standard to be met by a defendant’s
opposing affidavit is Maharaj v Barclays National Bank Ltd 1976 (1)
SA 418 (A), which is at the head of each side’s list of authorities.
SA 418 (A), which is at the head of each side’s list of authorities.
Corbett JA, as he then was, said at 426B –C that the enquiry is
whether the defendant has “fully” disclosed the nature and grounds
of the defence and the material facts upon which it is founded, and
whether on the facts so disclosed the defendant appears to have,
as to the whole or part of the claim, a defence which is both bona
fide and good in law. If so, summary judgment must be refused,
either wholly or in part. The defendant need not deal exhaustively
with the facts and evidence, but must disclose the defence and the
material facts with sufficient particularity and completeness t o
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enable the Court to decide whether the affidavit discloses a bona
fide defence.
4.3. In Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint
Venture 2009 (5) SA 1 (SCA) at 11G –12D, cited by both counsel,
the Supreme Court of Appeal re -articulated the Maharaj test. The
rationale of the procedure is impeccable: it is not intended to deprive
a defendant who has a triable issue or a sustainable defence of his
or her day in court. Adv Gaffoor relied on this passage — and rightly
so — for the proposition that the C ourt must not, at this stage,
determine disputes of credibility or probabilities. I keep that
admonition steadily in mind.
4.4. The Supreme Court of Appeal added further guidance in NPGS
Protection and Security Services CC and Another v FirstRand Bank
Ltd [2019] ZASCA 94 at para [11], which is in the plaintiff’s list of
authorities and was relied on by Adv van Dyk. The Supreme Court
of Appeal there held, in the context of certificate -of-balance claims
by a bank, that an opposing affidavit must disclose ful ly the nature
and grounds of the defence and the material facts relied upon. A
defendant cannot content himself or herself with bald denials;
something more is required. If the defendant disputes the amount
claimed, he or she should say so and set out a factual basis for that
denial, for example by identifying payments which have not been
credited. That dictum bears directly on the present case, because
the amounts claimed by the Bank are evidenced by certificates of
balance and by detailed statements of account (annexure SJ3), and
none of the defendants attempts to dispute the figures in any factual
way.
4.5. Under the amended rule, the plaintiff is now required, in its
supporting affidavit, to engage with the content of the defendant’s
plea: see Tumileng Trading CC v National Security and Fire (Pty)
Ltd; E and D Security Systems CC v National Security and Fire (Pty)
Ltd 2020 (6) SA 624 (WCC) at paras [19]–[22], a judgment of Binns-
Ltd 2020 (6) SA 624 (WCC) at paras [19]–[22], a judgment of Binns-
Ward J. The plaintiff’s deponent, Ms Suneilla Williams, has done so.
Her affidavit traverses the plea at length, identifies the defences
raised, and explains why none of them, on the plaintiff’s case, raises
an issue for trial. The plaintiff has crossed its procedural threshold;
the question is whether the defendants have crossed theirs.
Suretyship principles
4.6. A contract of suretyship must, in terms of section 6 of the General
Law Amendment Act 50 of 1956, be embodied in a written document
signed by or on behalf of the surety. Within those formal confines it
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is to be construed strictly. In Standard Bank of South Africa v
Kyriacou and Others (16547/2022) [2024] ZAGPPHC 1190 (20
November 2024) at para [12], a judgment on which Adv van Dyk
relied, Ntlama-Makhanya AJ reaffirmed both the accessory nature
of a suretyship — that the liability of a surety is dependent upon the
obligation of the principal debtor — and the principle that a deed of
suretyship is to be construed strictly, so that it may not be extended
beyond what is expressed or covered by the intention and sense of
its words. A surety who has bound himself or herself as co-principal
debtor, in solidum, and who has renounced the usual benefits of
excussion, division and cession of action, is liable for the principal
debt jointly and severally with the principal debtor: Orkin Lingerie Co
(Pty) Ltd v Melamed & Hurwitz 1963 (1) SA 324 (W) at 326G –H,
also cited by Adv van Dyk.
4.7. The caveat subscriptor rule — that a person who signs a contractual
document is taken to have assented to its terms — is reflected in
George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A), which appears in
the plaintiff’s list of authorities. Adv Gaffoor, for her part, relies on
the qualification to that rule drawn from George v Fairmead at 470B–
E, as quoted at paragraph [2] of Brink v Humphries & Jewell (Pty)
Ltd 2005 (2) SA 419 (SCA): where a party trying to resile from a
contract has been led into error by the conduct, or the
misrepresentation (innocent or fraudulent), of the other party, the
first party is not bound. That is the doctrine of iustus error. I retu rn
to Brink when considering the defendants’ substantive defences
below.
