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[2023] ZAFSHC 347
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Firstrand Bank Limited v Motaung (5082/2019) [2023] ZAFSHC 347 (8 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable Yes/No
Of interest to Other
judges Yes/No
Circulate
to Magistrates Yes/No
Case
no: 5082/2019
In
the matter between:
FIRSTRAND BANK
LIMITED
and
DUNCAN
LEJONE MOTAUNG
Plaintiff
Defendant
CORAM:
P R CRONJÉ, AJ
HEARD
ON:
20 JULY 2023
DELIVERED
ON:
8 SEPTEMBER 2023
JUDGMENT
BY:
P
R CRONJÉ, AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 12h00 on 08 September
2023.
[1]
Plaintiff issued summons against the Defendant for payment of R1 986
964.70 plus interest
at a variable rate of 10.15% from 15 October
2019. It seeks costs on attorney and client scale. It does not seek
an order that
the property be declared executable. The cause of
action is a written loan agreement concluded on 2 September 2016.
[2]
In 2019, the Plaintiff obtained default judgment under this case
number against the
Defendant. That judgment was set aside by
Boonzaaier AJ on 6 May 2021. The relevance of that judgment is that
she found that the
Plaintiff complied with section 129 of the
National Credit Act (NCA).
[1]
[3]
On 12 August 2022, the Plaintiff served a Notice of Bar on the
Defendant’s attorneys
affording him an opportunity to file a
Plea.
[4]
On 7 September 2022, a fresh s 129 notice was served on the
Plaintiff’s mother
at his residence as he was not present.
[2]
By then the amount in default was R151 905.58 and the
outstanding balance R2 011 099.07.
[5]
On 16 March 2023, the Plaintiff served a fresh Notice of Bar on the
Defendant’s
attorneys and on 28 March 2023, the Defendant filed
his Plea.
[6]
On 17 April 2023, the application for summary judgment was served on
the Defendant
and the matter set down for hearing on 18 May 2023.
The Defendant states that his opposing affidavit should only have
been
filed five (5) days before the matter was heard, which was 11
May 2023. He did not file it and the matter was enrolled on the
unopposed
roll for 18 May 2023. By agreement between the
parties the application was postponed to 20 July 2023. The Defendant
had to
file a condonation application together with his opposing
affidavit in the summary judgment application. He was ten (10) days
out
of time.
[7]
When the matter came before me, the legal representatives of the
parties agreed that
the condonation application be heard
simultaneously with the main application. The requirements for
condonation is trite and I
will deal with them in due course.
[8]
The Defendant raised a plethora of defences in the form of Special
Pleas/points in
limine
and defences. I carefully considered
each of the grounds of opposition in light of the facts, the
arguments and the applicable
principles of law in respect of Summary
Judgment.
SPECIAL
PLEA – AMENDMENT OF PAYMENT TERMS AND PAYMENT
[9]
The first is a special plea is that a written agreement was concluded
via email between
the parties on or about 11 October 2022 in terms of
which the Plaintiff “
undertook
to hold all further litigation in abeyance
”
.
[3]
The Defendant would pay R100 000.00 towards the arrears and
thereafter instalments consisting of the instalment amount as well
as
an extra amount per month for a period of twelve (12) months in order
to settle the full arrear amount.
[4]
[10]
The arrangement was confirmed in an e-mail from the Plaintiff on 11
October 2022. It notes the proposal
for payment of R100 000.00 as
lump sum on the balance of R2 026 796.79. The arrears balance of R71
443.62 shall be paid over a
twelve (12) month period in amounts of R5
953.63 plus an instalment of R20 405.40. The total monthly payment
over twelve (12) months
would be R26 359.03.
[5]
[11]
The Defendant paid R100 000.00 on 11 October 2022 and thereafter R27
000.00 on 11 November 2022, R20
405.40 on 29 December 2022, R6 000.00
on 9 January 2023 and R26 000.00 on 7 February 2023.
