IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: 2025-084166
In the matter between:
ANDREA GAFFE First Applicant
MARTINA ZANINELLI
and
Second Applicant
KRISTIAN KRISTENSEN
FORMENTI
First Respondent
WILLIE JAKOBUS VAN RENSBURG Second Respondent
Neutral citation: Andrea Gaffe & Another (Case no 2025-084166) [2026]
ZAWCHC (4 August 2026)
Coram: JUSTICE N MAYOSI
Heard: 3 August 2026
Delivered electronically: 4 August 2026
ORDER
1. The second respondent is ordered to pay the applicants the amount of
R17 600 000.00 together with interest thereon from date of judgment,
calculated at 2.5% per month until date of final payment.
2. The second respondent is ordered to pay the costs of this application on
the attorney and client scale , including the costs of two counsel where so
employed.
JUDGMENT
Mayosi J:
Introduction
[1] On or about 17 June 2023, the applicants, both acting personally, and
Culture Cares (Pty) Ltd ( Culture Cars ), duly represented by the first
respondent, concluded a written acknowledgement of debt in terms of
which Culture Cars acknowledged that it was indebted to the applicants
in the total amount of R12 million (the AOD).
[2] The further material terms of the AOD included the following:
[a] Culture Cars would repay the capital sum of R12 000 000.00 on 1
July 2024, in full and final settlement.
[b] Culture Cars would pay each of the applicants the sum of
R600 000.00 as interest every four months - on 1 November 202 3, 1
March 2024 and 1 July 2024.
[c] Should Culture Cars fail to perform any of its obligations and/or
commit an act or ground of insolvency , then the full outstanding balance
of the debt together with costs became immediately due and payable.
[d] Interest was defined as meaning the rate of 2.5% per month, in the
event of default and/or breach under the AOD.
[e] Costs were defined as all and any costs, collection commission,
including costs on the attorney and client scale, payable as a result of a
party breaching any term of the AOD.
[f] The AOD constituted the entire agreement between the parties
regarding the matters contained therein and no party was bound by any
undertakings, representations, warranties, promises or the like not
recorded therein.
[3] It was an express term of the AOD that the respondents both bound
themselves as surety and co -principal debtor in solidum for the
obligations to the applicants for the capital amount of R12 million as well
as the interest payable. It is not disputed that t he respondents appended
their signatures to the agreement and agreed to the terms of the written
suretyship contained therein.
[4] Culture Cars failed to make any payments under the agreement. It was
finally liquidated on or about 23 January 2025.
[5] On or about 1 November 2023, the first applicant received a payment in
the amount of R1 million, which the first respondent indicated must be
apportioned to the outstanding amount.
[6] In about June 2025 the applicants launched this application seeking as
against the respondents , jointly and severally t he one paying the other to
be absolved, an order for payment of the amount of R17 6000 000.00
together with interest calculated at 2.5% per month a tempore morae until
the date of final payment.
[7] The amount of R17 600 000.00 claimed consisted of the capital and
interest that remained due and payable to the applicants.
[8] The first respondent did not oppose the application and judgement was
granted against him on 4 August 2025.
[9] This hearing concerns only the claim against the second respondent.
[10] The execution of the AOD is not disputed by the second respondent . In
particular, the second respondent does not dispute his signature of the
AOD or his initials on each page thereof, nor does he dispute that the
document that he signed contained the suretyship clause relied upon by
the applicants. He also does not dispute the liability of Culture Cars (as
principal debtor) under the AOD.
[11] In his answering affidavit the second respondent raised what he termed as
preliminary defences in advancing his opposition to the claim:
[a] First, he contend ed that the agreement is void under the National
Credit Act 34 of 2005 (the NCA).
[b] Second, he contend ed that he should be released from his
suretyship on the b asis that the principal debtor’s obligations were
materially varied to his prejudice . This objection arose from another
agreement that was subsequently concluded between the first applicant
and the first respondent, which was unrelated to the second respondent.
[c] Third, he contend ed that the suretyship does not comply with the
formalities prescribed by section 6 of the General Law Amendment Act
50 of 1956 (the GLAA).
