SAFLII Note: Certain personal/private det ails of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Unreportable
Case no: 24550/2024
In the matter between:
AFGRI GRAIN MARKETING Applicant
a division of AFGRI AGRI SERVICES (PTY) LTD
(Registration No.: 1995/005872/07)
and
MARIA ELIZABETH DE VRIES N.O. First Respondent
(cited herein in her capacity as trustee of the BERG EN SEE
FAMILIE TRUST, I[...])
GERRIT DAWID DE VRIES N.O. Second Respondent
(cited herein in his capacity as trustee of the BERG EN SEE
FAMILIE TRUST, I[...])
MARIA ELIZABETH DE VRIES Third Respondent
GERRIT DAWID DE VRIES Fourth Respondent
DEON MARAIS N.O. Fifth Respondent
(cited herein in his capacity as trustee of the BERG EN SEE
FAMILIE TRUST, I[...])
Coram: LOUW AJ
Heard: 7 May 2026
Delivered: 7 September 2026
Summary: Summary Judgment – Rule 32 – Grain purchase agreement and
alleged suretyship – Agreement, suretyship, quantum and alleged
overpayment disputed – Correspondence relied upon as acknowledgement of
debt susceptible to differing interpretations – Supplementary explanatory
note creating further uncertainty regarding the calculation of the claim and
relief sought – Respondents disclosing bona fide defences and triable issues
– Summary judgment refused – Leave to defend granted – Costs on attorney
and client scale awarded against applicant.
ORDER
1 The application for summary judgment is refused.
2 The respondents are granted leave to defend the action.
3 The applicant shall pay the costs of the application for summary
judgment on an attorney and client scale, including the costs of
counsel on scale B, as taxed or agreed.
JUDGMENT
Louw AJ:
Introduction
[1] The applicant, Afri Grain Marketing, a division of Afgri Agri Services
(Pty) Ltd ( ‘the applicant’ and plaintiff in the main action ), seeks summary
judgment against all five respondents (defendants in the main action) ,
alternatively against the third and fourth respondents only, for payment of
R573 127.11, together with interest thereon at the rate of 11.75% per annum
from the date of mora until final payment, and costs of suit on the attorney
and client scale.
[2] The main proceedings concerns an alleged agreement in terms of
which the applicant agreed to purchase 9.188 metric tons of grain from the
Berg & See Familietrust ( ‘the Trust’). It also concerns a deed of suretyship
in terms of which the third and fourth respondents apparently bound
themselves in writing as sureties and co -principal debtors, jointly and
severally, for the due performance by the first , second and fifth respondents,
acting on behalf of the Trust, of their obligations arising from the agreement.
[3] The applicant alleges that it erroneously paid an amount of R515
585.25 to the Trust. It further alleges that a second payment of R61 089.31
was also made to the Trust in error and that, despite efforts to do so, the
applicant was unable to stop or reverse that payment. As a result, the
applicant seeks repayment of the total amount allegedly paid in error.
Factual background
[4] It is common cause that the Trust and the applicant engaged in
previous transactions involving the sale and delivery of grain. It is not,
however, common cause that the agreement relied upon by the applicant in
these proceedings was concluded between the parties, which issue remains
squarely in dispute.
[5] The applicants’ current claim arises from allegations that it overpaid
the Trust in the amounts of R5 15 585.35 and R61 809.31 , respectively,
pursuant to a grain supply transaction concluded with the Trust. The alleged
overpayments are founded upon a supply /sale agreement said to have been
concluded between the applicant and the Trust, the terms of which are
contained partly in a written agreement and partly in the applicant’s General
Terms and Conditions incorporated therein by reference. The applicant
further alleges that the third and fourth respondents bound themselves as
sureties and co-principal debtors for the obligations of the Trust arising from
the agreement.
[6] The sale agreement, titled ‘Bevestiging van Graan -Aankoop
(Gapingskontrak)’ relied upon by the applicant , is a grain sale agreement
dated 11 November 2022 and allegedly concluded on 5 December 2022
between the applicant and the Trust (‘sale agreement’).1 The sale agreement
reflects Mr Frikkie Barnard as the representative of the applicant, being the
purchaser, and bears his signature, which was appended at Moorreesburg on
5 December 2022. Mr Barnard’s name appears beneath his signature.
[7] The Trust is identified in the sale agreement as the seller. The sale
agreement also bears a signature purportedly appended on behalf of the
Trust at Tulbagh on 5 December 2022. However, no name appears beneath
that signature, and neither the agreement nor the papers before th is Court
contain a trust resolution or any other document identifying the signatory or
evidencing that person’s authority to act on behalf of the Trust. Furthermore,
the signature itself is illegible and does not permit the identity of the
signatory to be ascertained from the face of the document.
[8] The sale agreement contains a material term providing that, where the
seller is a trust, the signatories to the agreement bind themselves as sureties
and co -principal debtors, jointly and severally, for the due performance of
the seller’s obligations under the agreement. 2 No separate deed of suretyship
was concluded between the parties. Instead, the applicant relies on the sale
1 The Agreement is attached to the particulars of claim and marked annexure ‘POC1’ (see Court Index –
Main Application at 14-17).
2 See clause 12.5.2 of the agreement attached as ‘POC1’ to the particulars of claim (see Court Index – Main
Application at 15).
agreement itself, which incorporates by reference the document titled ‘Afgri
Grain’s General Terms and Conditions for the Purchase of Grain ’.3 The
applicant contends that the suretyship is contained in the sale agreement
itself and derives from the provisions of that agreement read with the
incorporated General Terms and Conditions for the Purchase of Grain.