[6]
[12]
On 4 November 2022, the Defendant’s attorneys stated:
“
Our
instructions are, that following the communication between our client
and your client, represented by Sherika Kanhai, there
was an
agreement that the above
action will be
suspended
upon our
client’s payment of the amount of R100 000.00 and the balance
of R51 905.58 to be paid over a period of twelve (12)
months from
date of payment of the R100 000.00. On the 11
th
October 2022 our client paid an amount of R100
000.00 and your client sent him an e-mail confirming the
suspension
of the action
.
Our
client informs us, however, that despite the
suspension
of the action
,
you proceeded with the action by delivering amended particulars of
claim on the 2
nd
November
2022, contrary to the agreement concluded between our client and your
client.
”
[7]
[my emphasis]
[13]
In an e-mail from the Plaintiff to the Defendant on 4 November 2022,
the Plaintiff referred to the
Defendant’s attorney’s
letter of 4 November 2022 and stated:
“
It
was our instruction from our client to
pend
legal action
, but to first complete
the amendment of the particulars of claim.
Legal
action is not proceeding
at
this stage
.
”
[8]
[my emphasis]
[14]
On 27 March 2023, the Defendant stated that the e-mail of 11 October
2022 contains the “
initial
arrangement
with
a lump sum payment of R100 000.00.
”
[9]
[my emphasis] It is apparent that when the e-mail of the Plaintiff
dated 11 October 2022 that set out the monthly instalment plan
of R26
359.03 (“payment plan”) is read with paragraph 1.3 of the
Defendant’s Plea, the Defendant did not comply
with the
agreement. Only the payment of R27 000.00 exceeded R26 359.03.
The other payments were all short. The
Plea was signed on 27
March 2023 and by that date, the Defendant has not made any further
payments. The opposing affidavit
was filed on 26 May 2023.
It, similarly, does not reflect any payments after 27 March 2023.
[15]
It cannot be clearer that the obligatory monthly payments in terms of
the loan agreement was not amended.
Only an interim payment plan was
agreed on.
[16]
The correspondence of the Plaintiff and the Defendant does not show
that the action was to be withdrawn.
What the Plaintiff did was to
grant the Defendant an opportunity to reinstate the agreement and to
pend further steps if he complies.
He would in any event carry an
onus in respect of not only the agreement but also payments according
to the terms of the agreement
that he relies on. His allegation that
he remedied the breach by the payments in terms of the written
agreement can be rejected.
[10]
His first point
in
limine
is
therefore not
bona
fide
and
is dismissed.
SPECIAL
PLEA – MATTER IS MOOT AND
RES JUDICATA
[17]
The second point
in
limine
is
that the matter became moot and
res
judicata
due
to the agreement and payments made.
[11]
As shown above he failed to comply with the agreement. His failure to
pay as agreed, cannot make the issue moot.
Res
judicata
does
not find application as the indebtedness, even on his own version,
was not finally settled as per the agreement.
FIRST
DEFENCE – NON-COMPLIANCE WITH SECTION 129 OF THE NATIONAL
CREDIT ACT
[18]
He alleges that a defective notice in terms of s 129 of the NCA was
served incorrectly. He does not
produce the notice. I already
referred to the judgment of Boonzaaier AJ where she found that a s
129 notice was correctly served.
[19]
According to him the s 129(1) notice does not align with the
particulars of claim and is therefore
irregular.
[20]
He proceeds to state that the contents of the s 129(1) notices and
the amounts therein does not correspond
with the claim. However, the
Defendant himself liquidated the exact debt by acceptance of the
payment plan. At date of the s 129
notice the amount was correct as
it was not disputed by the Defendant when he negotiated the terms to
bring the arrears up to date.
On 26 August 2022 the arrears was
R151 905.58. This was demanded in the s 129 notice.
[12]
When he made the payment arrangement the arrears was R171 443.62,
which he accepted when he agreed to make the payments.
[13]
SECOND
DEFENCE – PLAINTIFF DID NOT PROVE REGISTRATION UNDER THE
NATIONAL CREDIT ACT
[21]
It is not necessary to attach the NCR Certificate to the pleadings.