4.8. Both counsel placed fuller lists of authorities before me than the
cases to which I have referred and shall refer in this judgment. I have
considered the other authorities in counsel’s lists but find it
unnecessary to deal with them individually.
THE APPLICATION AGAINST THE FOURTH DEFENDANT
5.
The defences raised
THE APPLICATION AGAINST THE FOURTH DEFENDANT
5.
The defences raised
5.1. The fourth defendant admits, at paragraph 1.2 of her plea, that she
signed the suretyship on 27 November 2015. She raises two
defences. First, she pleads that she signed the suretyship in her
capacity as a director of the principal debtor and not in her personal
capacity, with the result that the suretyship was in force only while
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she remained a director, and that her resignation as director on 14
March 2016 brought it to an end. She supports this with an allegation
that there was an “understanding” between her and the plaintiff that
she would be released as surety upon her resignation. Second, she
pleads ignorance of the overdraft (2019) and loan (2017)
agreements, contending that they were concluded after she had cut
ties with the principal debtor and that she cannot be held liable for
agreements of which she had no knowledge.
The terms of the 2015 suretyship
5.2. These defences must be measured against the suretyship she
admittedly signed. Clause 2 records that she would be liable for all
“direct, indirect, contingent and accessory liabilities” of the principal
debtor, that the suretyship would apply whether the debt or liability
had matured or not, and that it would be “ continuous cover”, not
reducing or lapsing by reason of cancellation, variation, novation or
temporary discharge of any underlying facility. Clause 19, headed
“Release”, expressly provides that she would not be released from
her obligations to FRB under the suretyship otherwise than as
provided by law, and that her obligations would continue
notwithstanding events such as death, insolvency, liquidation or
business rescue.
5.3. Three features of the suretyship are decisive. First, there is no
mention of the fourth defendant’s capacity, nor any link between the
suretyship and her appointment as a director: a circumstance that is
determinative on the strict approach to construction reaffirmed in
Standard Bank v Kyriacou (supra) at para [12]. Second, the
suretyship secures the principal debtor’s present and future
indebtedness, without limit. Third, the only contemplated form of
release is one effected in writing by the plaintiff.
The resignation defence
5.4. The fourth defendant’s contention that her resignation as director
terminated the suretyship is not supported by the document. It is
terminated the suretyship is not supported by the document. It is
also wrong in law. A suretyship is a separate, accessory contract
between the surety and the creditor. Its endurance is determined by
its own terms, not by extraneous events affecting the surety’s
position with the principal debtor, unless the suretyship itself so
provides. The suretyship before me does not so provide. It does the
opposite: it expressly states that release requires a written act of the
plaintiff.
5.5. The alleged “ understanding” that she would be released on
resignation fares no better. It is pleaded without particularity: she
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does not say with whom, when, where or on what terms such
understanding was reached, nor does she allege that any such
agreement was reduced to writing as her suretyship requires. The
suretyship itself answers the averment: clause 19 records that she
would not be released otherwise than by a written act of the Bank,
and the deed provides that any variation must likewise be in writing
and signed. On her own version no written release was issued. The
defence, considered with the particularity demanded by Maha raj at
426B–C, does not raise a triable issue.
The “ignorance” defence
5.6. The submission that the fourth defendant cannot be liable because
the overdraft and loan agreements were concluded after she had
cut ties with the principal debtor mistakes the nature of a continuing
suretyship. The very purpose of such an instrument is to bind the
surety in respect of debts the principal debtor may incur in the future.
The Bank was contractually entitled to advance fresh credit on the
strength of an existing suretyship that had not been formally
released, and was not obliged to obtain furt her consent from the
surety for each new facility. Because the suretyship covers all
present and future indebtedness, the dates of the underlying credit
agreements are not material to the fourth defendant’s liability.
5.7. I conclude that neither defence raised by the fourth defendant is
bona fide or good in law. The plaintiff is entitled to summary
judgment against her.
THE APPLICATION AGAINST THE FIRST AND SECOND DEFENDANTS
6.
