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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 31542/2019
45
In the matter between:
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA LIMITED Plaintiff
And
BASIL AUBREY WILLIS First Defendant
RECHELLE WILLIS Second Defendant
JUDGMENT
SENYATSI J
Introduction
[1] This is an opposed summary application for monetary judgment and special
executability against the f irst defendant. The plaintiff also seeks , at the same
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
__________ _________________
DATE SIGNATURE
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hearing, a separate application for d efault judgment and special executability only
against the second defendant in terms of Rule 46A, because monetary judgment has
already been granted against her.
Background
[2] Following the joint practice note of both parties filed by counsel, the
background as captured therein is as set forth in the preceding paragraphs.
[3] On or about 18 May 2005 and 4 April 2006, the Plaintiff (represented by a
duly authorised official) and the Defendants concluded two written Home Loan
agreements (‘the First and Second Loan Agreement’) in terms of which the
Defendants would borrow the capital amounts of R634 400.00 and R165 600.00,
respectively.
[4] The Defendants’ account fell into arrears and on or about 28 June 2019, the
Defendant’s account was in arrears to an amount of R215 478.41 (Two Hundred and
Fifteen Thousand and Four Hundred and Seventy -Eight Rand and Forty-One Cents)
and total the outstanding amount owed to the Plaintiff was R1 052 299.78 (One
Million and Fifty -Two Thousand and Two Hundred and Ninety -Nine Rand and
Seventy-Eight Cents).
[5] On 01 July 2019 and 07 June 2021, the Plaintiff addressed notices in terms of
Section 129(1)(a) of the National Credit Act 34 of 2005 to the Defendants’ domicilium
address which was served by registered mail.
[6] The Plaintiff then served Combined Summons and Particulars of Claims at the
Defendants’ chosen domicilium address on 12 September 2019. The Defendants
then served their n otice of i ntention to d efend on 19 September 2019. On 25 May
2020, the first defendant served his p lea. At the time when the First Defendant
served his plea, he had been placed ipso facto barred from pleading. Further, the
applicant was authorised to serve a section 129 n otice on the d efendant as per the
court order by Yende AJ dated 5 March 2021.
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[7] After the application for summary judgment was launched against both
defendants, the Court per the order of Engelbrecht AJ, granted leave to defend the
application in favour of the first defendant during November 2021 and gr anted
default judgment against the second defendant as she had not filed her notice of
intention to defend. So, the only relief sought against her, as already stated, is the
executability of the judgment on the immovable property.
Contentions by the first defendant
[8] The first defendant having filed a plea resists the application for summary
judgment. In his plea and opposing affidavit against the summary judgment, the first
defendant firstly, states that due to Covid-19 which resulted in the national shutdown,
his real estate business suffered financially, and it was impossible for him to perform
his repayment obligations, the plaintiff now applies for summary judgment which is
being resisted by the first defendant. Secondly, he also contends that Standard Bank
failed to comply with the section 129 ( 1) of the National Credit Act, no: 34 of 2005 in
that the notice calling up the loans was not delivered to him.
[9] He states that he made numerous attempts to restructure his loan without
success with the plaintiff. He argues that he has minor children that he must maintain
and that the immovable property should not be declared especially executable in
terms of Rule 46A of the Uniform Rules. Other than the bare denials alluded to
herein, the first defendant admits all the averments made by the applicant in its
comprehensive particulars of claim.
Issue for determination
[10] The issues for determination are firstly, whether there is a triable issue based
on the defence of the impossibility of performance due to Covid- 19 and secondly,
whether the alleged non- delivery of section 129(1) notice off ers refuge to the first
defendant and thus a triable issue.
The Legal principles
Summary judgment
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[11] I will now deal with the principles on summary judgment , the defence of
impossibility of performance and the alleged failure to serve the first defendant notice
in terms of section 129.
[12] The summary judgment application is regulated by Rule 32 of the Uniform
Rules which states thus:
“Summary judgment
(1) The plaintiff may, after the defendant has delivered a plea, apply to
court for summary judgment on each of such claims in the summons as is
only—
(a) on a liquid document;
(b) for a liquidated amount in money;
(c) for delivery of specified movable property; or
(d) for ejectment.”
