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[2024] ZALMPPHC 145
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Nedbank Limited t/a MFC v Matshethe (3493/2024) [2024] ZALMPPHC 145 (26 September 2024)
FLYNOTES:
CIVIL PROCEDURE – Summary
judgment –
National
Credit Act –
Instalment sale agreement for
vehicle – Defendant missing four payments – Making
payment equal to two instalments
on delivery of summons –
Bank electing to unilaterally cancel credit agreement –Such
remedy would create serious
and unjust outcome – Contrary to
objectives of National Act – Appropriate remedy is specific
performance –
Application for summary judgment refused –
National Credit Act 34 of 2005
.
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 3493/2024
Reportable: YES
Circulate to Judges: YES
DATE: 26 SEPTEMBER 2024
SIGNATURE:
In the application for
summary judgment in the matter between:
NEDBANK LIMITED T/A
MFC
APPLICANT / PLAINTIFF
And
MOKGADI DONALD
MATSHETHE
RESPONDENT / DEFENDANT
Neutral
Citation:
Nedbank
Limited
t/a
MFC
v
Mokgadi
Donald
Matshethe
(3439/2024)
[2024] ZALMPPHC (26 September 2024)
Heard:
19 September 2024
Delivered:
26 September 2024
Summary:
Summary
judgment
application-
defendant
filed notice of intention to oppose
and
plea
- enrolled in unopposed motion court-
relief sought: confirmation of cancellation of credit agreement
entered
into in terms of the
National
Credit Act, 34 of 2005
; return of vehicle; damages claim; and costs
of suite – plaintiff’s unilateral election to cancel
credit agreement
notwithstanding primary remedy for breach of
contract (specific performance) being available and capable of
enforcement- applicant
/ plaintiff’s compliance with the
provisions of the Uniform Rules of Court and the Practice Manual of
the Division.
This judgment was
circulated electronically to the parties’ representatives by
email. The date and time of hand-down are deemed
to be 10:00 am on
Thursday, 26 September 2024.
JUDGMENT
MORGAN AJ
1.
This is an application for summary judgment,
enrolled on the unopposed roll before me.
2.
What
led me to write this judgment was the plaintiff’s counsel’s
submissions, Advocate Bresler, that the Court was bound
to the
plaintiff’s election of the remedy for
breach
and
further
that
the
court
had
no
discretion
to
interfere
with
or
alter
the
plaintiff’s choice of remedy in case of unilateral cancellation
of a credit agreement regulated in terms of the
National Credit Act,
34 of 2005
[1]
.
3.
In addition to the above was Advocate Bresler’s
repetitive, unrelenting, discourteous and condescending attitude or
conduct
in open court when the court sought to have an engagement
with counsel and point out the various challenges and deficiencies
(procedural
and substantive) the court took issue with on plaintiff’s
case as pleaded, which I sought counsel’s submissions thereon.
The irresistible inference drawn from the counsel’s behaviour
is that she came with a view that the order she sought was
for the
taking and that she would not be called or required to make a case
out for the order sought. What follows below will explain
my views
and reasons for my order.
4.
The plaintiff sought an order for summary
judgment: in the following terms
i.
Confirming the cancellation of a vehicle financing
agreement between the plaintiff and the defendant.
ii.
Return of the vehicle.
iii.
Costs for the application on attorney and client
scale.
5.
In the hearing, I directed Adv Bresler to file
written heads of argument addressing two issues, inter alia:
a.
The primary remedies available to the plaintiff in
an instance where there is a breach of contract and the obligation to
elect specific
performance.
b.
The discretion of the Court is not to allow
cancellation if specific performance is possible.
6.
The Court is not in the business of writing
thriller novels, so I will state the outcome upfront and furnish the
reasons below.
There is no need for a cinematic build. Some cases may
call for that, but this one does not. Ultimately, the plaintiff’s
application for summary judgment is refused with no order as to
costs. This is because the plaintiff failed to adhere to the dictates
of the
National Credit Act; the
matter was not
correctly
enrolled before me; and the plaintiff did not provide any reasons why
specific performance was unavailable in this case
and why
cancellation, an extraordinary remedy, was applicable. Lastly, given
the monetary sum that
underpins this
dispute, the plaintiff should have approached a magistrate court for
a monetary judgment. I move into the background
facts and the reasons
for the outcome.
7.
Before I continue, I want to reiterate the dicta
of Bhoola AJ in
FirstRand Bank Ltd t/a
Wesbank v Maenetja Attorneys
:
“
The
Summary judgment application calls for strict circumspection and
Judicial oversight in balancing the rights of both the applicant
and
the defendant. The summary judgment proceedings have been described
as drastic and robust proceedings. In
Joob
Joob Investments v Stocks Mavundla Zek JV
[2009] All SA 407(SCA)
it
was held that summary judgment proceedings are no longer
extraordinary, and the Rule must be applied properly. The summary
judgment
procedure exists for the applicant to obtain a speedy
judgment against the defendant
in
cases
where
the
defendant
has
no
valid
defense
to
the
claim.
By
short-circuiting an otherwise potentially protracted trial, the
applicant avoids incurring unnecessary costs associated therewith.
Naturally,
summary judgment cannot be granted where it is clear that some
ventilation of evidence is required in order for the Court
to come to
a decision. Adopting this approach, the successful defendant who
demonstrates a triable defence is not excised from
further
anticipated litigation. Thus, the defendant retains (all) his
Constitutional Rights to access justice, as enshrined in
section 34
of the Constitution.”
[2]
BACKGROUND FACTS
8.
On 22
March 2023 at Groblersdal, the plaintiff, Nedbank Limited,
[3]
duly
represented by its authorised representative, and the Defendant,
Mokgadi Donald Matshethe, representing himself, entered into
a
written instalment vehicle sale agreement (credit agreement). The
total cost of the agreement, including the principal debt,
interest,
costs, and charges, would be in the amount of R 252 772,50.
9.
In terms of the agreement, the plaintiff provided
credit to the defendant to purchase
a 2016
KIA PICANTO 1.0 LX (hereinafter referred to as “the vehicle”),
which was delivered to the defendant. Notwithstanding
the delivery of
the vehicle to the defendant, ownership of the vehicle remains vested
with the plaintiff.
10.
The salient terms of the credit agreement provided
that the first instalment for the vehicle
was
R3
532,68,
payable
on
30/04/2023;
after
that,
seventy
equal
monthly
instalments of R3 510.42 commencing 30/05/2023 would be payable; with
a final balloon payment of R3 510.42 payable on 31/03/2029.
11.