[9] It is common cause that grain was delivered to various silos during the
relevant period. What is disputed, however, is the quantity of grain
delivered, the grain in respect of which payment was made, and whether the
deliveries correspond with the payments effected by the applicant. The
respondents further deny that the applicant overpaid the Trust and dispute
both the existence and extent of any indebtedness allegedly owing to the
applicant. They challenge the accuracy of the calculations relied upon by the
applicant and contend that the true position cannot be determined on the
papers. Accordingly, a dispute exists as to whether any amount is owing to
the applicant and, if so, the amount thereof and the factual basis upon which
it falls to be determined.
[10] The papers reveal a series of communications , particularly from
August to October 2023 , between Mr Frikkie Barnard, acting on behalf of
the applicant, and Mr Cill iè de Vries concerning the applicant’s allegation
that it had overpaid for grain. It is, however, unclear from the papers what
relationship Mr Cilliè de Vries bears to the Trust, as he is neither identified
as a trustee nor reflected as a signatory to any of the relevant agreements.
3 See Afgri Grain’s General Terms and Conditions for the Purchase of Grain attached as ‘POC2’ to the
particulars of claim (see Court Index – Main Application at 18-23).
[11] In an email dated 3 October 2023, Mr Cilliè de Vries and Mr Barnard
discussed the alleged overpayment. In his response, Mr Cilliè de Vries
indicated that the matter would have to be discussed with the Trust’s
accountant because tax (or VAT) had already been paid on the amount
received and any overpaid tax would likewise have to be refunded to the
Trust. He further stated that he did not presently have funds available to
repay the allegedly incorrect payments. Significantly, Mr De Vries referred
to the alleged ‘ erroneous’ payments using the Afrikaans word
‘foutiewelike’ in quotation marks. The applicant relies on this
correspondence as constituting an acknowledgement of indebtedness by the
Trust in respect of the alleged overpayment. The respondents, however,
dispute that interpretation and contend that the email does not amount to an
admission of liability. The meaning and effect of the correspondence, and in
particular whether it constitutes an acknowledgement of indebtedness on
behalf of the Trust, accordingly form part of the issues in dispute between
the parties.
[12] The respondents dispute a number of material aspects of the
applicant’s claim. They inter alia deny that the alleged grain purchase
agreement was concluded with the Trust and further dispute that the third
and fourth respondents bound themselves as sureties and co -principal
debtors. They deny that any payments were made in error, challenge the
alleged indebtedness, and oppose summary judgment.
Arguments before court
[13] Counsel for the respondents , Mr Smit, contends that the threshold for
obtaining summary judgment is a high one. The applicant is required to
demonstrate both that its claim is unimpeachable and that the respondents
have failed to disclose a bona fide defence or any issue fit for trial. Given the
nature of summary judgment as an extraordinary remedy, counsel submitted
that any genuine dispute of fact or sustainable defence must result in leave to
defend being granted.
[14] The respondents’ counsel argued that the applicant has fallen short of
meeting that standard. The respondents oppose the application on the basis
that they have disclosed several bona fide defences which raise triable issues
and render summary judgment inappropriate. First, the respondents deny that
the third and fourth respondents signed the agreement relied upon by the
applicant, whether in a representative capacity on behalf of the Trust or
otherwise, on 11 November 2022 or 5 December 2022 . On that basis, they
dispute that the agreement is binding upon any of the respondents.
[15] Counsel for the respondents submitted that their challenge to the
existence and authenticity of the agreement is founded on specific facts and
cannot be dismissed as a mere bare denial. In support of this contention,
reliance was placed on an email dated 4 April 2024 from the applicant ’s
contract administrator, Ms Danell Mostert, in which she requested that Mr
Cilliè de Vries sign and initial what she described as ‘this old contract ’
because the original had allegedly been lost. Counsel argued that this
correspondence is difficult to reconcile with the applicant ’s subsequent
reliance on a purportedly signed agreement attached to the summons and
raises a legitimate question as to the provenance and authenticity of the
document.
[16] The respondents further relied on discrepancies in the signature
attributed to Mr Barnard. Counsel for the respondents submitted that a
comparison of the signature appearing on the sale agreement relied upon by
the applicant, dated 5 December 2022 , with Mr Barnard’s known signature
contained in an earlier and different sale agreement concluded on 30 May
2022, reveals material differences in both form and appearance. 4 According
to counsel, the signatures do not readily appear to have been made by the
same person. This, it was argued, casts doubt not only on the authenticity of
Mr Barnard ’s signature but also on the authenticity of the agreement as a
whole and whether it was ever duly executed by the parties.
[17] The respondents ’ counsel argued that the applicant has failed to
identify with any certainty who signed the sale agreement on behalf of the
Trust. While alleging that the first and/or second respondents were the
signatories, the applicant does not positively identify the person who
executed the document. In those circumstances, it was submitted that the
respondents cannot be expected to explain or prove the authenticity of a
signature relied upon by the applicant. The onus remains on the applicant to
establish the authenticity and execution of the agreement.
[18] Accordingly, counsel for the respondents submitted that the existence,
authenticity and execution of the agreement are genuinely disputed issues .
4 See the sale agreement dated 30 May 2022, referred to in paragraph 28.12 of the opposing affidavit in the
summary judgment application and marked ‘DV4’ (Court Index to the Summary Judgment Application at
51-54). The agreement is not signed on behalf of the Trust.
These issues cannot properly be resolved on the papers and ought to be
determined at trial.