[13] The objective of the rule is to prevent a plaintiff’s claim, based upon certain
causes of action, from being delayed by what amounts to abuse of the process of
court.
1 The procedure is not designed to shut down a defendant who can show that
there is a triable issue applicable to the claim from laying his defence before the
court.2
[14] In Joob Joob Investments (Pty)Ltd v Stocks Mavundla Zek Joint Venture3 , the
Court said the following regarding the procedure:
“The rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a triable issue or a
sustainable defence of her/his day in court. After a century of successful
application in our courts, summary judgment proceedings can hardly continue
to be described as extraordinary. Our courts, both of first instance and at
appellate level, have during that time rightly been trusted to ensure that a
1 Meek v Kruger 1958(3) SA154(T)at 159-160; Joob Joob Investments (Pty)Ltd v Stocks Mavundla
Zek Joint Venture 200(5) SA 1 (SCA)at 11C-G.
2 Majola v Nitro Securitisation 1 (Pty)Ltd 2012 (1) SA 226(SCA) at 232F-G.
3 [2009] ZASCA 23; 2009 (5) SA 1 (SCA); [2009] 3 All SA 407 (SCA) at para 32 -33.
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defendant with a triable issue is not shut out. In the Maharaj case at 425G -
426E, Corbett JA, was keen to ensure first, an examination of whether there
has been sufficient disclosure by a defendant of the nature and grounds of his
defence and the facts upon which it is founded. The second consideration is
that the defence so disclosed must be both bona fide and good in law. A court
which is satisfied that this threshold has been crossed is then bound to refuse
summary judgment. Corbett JA also warned against requiring of a defendant
the precision apposite to pleadings. However, the learned judge was equally
astute to ensure that recalcitrant debtors pay what is due to a creditor.
Having regard to its purpose and its proper application, summary judgment
proceedings only hold terrors and are ‘drastic’ for a defendant who has no
defence. Perhaps the time has come to discard these labels and to
concentrate rather on the proper application of the rule, as set out with
customary clarity and elegance by Corbett JA in the Maharaj case at 425G -
426E.”
[15] Although the remedy is regarded as stringent or extraordinary in that it
effectively closes the door of the court on the defendant without affording an
opportunity to ventilate the cas e by way of trial 4, the situation is different in
circumstances where the defence raised by the defendant is a counterclaim instead
of a plea. In that case, even where summary judgement has been granted for that
part of the claim that would be extinguished by the counterclaim, the defendant can
still pursue the counterclaim by issuing summons in a separate action.5
[16] The plaintiff must confine himself to what the rule allows ;6 and he is not
allowed to file the replying affidavit7 or cross -examine the defendant or any other
person who gives evidence.8 these restrictions upon the plaintiff make it clear that an
application for summary judgement is in no sense a preliminary trial of the issues
involved.9 The procedure is intended neither to give the plaintiff a tactical advantage
4 Stock Mavundla Zek Joint Venture above at para 32.
5 Soil Fumigation Services Lowveld CC v Chemfit Technical Products (Pty) Ltd 2004 (6) SA 29 (SCA)
at 35D-F; Erasmus, Superior Court Practice, Vol.2, D1-384 para 2.
6 Venter v Cassumjee 1956(2) SA 242(N)
7 Rule 32(4) Erasmus ,above D1-386 para 2
8 Rule 32 (4)
9 Belrex 95 CC v Barday 2021 (3) SA178(WCC) at para 25.
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in the trial 10 nor to provide a preview of the defendants evidence or to limit the
defences to those raised by the defendant.
[17] On application for summary judgment, the rule requires that a statement of
facts should accompany the application in terms of which the deponent can
positively swear to the facts forming the basis of the application.
[18] In Barclays National Bank Ltd v Love 11 (quoted with approval in Maharaj 12at
424B-D) the following is said:
“We are concerned here with an affidavit made by the manager of the very
branch of the bank at which overdraft facilities were enjoyed by the defendant.
The nature of the deponent’s office in itself suggests very strongly that he
would in the ordinary course of his duties acquire personal knowledge of the
defendant’s financial standing with the bank. This is not to suggest that he
would have personal knowledge of every withdrawal of money made by the
defendant or that he personally would have made every entry in the bank’s
ledgers or statements of account; indeed, if that were the degree of personal
knowledge required it is difficult to conceive of circumstances in which a bank
could ever obtain summary judgment.”