The agreement furthermore states that should the
defendant fail to pay the instalment on due date or fail to satisfy
any of his
obligations in terms of the agreement, the plaintiff
shall, without prejudicing any of its other rights in law, be
justified in:
cancelling the agreement and in the instance of such
cancellation; claim return and possession of the vehicle; be entitled
to retain
all installments already made by the Defendant; to claim
payment of the difference between; the amount outstanding at date of
cancellation
of the agreement less a rebate on finance charges
calculated from date of termination of the agreement and; the amount
at which
the vehicle is valued in terms of the agreement or the
re-sale value thereof, whichever is the greater; the fixed Credit
cost multiple
of 1.98 is the ratio of the total cost of credit to the
advanced principal debt, cost on the attorney and client scale; claim
all
expenses incurred in tracing the defendant before or after the
instituting of action, attaching the vehicle, removing it, valuing
it, storing and the sale of the vehicle.
12.
The defendant breached the credit agreement by
failing to pay four consecutive monthly
instalment
from
29
February
2024
and
was
in
arrears
in
the
sum
of
R15 400.93.
13.
The
National Credit Act applies
to the agreement. This Act governs the
agreement, and in compliance with its provisions, the plaintiff
delivered a section 129(1)(a)
notice
via e-mail.
[4]
14.
The plaintiff delivered section 129 notice to the
defendant of the Defendant’s breach of the agreement and the
amount outstanding
and due in terms of the agreement and, on failure
by the defendant to pay, of its intention to cancel the agreement.
The notice
was followed by combined summons, and this application
notwithstanding substantial payments being made for the amount that
was
outstanding in arrears
and the
defendant’s clear intention to defend the primary action for
the relief sought, which is limited to the plaintiffs,
the sole and
exclusive election of the unilateral cancellation of the credit
agreement and ancillary relief.
15.
The Plaintiff duly issued a combined summons
against the defendant, in which it unilaterally cancelled the
agreement. The combined
summons was served on the defendant at his
chosen dominium.
16.
As stated above, at the time of the institution of
the proceedings, the defendant was in arrears of four monthly
payments, totalling
R15 400.93 as of 29 February 2024. Upon delivery
of the combined summons, he made payments equalling two monthly
instalments and
sent the plaintiff proof of the same. The proof of
payments were annexed to his Plea to defend the claim.
17.
Notwithstanding the payments received after the
summons were delivered, the plaintiff proceeded to institute an
application for
summary judgment.
18.
In support of the summary judgment application is
an affidavit deposed to by an employee (Team Leader: Litigation and
Defended:
RBB Secured & Relationship Recoveries) of the
plaintiff. No proof of authority to institute the application for
summary judgment
on behalf of the plaintiff was furnished or annexed
to the supporting affidavit. The latter in my view, becomes important
in the
context of having the application regarded as being properly
instituted and before me more so in the context where the defendant
/
respondent is not present in Court.
UNDERSTANDING THE
NATIONAL CREDIT ACT
19.
I
want to spend some time discussing the
National
Credit Act. The
National Credit Act was
introduced to address
significant imbalances in the consumer-credit landscape, where
previous legislation left defaulting consumers
with insufficient
protections and subject to the discretion of credit providers.
Recognising the urgent need for a more equitable
and structured
framework, the Legislature enacted the
National Credit Act with
the
aim of shifting the power dynamics in favour of
consumer
rights and financial fairness.
20.
The purpose of the
National Credit Act is
to
establish a unified system for regulating credit. It aims to foster a
fair and equitable environment for consumer access to
credit while
also promoting black economic empowerment and ownership within the
credit sector. Additionally, the Act is intended
to prevent unfair
credit practices and misleading
credit
marketing,
offering
protections
for
consumers.
Another
key objective is to encourage responsible lending
and borrowing by prohibiting reckless credit granting, regulating
credit information,
and providing mechanisms for debt restructuring
in cases of consumer over-indebtedness.
21.
As a general rule, the
National Credit Act applies
to basically every credit agreement between parties dealing at arm’s
length and made within, or having an effect within,
the Republic of
South Africa
22.
At the heart of the Act, as reflected in its
preamble and
section 3
, lies the clear intent to prioritise the
protection and empowerment of consumers. One of the key
purposes of the
National Credit Act is
to promote
responsible lending practices, ensuring that consumers are not
subjected to reckless credit agreements, while also establishing
transparent and fair procedures for dealing with default or debt
enforcement. By doing so, the Act aims to create a credit market
that
operates not only on principles of economic efficiency but also on
fairness, accountability, and protection against exploitation.
23.
Furthermore, Chapter 6, titled "Collection,
Repayment, Surrender, and Debt Enforcement," serves as a
critical tool in
realising the Act's overarching objectives. This
chapter provides a clear procedural framework that credit providers
must follow
before they can enforce or terminate credit agreements,
ensuring that consumers
are afforded
adequate protection throughout the debt collection and enforcement
process. By stipulating these procedures, the
National Credit Act
seeks
to balance the rights of credit providers with the fundamental
need to safeguard consumers
from arbitrary
or overly aggressive enforcement actions.
24.
Ultimately, the
National Credit Act represents
a
significant legislative effort to modernise the credit industry by
fostering a credit system that is not only commercially viable
but
also aligned with principles of social justice, fairness, and
consumer protection. Its purpose extends beyond mere regulation;
it
embodies a vision of financial inclusivity and equitable treatment,
addressing the vulnerabilities
of consumers
while encouraging responsible and sustainable credit practices across
the market.
25.
Section
129
of the
National Credit Act, which
is central to this case, has
been interpreted by the Constitutional Court. In
Sebola
,
[5]
Cameron
J, delivering the majority judgment, held that the
National Credit
Act did
not require the credit
provider
to prove that the default notice had actually come to the attention
of the consumer, nor that it had been delivered to
a specific
address, as such a requirement would often be impossible to meet.
Nevertheless, he stressed that while proving actual
receipt may be
challenging, the credit provider must provide evidence that would
satisfy the court, on a balance of probabilities,
that the notice had
likely reached the consumer.
[6]
It was not sufficient for the credit provider to merely dispatch the
notice. Due to the risk of non-delivery associated with ordinary
mail, Cameron J emphasised that the use of registered mail was
essential. Although registered letters can sometimes go astray,
the
probability of their delivery is much higher. Even so, proof of
dispatch via registered mail alone was not enough. The credit
provider needed to do more than just assert that the notice was sent;
they had to prove that the notice reached the correct
post
office.
[7]
To
meet this obligation, the credit
provider
was required to obtain a "track and trace" report from the
South African
Post
Office to confirm delivery to the relevant post office.
[8]
If
this proof was provided and no evidence to the contrary was
presented, the court could reasonably accept that the notice had
been
delivered to the consumer.
[9]
26.
Cameron
J also addressed the situation where a consumer claims they did not
receive the notice. In such cases, the court should
investigate the
validity of the
claim
and assess whether the credit provider had complied with the
requirements of the
National Credit Act.
