In FirstRand Bank Ltd v Ayob and Another, the Gauteng Division of the High Court of South Africa in Pretoria had to consider whether video footage may be admissible as evidence in motion proceedings.
Background
First Rand Bank ("First Rand") concluded various agreements with Hanmar Beleggings (Pty) Ltd ("Hanmar"). On 21 October 2021, Ayob and Gani executed unlimited suretyships in favour of First Rand for all the obligations that Hanmar owed towards First Rand.
Hanmar breached the terms of the asset finance agreements and the facility agreement. As such, First Rand, Hanmar, Ayob and Gani signed a memorandum of understanding, where the indebtedness of Hanmar, Ayob and Gani was acknowledged. An initial payment of ZAR355 089.02 was made to First Rand on 8 March 2023, but thereafter no further payments were made. Consequently, First Rand instituted motion proceedings against Ayob and Gani.
Arguments around the suretyship agreements
Ayob and Gani argued that the suretyships were concluded electronically, and since suretyships needed to be executed in writing, there was non-compliance with the General Law Amendment Act, 1956. Ayob and Gani also argued further that the electronic signatures on the suretyships did not comply with the Electronic Communications and Transactions Act, 2002 ("ECTA").
In Gani's answering affidavit, she asserted that the suretyship was signed in Dubai. However, in her supplementary affidavit, she denied signing the suretyship at all. In the supplementary affidavit, Gani stated further that her signature was forged by an employee of Hanmar, who confirmed this allegation under oath.
First Rand, in its supplementary replying affidavit, explained that the suretyships were signed during a virtual meeting due to the prevailing covid restrictions. The meeting was recorded by Crowie, a representative of First Rand. At the meeting, Ayob identified the suretyship agreement, turned his camera on and made the agreement visible. Ayob then signed the suretyship and completed the date and place of signature and filled in his address. Gani embarked on a similar exercise. Crowie witnessed the two sign the suretyship agreements.
The recording of the virtual meeting was placed before the court as evidence. In addition, Crowie deposed to a comprehensive confirmatory affidavit in which she confirmed that she was present at the virtual meeting, she caused the meeting to be recorded and she witnessed Ayob and Gani signing the suretyships, completing the date and place of signature, as well as filling in their addresses.
Court's findings
The court found that the suretyships were signed in manuscript. This was evident from the video recording of the meeting placed before the court. Therefore, the court held that ECTA was inapplicable. The court held that video evidence is admissible in motion proceedings. Such evidence does not stand on a different footing from photographs or other documentary evidence. As long as the video evidence is relevant, it is admissible.
The recording, combined with Crowie's confirmatory affidavit, revealed the incorrect assertions of Ayob and Gani by deposing to affidavits on oath, to contrive the versions that the suretyships were unsigned or that their signatures were forged.
Conclusion
The court was critical of Ayob and Gani's conduct and described it as despicable and a clear attempt to mislead the court. Judgment was granted in favour of First Rand, and Ayob and Gani were ordered to pay the total sum of ZAR63 984 612.62 (excluding the interest payable) to First Rand as a result of Hanmar's breaches. The court marked its displeasure at Ayob and Gani's conduct by ordering them to pay the costs of the application on an attorney and client scale.
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