[19] Secondly, counsel for the respondents also submitted that the
applicant has failed to establish the existence of a valid and enforceable
suretyship. They argued that any alleged suretyship is dependent upon the
existence and validity of the underlying agreement, which is itself disputed.
In addition, while the applicant seeks to hold both the third and fourth
respondents liable as sureties, the agreement reflects only a single signature
on behalf of the Trust. The respondents’ counsel contended that the
applicant is unable to identify the purported signatory and has not stated who
allegedly bound himself or herself as surety. The respondents accordingly
deny that they signed any suretyship and dispute that the requirements of
section 6 of the General Law Amendment Act 50 of 1956 have been
satisfied. Section 6 requires a contract of suretyship to be embodied in a
written document and signed by or on behalf of the surety, failing which the
suretyship is invalid. It was further submitted that the applicant ’s reliance on
terms incorporated by reference is insufficient, particularly where the
General Terms and Conditions upon which the applicant relies are unsigned.
[20] The respondents ’ counsel also challenged the completeness of the
contractual documents relied upon by the applicant. It was submitted that the
document annexed as the General Terms and Conditions is incomplete and
disjointed, commencing and ending mid -clause and omitting material
provisions. As a result, the respondents contend that they are unable to
meaningfully ascertain or plead to the terms upon which the applicant relies.
Counsel argued that a defendant is required to answer the case as pleaded
and cannot be expected to reconstruct an incomplete contract from external
sources.
[21] The respondents’ counsel submitted that where the terms of a contract
are incomplete or disputed, such issues are generally unsuitable for
determination by way of summary judgment and should be ventilated at
trial.5 Accordingly, the respondents contended that both the existence and
enforceability of the alleged suretyship, as well as the contractual terms
upon which the applicant relies, raise bona fide and triable issues which
preclude the granting of summary judgment.
[22] Thirdly, the counsel for the respondents submitted that the applicant ’s
claim is founded upon the allegation that only 9.040 tons of wheat were
delivered, notwithstanding that payment was made for substantially larger
quantities. The respondents dispute this contention and maintain that the
Trust delivered significantly greater quantities of wheat during the relevant
period. In support of this defence, counsel referred to contemporaneous
correspondence from Mr Barnard which, according to the respondents, is
consistent with payment being made for wheat delivered and inconsistent
with the applicant ’s assertion that only 9.040 tons were received. The
respondents accordingly deny that the first payment constituted an
overpayment and contend that a genuine dispute exists regarding the
quantity of grain delivered and the value thereof.
[23] In relation to the second payment of R61 809.31, the respondents
admitted that the payment was received, but denied that it was made in error.
5 While relying on Delta Finance, a division of Wesbank, a division of FirstRand Bank Ltd v Opperman
(6744/2011) [2011] ZAWCHC 554 (9 December 2011) paras 12-14.
Their case is that the amount represented a residual SAFEX profit arising
from grain delivered by the Trust and was properly payable. The
respondents’ counsel submitted that the nature and purpose of this payment
are likewise disputed and raise a further factual issue incapable of resolution
on the papers.
[24] Counsel for the respondents further argued that the disputes regarding
the quantities delivered, the payments made, and the alleged overpayment
directly affect the quantification of the applicant’s claim. They contend that
the amounts claimed are disputed and that the applicant’s calculations are
challenged on several grounds.
[25] On that basis, counsel submitted that the applicant’s claim is not one
for a liquidated amount as contemplated by Rule 32. Counsel argued that the
quantification of the claim is dependent upon disputed facts concerning the
quantities of grain delivered, the payments made, and the basis upon which
any alleged overpayment was calculated. It was submitted that these disputes
extend to both liability and quantum and cannot properly be resolved on the
papers. Accordingly, the respondents contend that the matter raises bona fide
triable issues which ought to be determined at trial after the hearing of
evidence.
[26] Lastly, t he respondents dispute the applicant’s contention that the
correspondence between Mr Barnard and Mr Cilliè de Vries dated 3 October
2023 constituted an acknowledgement of debt by the Trust. Counsel
submitted that Mr Cilliè de Vries is neither a trustee of the Trust nor a party
to these proceedings and that any statements made by him cannot, without
more, bind the Trust. Counsel further argued that, properly construed and
read in context, the email does not amount to an admission of liability.
Instead, it reflects an attempt to investigate the applicant ’s allegations and
obtain further information. Reliance was also placed on subsequent
correspondence in which Mr Cilliè de Vries disputed the applicant ’s claim
and refused to sign a proposed acknowledgement of debt.
[27] In those circumstances, counsel submitted that the correspondence
does not constitute an acknowledgement of indebtedness and, at the very
least, raises a genuine dispute as to its meaning and effect. This, it was
argued, constitutes a bona fide and triable issue which cannot be determined
on the papers.
[28] On the strength of these contentions, counsel for the respondents
submitted that each of the defences advanced raises a genuine dispute of fact
and, individually and cumulatively, constitutes a bona fide defence to the
applicant’s claim. It was accordingly argued that the matter is not suitable
for summary judgment and ought to proceed to trial.
[29] Counsel for the applicant, Ms Van der Westhuizen, rejected the
respondents’ contention that they had disclosed any bona fide defences. She
was critical of both the manner in which the defences were advanced and the
substance of the explanations provided, submitting that the respondents had
failed to engage candidly with the material allegations against them. The
applicant’s counsel argued that, whilst the respondents admit that grain was
delivered, they deny virtually all other material allegations forming the basis
of the applicant’s claim. According to her, these denials are inconsistent with
the undisputed facts and amount to little more than bare assertions. She
contended that the respondents have not been forthcoming with this Court
and that the purported defences are disingenuous, lacking in bona fides, and
constitute sham defences incapable of raising genuine triable issues.