[10
]
If the credit provider had failed to meet these requirements, the
court should adjourn the matter under section 130(4)(b) of the
Act,
allowing the credit provider to take corrective steps to ensure the
consumer could exercise their rights.
[11]
27.
In
Kubyana
,
[12]
Mhlantla
AJ delivered the majority judgment, affirming that the credit
provider had complied with the
National Credit Act by
proving that
the notice had been sent via registered mail to the correct post
office. This was considered
sufficient
for the credit provider to credibly assert that the consumer had
received the notice. The court ruled that to demand
more of the
credit provider would place an unreasonable burden on them and would
allow consumers to avoid responsibility by ignoring
validly
sent
notices.
[13]
The
Constitutional
Court
upheld
its
earlier
holdings
in
Sebola
,
agreeing that the credit provider was not required to prove that the
notice had come to the consumer’s subjective attention,
nor
that it had been personally served.
Section 129
of the Act only
required the credit provider to "draw the default
to the
notice of the consumer in writing."
[14]
Under
section 65(2)
of the Act, the credit provider fulfils this obligation
by making the document available through one of the prescribed
methods
of delivery.
28.
The
Constitutional
Court
reaffirmed
the
principle
set
out
in
Sebola
that
postal
delivery was an acceptable method, but mere dispatch was not
sufficient. The credit provider must demonstrate that reasonable
steps were taken to bring the notice to the consumer’s
attention. Where a consumer has opted to receive notices by post,
the
credit provider’s duties include (a) respecting the consumer’s
election; (b)
bearing
the cost of sending the notice via registered mail; (c) ensuring the
notice is sent to the correct branch of the Post Office;
and (d)
obtaining proof that the Post Office notified the consumer that a
registered item was awaiting collection.
[15]
29.
The
Court reiterated its earlier ruling that a credit provider must take
steps to bring the notice to the attention of a "reasonable
consumer."
[16]
In
this case, the credit provider had complied with the Act by sending
the
section 129
notice to the nominated Post Office branch, and the
Post Office had issued two notifications to
the
consumer’s address, informing them that an item was awaiting
collection.
Despite
these efforts, the consumer did not respond. The court held that a
consumer who unreasonably fails to respond to a valid
section 129
notice forfeits the opportunity to engage in the dispute resolution
mechanisms provided by the Act and cannot later disrupt enforcement
proceedings by claiming that the credit provider did not fulfil its
statutory obligations.
[17]
30.
The
Court concluded that when the credit provider had complied with all
the necessary steps under the
National Credit Act and
received no
response from the consumer within the designated time frame, there
was little more that could be reasonably expected
of the credit
provider. When a consumer has opted to receive notices via registered
mail, they are obliged to respond to notifications
from the Post
Office. If the consumer fails to do so without a reasonable
justification, they cannot later claim ignorance of the
notice. It is
the consumer’s responsibility to demonstrate why they did not
deal with the
section 129
notice if they wish to avoid the legal
consequences of their inaction.
[18]
31.
The Court summarised the position as:
“
Once
a credit provider has produced the track and trace report indicating
that the
section 129
notice was sent to the correct branch of the
Post Office and has shown that a notification was sent to the
consumer by the Post
Office, that credit provider will generally have
shown that it has discharged its obligations under the Act to effect
delivery.
The credit provider is at that stage entitled to aver that
it has done what is necessary to ensure that the notice reached the
consumer. It then falls to the consumer to explain why it is not
reasonable to expect the notice to have reached her attention if
she
wishes to escape the consequences of that notice. And it makes sense
for the consumer to bear this burden of rebutting the
inference of
delivery, for the information regarding the reasonableness of her
conduct generally lies solely within her knowledge.
In the absence of
such an explanation the credit provider's averment will stand. Put
differently, even if there is evidence indicating
that the
section
129
notice did not reach the consumer's attention, that will not
amount to an indication disproving delivery if the reason for
non-receipt
is the consumer's unreasonable behaviour.”
[19]
32.
Thus, as already stated, the
National Credit Act
was
introduced to address
significant
imbalances in the consumer-credit landscape, aiming to protect
consumers from unfair practices and empower them in their
financial
dealings. Its purpose is to establish a unified system for regulating
credit agreements, ensuring that credit is provided
responsibly and
equitably. While it applies broadly to credit agreements within South
Africa, its primary focus is on consumer
protection, particularly in
preventing reckless lending and providing mechanisms for debt
restructuring. One of the Act's most
important features is its
procedural safeguards, as seen in Chapter 6, which ensures that
consumers are adequately protected during
the debt enforcement
process. A crucial part of these safeguards is the requirement under
section 129
for credit providers to notify consumers of default
before taking enforcement action.
33.
This
notice
process
has
been
carefully
interpreted
by
the
courts
in
cases
such
as
Sebola
and
Kubyana
,
which clarified that while actual proof of receipt is not required,
credit providers must take
reasonable
steps to ensure the
notice
reaches the consumer, typically through registered mail. If the
credit provider has followed
the required
steps, the burden shifts to the consumer to explain why the notice
did not reach them. This process balances the rights
of both parties,
encouraging responsible consumer behavior while preventing credit
providers from enforcing debt in an arbitrary
or overly aggressive
manner. Ultimately, the Act reflects a modernised approach to
consumer credit, grounded in principles of fairness,
accountability,
and social justice, and it is a pivotal tool in fostering financial
inclusivity and protection for vulnerable consumers.
34.
Having examined the above, there are two issues to
dealing with this,
in casu
,
to wit: (i) procedural non-compliance and (ii) substantive
non-compliance. I consider these issues in turn.
PROCEDURAL
NON-COMPLIANCE
35.
Practice
directives
play
a
vital
role
in
guiding
the
courts'
day-to-day
operations.
However, they cannot override legislation, common law, or binding
court rules. Any procedure permitted by law, especially
when designed
to ensure the statute’s effective implementation, must be
followed. The authority of the courts to issue practice
directives is
crucial for managing their work, but these directives must align with
and support the requirements of statutes. They
should not create
barriers that hinder the fulfilment of a statute's objectives.
[20]
36.
In
Ramadhani
,
[21]
the Supreme Court of Appeal held that:
“
The
practice directive is subordinate to any relevant statute, the common
law and the
Uniform
Rules
and
it
cannot
be
applied
to
restrict
or
undermine
any
piece of legislation, the Uniform Rules
of
Court or
the
common law.
Practice
directives
deal
essentially
with
the
daily
functioning
of
the
courts
and,
their
purpose
is
to
supplement
the
rules
of
court.
In
this
case,
the
court
a
quo
afforded the practice directive statutory force overriding both s 38
of POCA
and
rule 6(4)(a) of the Uniform Rules which is impermissible. The
practice directive should not negate the provisions of s 38 and
rule
6(4)(a) of the Uniform Rules. In my view the portion of the practice
directive dealing with ex parte applications is not applicable
to
ex
parte
applications
brought in terms of s 38.” (emphasis my own)
37.