Overview of the defences
6.1. Adv Gaffoor advanced the defences of the first and second
defendants under five interlinked heads, drawing on a coherent
body of authorities listed in her heads of argument:
6.1.1. the timing of the suretyships in relation to the underlying
credit agreements (paras 9–15 of the defendants’ heads
of argument);
6.1.2. iustus error and absence of informed consent (paras 16–
23), relying principally on Brink v Humphries & Jewell
23), relying principally on Brink v Humphries & Jewell
(Pty) Ltd 2005 (2) SA 419 (SCA) and George v Fairmead
(Pty) Ltd 1958 (2) SA 465 (A) at 470B–E;
6.1.3. misrepresentation and non -disclosure (paras 24 –27),
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relying on Broughton v Safintra Cape (Pty) Ltd [2012]
ZAWCHC 345 and Absa Bank Ltd v Lowting and Others
[2013] ZAGPPHC 265;
6.1.4. the B -BBEE “ fronting” arrangement (paras 28 –34),
relying on Electronic Mining Supplies CC v Mabelane
N.O and Another [2018] ZAGPPHC 648 and Dlamini Inc
v Transnet SOC Ltd and Others [2022] ZAGPJHC 409,
read with the Broad -Based Black Economic
Empowerment Act 53 of 2003; and
6.1.5. undue influence and inequality of bargaining power
(paras 35–39), relying on Standard Bank of South Africa
Limited v McCrae [2016] ZAGPJHC 334 and Fritzsche v
Booysen [2021] ZAWCHC 16.
6.2. I treat each strand in turn. Before I do, I record what appears to be
a material concession in the first defendant’s opposing affidavit. At
paragraph 22 of that affidavit, in answer to paragraphs 13.1 to 14.3
of the plaintiff’s supporting affidavit — which set out the breach of
the overdraft and loan, the cancellation and acceleration thereof,
and the resulting indebtedness of the principal debtor in the amounts
claimed — the first defendant states: “S ave to deny that I failed to
make payment of the arrears, the rest of the contents contained here
are admitted.” On any reasonable reading, that is an admission of
the principal debtor’s breach, of the lawful cancellation and
acceleration of the agreements, and of the indebtedness in the sums
of R1 145 358.26 and R67 214.78 respectively. The principle in
Maharaj ( at 426B –C) is engaged: a defendant who admits the
material facts on which the cause of action rests cannot thereafter
sustain a bona fide defence to the merits of that cause of action.
6.3. I also record that no affidavit at all has been deposed to by the
second defendant. The opposing affidavit was deposed to by the
first defendant alone. Whatever he says about matters peculiar to
the second defendant — her state of mind at signature, the pressure
allegedly applied to her, what she did or did not understand — is
allegedly applied to her, what she did or did not understand — is
hearsay and inadmissible against the plaintiff. To the extent that the
second defendant’s defences depend on her own evidence, they are
not properly before me.
The timing of the suretyships
6.4. Adv Gaffoor began her oral submissions — echoing paras 9–15 of
her heads — with the chronology. She submitted that the
suretyships were signed in November 2015 (the second defendant),
and August 2018 (the first defendant), while the principal credit
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agreements were concluded in May 2017 (the loan) and June 2019
(the overdraft) by other directors. From this she invited me to
conclude that the first and second defendants neither negotiated nor
participated in those principal facilities, did not understand that they
could be saddled with future indebtedness, and did not give
informed consent to a continuing suretyship of indefinite scope.
6.5. The submission has some intuitive force, but it does not survive a
careful reading of the suretyship deeds themselves. A continuing
suretyship is, by definition, an undertaking given by a surety today
for debts that the principal debtor may contract tomorrow. That is the
very feature that makes it commercially useful. Both suretyships in
the present matter contain clauses (clauses 1 and 2) that are explicit
on the point: the surety binds himself or herself for the indebtedness
of the principal debtor as it now stands and as it may in future arise,
in unlimited amount, until released in writing by the Bank. The
signatories are advised, in the text of the deed itself, that the
obligations are burdensome and that legal advice should be sought
if there is any doubt. The temporal mismatch on which Adv Gaffoor
relies is not, therefore, a contradiction or an oddity: it is the design
feature of the security the Bank required and the defendants signed.
6.6. The defendants’ chronology argument therefore reduces, in
substance, to a contention that they did not, in 1915 or 2018,
appreciate what they were signing. That is not a temporal point at
all. It is the iustus error point, and I take it up under the next head.
Iustus error and Brink v Humphries
6.7. Adv Gaffoor’s principal substantive submission was that the first and
second defendants signed the suretyships under a material and
reasonable mistake as to their nature and effect. She invoked, at
paras 16 –22 of her heads, the leading authority of Brink v
Humphries & Jewell (Pty) Ltd 2005 (2) SA 419 (SCA). In that case
Humphries & Jewell (Pty) Ltd 2005 (2) SA 419 (SCA). In that case
the Supreme Court of Appeal held that a credit application form
which contained a personal suretyship clause buried among its
other terms constituted a “trap for the unwary”, and that the signatory
had been justifiably misled into believing that he was signing only a
credit application. Adv Gaffoor invited me to apply the same
approach here. She also drew my attention, at para 22 of her heads,
to the dictum quoted at paragraph [2] of Brink from George v
Fairmead (Pty) Ltd 1958 (2) SA 465 (A) at 470B–E, to the effect that
a party who has been led into error by the conduct or
misrepresentation (innocent or fraudulent) of the other party is not
bound.