[30] Applicant’s counsel submitted that the respondents have failed to
make a full and frank disclosure of their defence. Despite denying that the
grain purchase agreement was concluded on behalf of the Trust, they
provide no explanation as to who concluded the agreement on the Trust’s
behalf or on what basis the undisputed grain deliveries were made to the
applicant. Counsel accordingly argued that the respondents’ denials are not
bona fide and that the purported defences constitute sham defences raised
solely to resist summary judgment.
[31] Counsel for the applicant submitted that the legal principles regulating
summary judgment are well established. She contended that a defendant
opposing summary judgment must satisfy the court, by affidavit, that he or
she has a bona fide defence to the action and must fully disclose both the
nature and grounds of that defence, together with the material facts upon
which it is founded. Reliance was placed on Breytenbach v Fiat SA (Edms)
Bpk6 and Something Different Concepts and Shows CC and Another v South
African Securitisation Programme (RF) Ltd and Others ,7 where it was
emphasised that a defendant must place sufficient facts before the court to
enable it to determine whether a defence disclosed, if proved at trial, would
constitute a valid answer to the claim.
6 1976 (2) SA 226 (T).
7 (A200/2023) [2024] ZAWCHC 103 (19 April 2024).
[32] Applicant’s counsel further submitted that it is not sufficient for a
defendant merely to profess a lack of knowledge of the plaintiff’s allegations
or to cast vague suspicion upon the plaintiff’s case. A defendant is required
to formulate the factual basis of the defence with sufficient clarity and
particularity to demonstrate that a genuine and triable dispute exists. In this
regard, counsel for the applicant relied on Chambers v Jonker 8 and
Standard Bank of South Africa Ltd v Roestoff ,9 where the courts stressed that
the opposing affidavit must disclose facts which, if established at trial,
would constitute a good defence in law.
[33] Counsel for the applicant submitted that, although courts approach
affidavits resisting summary judgment with a measure of indulgence, vague,
sketchy or bald allegations may properly be considered when considering
whether the defence is bona fide. She contended that the court must evaluate
whether the facts disclosed constitute a genuine and bona fide defence,
rather than merely accepting conclusory or unsupported denials at face
value.10
[34] Counsel for the applicant submitted that the purpose of summary
judgment is to prevent defendants who lack a bona fide defence from
delaying the enforcement of valid claims. At the same time, defendants who
raise genuine and triable disputes should be afforded the opportunity to
proceed to trial.11 Counsel further relied on Pansera Builders Suppliers (Pty)
8 1952 (4) SA 635 (C) at 638.
9 2004 (2) SA 492 (W) at 499C-E.
10 Relying on Roestoff above fn 9 and Metcash Trading Africa (Pty) Ltd v Wehliye 2024 JDR 0318 (GJ).
11 Relying on Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA)
at paras 32-33.
Ltd v Van der Merwe t/a Van der Merwe’s Transport ,12 submitting that a
court must determine the matter on the facts placed before it and not on
speculation or conjecture. She argued that where a defendant advances a
positive defence, it must be supported by sufficient factual material and
particularity, and that a defence disclosed only in skeletal or conclusory
terms is insufficient to resist summary judgment.13
[35] The applicant’s counsel also submitted that bona fides require d more
than mere honesty of purpose.14 A defendant must disclose an actual defence
recognised in law and support it with sufficient factual material.
Accordingly, she contended that vague, ambiguous or contradictory
allegations cannot satisfy the requirements of Uniform Rule 32 and may
indicate the absence of a bona fide defence.
[36] Counsel for the applicant submitted that the respondents’ bare denial
of the signatures appearing on annexure ‘POC1’ in the matter before this
Court does not constitute a bona fide defence. She r elied on Aphane v
Standard Bank of South Africa Ltd 15 to argue that a litigant c ould not
simply deny a signature without placing supporting facts before the court.
She agreed that a valid suretyship must comply with section 6 of the General
Law Amendment Act and that the material terms of the suretyship must be
contained in the written document. 16 She further relied on Trust Bank van
Afrika Bpk v Sullivan 17 and Odendal and Another v Structured Mezzanine
12 1986 (3) SA 654 (C) at 659C.
13 Relying on Standard Bank of South Africa Ltd v Roestoff and Metcash Trading Africa (Pty) Ltd v
Wehliye 2024 JDR 0318 (GJ).
14 Relying on B Kaplan Estates (Pty) Ltd v Eastern Metropolitan Substructure 1999 (2) SA 1017 (W).
15 2020 JDR 2454 (GP).
16 Relying on Industrial Development Corporation of South Africa Ltd v Silver 2003 (1) SA 365 (SCA).
17 1979 (2) SA 765 (T).
Investments (Pty) Ltd ,18 submitting that a deed of suretyship need not be
contained in a standalone document and may be read together with the
principal agreement and any terms validly incorporated by reference.
[37] Thus, a pplying these general principles, the applicant’s counsel
submitted that the respondents had not alleged that an unauthorised person
acted on behalf of the Trust, nor d id they identify who concluded the
transaction if not the trustees. Given the undisputed delivery of grain by the
Trust to the applicant, she argued that the respondents ’ bare denial of the
signatures, without any explanation as to who represented the Trust, was not
bona fide and fail ed to disclose a genuine or triable defence. She therefore
contended that the applicant ’s cause of action against the Trust and the
sureties remains intact.