[12] The first and second preliminary defences were abandoned at the hearing.
The GLAA defence was persisted with . Furthermore, the heads of
argument raised two points in limine as well as two new defences that
were not previously fo regrounded in the second respondent’s answering
affidavit, which I shall address in the course of this judgment.
[13] I deal first with the points in limine.
The points in limine
[14] The applicants are Italian nationals. It appears from the features of the
founding affidavit that I describe hereunder that when the founding
affidavit was deposed to by the first applicant, he was in Italy.
[15] The affidavit is signed by the first applicant, and the signature of the
notary before whom the first applicant signed the affidavit appears under
the attestation and space designated for the commissioner of oath s’
signature. There is no signature on this space. What also appears under
the attestation clause is a notarial certificate of authentication executed in
Verona by notary Gabriele Noto ; and the apostille that appears at the end
of the founding papers authenticates the notary.
[16] The second respondent contends that the document said be a f ounding
affidavit is not an affidavit, with the result that the re is no evidence in
support of the notice of motion, and the application is not properly before
the court.
[17] The second respondent’s main complaint s about the founding affidavit
are that:
[a] The attestation clause is blank . It reads: “which was signed and
sworn to before me at_____on this the___day of May 2025…” No place
is inserted; and no date is inserted.
[b] No commissioner of oaths has signed in the space designated
therefor.
[18] Section 8(1) of the Justices of the Peace and Comm issioner of Oaths Act
16 of 1963 ( the Act) empowers the Minister to declare the holder of any
office in any country outside the Republic to have the power to
administer an oath.
[19] Section 8(2) of the Act directs that such person shall “authenticate the
affidavit or declaration in question by affixing thereto the seal or
impressing thereon the stamp used by him in connection with his office
or, i f he possesses no such seal or stamp , certifying thereon under his
signature to that effect.”
[20] The regulations promulgated pursuant to section 8 (1) are contained under
GN R1872 of 1980 (the Regulations). The y expressly provide that “any
person who exercises in a state to which independence has been granted
by law a legal profession equivalent to that of an attorney, notary or
conveyancer in the Republic” is accorded the powers conferred upon a
commissioner of oaths by section 7 of the Act.
[21] In Africa’s Best Foods (Pty) Ltd v ED Food s SRL1 the Full Court
recently commented as follows in respect of these provisions:
“[21] Section 8(1)(a) of the Act empowers the Minister to declare by notice in
the Government Gazette that ‘the holder of any office in any country outside
the republic shall in the country in which or at the place at which he holds
such office, have the powers conferre d by section seven upon a commissioner
of oaths…’ The Minister designated, inter alia, the following persons with the
powers conferred by s 7 upon a commissioner of oaths: ‘Any person who
exercises in a state to which independence has been granted by law a legal
profession equivalent to that of an attorney , notary or conveyancer in the
Republic.’ Thus, for example, a qualified notary or attorney in Italy has the
powers of a commissioner of oaths for South Africa in that country. Once such
legal professional in the foreign country administers the oath in such country,
i.e., outside of SA, he is required in terms of s 8(2) to ‘authenticate the
affidavit or declaration in question by affixing thereto the seal or impressing
thereon the stamp used by him in connection with his office or, if he posse sses
no such seal or stamp, certifying thereon under his signature to th at effect.’
Any affidavit made before such professional in the foreign country and
authenticated in accordance with the provisions of s 8 (2) is admissible as
evidence in SA on its mere production in terms of s 8(3) and ‘ shall be as
effectual as if made in the Republic before a commissioner of oaths.’
[22] It is acce pted by the second respondent, correctly so, that in
circumstances such as the present where an affidavit is, on the face of it,
non-compliant in one or other respect with the Act and Regulations, this
Court retains a discretion to condone that non-compliance where the
interests of justice so require and where no prejudice results. This
accords with what the Full Court stated in Africa’s Best Foods:2
accords with what the Full Court stated in Africa’s Best Foods:2
‘[35] Courts have consistently recognised th at judges regula rly exercise a
discretion to condone non -compliance if there is substantial compliance with
the regula tions. The discretion is not unfettered, but must be exercised
1 2026 (3) SA 151 (GJ)
2 Supra
judicially upon a consideration of the facts of each case. As Goosen J put it in
Briedenhann, in para 56, ‘ the discretion with which I am vested must be
exercised judicially, upon consideration of all the releva nt facts and in t he
interests of justice .’ It is for the cour t, after considering the totality of the
evidence, to determine whether, as a fact, substantial compliance with the
regulations is proved.
