SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable: NO
Of Interest to other Judges: NO
Circulate to Magistrates: NO
Case No: 2030/ 2024
In the matter between:
ABSA HOME LOANS GUARANTEE COMPANY (RF) PTY LTD 1st Applicant
ABSA BANK LIMITED 2nd Applicant
And
SIBAMU BUILDING CONTRACTORS (PTY) LTD 1
st Respondent
LEKGOTLA ELISHA SIBANYONI 2
nd Respondent
HILDA KETLOGELWE SIBANYONI 3
rd
Respondent
JUDGMENT BY: MHLAMBI, J
HEARD ON: 07 NOVEMBER 20 24
___________________________________________________________________
DELIVERED ON: 28 FEBRUARY 2025
[1] This is an application for summary judgment in terms of which the applicant
seeks the following relief:
“1. Payment of the sum of R 1 121 881.38 (ONE MILLION ONE HUNDRED AND TWENTY -
ONE THOUSAND EIGHT HUNDRED AND EIGTHY ONE RANDS AND THIRTY -EIGHT
CENTS) (the 2nd and 3rd Defendants limited to the amount of R 912 000.00 (NINE
HUNDRED AND TWELVE THOUSAND RANDS).
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2. Interest on the amount in 1 above at the rate of 10.50% per annum calculated and
capitalized monthly In arrears from 11 MARCH 2023 to date of payment, both dates inclusive,
3. An Order declaring the following immovable property specially executable:
ERF 9 […] BETHLEHEM (EXTENSION 8)
DISTRICT BETHLEHEM
PROVINCE FREE STATE
IN EXTENT; 1487 (ONE THOUSAND FOUR HUNDRED AND EIGHTY
SEVEN) SQUARE METRES
HELD BY DEED OF TRANSFER T14 […]
SUBJECT TO ALL THE TERMS AND CONDITIONS CONTAINED
THEREIN
4. That the Registrar of the above Honourable Court be authorised to issue a writ of
execution in respect of the immovable property referred to above, in order to give effect
to the order granted in terms of prayer 3 above.
5 That no reserve price is set, alternatively a reserve price is set by Court.
6. That in the event that a reserve price is not attained, and subject to Rule 46A(9)(d) and
(e), the Plaintiff may approach the Honourable Court on these papers, duly
supplemented, to reconsider reserve price in terms of Rule 46A(9)(c)
7. That in the event that personal service is not attained, condonation in terms of Rule 46A(3)(d) Is granted.
8. Costs of suit on attorney and client scale.
9. Further and/or alternative relief. ”
[2] The defendants opposed the application and raise d two preliminary points and
a plea on the merits.
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[3] The first preliminary point is that the deponent of the affidavit supporting the
summary judgment proceedings was not deposed by the person who could swear positively to the fact s verifying the cause of action and the amounts
claimed. The second applicant’s representative was Peters , whereas the
second applicant’s s enior legal advisor in the home loans recoveries division
deposed to the affidavit supporting the summary judgment.
[4] The nature of the deponent’s office in itself did not suggest that she would in
the ordinary cause of her duties acquire personal knowledge of the defendant’s
financial standing with the bank. It was unclear from the deponent’s affidavit
what the duties or status of the senior legal advisor in the home loans
recoveries division of the second applicant were. It was inconceivable how the deponent would have personal knowledge of the facts giving rise to the applicants’ cause of action. Mercy Ts hegofatso Pooe’s affidavit did not comply
with the requirements and the application should, on that basis, be dismissed with costs.
[5] The second preliminary point is lis alibi pendens . The applicant claimed similar
relief as in the present matter under case number 1416/2021, which was
withdrawn on 04 July 2024, when the applicant served the current application
for summary judgment.
[6] The applicant was not entitled to the relief sought in this matter as the notices
sent out in terms of section 129 were irregular or premature as there was a
pending matter before this court on the same cause of action. The respondents
defended the matter under case number 1416/2021 and the matter should
therefore be dismissed with costs.
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[7] On the merits, it was admitted that the first respondent entered into a mortgage
loan agreement with the second applicant and subsequently an insurance
agreement with the first applicant to which the second and third respondents became core- debtors in solidum in favour of the applicant. The second
respondent stated in the affidavit that he could not confirm if the agreement
upon which the applicants now sued was the agreement entered into by the
first respondent and the applicants; as the respondents were never given the
agreement to keep copies of after they had signed it. It was difficult to confirm
the veracity and/ or authenticity of the agreement annexed by the applicants.
The second respondent stated further that the property the applicants sought to
execute on was his primary residence, where he resided with his wife and
children. Should the applicants execute on the property, they did not have an
alternative address where they would reside . The second and third respondents
bound themselves as surety and core- principal debtor for the payment by the
first respondent to the first applicant for monies lent and advanced . Their
liability was limited to the amount of R 912 000.00.
[8] According to the applicants, the special plea of lis pendens was without merit.
The applicants contended that the summons under case number 2693/2023
was withdrawn , and the action under case number 1416/2021 was withdrawn
as the cause of action had fallen away.
[9] The respondents admitted to the conclusion of the relevant agreements, and
their plea was essentially a bare denial as they failed to proffer any triable issue
regarding any positive facts that were averred. According to the respondents, a
triable issue or bona fide defence would only exist about the terms of the
agreement or loan agreement if the defendants contested the terms and
conditions of the underlying agreements. The defendants therefore failed to disclose any bona fide defence or raise any tri able issue fit for trial.
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[10] Uniform Rule 32(3) provides that a defendant may satisfy the court by affidavit
that the defendant has a bona fide defence to the action. Such affidavit or
evidence shall disclose fully the nature and grounds of the defence and the
material facts relied upon. In Tumileng Trading CC v National Security and Fire,
1 it was stated that a court seiz ed with a summary judgment application is
not charged with determining the substantive merit s of a defenc e, nor with
determining it s prospects of success. It is concerned only with assessing
whether the pleaded defence is genuinely advanced, as opposed to a sham put up for obtaining delay. The respondents did not deny that they were in ar rears
with their payments , it was submitted in argument . The question arises , what is
the respondent's defenc e on the merits as it is not evident from their papers.
[11] In Rees and Another v Investec Bank Limited
2, it was said that the deponent
employee of the bank , which averred facts obtained in the ordinary course of
his or her duties as an employee of the bank, did not need to meet the strict
requirements about personal knowledge of every fact. I am satisfied that the
respondents did not disclose a bona fide defence nor raise a triable issue fit for
trial. The application for summary judgment must, therefore, succeed.
[12] It is trite that the successful party is entitled to the costs.
[13] In the result , I grant the following order:
Order:
1. Summary judgment is granted for the payment of the sum of R 1 121 881.38
(one million , one hundred and twenty -one thousand, eight hundred and
1 2020 J OL 417 44 WCC; 2020 (6) SA 624 WCC .
2 2014 (4) SA 220 (SCA) .
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eighty -one rands and thirty -eight cents), (the second and third defendants
limited to the amount of R 912 000.00)
2. Interest on the amount in 1 above at a rate of 10.5% per annum calculated
and capitalised monthly in ar rears from 1 1 March 2023 to date of payment,
both dates inclusive.
3. Costs of suit on an attorney -client scale.
MHLAMBI , J
On behalf of the applicant : Adv. WJ Roos
Instructed by: JG Botha Attorneys
Number 1 Street
Bloemfontein Central
Bloemfontein
On behalf of the respondent s: Adv. Z Nyezi
Instructed by: Blair Attorneys
32 First Avenue
Westdene
B loemfontein