IN THE HIGH COURT OF SOUTH AFRICA
FREE ST ATE DIVISION, BLOEMFONTEIN
In the matter between
THE STANDARD BANK OF SOUTH AFRICA
SB GUARANTEE COMPANY (RF) (PTY) LTD
and
CHRISTOFFEL GERHARDUS NEL
Neutral citation:
Coram: Mahlatsi AJ
Heard: 07/11/2024
Delivered: 12/12/2024
Reportable / Not reportable
Case no: 2721/2024
FIRST APPLICANT
SECOND APPLICANT
RESPONDENT
Summary: Summary judgment - credit agreement - loan contract
ORDER
1 Summary judgment application is dismissed in respect of claims 1 to 3 and 6.
2 Summary judgment application is granted as prayed for in the notice of motion in
respect of claims 4 and 5.
3 Costs are costs in the course.
Mahlatsi AJ
Introduction
JUDGMENT
[1] The plaintiffs seek summary judgment in terms of rule 32 of the Uniform Rules of
Court (rules) against the defendant. The plaintiffs' alleged claims against the defendant
are contractual in nature following the credit agreements entered into between the
plaintiffs, the principal debtor represented by the defendant and the defendant. The
credit agreements, or loan agreements, are attached to the summons. The defendant
opposed the summary judgment application and made a counterclaim. Despite the fact
that these proceedings are in the form of an application, the parties are referred to in
this judgment as plaintiffs and the defendant, respectively.
Background
[2] The plaintiffs' claim is founded on six contracts of loan, allegedly concluded on
three unknown dates in 2012 and on 10 October 2019 between the first plaintiff, Future
Indefinite Investment 254 (Pty) Ltd (the principal debtor) and the defendant. These
contracts also included suretyships between the defendant and the second plaintiff and
as well as a guarantee entered into between the defendant and first plaintiff on 1 O July
2019.
[3] The loan agreements in respect of claims 1 to 3 and claim 6 were entered into in
the following manner:
(i) Claim 1 is an overdraft agreement dated 30 September 2019, marked 'POC3' as
per plaintiffs paginated bundle on page 84;
(ii) Claim 2 is a Business Revolving Plan dated 02 February 2015, marked 'POC 9'
as per plaintiffs paginated bundle on page 120;
(iii) Claim 3 is a home loan agreement with mortgage loan account number 366464604
dated 17 July 2012, marked 'POC 12' as per plaintiffs paginated bundle on page 144;
and
(iv) Claim 6 is a home loan agreement with home loan account number 531326225
dated 6 December 2017, marked 'POC 23' as per plaintiffs paginated bundle on page
183.
Claim 4 is based on a credit card agreement entered into during 2022 under account
number 55205784463102 as mentioned in para 35 of the particulars of claim, whereas
Claim 5 is loan or overdraft agreement under account 043120539 as reflected on 'POC
19', the statement of the account.
[4] The defendant is resisting this application on several on several grounds. He filed
his plea and an affidavit supporting his claim that he has a bona fide defence and a
counterclaim.
[5] I will not inundate this judgment by regurgitating all such 'express terms', save to
only highlight such terms as are relevant for the purpose of this judgment and to the extent
necessary to arrive at a fair and just determination of the current issues. Such terms
including the loan agreements, guarantees and sureties concluded by the parties which
are referred to and included in the pleadings.
[6] The defendant, in his opposing affidavit, avers that the first plaintiff and the
Bloemfontein liquidator are withholding information on financial statements of the principal
debtor. The defendant is unable to challenge the plaintiff(s) claim because of the lack of
those financial statements which are needed for him in the discovery. Furthermore, he
contends that the plaintiff and the Bloemfontein liquidator are undermining the instructions
of Judge Haneke, who was the chairperson of the enquiry in the liquidation of the principal
debtor by withholding financial information from the accountant.
[7] In addition, the plaintiff breached its obligation by preventing the principal debtor
from being rehabilitated through a business rescue process. Furthermore, the plaintiffs
breached the obligation to mitigate the effect of covid on the principal debtor and the first
plaintiff prevented a better return to be archived on the sale of assets of the principal
debtor.
[8] The defendant is disputing the amounts claimed by the plaintiffs and that the
certificates of balance do not constitute proof of the amounts allegedly indebted to the
plaintiffs.