The practice directives of the various Divisions
of the High Court of South Africa set out the practice in the Main
and its Local
seat. They seek amongst others, to inform practitioners
and the litigants on how the Judges or courts in each Divisions
function
and seek to regulate the procedures therein. They also aim
to obtain uniformity amongst judges in respect of practice rulings.
It is also trite and emphasised that practice directives bind no
Judge as the directives are made for the court and not the other
way
around. Further, for several reasons, each court or Judge has the
inherent powers to regulate their court’s functioning
and
procedure proceedings.
38.
Accordingly, the practice directive in the Limpopo
Division is not intended to bind judicial discretion. The Practice
Directives
of this Court say as much at para 1.2:
“
As
such it seeks to inform how the courts in this high court function.
It also seeks to obtain uniformity amongst judges in respect
of
practice rulings. It
must
be emphasized that no judge is bound by practice directives.
Accordingly,
the practice directive is not intended to bind judicial discretion.
Nonetheless,
it
should
be
noted,
that
the
judges
of
this
high
court
strive
for
uniformity
in
the
functioning
of
the
courts
and
their
practice
rulings.
The
practice directive thus sets out what can be anticipated occurring,
in the
normal
course of events, on any issue dealt within the practice directive.”
39.
Thus, practice directives seek to inform litigants
and legal practitioners how the courts under that directive function,
and such
practice directives bind no Judge and are not meant to
displace or bind judicial discretion.
40.
In addition, it is recognised and crystallised
that the Judges of this Division strive for uniformity in the
functioning of the
courts and their practice rulings. The practice
directive thus sets out what can be anticipated to occur in the
normal course of
events on any issue within the practice directive.
In addition to that, compliance is compulsory and binding for
practitioners
and litigants. Only a Judge or court can condone
non-compliance thereto and not the parties unilaterally or by
agreement.
41.
No original or copies of the sheriff’s
return of service of the summary judgment application or notice of
set down and neither
were contained in the court file nor listed in
the plaintiff’s index to the paginated bundle, proving service
of the summary
judgment application or notice of set down of the
hearing of the application on the unopposed motion court roll.
42.
The notice of set down required would have been
the short form of notice. The
notice ought
to have stated that the application will be set down for hearing on a
stated day, not less than 15 days from the date
of delivery of the
application.
43.
I reiterate that the the plaintiff did not have
any proof that it delivered on the defendant
the
summary
judgment
application;
no
condonation
application
nor affidavit from the instructing attorney
explaining the failure to have the application served by the sheriff
or on the defendant
at all.
44.
The only affidavit filed explained that the
instructing attorney had lost the sheriff’s original returns of
service, evincing
the serving of the combined summons and notice of
opposition to mediation in terms of Rule 41A, nothing more. In my
view, this
affidavit is unsatisfactory as the original document could
have been easily requested and obtained from the sheriff before the
final re-enrolment of the application. Moreover, if the same was
obtained after the matter was enrolled and the file was with the
judge and could not be accessed, the original document obtained could
have, with leave of the court, been handed up from the bar.
Lowering
the court’s procedural requirement or standards to those
desired or sought to be imposed by a legal practitioner
is, in my
view, improper.
45.
If condonation were granted for such sluggish
conduct (failure to request original returns from the sheriff and
submitting or filing
same at court) would mean that the Court would
have to consistently do the same for other litigants and disregard or
render the
requirement in practice obsolete by disuse. This Court is
unwilling to ignore or use its discretion inconsistently and contrary
to the uniform procedures and Rules in the Uniform Rules of Court or
the Practice Manual.
46.
Further, if the plaintiff had served the summary
judgment application or its notice of set down on the defendant by
sheriff, it
might have prompted a response from the defendant, much
like it did when the combined summons and notice of opposition to
mediation
under Rule 41A were served. In the earlier instance, after
the sheriff served
the
combined
summons
on
the
defendant's
mother
on
23 April 2024,
the defendant promptly opposed the action and
filed a plea. Therefore, serving the summary judgment application or
notice of set
down via the sheriff was necessary to give the
defendant a clear opportunity to oppose. Neither was done in this
case.
47.
There is a distinction between proof of delivery
and proof of service of a court process. In this instance, it appears
that only
delivery occurred concerning the summary judgment
application. The likelihood is high that this delivery did not reach
the defendant's
attention. Given that the defendant was able to
defend the cancellation of the credit agreement in the main action
and made payments
shortly thereafter, it is unclear why he would not
oppose the summary judgment application—especially since there
is no notice
on file indicating that he withdrew his defenses. This
suggests his intent to defend was clear.
48.
Applications for summary judgment, particularly in
cases involving credit agreements regulated by the
National Credit
Act, require
that the respondent or defendant be served by the
sheriff, similar to the process for applications for default judgment
under
Rule 31(5).
Following the successful service of the initiating
papers, an
original return of service must
be filed in the court file as part of the necessary documentation
before the matter can be enrolled
for adjudication before a presiding
officer.
49.
However, it has become common for judges to be
required to perform basic administrative tasks that traditionally
fall within the
responsibilities of legal practitioners, particularly
in building a case for the
dominus litis
(typically the plaintiff in action
proceedings or the applicant in motion proceedings). This expectation
goes beyond their core
judicial function, and when this is not done
correctly, it can expose the
presiding
officer
to
undue
criticism
from
the
legal
profession.
The
Division’s Practice Manual provides in
relevant parts:
“
3.9
5 Service
13.9.1 Service is proved
by filing the original return of service in the court file, which
establishes the service. In the absence
of an acceptable explanation,
a return of service will generally not be accepted from the bar.
13.9.4
Where service is effected at a
domicilium
citandi et executandi
, the original
document wherein the
domicilium
is
chosen must be in the court file.
50.
The combined summons and the notice of opposition
to mediation were served on the defendant’s mother, not on the
defendant
himself. Furthermore, neither the summary judgment
application nor the notice of set down was served on the defendant or
sent to
him via registered mail to his last known address.
51.
According to
Section 168
of the
National Credit
Act: “Serving
documents—Unless otherwise provided in this
Act, a notice, order, or other document that, in terms of
this
Act, must be served on a person will have been properly served when
it has been either—(a) delivered to that person;
or (b) sent by
registered mail to that person’s last known address.” In
this case, these requirements were not met.
Neither
the summary judgment application nor the notice of set down was
served on him or sent to him by registered mail to his last
known
address
52.
Courts are often required to entertain condonation
applications from the bar, even when no formal application has been
made in accordance
with the Uniform Rules of Court. This involves
condoning multiple procedural and substantive non- compliances with
key provisions
of the uniform rules and practice directives, which
are designed to ensure the fair and proper adjudication of cases and
to uphold
justice in the conduct of a fair court hearing or trial. In
such cases, litigants, represented by legal practitioners, often
incur
substantial fees for work and court appearances, despite the
lack of proper preparation or adherence to basic procedural
requirements.