[23] I am satisfied that in this case , the founding affidavit is substantially
compliant with the Act and the regulations , and accordingly that this is a
proper case for the condonation of the non -compliances that are relied
upon by the second respondent. As appears from the founding affidavit, a
qualified notary in Verona, Italy, who has the powers of a commissioner
of oaths in terms of section 8(2) of the Act read with the Regulations, has
administered the oath and authenticated the affidavit by affixing thereto
their seal, or impressing thereon the stamp used by them in connection
with their office. In attesting the signature, the notary confirms the name
of the first applicant; that the latter appeared before them and affixed the
signature in their presence. The notary then signed the affidavit below
the attestation clause, clearly indicating that the oath was administered ,
and the affidavit was properly authenticated as required.
[24] Furthermore, there is no prejudice to the second respondent resulting
from the condonation of the non -compliances in the founding affidavit.
None is alleged by the second respondent. The interests of justice
support the condonation of the non-compliances in the founding affidavit.
[25] The second point in limine raised is that there is no confirmatory or other
affidavit from the second applicant. It is said therefore that the second
applicant has adduced no evidence; the claims advanced by the applicants
are several and the second applicant’s claim therefore is not properly
before the Court.
[26] There is no merit to this point.
[27] The first applicant deposed to the founding affidavit and gave evidence
on behalf of the applicants in support of their claim. His authority to do
so has never been challenged, no r has his statement that the facts
contained in his affidavit are within his own knowledge and belief.
[28] The applicants are life partners . There is no basis for suggesting that the
first applicant does not know the material facts – which are essentially the
execution of the AOD (which is admitted ) and the second respondent’s
failure to pay in relation to which the second respondent ha s advanced no
allegations to discharge the onus that rests on him to establish payment.
Consequently, the absence of a confirmatory affidavit by the second
applicant is of no moment. The material facts are essentially admitted by
the second respondent.
The suretyship does not comply with the GLAA
[29] Section 6 of the GLAA requires that the terms of a contract of suretyship
be embodied in a written document signed by or on behalf of the surety.
[30] This requires , as held in Sapirstein and Others v Anglo African
Shipping Co (SA) Ltd,3 by Trengove AJA, that:
“…the identity of the creditor, of the surety and of the principal debtor, and
the nature and amount of the principal debt, must be capable of ascertainment
by reference to the provi sions of the written document, supplemented, if
necessary, by extrinsic evidence of identification other than evidence by the
parties (namely the creditor and the surety) as to their negotiations and
consensus.”
3 1978 (4) SA 1 (A)
[31] The second respondent contends that there is no valid suretyship binding
on him because the AOD does not comply with section 6 of the GLAA in
the following respects:
[a] The capacity in which he is alleged to have signed it is ambiguous;
[b] The AOD does not clearly or with certainty record the essential
terms of the suretyship; and
[c] The document is further tainted by defects of form and substance.
[32] An examination of the AOD itself reveals that t here is no foundation for
the contentions.
[33] The suretyship is contained in a specific clause in the AOD, which reads
as follows:
“SURETYSHIP/SPECIAL CONDITION
Kristian Formenti, Willie Van Rensburg and Mark Smith binds themselves as
surety and as principle debtor in s olidium for the obligation to the Creditor for
the capital amount of R12 000 000.00 (Twleve million rand) and well as the
Interest payable.”
[34] The identity of the surety, the nature and the amount of the principal debt
are plainly express terms, capable of ascertainment. So too i s the
principal debt, the interest rate, the principal debtor and the creditor, all of
which were expressly defined in the AOD.
[35] The second respondent is expressly mentioned by name as a surety, and
his identity number is included in the signature page. He is clearly
identified as the surety . He then signed the document. He does not
dispute that he appended his signature to the AOD. In doing so, he
plainly and voluntarily accepted those terms and he places no evidence
before this Court to the contrary.