[19] In Rees and Another v Investec Bank Limited13, the Supreme Court of Appeal,
quoting with approval the requirements of an affidavit said the following:
“In Maharaj14, Corbett JA in considering the requirement that the affidavit
should be made by the plaintiff himself ‘or by any other person who can swear
positively to the facts’ stated:
‘Concentrating more particularly on requirement ( a) above, I would point out
that it contemplates the affidavit being made by the plaintiff himself or some
other person “who can swear positively to the facts”. In the latter event, such
10 Uranovsky v Pascal 1964(2) SA 348(C); Hodgetts Timbers (East London) (Pty) Ltd v HBC
Properties (Pty)Ltd 1972(4) SA 208(E) Howff (Pvt) Ltd v Tromp’s Engineering (Pvt)Ltd 1977(2) SA
267; Flamingo General Centre v Rossburg Food Market 1978 (1) SA 586 (D); Beltrex 95 CC v Barday
2021 (3) SA 178 (WCC) at para 25.
11 1975 (2) SA at 514 (D) at 516H-517A.
12 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A)
13 [2014] ZASCA 38; 2014 (4) SA 220 (SCA) paras 10,
14 Above foot note 12.
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other person’s ability to swear positively to the facts is essential to the
effectiveness of the affidavit as a basis for summary judgment; and the Court
entertaining the application therefor must be satisfied, prima facie, that the
deponent is such a person. Generally speaking, before a person can swear
positively to facts in legal proceedings they must be within his personal
knowledge. For this reason the practice has been adopted, both in regard to
the present Rule 32 and in regard to some of its provincial predecessors (and
the similar rule in the magistrates’ courts), of requiring that a deponent to an
affidavit in support of summary judgment, other than the plaintiff himself,
should state, at least, that the facts are within his personal knowledge (or
make some averment to that effect), unless such direct knowledge appears
from other facts stated . . . The mere assertion by a deponent that he “can
swear positively to the facts” (an assertion which merely reproduces the
wording of the Rule) is not regarded as being sufficient, unless there are good
grounds for believing that the deponent fully appreciated the meaning of these
words. . . In my view, this is a salutary practice. While undue formalism in
procedural matters is always to be eschewed, it is important in summary
judgment applications under Rule 32 that, in substance, the plaintiff should do
what is required of him by the Rule. The extraordinary and drastic nature of
the remedy of summary judgment in its present form has often been judicially
emphasised . . . The grant of the remedy is based upon the supposition that
the plaintiff’s claim is unimpeachable and that the defendant’s defence is
bogus or bad in law. One of the aids to ensuring that this is the position is the
affidavit filed in support of the application; and to achieve this end it is
important that the affidavit should be deposed to by either by the plaintiff
himself or by someone who has personal knowledge of the facts.
Where the affidavit fails to measure up to these requirements, the defect may,
nevertheless, be cured by reference to other documents relating to the
proceedings which are properly before the Court. . .The principle is that, in
deciding whether or not to grant summary judgment, the Court looks at the
matter “at the end of the day” on all the documents that are properly before
it….’”
Impossibility of performance
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[20] Supervening impossibility occurs when the performance of contractual
obligations become objectively impossible due to unforeseeable and unavoidable
events that are not the fault of any party to the contract.
[21] If provision is not made contractually by way of a force majeure clause, a
party will only be able to rely on the very stringent provisions of the common law
doctrine of supervening impossibility of performance, for which objective impossibility
is a requirement15. Performance is not excused in all cases of force majeure16.
[22] In MV Snow Crystal 17, the Supreme Court of Appeal (per Scott JA) said as
follows:
“As a general rule impossibility of performance brought about by vis major or
casus fortuitus will excuse performance of a contract. But it will not always do
so. In each case it is necessary to ‘ look to the nature of the contract, the
relation of the parties, the circumstances of the case, and the nature of the
impossibility invoked by the defendant, to see whether the general rule ought,
in the particular circumstances of the case, to be applied’ . The rule will not
avail a defendant if the impossibility is self -created; nor will it avail the
defendant if the impossibility is due to his or her fault. Save possibly in
circumstances where a plaintiff seeks specific performance, the onus of
proving the impossibility will lie upon the defendant.”