[38] Applicant’s counsel submitted that the respondents ’ professed
inability to understand how the applicant ’s claim was calculated is
unsustainable. She pointed out that the particulars of claim expressly set out
the basis of the calculation, namely that the amount of R515 585.25
represented the value of 81 tons of wheat at an agreed price of R6 365.25 per
ton, while only 9.040 tons were allegedly delivered despite payment having
been made for 81 tons. She argued that the calculation is clearly pleaded and
capable of being understood by the respondents.
[39] Applicant’s counsel further submitted that the respondents fail to deal
meaningfully with material correspondence annexed to the particulars of
claim. In particular, she referred to an email dated 19 September 2023 from
Mr Barnard to Mr Cilliè de Vries recording a discussion and reflecting that
18 (482/13) [2014] ZASCA 89 (30 May 2014).
the Trust would repay the amounts of R515 585.25 and R61 809.31. Counsel
for the applicant emphasised that, in the response dated 3 October 2023, no
denial of liability for those amounts was advanced. According to the
applicant’s counsel, the respondents ’ failure to provide any substantive
explanation for this correspondence significantly undermines their present
denial of indebtedness and supports the inference that the indebtedness was
acknowledged at the time.
[40] Applicant’s counsel also emphasised that the parties had engaged in
previous grain transactions. She contended that the disclosure of an earlier
agreement concluded on 30 May 2022 demonstrates that the Trust was
familiar with the applicant’s pricing and calculation methodology and had an
established commercial relationship with the applicant. In those
circumstances, she argued that the respondents ’ assertion that they do not
understand how the claim was calculated is neither bona fide nor capable of
raising a genuine triable issue. Accordingly, counsel submitted that this
defence should be rejected as lacking substance.
[41] The respondents’ c ounsel argued that summary judgment should be
granted only in clear cases and that, under Rule 32, an applicant must
meaningfully engage with the defendant’s pleaded defence and explain why
it is not bona fide and raises no triable issue. 19 Counsel further reasoned that
the court is not called upon to determine the merits of the dispute, but only
whether the respondents have disclosed a genuine and bona fide defence.
The enquiry is a limited one, namely whether the defendant has disclosed a
19 Reliance was placed on Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624
(WCC) at para 22.
genuine and bona fide defence, rather than a sham defence advanced merely
for purposes of delay.20
[42] Counsel for the respondents submitted that, to resist summary
judgment, a defendant need only disclose the nature and grounds of a bona
fide defence and the material facts upon which it is based, and is not
required to prove the defence or show that it will probably succeed at trial. 21
Counsel argued that, where a bona fide defence or triable issue is disclosed,
summary judgment must be refused and the matter allowed to proceed to
trial.
[43] Against this legal framework, the enquiry is a narrow one. The
question is whether the respondents have disclosed bona fide defences
which, if established at trial, would constitute valid answers to the
applicant’s claim. If those defences raise triable issues, summary judgment
cannot be granted.
Supplementary explanatory note requested by this Court
[44] During the hearing, this Court experienced considerable difficulty in
following the applicant’s explanation of how the amount claimed had been
calculated. The manner in which the grain deliveries, alleged overpayments
and resulting indebtedness were presented did not clearly demonstrate how
the liquidated amount claimed was derived. Th is Court accordingly posed a
20 Relying on Tumileng above fn 19 at para 23.
21 In support of this submission, reliance was placed on Tumileng above fn 19 at paras 13 and 24, and
K2012020306 (Pty) Ltd and Another v De Wet NO and Others (2022/009661; 2023/132503) [2025]
ZAGPJHC 1236 (17 November 2025) at para 28.
number of questions to counsel for the applicant in an attempt to obtain
clarity regarding the calculation of the alleged overpayment.
[45] Significantly, after counsel for the respondents had challenged the
calculation and composition of the amount claimed, counsel for the applicant
adopted a different position and indicated that, for purposes of the summary
judgment application, the amount of R61 809.31 need not be considered.
Counsel was, however, careful to state that the applicant was not abandoning
that portion of its claim and reserved its right to pursue it at a later stage.
Neither the respondents nor this Court were able to discern the precise effect
of this shift in stance, or its implications for the relief sought. In the
circumstances, th is Court requested counsel for the applicant to furnish a
note explaining the applicant’s position and clarifying the basis upon which
the respondents’ alleged indebtedness was calculated.
[46] A similar difficulty arose in relation to the applicant’s claim against
the alleged sureties. Throughout her submissions, counsel for the applicant
maintained that the applicant was unable to identify the person who had
signed the sale agreement on behalf of the Trust, but nevertheless contended
that the signatory was either the third or fourth respondent and that one or
both remained liable as sureties. However, in response to the respondents’
denial that either of them had signed the agreement, and following questions
from this Court regarding the identity of the alleged surety, counsel adopted
a further and seemingly different position. She indicated that, for purposes of
the present application, the applicant would pursue its claim only against the
Trust and would not seek summary judgment against the alleged sureties.
Counsel simultaneously emphasised that the applicant was not abandoning
its claims against the third and fourth respondents and reserved its right to
pursue those claims subsequently. This apparent departure from the position
initially advanced generated uncertainty as to the precise scope of the relief
sought and the basis upon which the application was being pursued. In order
properly to understand the applicant’s position, th is Court likewise directed
that this issue be addressed in the explanatory note.
Calculation of the claim and the amount of R61 809.31
[47] As to the calculation of the claim, the applicant’s counsel submitted in
her explanatory note that the applicant’s cause of action was fully set out in
the particulars of claim. According to the applicant, only 9.04 tons of grain
were ordered and delivered, but payment was mistakenly made for 90.4 tons.