[36] Pertinently, the second respondent does not allege: (1) that he did not sign
the document in his capacity as surety; or (2) that the AOD does not in its
explicit terms contain a suretyship by him; or (3) that he was under any
misapprehension as to the existence of the suretyship clause or its terms
at the time he signed and initialled the document ; or (4) that there was
any iustus error on his part in signing the document.
[37] There is no ambiguity in the capacity in which the second respondent
signed the AOD , for all of the above reasons and also because the
principal debtor was represented by the first respondent in the agreement ,
and not by him . In all of these circumstances the suretyship is clearly
valid and complies with the GLAA.
The quantum is not ascertainable on the papers
[38] In the answering affidavit the second respondent contends that the
amount claimed is inflated and fails to credit payments made; and that the
interest charged is usurious, contrary to public policy and contrary to the
in duplum rule. The second respondent merely advances these allegations
as conclusions, without any facts to support them.
[39] The interest has not exceeded the capital and accordingly does not
infringe the in duplum rule.
[40] As to the amount claimed, it is not in dispute that R12 000 000.00 was
advanced to Culture Cars and that only R1 000 000.00 was repaid. In the
founding affidavit the first applicant explains that the amount of
R17 600 000.00 claimed is made up as follows: R12 000 000.00 (capital)
plus R3 600 000.00 (interest) plus R3 000 000.00 (monthly inter est of
R300 000.00, being 2.5% of R12 000 000.00, for the 10-month period of
1 July 2024 to 1 May 2025) less the R1 000 000.00 received on or about
1 November 2023.
[41] It is also not in dispute that the interest rate was agreed at 2.5% per
month. The second respondent simply makes the conclusion that the
amount is inflated without setting out the reasons why that is so.
[42] To put th e issue of the quantum claimed beyond doubt, a professional
accountant Mr Albertus G eldenhys filed an affidavit confirming that the
method of calcu lation set out in the founding affidavit was correct. He
stated that when he applied the same method of calcu lation, he came to a
higher figure , i.e., R18 250 000.00, attributable to the capi talisation of
interest accrued during the ter m of the loan at the expiry of its term,
before the commencement of the running of t he additional int erest upon
breach of the AOD. This accounted for the R650 000.00 difference
between the two amounts. However, the applicants waived this portion of
interest and in light of that, he c onfirmed that the amount claimed by the
applicants was correct.
[43] The second respondent advances no evidence as to the basis for arguing
that the interest is unconscionable, usurious or contrary to public policy.
The interest rate in this matter was agreed to be in the amount of 2.5% per
month. It is a commercially sound practice to charge interest in
circumstances where large sums have be en advanced and no repayments
have been made, as is the case under the AOD.
[44] The second respondent furthermore contends that as the AOD does not
provide for a certificate of indebtedness , the applicants must prove his
indebtedness to them by admissible evidence. But this goes against the
principle in Chemfos4 that an acknowledgement of debt, provided it is
coupled with an express or implied undertaking to pay that debt, gives
rise to an obligation in terms of that undertaking when it is accepted by
the creditor. The AOD is such an acknowledgement of debt. It is
sufficient proof the second respondent’s indebtedness.
Conclusion
[45] None of the defences raised by the second respondent on the merits are
sustainable.
[46] In the circumstances, I make the following order:
[a] The second respondent is ordered to pay the applicants the
amount of R17 600 000.00 together with interest thereon from date of
judgment, calculated at 2.5% per month until date of final payment.
[b] The second respondent is ordered to pay the costs of this
application on the attorney and client scale, including the costs of two
counsel where so employed.
_____________________________
N T MAYOSI
JUDGE OF THE HIGH COURT
4 Chemfos Ltd v Plaasfosfaat (Pty) Ltd 1985 (3) 106 (AD), at 102C- D
Appearances
For applicant: Adv JG Dickerson SC
Adv D Robertson
Instructed by: Werksmans
For respondent: Adv Paul Tredoux
Instructed by: JMB Gillian Attorneys