[23] In Unlocked Properties 4 (Pty) Limited v A Commercial Properties CC 18, the
court, citing Unibank Savings & Loans Ltd (formerly Community Bank) v Absa Bank
Ltd19, stated as follows:
15 Matshazi v Mezepoli Melrose Arch (Pty) Ltd and Another [2020] ZAGPJHC 136 para 36.
16 Glencore Grain Africa (Pty) Ltd v Du Plessis NO & Others [2007] JOL 21043 (O); (4621/99) [2002]
ZAFSHC 2 (28 March 2002) at 10.
17 MV Snow Crystal Transnet Ltd t/a National Ports Authority v Owner of MV Snow Crystal [2008]
ZASCA 27; 2008 (4) SA 111 (SCA) para 28
18 [2016] ZAGPJHC 373
19 2000 (4) SA 191 (W).
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“The impossibility must be absolute, or objective as opposed to relative or
subjective. Subjective impossibility to receive or to make performance does
not terminate the contract or extinguish the obligation.”20
[24] In Unibank it was held that—
“Impossibility is furthermore not implicit in a change of financial strength or in
commercial circumstances which cause compliance with the contractual
obligations to be difficult, expensive or unaffordable.”21
[25] In Barkhuizen v Napier22 it was held that:
“For instance, common law does not require people to do that, which is
impossible.
“This principle is expressed in the maxim lex non cogit ad impossibilia – no
one should be compelled to perform or comply with that which is impossible.”
This maxim derives from the principles of justice and equity, which underlie
the common law. Over the years, the maxim has become entrenched in our
law and has been applied to avoid time bar provisions in statutes.”
[26] In Montsisi23, the Appellate Division held that the principle expressed by the
maxim lex non cogit ad impossibilia applied to a statutory time bar provision
contained in section 32(1) of the Police Act 7 of 1958. The case concerned a plaintiff
who sued the Minister of Police for damages for unlawful assault alleged to have
been committed upon him by police while he was being detained in terms of section
6 of the Terrorism Act 83 of 1967. The court held that it was impossible for the
plaintiff to comply with the provisions of section 32(1) while he was in detention, and
that therefore the expiry period provided for in section 32(1) did not run against him
so long as he was in detention.
20 Unlocked Properties- above para 23. In Unibank, the court has stated as follows: “A contract is …
terminated only by objective impossibility (which always or normally must be total). Subjective
impossibility to receive or make performance at most justifies the other party in exercising an election
to cancel the contract.”
21 Unibank Savings (note 19 above) at 198D.
22 2007(5) SA 323, CC para 75
23 Montsisi v Minister van Polisie 1984(1) SA 619(A)
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[27] In the matter of Transnet Ltd v The MV Snow Crystal24 it was said:
"This brings me to the appellant's defence of supervening impossibility of
performance. As a general rule impossibility of performance brought about by
vis major or casus fortuitus will excuse performance of a contract. But it will
not always do so. In each case, it is necessary to 'look to the nature of the
contract, the relation of the parties, the circumstances of the case, and the
nature of the impossibility invoked by the defendant, to see whether the
general rule ought, in the particular circumstances of the case, to be applied.
The rule will not avail a defendant if the impossibility is self - created; nor will it
avail the defendant if the impossibility is due to his or her fault. Save possibly
in circumstances where a plaintiff seeks specific performance, the onus of
proving the impossibility will lie upon the defendant."
[28] In World Leisure Holidays (Pty) Ltd v Georges
25, the court dealt with
temporary impossibility. It stated that:
“The temporary impossibility of performance does not, of itself, bring a
contract to an immediate end. The respondent's alternative claim accordingly
raises the question of when a creditor is entitled to treat a contract as being at
an end whilst performance is temporarily impossible. The answer is that he is
only entitled to do so where the foundation of the contract has been
destroyed; or where all performance is already, or would inevitably become,
impossible, or where part of the performance has become, or would inevitably
be, impossible and he is not bound to accept the remaining performance."
[29] In the instant case, there is no averment on how Covid-19 made it impossible
for the first defendant to perform his obligations. No financials records have been
attached to the opposing papers. The bare denial under paragraph 19 of the
particulars of claim which deals with the balance of the two loans as at 28 June 2019
is not a defence and opens itself up for summary judgment . The first defendant does
24 2008(4) SA 111 SCA, para 28
25 (2002) (5) SA at 532F-534G
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not advance any averment such as that he is up to date with his repayments
obligations. Accordingly, I am satisfied that there is no triable issue on this point.
