In April 2025, the High Court ruled in favour of a bank in a monetary claim against two sureties.  The court rejected the deceitful defences raised by the sureties regarding signature of the suretyship and made useful findings regarding video and other evidence of the signing.

The debtor breached the terms of its facility and asset finance agreements with the bank by exceeding the overdraft limit and failing to meet payment obligations. The bank demanded payment from the two sureties.

The sureties contended that the suretyships did not comply with the General Law Amendment Act of 1956, alleging that the suretyships were executed electronically and did not meet the requirements of the Electronic Communications and Transactions Act of 2002 (ECTA).  However, the court found that the suretyships were signed in manuscript, which was confirmed by video footage of a virtual meeting held on Microsoft Teams on 21 October 2021, during which each surety signed the suretyships in the presence of a bank representative.

The court also addressed the respondents’ supplementary affidavit, in which one surety alleged that her signature was forged by an employee of the principal debtor.  The court dismissed this claim, relying on the video evidence and the affidavit of the bank representative.  

The court expressed strong disapproval of the respondents conduct, even describing it as “despicable.” This criticism was based on the respondents’ attempts to mislead the court through deceitful actions.  The court highlighted that the respondents had initially admitted and acknowledged their indebtedness and even signed an acknowledgement of debt.  However, they later attempted to seek refuge in the provisions of ECTA by suggesting that the suretyships did not comply with the Act.  Subsequently, they engaged in what the court described as fraudulent behaviour by denying their signatures and submitting an affidavit from an employee who claimed to have signed the suretyships instead of the respondents.

The judgment reaffirms the admissibility of video footage in legal proceedings, as provided for under the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002.  The court also emphasised that video material is admissible and does not stand on a different footing from photographs or other documentary evidence.

Furthermore, the court clarified the application of the ECTA, stating that the reference to electronic signatures was misplaced, as the suretyships in question were manually signed.  Copies of the signed suretyships transmitted by email remain admissible evidence under section 15 of the ECTA.

This case is a reminder to financial institutions and sureties alike to ensure that all agreements are executed in compliance with the relevant legal provisions and to get and keep evidence of execution of the agreements.  There are frequent cases where sureties try imaginative ways to escape their obligations.