It is obligatory to make
an averment whether the claim is subject to
the provisions of the NCA or not. In such instance the creditor has
to show that there
was compliance with s 129 and that the Defendant
failed to explore the options granted therein. Averment of
registration is
facta
probanda,
whilst
proof by way of a certificate is
facta
probantia
.
This point does not constitute a
bona
fide
defence.
The Plaintiff in any event attached, upon being invited by the
Defendant to proof it,
[14]
its
certificate to the affidavit in support of the application for
summary judgment.
[15]
Complaining that it cannot be introduced in the affidavit for summary
judgment is misplaced.
THIRD
DEFENCE – NEW ACTION NEEDED
[22]
He states that if the Plaintiff wish to rely on a breach of the
payment plan, it should have issued
a new action and complied with s
129.
[16]
The issue of mootness
and res judicata would then find application. I already dealt with
this
.
FOURTH
DEFENCE - LACK OF AUTHORITY – RULE 7(1)
[23]
This was for the first time challenged in the plea. If
the
authority of an attorney is challenged by the other party, that
attorney may not proceed to act unless he satisfies the court
that he
is in fact duly authorised so to act. The challenge must be by way of
notice in terms of this Rule.
[17]
The object of the Rule is to eliminate the issue about authority
because it is assumed that persons will not litigate who do not
have
the necessary authority. There is no proof that the Rule was
utilised. It is important to distinguish between a power of attorney
(Rule 7) and lack of authority. In the affidavit in support of
summary judgment, the Plaintiff states that the Defendant already
during October/November 2022 realised that its attorneys are acting
for it.
[18]
This is not a bona
fide defence.
COURT
SHOULD NOT VENTURE INTO THE MERITS
[24]
He states that the Court should not venture into the merits and make
a finding on the validity of the
agreement, but only determine
whether a
bona fide
defence is raised. The Defendant not only
raised the conclusion of the agreement, thereby implying some form of
misplaced novation,
but went further to state that he complied. Even
if he does not have an onus, his own version shows that he failed to
comply. This
is not unjustifiable venturing into the merits. It is
the search for
bona fides
, which his defence lacks.
UNDERTAKING
NOT TO PROCEED WITH ACTION
[25]
He maintains that the Plaintiff’s attorneys informed him that
“
they
are instructed not to proceed with legal action
at
that stage
”
[my
emphasis]. this is a far cry from withdrawing an action. Even the
letter of the Defendant’s attorney made it clear that
action
was only pended.
[19]
[26]
He takes issue that the loan agreement does not specify
punctual monthly payments and he in any
event made such payments.
He fell in arrears as a result of short-payment on the bond
instalment and not due to failure to
make punctual monthly
payments.
[20]
[27]
The loan agreement, however, specify that the monthly repayment
amount, excluding other fees, is R20
329.11, which has to be paid
over a period of two hundred and forty (240) months.
[21]
The bond document states that the bond is a continuing covering
security in terms of or arising out of the provisions of
any loan
agreement entered into between the parties.
[22]
[28]
Strangely, the Defendant admits that as of 24 October 2019 he was in
arrears with R78 305.51, but further
states that it has been settled
thereby eliminating the Plaintiff’s cause of action.
[23]
He takes issue with the Certificate of Balance stating that it has
become moot as the arrears as on 24 October 2019 was settled
in
full.
[24]
I am of the
view that the Defendant’s acceptance of the term in the e-mail
of the Plaintiff dated 11 October 2022,
which exceeded the amount in
the certificate, and which terms he accepted in fact confirms his
indebtedness.
[29]
The defence that the Plaintiff was not entitled to amend the
pleadings whilst the parties were still in negotiations
does not hold
water. The particulars of claim, which would then reflect the
correct position at that stage, would be merely
to ensure that
nothing more is claimed than what the Defendant is indebted.
This was fully justified in view of the fact
that litigation was
pended and the Plaintiff’s pleadings and e-mails cannot be read
as to nullify the action already instituted.