This issue becomes even more problematic when the
initiating party has a significant advantage, as their matter may
proceed unopposed
or undefended. In the present case, although the
matter is defended, the plaintiff believes that the defendant has not
presented
a proper defense in their plea.
53.
From
my general observations in presiding in motion court, if the
continuing decline in the standard and quality of legal practitioners
persists, and courts do not insist on the converse and compliance
with traditional ethics and court etiquette from legal practitioners,
it may eventually lead to those practitioners being considered for
judicial appointment in the near future when they apply and
sadly if
an appointment
is
made from this batch of practitioners absent of those competent
practitioners who shy away from availing themselves for judicial
office, simply because of how difficult it has become being a Judge
today, more so because Judges have become more vulnerable to
unwarranted complaints, attacks or criticism with minimal to no
protection by the relevant authorities in the other arms of
government,
when fulfilling their
constitutional
functions
and
obligations
entrenched
in
section
165
of
the
Constitution, 1996
[22]
then
the phrase “in the absence of the best, the worst become the
best [only option available]” will manifest in the
Judiciary
and possibly assassinate a critical constitutional institution and
arm of government regarded as the moral compass of
the Republic.
54.
Sadly, most of the procedural non-compliance has
to do with most basic rules of civil procedure and practice, and it
is the responsibility
of litigants, their legal representatives, and
counsel to ensure they are adhered to before a matter is finally
enrolled. When
cases are plagued by procedural deficiencies, they
divert the limited time and resources available to judges, preventing
them from
focusing on cases that have been correctly enrolled and are
ready for hearing. This is precisely why litigants engage legal
practitioners—to
ensure compliance with court rules and to have
a highly skilled and diligent professional advocate on their behalf
before a presiding
officer.
55.
In support of this, the deponent of the affidavit
accompanying the summary judgment affirms that, when an account is
handed over
for collection, the plaintiff's employee instructs the
plaintiff's attorney of record to proceed with legal action. This
instruction
is communicated electronically to the plaintiff's
attorney, who is granted
simultaneous
access to the plaintiff’s computer system, specifically to the
account in question. The attorney thus has access
to the same
information and documentation that the plaintiff possesses regarding
the account. Furthermore, the deponent states
that once the account
is handed over, the attorney ensures compliance with the requirements
of the
National Credit Act (where
applicable), as well as the
specific terms of the agreement(s) relating to the issuance of
necessary notices.
A court must be vigilant
in safeguarding against any injustice to the defendant, who may be
called upon at short notice, and without
the advantage of further
particulars, discovery, or cross-examination, to prove the existence
of a bona fide defense. While the
court seeks to assist a plaintiff,
whose rightful claim may be hindered by a defendant employing
delaying tactics without a valid
defense, it is equally cautious
about stripping the defendant of their ordinary right to defend,
except in cases where the absence
of a defense is unequivocally
clear. This careful balance is why our courts have consistently
stressed the importance of strict
compliance with procedural rules.
56.
Under
Rule 1
, service requires that copies be
delivered to all relevant parties, with the original document filed
with the registrar. In
FirstRand Bank
Ltd t/a Wesbank v Maenetja Attorneys
,
the plaintiff failed to serve its affidavit supporting summary
judgment in accordance with
Rules 4(1)(aA)
and
4A
. Instead, the
affidavit was uploaded to CaseLines, where the defendant's attorneys
were invited to access it. The defendant opposed
the summary judgment
application on the grounds of improper service. The key issue was
whether an invitation to access documents
on CaseLines constituted
valid service under the subrule.
57.
The court held that CaseLines is not a valid
platform for the service of court documents. In the absence of any
agreement between
the parties to effect service through
alternative
means
other
than
those
prescribed
by
the
Uniform
Rules
of
Court, and without a substantive application by the plaintiff seeking
condonation for non-compliance with the rules on service—particularly
as outlined in paragraph 200 of the Judge President’s Practice
Directive dated 18 September 2020—the affidavit had
not been
properly served. As a result, the court dismissed the summary
judgment application with costs.
SUBSTANTIVE ISSUES
58.
In this case, the application for summary judgment
seeks to confirm the unilateral cancellation of the credit agreement
between
the parties. Further, upon the confirmation of the
cancellation, the plaintiff seeks to have the defendant return the
vehicle,
forfeit the monies already paid, and recover the costs of
the suit (main
action and this application)
on an attorney-client scale.
59.
It is
trite that unique requirements exist for summary judgment sought
where the
debt
or credit agreement falls under the provisions of the
National Credit
Act. In
addition to the unique requirements, the trite legal
principles regarding the test in summary judgment proceedings
remain.
[23]
60.
The
purpose of
Rule 32
is to prevent a plaintiff’s claim, based on
certain causes of action, from being unduly delayed due to the abuse
of court
processes by the defendant. In specific circumstances, the
law permits the plaintiff to request the court to grant a summary
judgment
against the defendant, allowing the matter to be resolved
swiftly without the need for the plaintiff to bear the expense of a
full
trial.
[24]
However, the rule is not
designed to unfairly exclude a defendant who can demonstrate that
there is a legitimate and triable issue
related to the claim from
presenting their defense.
61.
For
many years, the remedy provided by
Rule 32
has been viewed as both
extraordinary and stringent, as it effectively bars the defendant
from accessing the full trial process
and allows a judgment to be
rendered without the opportunity for further argument or examination
of evidence.
[25]
This
stringent nature reflects the courts' cautious approach, ensuring
that summary judgment is only granted in clear- cut cases
where no
genuine defense exists, while balancing the plaintiff's right to
avoid unnecessary delays.
62.
In
Maharaj
v Barclays National Bank Ltd
,
[26]
the
court stated the correct approach to follow in considering summary
judgment applications. This case remains a crucial reference
for
understanding how courts should exercise caution in granting summary
judgments, ensuring that they do so only when it is clear
that the
defendant has no bona fide defense,
and
that the application complies with procedural requirements. The
judgment also emphasises that summary judgment is a drastic
remedy
and should be granted sparingly, respecting the balance between the
plaintiff’s right to avoid delays and the defendant’s
right to present a valid defense.
63.
In my view, the relief sought in the interlocutory
application for summary judgment,
or in the
main action proceedings, which includes the confirmation of the
plaintiff’s election of a remedy for breach—in
this case,
the unilateral cancellation of a credit agreement regulated under the
National Credit Act—raises
significant concerns. The
cancellation is based on the debtor's failure to make three monthly
instalments, with the plaintiff subsequently
claiming the return of
the moveable property (a vehicle)
and legal
costs on an attorney-and-client scale.