Non-delivery of the Notice in terms of section 129(1)
[30] The first defendant denies that he received the section 129(1) noti ce. Section
12926, envisages the required procedure prior to enforcing a debt agreement and
further that one may not commence any legal proceedings to enforce the agreement
before:
(a) proving notice to the debtor, and
(b) complying with section 13.
[31] In Kubyana v Standard Bank of South Africa Ltd 27, held that delivery of
section 129 through postal service and confirmation of such delivery entails the
following:
(a) the s129 notice was sent through registered mail to the correct postal
branch and nominated address by the consumer. A track and trace may be
used to verify this information, and
(b) the Post Office issued a notification to the consumer that a registered
item was available for her collection.
[32] The Plaintiff served the s129 notice to the f irst defendant by service through
the Sheriff on 1 and 2 July 2019. The first defendant was sent first notification in
respect of the Reeds post office on the 13th of September 2022 and the parcel track
slip which confirm the delivery has been filed as part of the papers before me. I am
satisfied that the plaintiff has complied with the procedures of service to the chosen
address of the first defendant. There is therefore no merit for this defence and
absent that, there is no triable issue.
[33] Having regard to the bare denials by the first defendant, I am not persuaded
by his resi stance to the summary application that there is any triable issue that
requires the matter to be referred to trial. I say so because not only does the first
defendant admit that he is behind with his repayment obligations , but he also avers
26 The National Credit Act 34 of 2005.
27 2014 (3) SA 56 (CC).
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that his attempt to have the repayment restructured were not accepted by Standard
Bank. I have not been provided with any authority to the proposition that refusal by
the plaintiff to restructure the repayment of a loan is a defence. Accordingly, the
application for summary judgment must succeed.
Rule 46A
[34] I have considered the submissions made in respect of the application for the
declaring the immovable property especially executable. Having done so, I am not
satisfied that the evaluation performed in respect thereof complies with Rule 46A
because a trainee performed the valuation. The deponent on valuation states that he
did not deal with the valuation but that the valuation was performed by his candidate
valuer who is under his super vision.
Order
[35] Having heard Counsel and having considered the written heads of argument
and having read the documents filed of record, the following order is made:
1. Summary Judgment is granted against the First Defendant, in the
following terms:
a. Payment of the sum of R1 052 299.78;
b. Interest on the amount of R1 052 299.78 at a rate of 10.25% per annum,
from 28 June 2019 to date of payment, both dates included;
c. Payment of monthly insurance premiums of R1 057.11 from 28 June 2019
to date of payment; and
d. Costs of suit on the Attorney and Client scale.
2. As Against Both Defendants:
Summary Judgment is granted against the First Defendant and Default
Judgment in terms of Rule 46A to declare the immovable property
PORTION 4 OF ERF 7[…] K[…] T[…]
REGISTRATION DIVISION I.R.,
PROVINCE OF GAUTENG
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MEASURING 1670 (ONE THOUSAND SIX HUNDRED A SEVENTY)
SQUARE METERS HELD OF DEED OF TRANSFER T81332/2005
SUBJECT TO THE CONDITIONS THEREIN CONTAINED (“the Property”) is
postponed sine die;
3. The applicant is directed to perform an independent valuation by a suitably
qualified valuer within 20 days of this order to assist the Court to exercise it s
judicial oversight in terms of rule 46A;
4. The applicant is directed to supplement its papers in the Rule 46A
application with the new evaluation and set the application down on the same
papers duly supplemented.
5. The costs of the Rule 46A application are reserved.
ML SENYATSI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Delivered: This Judgment was handed down electronically by circulation to the
parties/ their legal representatives by email and by uploading to the electronic file on
Case Lines. The date for hand-down is deemed to be 2 December 2024.
Appearances:
For the plaintiff: Adv M Amojee
Instructed by Strauss Daly Inc.
For the defendant: Adv K Ntjana
Instructed by Austin Shirinda Attorneys
Date of Hearing: 2 September 2024
Date of Judgment: 2 December 2024