LEGAL
PRINCIPLES AND ARGUMENTS
[30]
Mr van der Merwe submits that Rule 32 gives the Court a discretion to
refuse summary judgment. However,
the discretion should be exercised
judicially and should not be exercised in favour of the Defendant
based on mere conjecture or
speculation.
[25]
The Supreme Court of Appeal held:
“
[14]
It is a different matter where the
liability of the defendant is undisputed
:
the discretion should not be exercised against a plaintiff so as to
deprive it of the relief to which it is entitled.
Where
it is clear from the defendant’s affidavit resisting summary
judgment that the defence which has been advanced carries
no
reasonable possibility of succeeding in the trial action, a
discretion should not be exercised against granting summary judgment
.
The discretion should also not be exercised against a plaintiff on
the basis of mere conjecture or speculation.”
(footnotes
omitted) [my emphasis]
[31]
On the Defendant’s own evidence, he did not make payments as
stipulated and agreed on by him.
His debt remains undisputed. This
addresses the first special plea and the third defence.
[32]
In respect of the second special plea of mootness and
res
judicata
,
the Court in
Outeniqua
Skydivers CC v Hartzer and Another
[26]
held:
“
[9]
It is
trite that the expression res judicata means that the dispute raised
for adjudication has already been finally decided
.
In terms of the common law, the three requisites of res judicata are:
that the dispute to be adjudicated relates to the same parties,
for
the same relief and in relation to the same cause.
This
means that the exceptio can be raised by a defendant in a later suit
against a plaintiff who is “demanding the same thing
on the
same ground
”
;
or which comes to the same thing, “on the same cause for the
same relief.”
(footnotes
omitted) [my emphasis]
[33]
The Defendant not only pleaded that litigation was held in
abeyance
[27]
and that the
action was pended,
[28]
but
also attached his attorneys’ letter that the action was
suspended.
[29]
Mootness and
res
judicata
cannot
be raised unless there is a final order.
[34]
I quoted from Rule 7 above. In
Janse
van Rensburg v Obiang and Another
[30]
it was held that a challenge to authority to represent has to be
taken as soon as possible.
[31]
“
[17]
It has been held, rightly so in my respectful view, that the
production of a power of attorney
is ordinarily sufficient to answer
a challenge in terms of rule 7(1) to an attorney’s authority to
act; … Implicit
in such finding is that it behoves a party
that alleges that the proffered power of attorney does not meet the
challenge to timeously
make its position clear. A failure to do
so gives the impression that representation of authority constituted
by the power
of attorney has been accepted.
Challenging
the attorney’s represented authority only much later in the
litigious process would be inimical to the efficient
administration
of justice - at the furtherance of which the rules in general are
directed. Challenges to the authority of
an attorney to
represent a litigant, if they are to be raised at all, should be
raised promptly at the earliest opportunity, and
once raised, taken
to a determination without delay. Indeed, that, no doubt, is
why there is a 10-day time limit in terms
of rule 7(1)
.
[my
emphasis]
[35]
I perused the Court file and could not find a notice to the attorneys
of the Plaintiff challenging
their authority. This does therefore not
constitute an impediment to the attorneys’ authority.
[36]
In respect of the second defence that the particulars of claim does
not align with the notice in terms
of s 129, Mr van der Merwe refers
to
Amardien
and Others v Registrar of Deeds and Others.
[32]
The Constitutional Court held:
“
[61]
It is thus a necessary requirement to specify the amount and nature
of the default
in the section 129 NCA notice. As section 129(1)
specifically requires the credit provider to “draw the default
to
the attention of the consumer” it is clear that this will
only be met if the amount of arrears is specified in the notice,
since the consumer’s attention will not have been drawn to the
amount of the default otherwise. If the basis of the
default is
that the debtor has fallen into arrears, it must follow axiomatically
that “drawing the default to the attention
of the consumer”
entails that the consumer should be advised of the amount in
arrears. It is only when this has been
done that it can be said
that notice of the “default” has been drawn to the
attention of the consumer.
