REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)

Case No: 20 23/045944




IN THE MATTER BETWEEN:
NEDBANK LIMITED PLAINTIFF

AND
DELTA FLEX (PTY) LTD 1st DEFENDAN T
QUINTUS V AN DEN BERG 2nd DEFENDANT

JUDGMENT [ ex tempore]
SIWENDU J
[1] The applicant, Nedbank Limited (Nedbank) applied for summary judgment
(the application) alleging the first and second defendants default ed on payments
of instalments on a COVID - 19 SME loan facility ( the loan facility) concluded in
September 2020.
DELETE WHICHEVER IS NOT APPLICABLE
) REPORTABLE: NO
) OF INTEREST TO OTHER JUDGES: NO
) REVISED : YES/ NO
24.03.2025
DATE SIGNATURE

[2] The first defendant is Delta Flex (Pty) Ltd (Delta Flex), a registered
company based in Centurion. The second defendant is Mr Quintus Van Der Berg
(Mr Van Der Berg) and currently the sole director of Delta Flex . Delta Flex and
Mr Van Der Berg are collectively referred to as the defendants.
[3] The background to the application can be summarised briefly. Nedbank
alleged that on or about 4 September 2020 it concluded a COVID -19 Term Loan
Facility with Delta Flex in an amount of R1 200000.00 . The loan facility was a
fixed term loan p ayable in instalments of R 25 539.42 over a fixed period of sixty
months from 01 November 2021 to 01 October 202 6. It was accepted and
advanced to Delta Flex. Nedbank sued Mr Van Der Berg as the second defend ant
in his capacity as surety and co -principal debtor because he bound himself in
solidium with Delta Flex in terms of the Deed of Suretyship executed with the
loan facility.
[4] In the event of a default, the terms of the loan facility entitled Nedbank to
exercise its right to claim all amounts owing to it. In May 2023, when Delta Flex
defaulted on its payment obligations . Nedbank alleged that a s of 15 May 2023 ,
Delta Flex was in arrears in the sum of R140 114.02 and the monthly instalment
payable was now R27 717.66. The accelerated claim due was R 1 276 538.08
based on the agreed variable interest a rate of 11.25% per annum calculated from
20 April 2023 .
[5] Nedbank instituted an action against the defendants, for the pa yment of R1
276 538.08 (limited to R1 200 000.00 in respect of Mr Van Der Berg ) together
with interest at the prime rate of 11.25% per annum calculated from 20 April 2023
to the date of final (both days inclusive) and capitalised monthly until the date of
final payment.
[6] The above sum due was confir med in a certificate of balance dated 24 Apr il
2023 by one Alicia Masilela . The loan facility agreement provided that a
certificate of balance signed by Nedbank’s managers would be prima facie proof
of Delta Flex ’s indebtedness.
[7] In addition to the background, the litigation history has relevance to the
defence s raised and the reasons for the order. At inception, t he defendants were
represented by Malherbe Rigg & Ranwell Inc. The attorney notified Nedbank of
their intention to defend the claim on 9 June 2023 , and filed their plea dated 17
May 2024 a year later, after the delivery of the notice of bar, dated 10 day of M ay
2024 .
[8] Nedbank then applied for the summary judgment, which was opposed by
the defendants in an affidavit dated 2 August 2024 , deposed to by Mr Van Der
Berg. Nedbank’s attorneys served the notice of the set down of the summary
judgment application on Malherbe Rigg & Ranwell Inc on 29 November 2024 .
On 16 January 2025, approximately two weeks before the hearing, the
defendants’ attorneys withdrew as attorneys of record.
[9] The application served before the court on 3 February 2025. At the hearing,
Mr Nardus Coetz ee purported to represent the defendants and assist Mr Van Der
Berg in his capacity as the Auditor of Delta Flex. On 7 February 2025, the court
granted the summary judgment and provided its reasons ex tempore . These are
the written reasons on which the ex tempore judgment and order is based .
[10] Three questions arose, namely: (a) whether Mr Nardus Coetz ee could legally
represent the defendants, (b) the effect of the withdrawal of legal representation,
and postponement sought (c) whether the defendants have a bona fide defence to
the claim and or there was a triable issue warranting that th e defendants are
granted leave to defend the claim.
[11] Based on the case in Manong and Associates (Pty) Ltd v Minister if Public
Works and Another1 where a managing director of a company purported to