64.
However, despite the availability of specific
performance as the primary remedy for breach under the contract—an
option that
is competent, enforceable, and just under the
circumstances—the plaintiff’s choice to cancel the
agreement could lead
to
unjust and overly
prejudicial consequences for the debtor. This approach
undermines the objectives of the
National Credit
Act, which
seeks to promote fairness and prevent exploitative
outcomes. The election of cancellation in this context appears
irrational and
would likely result in an unfair outcome, especially
when a less drastic remedy like specific performance is available and
more
appropriate.
65.
Courts are required to confirm the cancellation of
credit agreements regulated under the
National Credit Act due
to the
essential need for judicial supervision and protection in such
matters. This responsibility arises from the courts' role
in ensuring
that
the
individuals
whom
the
National
Credit
Act
aims
to
protect,
as
outlined
in
its
preamble, are safeguarded and that the Act's objectives are fully
realised. In my view, the plaintiff’s or aggrieved party’s
choice of remedy in such cases must be subjected to judicial
scrutiny, where its rationality, justification, and appropriateness
are examined closely—particularly when the agreement falls
under the provisions of the
National Credit Act.
66.
If courts were to simply confirm the plaintiff's
cancellation of the credit agreement without this necessary scrutiny,
it would
undermine the very protections the Act is meant to provide.
In my view, such confirmation is not a mere rubber-stamping exercise.
The court must ensure that the remedy chosen by the aggrieved party
is rational, just, and equitable under the circumstances. The
factors
for consideration are not limited to a closed list, but the most
basic principle is that the least harmful and most logical
remedy
should be pursued first, especially when specific performance remains
a viable option. Permitting a remedy with harsher
consequences for
the debtor without such consideration would contradict the
constitutional principles and objectives that the
National Credit Act
is
designed to enforce.
67.
In the context of our young and developing
democracy, where poverty, unemployment, and inequality remain
pervasive issues, courts
must be particularly cautious not to allow
remedies that exacerbate these challenges. The courts are not there
to endorse or condone
injustice; they are tasked with ensuring
fairness and protecting the vulnerable.
Specific Performance
68.
Specific performance is considered the fundamental
remedy for a breach of contract and is generally available to the
aggrieved party.
In contract law, an order for
specific
performance requires a party to fulfil their contractual obligations,
which could involve performing specific duties, providing
services,
delivering goods, or making payments. A plaintiff is typically
entitled to seek specific performance, and if they establish
their
case, the court will grant the remedy, although this is subject to
the court's discretion.
69.
In
Farmers'
Co-operative Society (Reg) v Berry
,
Innes J articulated this principle, stating that any party to a
binding agreement, who is prepared to fulfil their own obligations,
has the right to demand that the other party do the same, as far as
it is practically possible. This highlights the right of a
contracting party to request the enforcement of the contract’s
terms, provided they are ready to meet their own obligations
under
the agreement.
70.
The
right to specific performance in cases where the defendant can fulfil
their obligations is firmly established. In
Haynes
v Kingwilliamstown Municipality
,
[27]
De
Villiers AJA confirmed that under South African law, a plaintiff has
the right to
choose
whether to hold a defendant to the contract and demand exact
performance of what was promised or to seek damages for the
breach.
[28]
Importantly,
this choice belongs solely to the plaintiff; the defendant cannot
insist on paying damages
instead
of being compelled to perform their contractual duties.
[29]
71.
Although
the plaintiff holds the right to elect specific performance, the
court retains the discretion to refuse such an order.
This judicial
discretion must be applied judiciously and is not limited to specific
categories of cases or rigid rules. Instead,
each case is assessed
based on its particular facts and circumstances.
[30]
72.
Specific performance remains the primary remedy
for breach of contract in South African law. Still, in cases where
specific performance
is not appropriate or possible, damages can
serve as a compensatory alternative for the aggrieved party.
73.
The
concept of judicial discretion in granting or denying an order for
specific performance is governed by common law. In
Haynes
v Kingwilliamstown Municipality
,
[31]
De
Villiers AJA emphasised that while courts generally respect a
plaintiff's choice to claim specific performance, they retain the
discretion to refuse such a decree in appropriate cases, leaving the
plaintiff to pursue damages instead. This discretion, though
judicially exercised, is not confined to rigid categories or specific
types of cases; each matter must be assessed based on its
unique
circumstances.
[32]
74.
The
Appellate Division identified several grounds where courts may
exercise discretion to refuse specific performance, even when
performance is not impossible. These
include:
(a)
when
damages
would
sufficiently
compensate
the
plaintiff;
(b)
when enforcing the court’s decree would be difficult; (c) when
the item in question can easily be obtained elsewhere;
(d) when
specific performance involves services
of
a personal nature. Additionally, courts may refuse specific
performance if it would impose an unreasonable burden on the
defendant,
if the underlying agreement is unjust, or if the decree
would lead to inequitable outcomes.
[33]
For
instance, an order for specific performance against an employee might
be unjust in certain circumstances. However, it should
be noted that
enforcement of the court’s decree is generally not problematic.
If a party fails to comply with the order,
the aggrieved
party
may return to court, and the non-compliant party could be held in
contempt and dealt with accordingly.
75.
In
Benson
v SA Mutual Life Assurance Society
,
[34]
Hefer
JA elaborated on how discretion should be exercised, asserting that
no strict rules govern this discretion other than the
requirement
that it must be applied judicially with regard to all relevant
factors.
[35]
76.
Hefer
JA outlined three key principles that should guide the court in
determining whether to grant specific performance: (i) the
remedy
must not result in an unjust outcome; (ii) the decision must align
with legal and public policy; and (iii) specific performance
should
not be ordered if it has become impossible. Circumstances that may
preclude the granting of specific performance include
impossibility
of performance,
undue
hardship,
contracts
involving
personal
services,
and
vague
or
imprecise obligations.
[36]
These factors reflect the broader principle that, while specific
performance is a primary remedy, it must be applied with fairness
and
in consideration of all relevant circumstances.
77.
Cancellation of a contract is a general remedy for
breach of contract recognised in South African law and is often
referred to as
a drastic remedy as it brings the contract to an end.
In the case of
Standard Bank of South
Africa Ltd v Botes t/a
JHLS Botes
Vervoer (NWM)
(unreported case no:
M85/2015, 13-9-2015) (Landman J), the court held that the
National
Credit Act does
not regulate the cancellation of a credit agreement.
As a result, the principles of common law regarding cancellation
remain applicable
and continue to govern such matters. This decision
reaffirms that, despite the protections and regulations provided
under the
National Credit Act, the
common law prevails in
circumstances where the Act is silent on specific aspects, such as
the cancellation of credit agreements.
78.