[62]
If the consumer is not advised of the arrear amount she will be left
none the
wiser. The referral by the consumer of the credit
agreement to a debt counsellor, alternative dispute resolution agent,
consumer
court or ombud with jurisdiction presupposes that the
consumer has been apprised of the facts to enable her to, amongst
others,
develop and agree on a plan to bring the payments under the
agreement up to date. One may rhetorically ask: how is the
consumer
to agree on a plan to bring payments under the agreement up
to date if she is not notified of the amount in arrears?
[63]
This Court in Nkata held that the onus is on the credit
provider
to take appropriate steps if it wants to recover the cost
for enforcing an agreement with the consumer. The creditor is
in
a better position to determine the amount of the debt and must be
required to stipulate the amount owed by the debtor.
The
burden of determining the amount is an onerous one to place upon the
consumer, as the consumer may not be aware of complex calculations
that are to be taken into account while calculating interest
. On
the other hand, it will be significantly easier for the creditor to
state the amount concerned. After all, it is
the credit
provider itself that claims that the consumer is in arrears with her
payments.”
[37]
I quoted extensively from the judgment to satisfy the Defendant that
the principles were considered
by me. When the Court stated that the
burden of determining the amount is an onerous one to place upon the
consumer, as the consumer
may not be aware of complex calculations
that are to be taken into account while calculating interest, it
should be considered
in the context of the circumstances surrounding
the Plaintiff’s case against the Defendant in these
proceedings. The Defendant
did not deny the initial amount in
arrears. He did also not dispute the certificate of balance to the
extent that it lost its status
as
prima facie
proof, at least
in respect of his default and the amount at that stage. When he
entered into the e-mail agreement (payment plan),
he was aware of the
exact amount. There was thus compliance with the requirements set by
the Constitutional Court.
[38]
In respect of Mr van der Merwe’s submission that s 129 does not
constitute a defence to
summary judgement proceedings, I understand
Standard
Bank of South Africa Limited v Rockhill and Another
[33]
not to mean that non-compliance with section 129 is irrelevant, but
that a Defendant has to show, at the minimum, that he has a
defence
or triable issue
[34]
to the
substance (merits) of the claim. Section 129 is procedural. This
answers the second defence.
[39]
Mrs Pieterse argued that an e-mail agreement was approved to be a
valid agreement even in the presence
of a non-variation clause as it
reflects the true intention of the parties. I do not take issue
with that. It is, however,
clear to me that the negotiation and
agreement provides for the payment of the arrears and the instalment.
It did not amend the
terms of the loan agreement, nor did it bring
finality to his obligations. The facts differ from those in
Spring
Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash and
Another
[35]
where
it was held:
“
[12]
The respondent’s contention that the emails merely record a
negotiation and do not amount
to an agreement to cancel is utterly
without merit.
The
emails say emphatically and unambiguously that once the appellant
settles the arrear rental and returns the respondent’s
equipment it may ‘walk away’ without any further legal
obligation
.
This can only mean – and did mean – that the parties
considered that all agreements between them (the master and
subsidiary rental agreements) would be cancelled once the appellant
had satisfied two obligations: payment of the arrear rental
and
return of equipment.
The
obligations were met and the agreements therefore do evince a
consensual cancellation
.
Whether this cancellation by email fulfilled the requirements of the
non-variation clauses to be in writing and signed by both
parties
requires a consideration of the relevant provisions of the Act.”
[40]
She also refers to
Amardien supra
. I dealt with the essence of
the judgment and found that the Plaintiff complied with s 129.
[41]
For the contention that there is no requirement that a Defendant
should prove a defence but merely
has to satisfy the Court, she
refers to
Marsh
v Standard Bank of South Africa
where
the Court, with reference also to
Breitenbach
v Fiat
[36]
and
Maharaj v Barclays National Bank Ltd
stated
[37]
:
“
1.
… The rule requires the defendant to set out in his affidavit
sufficient facts which, if proved at the trial, will constitute
an
answer to the plaintiff’s claim (Breytenbach v Fiat SA (Edms)
Bpk
1976 (2) SA 226
(T); District Bank Ltd v Hoosain
1984 (4) SA 544
(C).