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6.8. With respect, Brink is plainly distinguishable on its facts. The ratio of
Brink was that the credit application form was a “trap for the unwary”
because the suretyship clause was buried in the small print of what
otherwise presented as an ordinary credit application. There was, in
Brink, a misrepresentation by silence: the document held itself out
as one kind of instrument, while in fact it conta ined another. The
deeds before me are not of that character. Each suretyship is a
stand-alone document on FRB letterhead, prominently and
exclusively headed “ SURETYSHIP”. There is no other transaction
embedded in the document. The text immediately above the
signature space records, in plain language, that the signatory binds
himself or herself as surety and co -principal debtor for the principal
debtor’s obligations to FRB. There is no plausible “ trap” in a stand-
alone deed which says, on its face, that it is a suretyship and nothing
else.
6.9. The iustus error doctrine, as recorded in the George v Fairmead
passage at 470B –E on which Adv Gaffoor relied, requires that the
mistake have been induced by the conduct of the other party to the
contract — that is, the contract-enforcer. In Brink the other party was
the creditor: it had drafted and presented the form said to be a trap,
and the dispute lay between that creditor and the surety. In the
present case, however, the defendants’ own pleaded version
(paragraph 20.2 of the plea and paragraphs 26.2 –26.5 of the
opposing affidavit) attributes the misrepresentation to the third
defendant, who is said to have placed them in their nominal
directorships in order to improve the principal debtor’s BBBEE
rating. A defence of iustus error against the Bank cannot rest on a
misrepresentation said to have been made by a co -defendant. The
defendants do not allege any conduct by the plaintiff that induced
them to misunderstand the suretyships, and that is fatal to reliance
on Brink.
them to misunderstand the suretyships, and that is fatal to reliance
on Brink.
6.10. There is, in addition, an internal inconsistency in the defendants’
version. They plead, on the one hand, that they were pressured into
signing without reading; and, on the other (paras 17 –18 of their
heads of argument), that they believed they were signing documents
in a representative or administrative capacity. The two propositions
cannot stand together: a person who signs unread cannot at the
same time say that he or she positively believed the document to be
something else.
Misrepresentation, non-disclosure, Broughton and Lowting
6.11. At paras 24 –27 of her heads, Adv Gaffoor advances the
misrepresentation/non-disclosure argument in slightly different
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dress, relying on Broughton v Safintra Cape (Pty) Ltd [2012]
ZAWCHC 345 and Absa Bank Ltd v Lowting and Others [2013]
ZAGPPHC 265. Broughton was an appeal in which the appellant,
who had signed a credit application form that included a suretyship
clause, sought to escape liability by relying on Brink. The Court
applied Brink but reached a different conclusion on t he facts: the
suretyship was upheld because, on the wording and layout of the
document, the clause was sufficiently brought home to the signatory
and he had had ample opportunity to read it. Broughton is therefore
an authority in which the Brink defence failed. It does not assist the
defendants. The same is true, with respect, of Lowting: to the extent
that it affirms that the surrounding circumstances are relevant where
signatories are instructed simply to sign, it does so within the
analytical framework of Brink, which (for the reasons already given)
is not engaged on the present facts.
The B-BBEE “fronting” argument
6.12. At paras 28–34 of her heads, Adv Gaffoor advanced the most novel
of the defendants’ submissions. She contended that the defendants
were used as nominal directors for the purpose of improving the
principal debtor’s B -BBEE rating; that this constitutes a “ fronting
practice” within the meaning of the Broad -Based Black Economic
Empowerment Act 53 of 2003; that the arrangement is contrary to
the public policy considerations underpinning that Act; and that the
suretyships, having been procured pursuant to that arrangement,
are accordingly unenforceable. She relied on Electronic Mining
Supplies CC v Mabelane N.O and Another [2018] ZAGPPHC 648
and Dlamini Inc v Transnet SOC Ltd and Others [2022] ZAGPJHC
409.
6.13. The submission requires careful analysis. Electronic Mining
Supplies and Dlamini Inc both deal with fronting in the context of the
regulation of B-BBEE compliance: the former is concerned with the
statutory definition of “fronting practice” and its consequences within
statutory definition of “fronting practice” and its consequences within
the B -BBEE regulatory framework; the latter with allegations of
fronting raised in the context of state procurement. Neither case
held, or could have held, that a person who has lent her name to a
fronting arrangement is thereby entitled to escape from contractual
obligations she has assumed towards a third -party creditor who
acted on the strength of her apparent status. The Broad -Based
Black Economic Empowerment Act 53 of 2003, on which Adv
Gaffoor relied, regulates and proscr ibes fronting practices and
attaches consequences to them; it does not, as a matter of
construction or of policy, supply a private-law shield to a person who
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has, on her own version, participated in the fronting alleged.