Common cause factors
[9] The first plaintiff and the principal debtor, who was represen~ed by the defendant,
entered into different loan agreements as referred to in claims 1 to 3. The second plaintiff
and the principal debtor, represented by the defendant, entered into loan agreement as
referred to in .claim 6. Furthermore, the first plaintiff and the defendant entered into a credit
card agreement and an overdraft agreement as referred to in claims 4 and 5. There are
guarantees and sureties signed by the defendant in favour of the plaintiffs as are attached
in the summons.
Applicable law
[1 O] Rule 32 provides:
'(1) The plaintiff may, after the defendant has delivered a plea, apply to court for summary
judgment on each of the such claims in the summons as is only -
(a) on a liquid document;
(b) for a liquidated amount in money;
(c) for delivery of movable property; or
(d) for ejectment;
together with any claim for interest and costs.'
[18] A defendant wishing to oppose a summary judgment has to invoke the procedure
set out in rule 32(3) which provides it with the following steps to follow, namely, that: (a)
he must provide to the plaintiff security to the satisfaction of the Registrar, for any
judgment including costs which may be given1 or he may, upon hearing an application for
summary judgment, satisfy the court by affidavit delivered before noon on a day before
the court day (which affidavit may, with leave of court, be supplemented by oral evidence)
that he has a bona fide defence to the claim on which summary judgment is sought or he
has bona fide counterclaim against the plaintiff.2
[19] The affidavit must disclose the nature of the defence and the material facts relied
upon. The defendant need not deal exclusively with the facts and evidence relied upon to
substantiate those factors but he must at least disclose the defence and the material facts
upon which it is based with sufficient particularity and completeness to enable the court
to determine whether the affidavit discloses a bona fide defence or not.
[20] In Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture3 it was
held that 'the summary judgment procedure was not intended to "shut"· (a defendant) out
from defending, unless it was very clear indeed that he has no case in the action. It was
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 endeavouring to enforce their
rights.'4
[21] In Cohen N.O. and Others v M,5 Nichols JA stated that, ' ... most of the old
authorities still apply in determining whether a defendant has a bona fide defence. All the
defendant is required to do is disclosed a bona fide defence. All the defendant is required
• to do is disclose a genuine defence, as opposed to "a sham" defence. Prospects of
success are irrelevant and as long as the defence is legally cognisable in the sense that
1 Rule 32(3)(aJ.
2 Oos -Randse Bantoesake Administrasieraad v Sanlam Versekeringsmaatskappy Bpk en Andere (1) 1978
(1) SA 160 (W); Slabbert v Volkskas Bpk 1985 (1) SA 141 (T).
3 Joob Joob Investments (Ply) Ltd v Stocks Mavundla Zek Joint Venture (2009] ZASCA 23; 2009 (5) SA 1
(SCA).
4 Ibid para 31.
5 Cohen N. 0. and Others v D (2023] ZASCA 56
it amounts to a valid defence if proven at trial, then an application for summary judgment
must fail'.6
[22] On the basic requirements to be fulfilled by the plaintiff to succeed in the
application for summary judgment, the court in Gulf Steel (Pty) Ltd v Rack-Rite BOP (Pty)
Ltd7 held:
'In view of the nature of the remedy the Court must be satisfied that a plaintiff who seeks summary
judgment has established its claim clearly on the papers and the defendants have I failed to set
up a bona fide defence as required in terms of the Rules of this Court. There are accordingly two
basic requirements that the plaintiff must meet, namely a clear claim and pleadings which are
technically correct before the Court. If either of these requirements is not met, the Court is obliged
to refuse summary judgment. In fact, before even considering whether the defendant has
established a bona fide defence, it is necessary for the Court to be satisfied that the plaintiffs
claim has been clearly established and its pleadings are technically in order. Even if a defendant
fails to put up any defence or puts up a defence which does not meet the standard required of a
defendant to resist summary judgment, summary judgment should nevertheless be refused if the
plaintiffs claim is not clearly established on its papers and its pleadings are not technically in order
and in compliance with the Rules of Court.'8
[23] In AHMR Hospitality (Pty) Ltd tla Bakenhof Wine/ands Venue v Da Silva9 it was
held that a defendant cannot, for the first time, raise defences in its affidavit opposing
summary judgment where no such exist in the plea.10
[24] In Absa Bank Ltd v Le Roux and Others11 2014 (1) SA 475 (WCC) at 483B the
following was stated:
'The purpose of the certificate is to create an evidential onus on the surety to negate the
banks allegations as to the quantum and the cause of any debt in any proceedings in
which it seeks to make a recovery against the surety. The certificate stands as prima facie
proof of the substance of its contents in any litigation to exact payment under the deed of
suretyship ... It has that effect, not as an incident of any law of general application, but