2.
At the summary judgment stage of the proceedings it is not for the
court to decide any balance of probabilities or determine
the
likelihood of the deponent’s allegations being true or false.
Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426 where
at A–E the position is succinctly summarised by Corbett JA (as
he then was) as follows:
“
Where
the defence is based upon facts in the sense that material facts
alleged by the plaintiff in his summons or combined summons
are
disputed or new facts are alleged constituting a defence, the Court
does not attempt to decide these issues or determine whether
or not
there is a balance of probabilities in favour of the one party or the
other. …”
[42]
This begs the question whether the principles apply when the
Defendant sets up a defence of which he
will carry the onus. In the
matter before me, the Defendant pleads an agreement which he
allegedly complied with by making payment
and also raised
res
judicata
.
In respect of these issues he would, in my view, carry the onus. In
Jugwanth
v MTN
[38]
,
albeit in the context of prescription in an exception, the Court
confirmed the principle with reference to
Gericke
v Sack.
[39]
In
Van
Niekerk
[40]
it is noted:
“
[The]
onus of proving the payment rests on the defendant. Nothing
should be easier than proving payment by, for example,
disclosing the
above particulars or attaching the paid cheque. The unsubstantiated
allegation of payment is, for that reason, suspect
and summary
judgment ought to be granted.
”
(footnotes omitted)
[43]
If I am wrong on this score, Van Niekerk
[41]
also states that:
“
More
is expected of a defendant who bears the onus of proving
his defence in the main action (for example, if his defence
is one of
payment). He must then go further than a simple allegation that he
has paid to the plaintiff everything he owes. Such
an allegation
lacks the frankness and particularity expected of a defendant in
summary judgment proceedings. A court may also
doubt the
defendant’s bona fides when he deals vaguely and
scantily with facts which clearly fall within his knowledge.
A
defence in respect of which the onus rests upon the
defendant must, in order to comply with the requirements of
comprehensiveness
and bona fides, be disclosed with greater
particularity than would be acceptable in other instances.”
[44]
She argues that in
Transvaal
Spice Works v Conpen Holdings
[42]
it was held that if
ex
facie
the
document upon which the claim is founded there appears to be a defect
in the cause of action, the Court must refuse summary
judgment
whether or not Defendant has filed an affidavit to oppose it.
As the Plaintiff’s cause of action relies on
the first
agreement (loan agreement) and it alleges a breach stemming from the
second agreement it would justify a refusal of the
summary judgment.
I do not agree. The cause of action has consistently been the loan
agreement. The second (e-mail) agreement
was meant to bring the
arrears p to date. There was therefore no defect in the cause of
action. It was also not necessary to issue
a fresh s 129 notice as
the Defendant himself liquidated the debt and knew what the origin of
the debt was.
CONCLUSION
[45]
I carefully considered each of the defences even before I had to
decide whether condonation should
be granted. As summary judgment is
a speedy remedy and as it may close the doors to a defendant who has
a
bona fide
defence, I am not inclined to dismiss the
condonation application. I hurry to state that the prospects for
success, even measured
in terms of summary judgment, is not
convincing. I, however, elected to consider his papers
dispassionately.
[46]
In my view, none of the defences is
bona fide
. If the test in
respect of on which elements the Defendant carries the onus is
applied, the Defendant failed to pass the bar. Even
if the onus is
not applied. He still did not pass the bar. The Plaintiff’s
summary judgment application has to succeed.
[47]
The Defendant sought condonation. I grant condonation. It is trite
that the party who seeks condonation
is asking for an indulgence. The
Defendant has to pay for the indulgence and the opposition was not
unreasonable. The Plaintiff
is successful in its application for
summary judgment and is entitled to its costs.
[48]
I therefore make the following order:
ORDER
1.
Condonation is granted to the Defendant for the late filing of his
plea and opposing affidavit.
2.
The Defendant pays the costs of the condonation application.
3.