6.14. Indeed, the public policy considerations point the other way. If the
defendants’ case on fronting were accepted at face value, they
would be saying that they participated in a statutorily proscribed
deception of the broader commercial community in order to obtain
advantage for the principal debtor in its dealings, and they would be
asking this Court to disengage them from the consequences of the
very deception they helped to perpetrate. The plaintiff, on this
version, is in the position of a third party whi ch acted on the
appearance the defendants helped to create — directorships in a
company with an annual turnover of R20 million — and which the
defendants themselves rely on to bring the agreements outside the
NCA. A defendant cannot, in good conscience and consistently with
the maxim that one cannot benefit from one’s own wrong, claim the
benefit of the appearance and disclaim the burden that it carried.
6.15. The fronting argument is therefore not, on the authorities Adv
Gaffoor cited, a defence available to the alleged front against a third-
party creditor. It is, at best, an explanation for how the defendants
came to be in the position they are in; it is not a justification for
releasing them from the obligations they assumed.
Undue influence, McCrae and Fritzsche
6.16. Adv Gaffoor’s last substantive head (paras 35 –39 of her heads)
relied on Standard Bank of South Africa Limited v McCrae [2016]
ZAGPJHC 334 and Fritzsche v Booysen [2021] ZAWCHC 16 for the
proposition that the defendants signed under inequality of
bargaining power, implicit pressure from their employment
relationship, and the absence of informed and voluntary consent.
6.17. Both cases must be considered carefully, and neither, in my view,
assists the first and second defendants. McCrae was itself a
suretyship matter in which the surety raised defences of non -
disclosure, failure to explain the implications of the suretyship, a nd
disclosure, failure to explain the implications of the suretyship, a nd
duress and undue influence — defences materially indistinguishable
from those raised here. Those defences did not avail the surety: the
Court held the surety bound on the deed she had signed. McCrae is
therefore, with respect to Adv Gaffoor, an authorit y that tends
against the first and second defendants on the very questions of
non-disclosure, failure to explain, and undue influence on which she
relies. Fritzsche v Booysen is of a different character: it concerned
the setting aside of an agreement on the ground of undue influence
in a context of a close personal and fiduciary relationship between
the parties. It is not a suretyship matter. It does not establish a
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doctrine of undue influence applicable as between a bank and an
arm’s-length surety; nor do the defendants’ averments come close
to demonstrating the kind of dependency, vulnerability and abuse of
a relationship of trust that Fritzsche turned on.
6.18. More generally, the pleaded averment of “pressure” is impermissibly
bald. The defendants do not identify by whom they were pressured,
how, when, or in what manner. Such pleading is precisely what
Maharaj at 426 (and Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA
226 (T) at 229A and 229F–H, cited by Adv van Dyk) had in mind in
cautioning against “ vague, sketchy or laconic ” defences. The
defendant must condescend to particularity sufficient to enable the
Court to determine whether the defence, if proven at trial, would be
a good answer to the claim. The ipse dixit of “pressure” is not such
particularity.
The breach defence raised in the plea
6.19. Although it does not feature in the heads of argument, the
defendants’ plea (and the opposing affidavit at paragraphs 23.1 –
23.6) raises a further defence: that the plaintiff breached the
overdraft and loan agreements by releasing funds to the principal
debtor without first obtaining the additional collateral or fresh
suretyships required by clause 3 of the overdraft (“ COLLATERAL
COVER”) and by the conditions precedent in annexure A to the loan.
For completeness I deal with it briefly.
6.20. The clauses listed those persons whose suretyships were required:
Eduardo Peregrino Castro, Happy Steven Makhongela, Zonke
Charity Ntombela and Cecilia Castro. The difficulty for the
defendants is that the suretyships contemplated by clause 3 were
already in place at the time the relevant agreement was concluded.
The first defendant signed his suretyship on 23 August 2018 —
some ten months before the overdraft was concluded on 27 June
2019. The second defendant signed her suretyship on 27 November
2015 — long before either agreement. The third and fifth defendants
2015 — long before either agreement. The third and fifth defendants
are likewise on record as having bound themselves as continuous,
unlimited sureties The condition in clause 3 was met.
6.21. In any event, conditions of the kind in clause 3 of the overdraft and
in annexure A to the loan are imposed on the principal debtor for the
benefit of the Bank as creditor. They are not stipulations made in
favour of the sureties. A condition stipulated fo r the benefit of one
contracting party may be waived by that party. Even if the Bank had
advanced funds without insisting on every item listed (and it did not),
it would have been entitled to waive a stipulation in its own favour,
15
and that waiver would not constitute a breach of contract as against
the sureties, much less release them from suretyships which by their
terms are unlimited and continuous. Indeed, the loan’s special
conditions themselves record that the conditions precedent may be
“waived by FNB”. The breach defence therefore fails.