On that basis, the applicant contended that it overpaid the Trust in respect of
81 tons of grain, amounting to R515 586.26. Counsel explained that the
amount of R61 809.31 related to a stop -payment transaction which the
applicant was allegedly unable to reverse. During argument, counsel elected
not to rely on th e latter amount for purposes of the summary judgment
application, whilst expressly reserving the applicant ’s right to pursue it in
the main action.
[48] Counsel for the respondents submitted that the applicant ’s
supplementary explanation/note only served to highlight the uncertainties in
its calculation of the alleged indebtedness. It was pointed out that the
particulars of claim, the supplementary note and the applicant ’s submissions
relied on different quantities and different values per ton of wheat,
producing materially different outcomes. According to the respondents’
counsel, the applicant ’s own pleadings suggest different rates of R5 703.38
per ton, R6 365.25 per ton and R6 376.25 per ton.
[49] Counsel for the respondents further argued that the applicant ’s
supplementary note contradicts its particulars of claim regarding the
treatment of the amount of R61 809.31 and the value attributed to the 9.04
tons of grain allegedly delivered. These inconsistencies, it was submitted,
demonstrate that the applicant ’s claim is neither straightforward nor readily
ascertainable. The respondents therefore maintained that the alleged
indebtedness is disputed both in principle and in quantum and that the
applicant has failed to demonstrate that its claim constitutes a liquidated
amount capable of determination by way of summary judgment.
Concession, abandonment or election regarding the suretyship claim
[50] In response to th is c ourt’s request for clarification regarding the
applicant’s decision not to pursue summary judgment against the third and
fourth respondents in their capacities as alleged sureties, the applicant’s
counsel submitted that this did not amount to a concession that the
respondents’ defence was good in law. Rather, it constituted a strategic
election by the applicant, as dominus litis , to limit the relief sought for
purposes of the summary judgment application. Counsel contended that the
applicant continued to maintain that the respondents ’ defences to the
suretyship claim lacked merit and relied on Seebed CC t/a Siyabonga
Convenience Centre v Engen Petroleum Limited 22 and S aayman v Road
22 (CCT 290/20) [2022] ZACC 28; 2023 (12) BCLR 1535 (CC) (20 July 2022).
Accident Fund23 for the proposition that statements made by counsel during
argument do not necessarily constitute binding concessions or admissions.
[51] Counsel for the respondents submitted that the applicant originally
sought summary judgment against all the respondents, alternatively against
the third and fourth respondents only, and persisted with that relief until the
hearing. It was only at the commencement of the argument that the applicant
indicated that it would no longer pursue summary judgment against the third
and fourth respondents.
[52] The respondents’ c ounsel argued that, in the context of summary
judgment proceedings, this could only mean that the applicant accepted that
the third and fourth respondents had raised bona fide defences and triable
issues sufficient to defeat summary judgment. Whilst those defences may
still have to be determined at trial, counsel submitted that they had at least
met the threshold required under Rule 32. The respondents further contended
that the applicant ’s attempt to distinguish between a ‘concession’,
‘abandonment’ and an ‘election’ is merely semantic and does not explain
why the applicant persisted with the application against the alleged sureties
until the morning of the hearing. Counsel also criticised the applicant for
failing to address the difficulties arising from the existence of only one
signature on the alleged deed of suretyship and for failing to indicate what
relief was sought in respect of the third and fourth respondents once the
summary judgment claim against them was no longer pursued.
The email of 3 October 2023 as an acknowledgement of debt
23 2011 (1) SA 106 (SCA) at para 12.
[53] This Court also asked for the explanatory note to provide authority
that the email from Mr De Vries dated 3 October 2023 constituted an
acknowledgement of debt. Regarding the email dated 3 October 2023,
counsel submitted that the applicant did not rely upon it as a formal
acknowledgement of debt, but rather as written evidence of an
acknowledgement of indebtedness. Counsel argued that, when read in the
context of the preceding correspondence, Mr Cilliè de Vries did not deny the
overpayment alleged by the applicant and instead indicated that the funds
were not immediately available but would be repaid once certain financial
matters had been attended to. Reliance was placed on Cell C Service
Provider Co (Pty) Ltd v NZ Fruits (Pty) Ltd ,24 Fluxmans Incorporated v
Barata Projects CC25 and C Steinweg Logistics (Pty) Ltd v Darier Alloy
CC26 for the proposition that emails may, depending on their wording and
context, constitute acknowledgements of indebtedness. Counsel therefore
contended that the email constituted evidence that the indebtedness had
previously been recognised by Mr De Vries on behalf of the Trust.
[54] In response to the applicant’s reliance on the email of 3 October 2023,
counsel for the respondents submitted that the applicant had lost sight of the
true enquiry in summary judgment proceedings. Counsel argued that Mr
Cilliè de Vries is neither a trustee of the Trust nor a party to the proceedings
and that the applicant has not alleged or established any authority on his part
to bind the Trust. Accordingly, there is no basis upon which his email can
24 2021 JDR 1279 (LP).
25 2021 JDR 2525 (GJ).
26 2020 JDR 0189 (GJ).
automatically be treated as an acknowledgement of indebtedness by the
Trust.
[55] Counsel further submitted that the authorities relied upon by the
applicant are distinguishable. The decisions in Cell C 27 and Fluxmans28
arose in the context of insolvency and winding -up proceedings, while
Steinweg29 concerned clear and unequivocal admissions of liability. By
contrast, the present email forms part of a broader exchange of
correspondence and includes the word ‘foutiewelik’ (‘erroneously’) in
quotation marks. Counsel argued that, when the correspondence is
considered as a whole, the meaning and effect of the email remain genuinely
disputed and raise a triable issue incapable of determination on affidavit.