1 2010 (2) SA 167 (SCA) at paras 7 to 14
represent a company, the Court determined that a person in the position of Mr
Nardus Coetz ee or Mr Van Der Berg does not enjoy the right, such as counsel or
an attorney to represent the court on behalf of a company. The Court has a
residual judicial discretion to allow non -professional representation in a particular
case, and may relax the rule in “rare”, “exceptional ” circumstances . However,
leave must be sought by way of a properly motivated, timeously lodged formal
application showing good cause why, in a particular case, the rule should be
relaxed. This was raised with Mr Nardus Coetz ee.
[12] This approach has been followed in this Division in Investec Securities
(Pty) Ltd v Corwil Investments Holdings (Pty) Ltd and Others and Corwil
Investments Holdings (Pty) Ltd and Another v Investec Securities (Pty) Ltd .2
[13] Although as already alluded to, the attorneys withdrew some two weeks
before the hearing, the defendants failed to make a formal application motivating
for a departure from the rule. They had sufficient time to do so. There was no
reason to depart from it.
[14] Furthermore, when viewed wit h the merits of the defe nce, which I will turn
to later, the withdrawal of the attorneys of record raise d spectre of the caution
noted b y the Court in Take & Save Trading CC and Others v The Standard Bank
of SA Ltd . 3 There the Court s tated that the timing of such a withdrawal cannot be
taken lightly as it is often used as a strategy for delay . Importantly, in the prese nt
case, t here was sufficient time t o make the application, alternatively seek legal
representation . No cog ent reasons were advanced for the failure to do so.
[15] Turning to the merits of th e defence, i n their plea, the defendants d id not
dispute accepti ng the loan Nedbank and use of the facility . However , they denied:
(a) the arrears,

2 Unreported Judgment Case No 2021/ 11126 by Wepener J and later by Manoim J –
[2022] ZAGPJHC 888 (20 July 2022
3 (21/2003) [2004] ZASCA 1; 2004 (4) SA 1 (SCA); [2004] 1 All SA 597 (SCA) (27 February 2004
(b) indebtedness
(c) th at the certificate of balance is prima facie proof their indebtedness , and
(d) that the agreement to exclude the application of the NCA.
[16] Other than the question whether the NCA applie d to the loan facility, in my
assessment, the plea const ituted a bare denial of liability and failed disclose facts
upon which the denial of liability is based as required by the rules, which could
enable Nedbank to properly assess the merits of the defence .
[17] In so far as the opposition to the summary judgment is concerned , the
affidavit disposed to by Mr Van Der Berg, claimed that Nedbank is not entitled to
judgment because its application is fatally defective . The material complaints that
emerge are that Nedbank’s affidavit verifies a cause of action , which is at variance
with what is contained the particulars of claim in that :
(a) The certificate of balance is not signed by a manager but by a Recoveries Officer
(Collections and Recoveries) and records an indebtedness in respect of a "C19LOAN "
(b) It “Seemingly deals” with an agreement other than that relied on in the particulars of
claim which is n either a (i) mortgage; nor a (ii) instalment sale account; nor a (iii) vehicle
account, over which the deponent according to him, has control.
(c) There is a discrepancy between the opening date of 7 September 2020, and what is
pleaded in the particulars while the particulars of claim read attachment to the particulars
which all assert the conclusion of an agreement on 4 September 2020 .
(c) One would have expected some type of explanation concerning the discrepancies
between what is alleged in the particulars of claim and what emerges ex facie the
attachments.
(d) Nedbank ought to have excepted to the plea rather than proceed by way of summary
judgment .
[18] In Maharaj v Barclays National Bank Ltd4 Corbett JA held that in
summary judgment applications:
“ All that the Court enquires into is: (a) whether the defendant has ''fully'' disclosed the nature
and grounds of his defence and the material facts upon which it is founded, and (b) whether
on the facts so disclosed the defendant appears to have, as to either the whole or part of the
claim, a defence which is both bona fide and good in law. If satisfied on these matters the
Court must refuse summary judgment, either wholly or in part, as the case may be… sufficient
particularity and completeness to enable the Court to decide whether the affidavit discloses
a bona fide defence. ”
[19] In Arend and Another v Astra Furnishers (Pty) Ltd 5 the court held that the
discretion may be exercised in a defendant's favour if there is doubt as to whether
the plaintiff's case is unanswerable and there is a reasonable possibility that the
defendant's defence is a good one.
[20] None of the defences by the defendants raise a triable issue which could
deny Nedbank’s entitlement to judgment. The defendants do not dispute the
receipt of the loan facility. They made much of the reference to "C19 LOAN" on
which I accept is consonant with the abbreviation for C ovid -19 Loan . Although
the date on which the loan was recorded or captured in Nedbank’s the electronic
data base system differs from the date when the loan was concluded, nothing turns
on this as to the substance and the existed of the loan.
[21] The confirmation of the application correctly reflects the details of the
debtor. The cause of action is premised on no other facility advanced to Delta
Flex other than the Covid 19 Loan Facility . As already stated, th e defendants do
not deny the sum advanced to Delta Flex. Nothing turns on this.