The special conditions in the loan (CaseLines 005 -5) and the position of each
surety
6.22. In oral argument I was referred specifically to the “special conditions”
in the loan agreement at CaseLines 005 -5 — the clause headed
“CONDITIONS PRECEDENT AND SECURITY TO BE PROVIDED”
— and to paragraphs 15.4 to 15.7 of the plaintiff’s supporting
affidavit, which answer the reliance the defendants place on it. The
clause provides that the borrower may not draw down the loan until
the listed conditions precedent have been fulfilled to the satisfaction
of FNB, or waived by FNB, within 90 days of signature, and that FNB
“must be provided with the following security ” — namely unlimited
suretyships by Eduardo P Castro, Lerato C Thaele, Zonke C
Ntombela and Cecilia Castro.
6.23. Three observations follow from a careful reading of that clause. First,
the security required for the loan was suretyships from four named
persons — the third, fourth, second and fifth defendants. The fourth
defendant (Lerato Thaele) is expressly named; th e first defendant
(Mr Makhongela) is not. Each of the four named persons had, by the
date the loan was concluded on 30 May 2017, already signed an
unlimited suretyship (the second, fourth and fifth defendants in
November 2015 and the third defendant likewi se). The condition
was therefore satisfied. Second, the clause is, in terms, a condition
for the benefit of FNB: it records what FNB “must be provided with”,
and it reserves to FNB the right to waive it. Third, even on the
defendants’ own reading, the clause was a stipulation imposed on
the borrower (the principal debtor), not a term conferring rights on
the borrower (the principal debtor), not a term conferring rights on
the sureties. For the reasons given above, none of thi s assists the
first and second defendants.
6.24. Paragraphs 15.4 to 15.7 of the plaintiff’s affidavit make precisely
these points, and I accept them. The submission that the Bank
breached the loan or overdraft by advancing funds without first
obtaining “ additional” security misreads the clause: the security it
called for was already in place. There was no breach, and
accordingly no question of the sureties being “released” by a breach.
I would add that clause 4 of the loan’s general terms (also at
CaseLines 005-5 and following), which defines the events of breach,
is concerned with breach by the client, guarantor or surety, not by
16
the Bank; it lends no support to the defendants’ contention either.
Whether the first and second defendants disclosed a sufficient factual matrix:
the Maharaj enquiry
6.25. Adv Gaffoor’s overarching submission, pressed again in oral
argument, was that the respondents had disclosed a detailed factual
matrix — they were employees, not genuine directors; they had no
idea what they were signing; they never participated in the run ning
of the company; they derived no benefit from it; and at least one of
them remained a director for only a year — and that this disclosure
is “ full” in the sense required by Maharaj at 426B –C, so that the
matter must go to trial. I have considered this submission with care,
because if it is correct it is dispositive in the respondents’ favour. In
my judgment it is not correct, for the following reasons.
6.26. First, and most importantly, the central factual premise of the
respondents’ matrix is directly contradicted by the documentary
record they themselves rely upon. The CIPC company search
annexed to the plaintiff’s affidavit as “SJ4” records that the first
respondent was appointed a director in June 2018 and resigned in
January 2020, and that the second respondent was appointed a
director in June 2014 and resigned in January 2020. On those dates
— which the respondents do not dispute — the first respondent was
a sitting director when he signed his suretyship (23 August 2018)
and when the overdraft was concluded (27 June 2019), and the
second respondent was a sitting director when she signed her
suretyship (27 November 2015), when the loan was concluded (30
May 2017), and when the overdraft was concluded (27 June 2019).
The contention in the heads of argument (paras 9 –15) that the
principal agreements were “concluded years later by other directors”
after the respondents had “ cut ties ” with the company is, on this
record, simply not so. The submission that the first respondent
“remained only a year ” is contradicted by SJ4, which reflects a
“remained only a year ” is contradicted by SJ4, which reflects a
tenure of approximately eighteen months on any view. A factual
matrix that is contradicted by the very documents on which the
defence relies is not a bona fide matrix; it is, in the language of
Maharaj at 426, one which entitles the Court to form the impression
that the deponent cannot or will not play open cards.