The respondents accordingly persisted in their contention that the email does
not constitute an acknowledgement of debt.
Issues to be determined
[56] The central question is whether the applicant has satisfied the
requirements for summary judgment against all five respondents,
alternatively, the third and fourth respondents only. Conversely, the Court
must consider whether the respondents have demonstrated the existence of a
bona fide defence and disclosed facts giving rise to triable issues warranting
leave to defend.
Costs
27 Cell C above fn 24.
28 Fluxmans above fn 25.
29 Steinweg above fn 26.
[57] Both parties sought costs on the attorney-and-client scale, particularly
on Scale B. Counsel for the respondents submitted that, should the
application be dismissed, a punitive costs order in terms of Rule 32(9) (a) is
warranted. It was argued that the applicant persisted with the summary
judgment application despite the existence of multiple bona fide defences
and clear triable issues. The respondents’ counsel further contended that the
applicant incorrectly characterised its claim as one for a liquidated amount
and sought final relief in circumstances plainly unsuitable for summary
adjudication. Reliance was placed on Tumileng,30 where it was recognised
that an applicant who invokes the summary judgment procedure despite
being aware, or reasonably ought to be aware, of a bona fide defence may be
exposed to an adverse costs order. Counsel accordingly submitted that the
applicant’s conduct justified an award of costs on the attorney-and-client
scale.
Legal principles and discussion
[58] The principles governing summary judgment are well established.
‘The summary judgment procedure is intended to protect a plaintiff who is
entitled to money from being delayed where there is no arguable defence.’ 31
It is not, however, intended to deprive a defendant who has disclosed a bona
fide defence or a triable issue of the right to have the matter determined in
the ordinary course at trial. 32 It is intended to prevent sham defences. 33
30 Tumileng above fn 19.
31 Something Different above fn 7 at para 13.
32 Eclipse System and Another v He & She Investments (Pty) Ltd and A Related Matter 2020 (6) SA 497
(WCC) at paras 10-11.
Summary judgment should therefore be granted only where the plaintiff has
clearly established its claim and the defendant has failed to disclose a bona
fide defence or a genuine issue for trial.34 Although traditionally described as
an extraordinary and stringent remedy, the procedure is not intended to
deprive a defendant with a sustainable defence of a hearing; it is drastic only
for a defendant who has no defence. 35 In Something Different,36 a full court
in this Division reaffirmed that summary judgment is inappropriate where
the defendant raises a defence that gives rise to a genuine triable issue, and
that the court ’s function is not to determine the probabilities or resolve
factual disputes on affidavit, but merely to decide whether a bona fide and
legally cognisable defence has been disclosed warranting a trial.
[59] The remedy must furthermore be applied consistently with the right of
access to courts guaranteed by section 34 of the Constitution. 37 A defendant
opposing summary judgment must disclose the nature and grounds of a bona
fide defence and the material facts upon which it is founded, failing which
summary judgment may be granted. 38 Although the defence need not be
pleaded with the precision of formal pleadings, it must be disclosed with
33 Majola v Nitro Securitisation 1 (Pty) Ltd 2012 (1) SA 226 (SCA) at 11C -G and Something Different
above fn 7 at para 13.
34 SA Bank of Athens Ltd v Van Zyl 2005 (5) SA 93 (SCA) at 102E.
35 Absa Bank Ltd v Le Roux 2014 (1) SA 475 (WCC) at para 4 and Joob above fn 11 at para 32.
36 Something Different above fn 7 at paras 13-17.
37 Something Different above fn 7 at para 15 and Firstrand Bank Limited t/a Wesbank v Maenet JA
Attorneys Inc (8557/2021) [2021] ZAGPPHC 612 (17 September 2021) at para 2.
38 Absa Bank Ltd v Noniki Trading CC and Others; Absa Bank Ltd v Ikroza Enterprise Solutions CC and
Others; Absa Bank Ltd v Hqubela Trading CC and Others (404/2011; 405/2011; 407/2011) [2011]
Others; Absa Bank Ltd v Hqubela Trading CC and Others (404/2011; 405/2011; 407/2011) [2011]
ZAECGHC 15 (7 April 2011); [2011] JOL 27204 (ECG) at para 11 ; and Something Different above fn 7
para 15.
sufficient particularity to show that it is bona fide, and where the court
entertains the slightest doubt, summary judgment should be refused.39
[60] The present application does not call upon this Court to resolve the
factual disputes between the parties or to determine the ultimate merits of
the applicant’s claim. The decisive question is whether the respondents have
disclosed a bona fide defence and raised triable issues which justify the
matter proceeding to trial. The question is thus whether the respondents in
the case before me have raised triable issues which ought properly to be
determined at trial.
[61] In my view, t he disputes raised by the respondents go to the very
foundation of the applicant’s claim. They concern the existence and
authenticity of the alleged grain purchase agreement, the identity and
authority of the person who allegedly signed on behalf of the Trust, the
validity and enforceability of the alleged suretyship, the completeness of the
contractual terms relied upon by the applicant, the quantities of grain
delivered, the basis upon which payments were made, the calculation and
quantification of the alleged overpayment, and the proper interpretation of
the correspondence upon which the applicant relies as an acknowledgement
of indebtedness. These are not peripheral issues. If established at trial, they
would constitute valid answers in law to the applicant’s claim.