Defendant pays R1 986 964.70 (one million nine hundred and
eighty six thousand nine hundred
and sixty four rand and seventy
cents) to the Plaintiff.
4.
Defendant pays interests on the amount of R1 986 964.70 at
a variable rate of 10.15%
from 15 October 2019, nominal per annum,
calculated daily and compounded monthly, to date of payment (both
days inclusive), which
rate is linked to the prime interest rate on
overdrafts of the Plaintiff.
5.
Defendant pays the costs of suit on the scale as between attorney and
client.
P
R CRONJé, AJ
On
behalf of the Plaintiff:
Adv
H J Van Der Merwe
Symington
& De Kok
Bloemfontein
On
behalf of Defendant:
Adv
M C M Pieterse
Horn
& Van Rensburg
Bloemfontein
[1]
35 of 2005
[2]
Pleadings, p. 34 - 40
[3]
Pleadings,
page 54, para 1.1
[4]
Pleadings,
page 55, para 1.2
[5]
Pleadings,
p. 68 - 69
[6]
Pleadings,
page 55, para 1.3
[7]
Pleadings,
page 71 - 72
[8]
Pleadings,
page 73
[9]
Pleadings,
p. 66
[10]
Pleadings, p. 148, para 5.7; p. 149, para 6.2.2
[11]
Pleadings, p. 150, para 6.2.4
[12]
Pleadings, p. 37 - 38
[13]
Pleadings, p. 68 - 69
[14]
Pleadings, p. 61, para 8.3
[15]
Pleadings, p. 139
[16]
Pleadings, p. 150, para 6.2.3
[17]
Derek
Harms, Civil Procedure in the Superior Courts, Part B High Court
,LexisNexis, February 2023 – para B7.3
[18]
Pleadings, p. 91, para 5.1.2.1
[19]
Pend:
to
await
judgment
or
settlement
-
Pend
definition and meaning | Collins English Dictionary
(collinsdictionary.com)
[20]
Pleadings,
page 60, para 7
[21]
Pleadings,
page 19, Clause 2.9 – 2.10
[22]
Pleadings,
page 31
[23]
Pleadings,
page 60, para 7.2
[24]
Pleadings,
page 61, para 7.5
[25]
Jili
v Firstrand Bank Ltd
(763/13)
[2014] ZASCA 183
(26 November 2014) para [14];
Breitenbach
v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T)
[26]
(H264/2019)
[2022] ZAWCHC 9
(7 February 2022)
[27]
Pleadings, p. 54, para 1.1
[28]
Pleadings, p. 55, para 1.6
[29]
Pleadings, p. 71 – 72; See also: p. 73
[30]
(A338/2018, 22470/2015)
[2019] ZAWCHC 53
(10 May 2019)
[31]
See also:
Kaap-Vaal
Trust (Pty) Ltd v Speedy Brick & Sand CC
(23143/2020)
[2021] ZAGPPHC 668 (18 October 2021)
[32]
(CCT212/17)
[2018] ZACC 47
;
2019 (2) BCLR 193
(CC);
2019 (3) SA 341
(CC) (28 November 2018)
[33]
(09/56251) [2010] ZAGPJHC 10; 2010 (5) SA 252 (GSJ) (11 March 2010)
[34]
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint
Venture
[2009]
3 All SA 407 (SCA)
[35]
(725/13)
[2014] ZASCA 178
;
2015 (2) SA 118
(SCA) (21 November 2014)
[36]
1976 (2) SA 226
(T); District Bank Ltd v Hoosain
1984 (4) SA 544
(C)
[37]
1976 (1) SA 418 (A)
[38]
(Case no 529/2020)
[2021] ZASCA 114
(9 September 2021)
[39]
1978 (1) SA 821
(A) at 825H.
[40]
P
ara
11.4.2
[41]
Para 11.4.4
[42]
1959 (2) SA 198 (W) at 200 A; See also Nedbank Limited v Rinor
Civils (Pty) Ltd and Others (5696/2021) [2022] ZAFSHC 224 (15
September 2022)