6.27. Secondly, the matrix is internally self -contradictory. The
respondents plead (plea paras 6.6–6.8) both that they were rushed
and not given time to read the documents, and that they positively
believed they were signing “a loan application” for the company. As
the plaintiff points out (affidavit paras 20.13 and 20.16), those two
propositions are mutually destructive: a person who signs without
17
reading cannot simultaneously assert a positive belief as to the
identifiable contents of the document. Where two mutually exclusive
versions are advanced under oath, the Court is not obliged to accept
the more favourable one merely because the matter is a t the
summary judgment stage; it is entitled to have regard to the inherent
improbabilities, as the Court did in S tandard Bank of South Africa
Limited v McCrae [2016] ZAGPJHC 334.
6.28. Thirdly, the matrix is, on analysis, immaterial to the cause of action.
The respondents’ liability arises from suretyships they admit signing,
not from their directorships. Whether they were “genuine” directors,
whether they participated in management, and whether they drew a
benefit, are questions that go to their relationship with the third
defendant and the principal debtor — not to the Bank’s contractual
rights under the suretyships. As to benefit, the respondents say they
received none; but a surety’s liability does not depend on the surety
having derived a personal benefit. A suretyship given without benefit
to the surety is no less binding for that. The absence of benefit is
therefore neither here nor there.
6.29. Fourthly, the suggestion that the third defendant “ handed the
papers” to the first and second respondents who then “ simply
signed” without understanding is not borne out by the documents.
Each suretyship is a discrete instrument, headed “ SURETYSHIP”,
opening with a bolded warning that the document “ contains
IMPORTANT LEGAL INFORMATION”, that “[t]he obligations on you
may be very burdensome ”, and that the signatory should not sign
and should obtain independent legal advice if in any doubt. That
warning appears, in terms, in the fourth defendant’s suretyship
(annexure A4) and in the like deeds of the others. A signatory who
signs a document b earing that express warning, having had the
opportunity to read it, cannot be heard to say that the creditor failed
opportunity to read it, cannot be heard to say that the creditor failed
to alert her to its nature: that is the very situation the caveat
subscriptor rule governs, and it is the feature that distinguishes this
case from Brink, where the suretyship was concealed within a credit-
application form bearing no such warning. As to the allegation (plea
para 6.12, repeated at opposing affidavit para 28.3) that “the Plaintiff
together with the 3rd Defendant pressured ” the respondents, it is
unsupported by any primary fact: the respondents do not say which
official of the Bank was present, what was said, or how the Bank
participated in any pressure. The averment is the kind of bald
conclusion that Maharaj and Breitenba ch ( supra) hold to be
insufficient.
6.30. Fifthly and finally, the respondents’ own pleadings concede the
18
matters that matter. The second respondent admits (in her plea at
paras 13, 15 and 20.1) the procedural chronology, the common -
cause facts at paragraphs 9.1–10.2.1 of the affidavit, and — critically
— that “the authenticity and usage of the loan agreement and the
overdraft are not in dispute ”, while at para 14 she admits that the
sums claimed are liquidated. The first respondent, for his part,
makes the admission already discussed above. A defendant who
concedes the authenticity and operation of the agreements, the
liquidity of the amounts, a nd (in the first respondent’s case) the
indebtedness itself, and who simultaneously pleads “no knowledge”
of those very agreements, has not disclosed a bona fide defence
within the meaning of Maharaj. The disclosure is neither “ full” nor
genuine; it is contradictory and, in material respects, contradicted by
the record.
The alternative pro rata defence and the position of the fourth defendant
6.31. Both the first and second defendants (plea para 6.17) and the fourth
defendant (plea para 8) plead, in the alternative, that they are liable
only for a pro rata share. The fourth defendant’s plea puts it in terms:
“[a]lternatively and only in the event that the above Honourable
Court dismisses the defence above, then the 4th Defendant pleads
that [she] is only liable to the Plaintiff her pro rata share .” I raised
with counsel whether this might suggest that the fourth defendant
could be only pro rata liable. In my judgment it cannot, for two
reasons.
6.32. First, the pro rata plea is self -contradictory when set beside the
principal defence. The respondents’ principal case is that they are
not bound at all — because (they say) the suretyships lapsed on
resignation, or were vitiated by mistake, or are unenforc eable as
products of fronting. But one cannot divide a liability one denies. To
plead, even in the alternative, that one is liable for a pro rata share
is to concede that one is bound as a surety; the only question such
is to concede that one is bound as a surety; the only question such
a plea raises is the extent of the l iability, not its existence. The
alternative plea thus undercuts the primary defence.
6.33. Secondly, and decisively, the pro rata contention is bad in law on
the terms of these deeds. Each defendant bound himself or herself
as surety and co -principal debtor, in solidum, and expressly
renounced the benefit of division (beneficium divisionis). The effect
of a renunciation of the benefit of division is precisely that the
creditor may recover the whole debt from any one co-surety, leaving
that surety to pursue contribution from the others. The right of
contribution between co -sureties is a separate matter inter se; it
does not qualify the creditor’s entitlement. The fourth defendant is
19
accordingly liable for the full amount, jointly and severally with the
others, and not merely for a pro rata share. There is therefore no
triable issue as to the extent of her liability either.