6 Ibid para 29.
7 Gulf Steel (Pty) Ltd v Rack-Rite BOP (Pty) Ltd [1997] 4 All SA 178 (0).
0 Ibid at 683I-684B. .
9 AHMR Hospitality (Ply) Ltd tla Bakenhof Wine/ands Venue v Da Silva (2023] ZAWCHC 206 2024 (3) SA
100 (WCC) .
10 Ibid para 12.
11 Absa Bank Ltd v Le Roux and Others [2013] ZAWCHC 148; 2014 (1) SA 475 (WCC).
only because the parties have agreed in their contract that it should do.'12
[25] Lastly, in Senekal v Trust Bank of Africa13 at 382A, the court provided that the
main purpose of a_ certificate clause was clearly to facilitate proof of the amount of the
principal debt to the bank at any given time.14
Does the defendant disclose a bona fide defence
[26] The defendant does not deny the indebtedness of the principal debtor to the
second plaintiff, notwithstanding the detail provided in the certificate of balance in respect
of claims 1 to 3 and 6. The defendant is disputing the amounts claimed against the
principal debtor. He requests detailed financial statements and information to be in a
position to defend those claims. The reason, amongst others, is that there were payments
made from the proceeds of the sale of the principal debtor's properties due to its
liquidation. The instruction of Judge Hanke followed to resolve the impasse between the
parties. The liquidation proceedings have influence and what happened in the process is
relevant to the defendant case. The issue of the owed amount by the principal debtor can
be determined when the plaintiffs disclose financial information for the defendant to meet
their claims.
[27] As such, the defendant has proved the there are issues that need ventilation
through trial proceedings in respect of counts 1 to 3 and 6. The main reasons can be
based on the liquidation proceedings against the principal debtor which are not yet
finalised and the proceeds of sale of the property of the principal debtor. In addition to
that, the instructions of Judge Hanke were not complied with fully. As a result, the liquidity
of claims 1 to 3 and 6 becomes the crux of the defendant's defence and counter-claim.
Thus, the defendant has a bona fide defence. Summary judgment cannot make liquidated
what is intrinsically unliquidated.
[28] The situation is different in respect to claims 4 and 5. The defendant deny his
indebtedness to the first plaintiff in these two claims. He alleges that the first plaintiff was
authorised by Top Matt Trading 511 CC to settle the debts in respect of the credit card
12 Ibid para 16.
13 Senekal v Trust Bank of Africa Ltd 1978 (3) SA 375 (A).
14 Ibid at 381A.
and the overdraft. It is clear from the facts that those instructions were not communicated
to the first plaintiff. Furthermore, the certificates of balance cannot be relied on for proper
adjudication the amounts. This view is misplaced in my opinion because the defendant
cannot say the first plaintiff is authorised to settle the debts with money in the account,
and at the same time dispute the amounts. The certificate of balance stands as prima
facie proof of the substance of.its contents in any litigation on the exact amount owed to
the bank because the parties were agreed in the contract that it should be so.
[29] Having said that, the court could not determine that the defendant has
demonstrated that that he has a bona fide defence in law in respect of claims 4 and 5,
which would justify this Court dismissing the summary judgment. The plaintiff is entitled
to assert their rights as afforded in the rule 32.
Order
[30] Accordingly, I make the following order:
1 Summary judgment application is dismissed in respect of claims 1 to 3 and 6.
2 Summary judgment application is granted as prayed for in the notice of motion in
respect of claims 4 and 5.
3 Costs are costs in the course.
MAHLATSI AJ
Appearances:
For the Applicants;
Instructed by:
For the Respondents:
Instructed by:
Adv. J-H. Els
EG Cooper Majiedt Inc
BLOEMFONTEIN
Adv . J Ferreira
Shardelow Smith Attorneys Inc
BLOEMFONTEIN