Cancellation of a contract is an extraordinary
remedy. I am not convinced that the applicant has made a case for
cancellation, despite
the existence of a cancellation clause. I
believe that the appropriate remedy is specific performance, and a
case
has not been made as to why specific
performance would not be appropriate.
79.
The court found that the plaintiff’s
decision to cancel the credit agreement was unfounded and
inappropriate, as specific
performance should have been the primary
and appropriate remedy in the circumstances. The defendant's
actions—filing a notice
of intention to defend, submitting a
plea, and making payments that covered two of the three missed
instalments—clearly demonstrated
that specific performance was
both feasible and enforceable.
80.
Moreover, the plaintiff’s choice to
unilaterally cancel the credit agreement, despite the brief period
during which the defendant
was in breach and the defendant's
subsequent efforts to resolve the outstanding arrears, weighed in
favour of allowing the contract
to continue. The defendant’s
intention to settle the remaining arrears, coupled with the partial
payments already made, indicated
that providing the defendant with
the opportunity to remedy the situation was a fair and just solution.
This approach would allow
the defendant to catch up on the one or two
months of outstanding payments and avoid the disproportionate
consequences of cancellation.
81.
Moreover, when cancelling the credit agreement
will lead to a serious injustice and possibly leave the debtor in a
bigger financial
hole (debt) after having to have the full
outstanding balance on the capital credit amount with interest
thereon in terms of the
credit agreement immediately called up and
payable, added to it sheriffs fees and legal costs on attorney and
client scale with
interests thereon, which will most probably exceed
the amount initially advanced under the credit agreement and loss of
the asset
(vehicle) which they tried to acquire thus deepening the
already existing debt militate against endorsing the irrational
election
of cancellation of the credit agreement and return of
vehicle obtained through a credit agreement regulated under the
National Credit Act, as
such a remedy will, cause a real and serious
injustice where the facts do not justify such and where remedy goes
against the provisions
and objectives of the
National Credit Act.
82.
In addition, cancelling the credit agreement in
such circumstances would result in a severe injustice, potentially
leaving the debtor
in a deeper financial crisis. Upon cancellation,
the debtor would be required to immediately repay the full
outstanding balance
of the principal loan, along with interest, as
per the terms of the agreement. This burden would be further
compounded by the addition
of sheriff’s fees, legal costs on an
attorney-and-client scale, and interest on those costs—likely
exceeding the original
amount advanced under the credit agreement.
Additionally, the debtor would lose the asset they had been working
to acquire, exacerbating
their financial position and deepening their
existing debt.
83.
This situation highlights the irrationality of
electing to cancel the credit agreement and reclaim the vehicle,
particularly under
an agreement regulated by the
National Credit Act.
Such
a remedy would create a serious and unjust outcome, contrary to
the facts of the case and the underlying objectives of the
National
Credit Act, which
seeks to promote fairness and prevent exploitative
practices in credit transactions. The election of cancellation, in
this instance,
would not only be disproportionate but would also
undermine the debtor's ability to recover, reinforcing the very
financial instability
the Act seeks to mitigate.
84.
In the ordinary course where specific performance
is still possible, the plaintiff ought to have brought the claim for
a monetary
judgment for the outstanding arrears at the Magistrates
Court and not the High Court, as the amount claimed of R14,283.20
falls
within the monetary jurisdiction of the District Magistrates
Court, which would have also been more efficient and cost effective.
Bringing a matter such as this one to the High Court under the guise
of an irrational remedy chosen (cancellation of the credit
agreement
for small amount in arrears) where the circumstances do not warrant
it not only prejudices the litigant, but the High
Court roll too by
over congesting it with matters that ought not to be on the roll,
creating an increased and unnecessary workload
for the presiding
officer and taking away the limited resources available to other
deserving litigants who have matters that deserve
this courts
attention. More recently from the matters that have come before me on
unopposed motion court seem to lead me to an
irresistible view and
inference that High Courts are now being reduced to professional
playgrounds, that are expected to adjudicate
even the most trivial
matters which detract from the status and stature of this court in
the judicial hierarchy.
85.
Bringing a matter like this one illustrates how
litigants can circumvent the appropriate court and procedures by
invoking this Court’s
common law jurisdiction and inherent
power to cancel an agreement, even when the circumstances do not
warrant such action. This
tactic may amount to an abuse of court
processes and potentially contravene the very legislation designed to
protect vulnerable
individuals. The indiscriminate granting of such
cancellation orders, without thorough judicial oversight, risks
perpetuating a
cycle of unlawful conduct, benefitting a system or
syndicate that serves the interests of certain industry players—such
as
debt review companies, practitioners, and legal professionals—who
increase their profits at the expense of debtors. This practice
particularly impacts the middle class or those described as the
"missing middle," who often find themselves vulnerable
to
predatory actions. Without proper judicial
scrutiny, the willy-nilly granting of cancellations
could
undermine
the
protective
objectives
of
legislation
like
the
National Credit
Act, designed
to ensure fairness in credit agreements, and instead
enable profit-driven actors to exploit the legal system to the
detriment of
those already struggling with debt.
86.
Judicial supervision is essential in cases that
safeguard and implement provisions of legislation aimed at upholding
constitutional
rights. Despite this, some parties exploit the
congestion of the unopposed motion roll, assuming that judges may be
less thorough
due to the overwhelming number of cases they must
oversee. For
example, on a typical day, a
judge may face no fewer than one hundred unopposed applications on
the court roll, not all of which
are truly unopposed—such as
the present case. In some Divisions, these matters are set down over
two days per week in equal
batches, without the luxury of a full
reading day, as the growing workload strains the already limited
budget for judicial appointments.
87.
This situation underscores the need for careful
judicial scrutiny and the importance
of
ensuring that only deserving, well-prepared cases, moved by competent
legal practitioners, are brought before the court for adjudication.
Without proper oversight, the legal process risks being undermined by
poorly prepared applications and opportunistic litigants,
further
congesting the courts, and compromising the fair administration of
justice.
88.
In my view, diligent preparation by legal
practitioners, coupled with thorough judicial supervision, is
essential in cases such
as these, especially when they are enrolled
in the unopposed motion court or involve an unrepresented litigant.
Proper preparation
ensures that the legal process is not abused, and
judicial oversight is crucial to maintaining
fairness
and
upholding
the
integrity
of
the
court
system.
This
level
of
scrutiny is especially important in unopposed matters or where one
party lacks legal representation, as it helps to prevent miscarriages
of justice and ensures that all parties receive a fair and just
hearing.
Order:
1.
The plaintiff’s application for summary
judgment lacks the necessary procedural compliance with the relevant
provisions of
the Practice Manual, Uniform Rules of Court, and
National Credit Act.
2.
The founding affidavit in the interlocutory
summary judgment application and particulars of claim in the main
action, lack the necessary
averments to support the cause of action
and relief sought.