Conclusion on the first, second and fourth defendants
6.34. Taking the defences raised by the first, second and fourth
defendants individually and cumulatively, and giving Adv Gaffoor’s
careful submissions the weight they deserve, they do not meet the
threshold for resisting summary judgment. The respondents have
not disclosed a factual matrix that is full, genuine and material in the
sense required by Maharaj; on the contrary, the matrix advanced is
in critical respects contradicted by the documents they themselves
rely on, internally self -contradictory, immaterial to the cause of
action, and undercut by their own admissions and by their alternative
pro rata plea. The authorities on which Adv Gaffoor relies establish
principles that, on appropriate facts, would defeat a claim of this
kind; but those principles are n ot engaged on the facts disclosed
here. The plaintiff is entitled to summary judgment against the first,
second and fourth defendants.
THE AMOUNT, INTEREST AND CERTIFICATES OF BALANCE
7.
7.1. The plaintiff supports the amounts claimed by certificates of balance
signed by an authorised official of the Bank ,supplemented by
detailed statements of account (annexure SJ3). Each underlying
agreement provides that such a certificate constitutes prima facie
evidence of indebtedness. None of the defendants advances any
factual challenge to the figures. In the absence of such a challenge,
the certificates are sufficient to establish quantum for the purposes
of summary judgment: NPGS Protection and Security Services CC
v FirstRand Bank Ltd (supra) at para [11].
7.2. I note that in the plaintiff’s heads of argument the rate of interest
claimed on the overdraft is at one point recorded as “prime plus 7%”.
The declaration, the certificate of balance and the notice of motion
The declaration, the certificate of balance and the notice of motion
fix interest on the overdraft at prime plus 5.00%, calculated daily and
capitalised monthly, consistently with the underlying agreement.
The reference to prime plus 7% in the heads is a typographical error.
I grant relief in accordance with the contractually agreed rates: prime
plus 5.00% on the overdraft and prime plus 7.00% on the loan.
COSTS
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8.
The plaintiff seeks costs on the attorney-and-client scale. Each suretyship, and
each underlying credit agreement, contains a provision to that effect. Where
parties have contractually agreed to such a scale, the Court will generally give
effect to the agreement absent some good reason not to do so. No such reason
has been advanced. The first, second and fourth defendants have raised
defences which, viewed objectively against the test in Maharaj at 426B–C and
Joob Joob , are not bona fide . In those circumstances, even apart from the
contractual provision, costs on the attorney-and-client scale would in any event
be appropriate.
ORDER
9.
In the result I make the following order:
9.1. Summary judgment is granted in favour of the plaintiff against the
first defendant (Happy Steven Makhongela), the second defendant
(Zonke Charity Ntombela) and the fourth defendant (Lerato
Confidence Thaele), jointly and severally with the third defendant
(Eduardo Peregrino Castro) and the fifth defendant (Cecilia Castro),
the one paying the others to be absolved, as follows:
CLAIM 1 (OVERDRAFT):
9.1.1. Payment of the sum of R1 145 358.26;
9.1.2. Interest thereon at the rate of prime plus 5.00% per
annum, calculated daily on the outstanding balance and
capitalised monthly in arrears, from 1 February 2022 to
date of final payment; and
9.1.3. Costs of suit on the scale as between attorney and client.
CLAIM 2 (LOAN):
9.1.4. Payment of the sum of R67 214.78;
9.1.5. Interest thereon at the rate of prime plus 7.00% per
annum, calculated daily on the outstanding balance and
capitalised monthly in arrears, from 1 February 2022 to
date of final payment; and
9.1.6. Costs of suit on the scale as between attorney and client.
9.2. The default judgment granted on 26 May 2025 against the third and
fifth defendants remains undisturbed, and the orders in paragraph 1
above are made jointly and severally with that order, the one paying
the others to be absolved.
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DU PLESSIS, AJ
GAUTENG DIVISION, PRETORIA
APPEARANCES
For the Plaintiff:
Adv R van Dyk (Brooklyn Advocates ' Chambers)
Instructed by:
Schuler Heerschop Pienaar Xaba Inc, Roodepoort
For the First, Second and Fourth Defendants :
Adv N Gaffoor (Circle Chambers , Brooklyn)
Instructed by:
Ndzondo Kunene Mosea Inc, Boksburg ,
c/o Schoeman Attorneys , Centurion, Pretoria
Date of hearing:
Date of judgmen t:
27 May 2026
28 May 2026