A recording of a Teams meeting dealt a decisive blow to a submission that disputed the validity of surety agreements signed on behalf of a company.
This video evidence – the admissibility of which was addressed by the High Court in Pretoria – played a key role in enabling FirstRand Bank Limited to enforce its claim against the directors of Hanmar Beleggings (Pty) Ltd.
FirstRand advanced loans and financing to Hanmar between 2020 and 2022.
In December 2022, the bank demanded compliance with the terms of the agreements after Hanmar exceeded the overdraft limit and failed to pay the amount due in terms of the asset finance facility. When Hanmar did not remedy these breaches, the bank turned to the company’s sureties, Nizamudeen Noor Mohamed Ayob (first respondent) and Sanni Gani (second respondent).
The parties signed a memorandum of agreement in March 2023. This document reiterated the existing loan and surety arrangements – specifically the respondents’ unlimited suretyships – and confirmed that the debt was due and payable. Hanmar and the respondents agreed to settle the outstanding sums between 8 March and 30 June 2023. Although an initial instalment of R335 089.02 was paid, no further payments followed.
In April 2023, Hanmar’s directors resolved to commence business rescue proceedings, which FirstRand opposed, successfully obtaining a provisional winding-up order against Hanmar in June 2023, later confirmed in October 2023.
FirstRand launched an application in May 2023 to hold the sureties liable for the outstanding debt.
In their answering affidavit to the liquidation application, the respondents admitted that Hanmar exceeded the overdraft facility by R512 886 and admitted to the contents of the memorandum of agreement.
Validity of the signatures
In opposing FirstRand’s monetary claim, the respondents contended that the suretyships did not comply with the provisions of the General Law Amendment Act, which requires that suretyships must be executed in writing. This defence was premised on the allegation that the suretyships were executed electronically and that electronic signatures do not comply with section 37 and 38 of the Electronic Communications and Transactions Act (ECTA).
In his judgment delivered in April, Judge Selby Baqwa found that the respondents’ reliance on ECTA was misplaced. The suretyships bore manuscript signatures, not mere electronic data, and thus complied fully with the General Law Amendment Act.
Moreover, by signing the settlement memorandum – acknowledging their “unlimited suretyships” and that the indebtedness was “due and payable” – the respondents effectively waived any challenge to its formal validity.
Execution of the surety agreements
Gani filed a supplementary affidavit alleging that she had not signed the suretyship and that her signature was forged by a Hanmar employee, who confirmed this allegation under oath.
In its response, FirstRand said the suretyship agreements were executed during the Covid-19 lockdown, when the usual in-person signing could not occur. Instead, on 21 October 2021, a FirstRand relationship manager convened a recorded Microsoft Teams meeting with Ayob and Gani (and Gani’s husband) to finalise their obligations.
During the virtual session, Ayob “identified the suretyship that Crowie had sent to him to sign”, displayed it on camera, and then signed and inscribed the date, place, and his address by hand. Gani followed the same procedure – identifying her copy, “signing it in manuscript in full view of the camera” and initialling each of its six pages. Once executed, both documents were emailed back to the relationship manager; the physical originals remained with the respondents.
The manager filed a confirmatory affidavit. She confirmed that she had recorded the Teams meeting, witnessed the manual signatures and insertions, and ensured that the only differences between the drafted and returned documents were the respondents’ handwritten entries.
Admissibility of the recorded meeting
In assessing the admissibility of the recorded meeting, the High Court turned to the Regulation of Interception of Communications Act (RICA). Section 4(1) expressly permits a private party to “intercept communication” so long as they are themselves a “party to the communication” and the interception is not aimed at committing an offence.
The Act’s definitions clarify that “communication” encompasses “direct communication” – that is, oral exchanges taking place in each participant’s presence – and that to “intercept” means to capture the content by any means and make it available to someone beyond sender and recipient. Moreover, anyone taking part in that dialogue or its intended recipient counts as a “party to communication”.
Beyond statute, the High Court reaffirmed that video recordings in motion proceedings enjoy the same status as photographs or other documentary exhibits, echoing the decision in Intercape Ferreira Mainliner v Minister of Home Affairs. This aligns with pre-Act common law, which held relevance as the primary admissibility criterion while preserving judicial discretion to admit evidence – even if procured unlawfully – when “fairness and public policy so dictate”. Indeed, Waste Products Utilisation v Wilkes saw a covertly obtained tape recording admitted because the respondents had sought to mislead the court.
Judge Baqwa said the footage was “without doubt, relevant”, noting it was made “in the ordinary course of business” amid the Covid-19 restrictions and was authenticated by FirstRand’s witness. The recording “clearly shows… Ayob and Gani appending their signatures in manuscript”, effectively dispelling any allegation that the documents lacked genuine execution.
The court found that the respondents’ attempt to invoke ECTA did not assist their case.
FirstRand relied on physically signed suretyships, not mere electronic signatures, and the respondents’ claim that these were invalid electronic executions was “unsupported by real evidence”. The fact that the signed copies were transmitted by email – falling within ECTA’s definition of a “data message” – did nothing to invalidate them.
Under section 15 of ECTA, data messages must be admitted and given appropriate weight; they are not to be excluded “on the mere grounds that they are constituted by a data message”.
Judge Baqwa said the emailed copies of the signed suretyships represented “the best evidence FirstRand could produce”, particularly because the respondents retained the originals. The video recording itself, likewise a data message, further corroborated the authenticity of the signatures.
‘Forgotten’ recording
Judge Baqwa said the respondents had “clearly forgotten” about the recording of 21 October 2021, which resulted in their embarking on “a course of deceitful conduct of approbating and reprobating”.
They initially admitted and acknowledged their indebtedness, even signing an acknowledgment of debt, he said. Then they tried to seek refuge in the provisions of ECTA and suggested that the suretyships did not comply with the Act. Subsequently, they denied their signatures and submitted an affidavit by an employee confirming that he signed the suretyships.
Judge Baqwa granted orders in favour of FirstRand for the payment of more than R63 million, plus interest, and ordered the respondents to pay costs on the attorney-and-client scale.