3.
The application for summary judgment is refused.
4.
No order as to costs.
5.
The plaintiff must cause a copy of this judgment
and order to be served on the defendant prior to the enrolment of the
main action
proceedings, in the event they resume.
6.
The Registrar must provide the Legal Practice
Council (both provincial and national) with a copy of this judgment.
M MORGAN
ACTING JUDGE OF THE
HIGH COURT,
POLOKWANE, LIMPOPO
DIVISION
APPEARANCES IN THE
SUMMARY JUDGMENT APPLICATION
FOR THE
PLAINTIFF
:
ADV M BRESLER
INSTRUCTED
BY
:
HACK STUPEL & ROSS ATTORNEYS
Barry6@hsr.co.za
FOR THE
DEFENDANT
:
NO APPEARANCE
ATTORNEYS ON
RECORD
: TD
SAKO ATTORNEYS
tsietsisako@gmail.com
[1]
Herein
after referred to as the
National Credit Act.
[2]
FirstRand
Bank Limited t/a WesBank v Maenet JA Attorneys Inc
[2021]
ZAGPPHC 612 at paras 1-2.
[3]
The
Plaintiff is a credit provider duly registered as such in terms of
the
National Credit Act, 34 of 2005
. The Plaintiff is a registered
Credit provider and duly registered as such as defined in
section 40
of the
National Credit Act 34 of 2005
.
[4]
Section
129(1)(a)
of the
National Credit Act provides
:
‘
1)
If the consumer is in default under a credit agreement, the credit
provider-
(a) may draw the default
to the notice of the consumer in writing and propose that the
consumer refer the credit agreement to
a debt counsellor,
alternative dispute resolution agent, consumer court or ombud with
jurisdiction, with the intent that the
parties resolve any dispute
under the agreement or develop and agree on a plan to bring the
payments under the agreement up to
date.’
[5]
Sebola
v Standard Bank of South Africa Ltd
2012
5 SA 142 (CC).
[6]
Ibid
at para 74.
[7]
Ibid
at paras 74-76.
[8]
Ibid
at para 76.
[9]
Ibid
at para 86.
[10]
Ibid
at para 87.
[11]
Ibid.
[12]
Kubyana
v Standard Bank of South Africa Ltd
2014
3 SA 56 (CC).
[13]
Ibid
at paras 12-17.
[14]
Ibid
at paras 31-39.
[15]
Ibid
at paras 32, 43 and 54.
[16]
Ibid
at para 33.
[17]
Ibid
at paras 35-48.
[18]
Ibid
at paras 46-54.
[19]
Ibid
53.
[20]
National
Director of Public Prosecutions (Ex Parte Application)
2022
(1) SACR 1
(SCA) at para 19.
[21]
National
Director of Public Prosecutions
[2018]
ZASCA 86
;
2018 (2) SACR 176
(SCA) (“
Ramadhani
”
).
[22]
Section
165
provides: “Judicial authority 165. (1) The judicial
authority of the Republic is vested in the courts. (2) The courts
are
independent and subject only to the Constitution and the law,
which they must apply impartially and without fear, favour or
prejudice.
(3) No person or organ of state may interfere with the
functioning of the courts. (4) Organs of state, through legislative
and
other measures, must assist and protect the courts to ensure the
independence, impartiality, dignity, accessibility and effectiveness
of the courts. (5) An order or decision issued by a court binds all
persons to whom and organs of state to which it applies.
(6) The
Chief Justice is the head of the judiciary and exercises
responsibility over the establishment and monitoring of norms
and
standards for the exercise of the judicial functions of all courts.”
[23]
Tumileng
Trading CC v National Security and Fire (Pty) Ltd
2020
(6) SA 624 (WCC).
[24]
Meek
v
Kruger
1958
(3)
SA
154
(T)
at
159–60;
Joob
Joob
Investments
(Pty)
Ltd
v
Stocks
Mavundla
Zek
Joint
Venture
2009
(5)
SA
1
(SCA)
at
11C–G;
Majola
v
Nitro
Securitisation
1
(Pty)
Ltd
2012
(1)
SA
226
(SCA)
at
232F–
G;
Eclipse
Systems
v
He
&
She
Investments
(Pty)
Ltd
and
A
Related
Matter
2020
(6)
SA
497
(WCC)
at
paragraph
[10];
Velocity
Finance (RF) Limited v Desert Fox Investments (Pty) Ltd t/a Desert
Fox Investments
(unreported,
ECMk case nos 1206/2022; 1511/2022 dated 23 May 2023) at paragraph
[16]. How this came about is clearly stated by
Van den Heever J in
Edwards
v Menezes
1973
(1) SA 299
(NC) at 303. See also
Sekretaris
van Landboukrediet en Grondbesit v Loots
1973
(3) SA 296
(NC) at 298.
[25]
See
Jacobs
v Booth’s Distillery Co
85 LT 262
(HL)
in
which case Lord James of Hereford said that there was a fair issue
to be tried; and see the authorities referred to in
n
1 above. In Majola v Nitro Securitisation 1 (Pty) Ltd
2012 (1) SA
226
(SCA) the following was stated (at 232F–G):
‘
It
is a procedure that is intended “to prevent sham defences from
defeating the rights of parties by delay, and at the same
time
causing great loss to plaintiffs who were endeavoring to enforce
their rights”.’
In
FirstRand Bank Ltd t/a Wesbank v Maenetja Attorneys (unreported, GP
case no 8557/2021 dated 17 September 2021) at paragraph
[2]
the court held: ‘Naturally, summary judgment cannot be granted
where it is clear that some ventilation of evidence is
required in
order for the Court to come to a decision. Adopting this approach,
the successful defendant who demonstrates a triable
defence is not
excised from further anticipated litigation. Thus, the defendant
retains
(all)
his
Constitutional
Rights
to
access
justice,
as
enshrined
in
section
34
of
the
Constitution
.
See
also
Velocity
Finance (RF) Limited v Desert Fox Investments (Pty) Ltd t/a Desert
Fox Investments (unreported, ECMk case nos 1206/2022;
1511/2022
dated 23 May 2023) at paragraph [16].
[26]
Maharaj
v Barclays National Bank Ltd
1976
(1) SA 418 (A).
[27]
Haynes
v Kingwilliamstown
1951
2 SA 371 (A).
[28]
Ibid
378D-E;
Cohen
v Shines, Mc Haltie and King
1882
Kotze’s Reports 41
[29]
Ibid
at 378D-E
[30]
Ibid
378G-H.
[31]
Ibid.
[32]
Ibid
378F-G.
[33]
Ibid
378 – 379.
[34]
Benson
v SA Mutual Life Assurance Society
1986
1 SA 776 (A) 782.
[35]
Ibid
782F – 783C.
[36]
Benson
supra
783D-F.