4 1976 (1) SA 418 (A) at 423F - G,
5 1974 (1) SA 298 (C) at 304F - 305H)

[22] In so far as the Certificate of Balance, although it must be signed by a
manager , the terms of the loan facility state s that the capacity and authority of the
author need not be proved . Importantly, the defendants fail to disclose facts to
dislodge the prima facie proof of their indebtedness which is at the heart of the
claim against them and is reflected in the statement of balance in addition to the
Certificate . Mr Van Der Berg as the deponent was well placed to disclose details
of payments made to Nedbank and provide proof of the absence of the
indebtedness. None was provided.
[23] The Term Loan facility makes it clear that the National Credit Act 34 of
2005 (NCA) does not apply to the loan and to the deed of suretyship . I agree d
with Ned bank’s contention that over and above the specific exclusion under the
NCA, the first defendant is a juristic person whose asset value or annual turnover
at the time the secured loan agreement was made, equalled or exceeded the value
determined by the Minister in terms of section 7(1) . In the application, Delta Flex
recorded its turnover was R18,224,755,00 .
[24] As to the contention that Nedbank ought to have excepted to the plea rather
than proceed by way of summary judgment, it does lie in the mouth of a defaulting
debtor who fails to disclose a triable issue in its defence to determine the course
a creditor must take in such circumstances.
[25] Accordingly, summary judgment was granted and the order made based on
the variable rate of interest and the agree d terms that the defendants would be
liable for costs on an attorney and client scale. In the result the following order
was made :
[26] Judgment is granted against the First and Second Defendants jointly and
severally the one paying the other to be absolved for:
a. the p ayment to the Plaintiff of the amount of R1 276 538.08 (limited to
R1 200 000.00 in respect of Second Defendant) together with interest
at a rate 11.25% per annum calculated from 20 April 2023 to the date
of fin al payment (both days inclusive) and capitalised monthly.
b. Cost on an attorney and client scale .


_________ ____
NTY SIWENDU
JUDGE OF THE HIGH COURT
JOHANNESBURG


This Judgment is handed down electronically by circulation to the Applicant’s Legal
Representative and the Respondents by email, publication on Case Lines. The date for the
handing down is deemed 24 March 2025

Date of appearance: 0 5 and 07 Februa ry 2025

Date Judgment delivered: 24 March 2025

Appearances:

For the Plaintiff : Advocate R Peterson
Instructed by: Lowndes Dlamini Attorneys

For the Defendants :
First Defendant (n o legal representat ion)
Second Defendant (In person)