[62] The applicant place d considerable reliance on th e correspondence
between Mr Barnard and Mr Cilliè de Vries dated 3 October 2023 as
39 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 425G-426; Joob above fn 11 at para 32;
First National Bank of SA Ltd v Myburgh and Another 2002 (4) SA 176 (CPD) at para 9; and Something
Different above fn 7 at para 17.
evidence of an acknowledgement of indebtedness. The significance of Mr
Cilliè de Vries’s use of the word ‘foutiewelike ’ in quotation marks is itself
open to differing interpretations. On the one hand, it may support the
inference that he was referring to the payments alleged by the applicant to
have been made in error. On the other hand, the use of quotation marks may
indicate that he was merely adopting the applicant’s description of the
payments without accepting that characterisation. The proper meaning and
effect of the correspondence is therefore a matter best determined at trial.
[63] The difficulties that emerged from the explanatory note requested by
me reinforce, rather than diminish, my conclusion. The purpose of
requesting the note was to obtain clarity regarding the calculation of the
alleged indebtedness and the precise relief sought by the applicant.
Regrettably, the note did not achieve that objective. Instead, it highlighted
further inconsistencies concerning the quantities relied upon, the values
attributed to the grain delivered, the treatment of the amount of R61 809.31,
and the basis upon which the applicant contends that its claim constitutes a
liquidated amount.
[64] Particularly troubling was the applicant’s change in position during
argument, which introduced further uncertainty regarding the basis upon
which the application was pursued. The applicant initially sought summary
judgment against all respondents, alternatively against the third and fourth
respondents only. During the hearing, however, counsel indicated that the
amount of R61 809.31 would no longer be relied upon for purposes of the
application, whilst reserving the right to pursue it later. A similar course was
adopted in relation to the alleged sureties, with counsel indicating that
summary judgment would no longer be pursued against the third and fourth
respondents, notwithstanding that such relief was expressly claimed . While
the applicant was entitled to formulate its case as it considered appropriate,
these late shifts in position created uncertainty regarding both the basis and
scope of the relief sought. Far from strengthening the applicant’s case, they
served to underscore the existence of disputes which cannot satisfactorily be
resolved in summary proceedings.
[65] The authorities make clear that summary judgment should be granted
only where the plaintiff ’s claim is clear and the defendant has failed to
disclose a bona fide defence or triable issue. The procedure is not intended
to shut the doors of the court to a defendant who raises disputes that require
proper ventilation at trial.40
[66] Applying those principles, I am unable to conclude that the
respondents have advanced sham or illusory defences. On the contrary, the
respondents have disclosed factual and legal disputes which are genuine,
material and capable, if established at trial, of defeating all or part of the
applicant’s claim. The respondents are not required at this stage to prove
those defences or demonstrate that they will probably succeed. It is
sufficient that they have disclosed bona fide defences raising triable issues.
In my view, they have done so.
[67] The case before me is not one of those clear cases for which the
summary judgment procedure was designed. To grant summary judgment in
the circumstances would require this Court to determine contested factual
40 See, eg, Maharaj above fn 39 ; Majola above fn 33 at 232F-G; Joob above fn 11 ; SA Bank of Athens
above fn 34 ; Tumileng above fn 19; Maenet above fn 37 at para 1; and Something Different above fn 7 at
para 13.
issues and to draw conclusions on matters which ought properly to be
resolved after the hearing of evidence. The interests of justice accordingly
require that the respondents be afforded the opportunity to defend the action
and have the disputes ventilated at trial.
[68] Counsel for the respondents submitted that even if the court were not
persuaded that the respondents had disclosed bona fide defences, Rule 32(8)
confers a discretion to refuse summary judgment and grant leave to defend.
Counsel argued that the disputes concerning the agreement, the alleged
suretyships, the payments made, and the quantification of the claim are
genuine and material disputes that are unsuitable for determination on
affidavit.
[69] I agree. The disputes raised by the respondents go to the heart of the
applicant’s claim and cannot be dismissed as sham defences. They raise
triable issues which are more appropriately determined at trial after the
hearing of oral evidence. In the exercise of my discretion under Rule 32(8), I
am satisfied that summary judgment should be refused and that the
respondents should be granted leave to defend the action.
[70] As regards costs, both parties sought costs on the attorney-and-client
scale. The respondents have been successful , and the ordinary rule is that
costs follow the result. However, this matter involves more than a mere
failure by the applicant to obtain summary judgment. The applicant persisted
with the application notwithstanding substantial disputes concerning the
existence of the agreement, the alleged suretyship, the quantification of the
claim and the basis upon which it was alleged to be liquidated. The
subsequent explanatory note failed to clarify those difficulties and instead
exposed further uncertainty in the applicant’s case. In these circumstances, I
agree with counsel for the respondents that a punitive costs order is
warranted. The respondents should not be left out of pocket for having been
required to oppose an application in circumstances where bona fide defences
and triable issues were plainly disclosed.
[71] The application for summary judgment must therefore fail, and the
respondents are entitled to leave to defend the action together with their
costs on the attorney-and-client scale.
Order
[72] The following order is made:
1 The application for summary judgment is refused.
2 The respondents are granted leave to defend the action.
3 The applicant shall pay the costs of the application for summary
judgment on an attorney -and-client scale, including the costs of
counsel on scale B, as taxed or agreed.
_____________________________
M LOUW
ACTING JUDGE OF THE HIGH COURT
Appearances
For applicant: Adv M van der Westhuizen
Instructed by: GMI Attorneys Inc, Pretoria
c/o Bisset Boehmke McBlain, Cape Town
For respondent: Adv L J Smit
Instructed by: De Vries, De Wet & Krouwkam Attorneys, Worcester
c/o Chris Fick & Associates, Cape Town