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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
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable / Not reportable
Case no: 4781/2023
In the matter between
STANDARD BANK OF SOUTH AFRICA LIMITED APPLICANT
And
MOHAMMED AMRA RESPONDENT
Neutral citation: Standard Bank of South Africa Limited v Mohammed Amra
(4781/2023)
Coram: MPAMA AJ
Heard: 23 January 2025
Delivered: This judgment was handed down electronically by circulation to the parties’
representatives by email and released to SAFLII. The date and time for hand- down is
deemed to be 20 March 2025 at 14H30.
Summary:
ORDER
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The application for summary judgment is granted against the defendant as per the first to
third prayers of the notice of motion.
JUDGMENT
Mpama AJ
Introduction
[1] This is an opposed application for summary judgment brought in terms of rule 32
of the Uniform Rules of the Court (the Rules) for the payment of the sum of R288 672.09,
interest thereon, insurance premiums of R1219.15 and assurance premiums of R498.55 against the respondent. I will refer to the parties as referred to in the main trial.
[2] The cause of action is based on a written home loan agreement entered into
between the plaintiff and the defendant on 12 April 20 07. In terms of the agreement, the
plaintiff advanced a sum of R258 000.00 to the defendant . The loan was repayable with
interest in monthly instalments of R2739.33.
[3] The plaintiff alleged that the defendant breached the terms of the agreement in that
he failed to make payments and, consequently , is in arrears. On 12 September 2023 the
plaintiff i nstituted action proceedings against the defendant in order to recover its moni es
owed by the defendant . The plea spurred the plaintiff into this summary judgment
application.
The Application
[4] Ms Else Wall, Manager of Legal, Defended, Personal & Private Banking Credit
deposed to an affidavit in support of the application. Ms Wall verified the cause of action,
the amount owed by the defendant and the grounds relied upon by the plaintiff as
envisaged in rule 32(2) of the Rules . Ms Wall attacked the defence raised by the
defendant to its claim. She averred that:
(i) The defendant ’s first defence that the plaintiff did not comply with the National Credit
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Act 34 of 2005 was unfounded.
(a) The defendant’s contention that the sheriff’s return of service did not indicate the
person who received the default notice in terms of s 129 of the NCA (s 129 notice) is 16
years older and has not been signed or marked to identify the recipient i s inconsequential
in that the return shows that the service of the notice was e ffected on Mrs Milanze and at
the respondent’s domicilium. She further stated that the title of Mrs Milanze denotes that
she is an adult, well above the age of 16 years. It was submitted that this is merely a technical procedural point .
(b) The plaintiff forwarded s 129 notices by registered mail. These notices were
forwarded to the following addresses; 1 […] E[…] D[…], eThekwini Metro, Westville and
PO BOX 9 […], Newcastle . The defendant admitted that these were his addresses,
however they were not addresses designated by him for the purposes of receiving notices and documents relating to the loan agreement. The plaintiff was refuting this.
(ii) The second defence raised by the defendant in his plea that not all the monies paid by
him have been credited to his account was untruthful.
The plaintiff submitted that the respondent has no bona fide defence to the claim and the
application should succeed.
[5] The defendant deposed to an affidavit resisting summary judgment. H is defences
as stated in his plea (mentioned supra) were repeated and it is not necessary to repeat
same. It was argued on his behalf that he has established a bona fide defence and the
application should be dismissed.
The Applicable Law
[6] Summary judgment enables a plaintiff to obtain judgment against a defendant
without the necessity of going to trial when a defendant has no defence to a claim based on a liquid document, for a liquidated amount of money, for delivery of movable
property and for ejectment.
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[7] The court must be satisfied that that a plaintiff who seeks summary judgment has
established its claim clearly on the papers and the defendant has failed to set up a bona
fide defence. Even before a court considers whether the defendant has established a
bona fide defence or not , it is necessary for the court to be satisfied that the plaintiff’s
claim has been clearly established and its pleadings are technically in order. This Court ,
as per Gihwala AJ in Gulf Steel (Pty) Ltd v Rack -Rite BOP ( Pty) Ltd and Another1
expressed as follows:
‘In view of the nature of the remedy the Court must be satisfied that a plaintiff who seeks
summary judgment has establis hed its claim clearly in the papers and the defendants have
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 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 plaintiff’s 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 plaintiff’s 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] The defendant resisting summary judgment must set out a bona fide defence by
disclosing fully the nature and grounds of the defence and the material facts relied
upon. The defence must be disclosed with sufficient completeness and particularity to enable the court to decide whether or not the affidavit discloses a bona fide defence. In
Maharaj v Barclays National Bank Ltd
2 (Maharaj ) Corbett JA said:
‘Accordingly, one of the ways in which a defendant may successfully oppose a claim for
summary judgment is by satisfying the Court by affidavit that he has a bona fide defence to the
claim. Where the defence is bases upon facts, in the sense that material facts alleged by the
plaintiff in his summons or combined summons are disputed or new facts are alleged constituting a defence, the Court does not attempt to decide these issues or to determine
whether or not there is a balance of probabiliti es in favour of one party or the other. All that the
Court enquires into is(a) whether the defendant has “fully” disclosed the nature and grounds of
1 Gulf Steel (Pty) Ltd v Rack -Rite BOP (Pty) Ltd 1998 (1) SA 679 (O).
2 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) (Maharaj) .
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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 maybe.’3
[9] Erasmus: Superior Practice provides :
‘The nature and grounds of the defence and the material facts relied upon therefore in the
affidavit should be in harmony with the allegations in the plea. In this regard the plea should
comply with the provisions of R18(4) and 22(2), i.e. it should clearly and concisely state all the
material facts relied upon for the defence in order for the plaintiff, in the context of summary
judgment proceedings, to consider whether or not the defence as pleaded raises any issue for
trial.’4
[10] In Absa Bank Ltd v Meiring5 it was said:
‘It follows that a defendant in a summary judgment application which has failed to plead all its
defences will be required to apply to amend its plea if it seeks to add any for the purposes of its opposition to a summary judgment. A defendant’s failure to have pleaded such defences initially
will be material and, in addition to all the usual requirements to obtain the indulgence of being
granted leave to amend, will require convincing explanation if it is to exclude the possibility that
a court might infer delaying tactics and a lack of bona fides. An additional effect will be that such
defendant will ordinarily have to bear the wasted costs of the application for leave to amend and
those occasioned by the attendant postponement of the summary judgment application .’
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[11] A defendant who wishes to resist summary judgment must raise a defence to the
application which must be consistent with the plea. Moreover, such defence must be a
bona fide defence.
Evaluation [12] The defendant ’s defences gleaned from his plea are consistent with the defences
raised in resistance to the summary judgment. Therefore, the defendant has overcome
the first hurdle. The defence must not only be consistent with the plea but it must be a
3 Ibid at 426A -B.
4 DE Van Loggerenberg Erasmus: Superior Court Practice (2) at D1-416B16A.
5 Absa Bank v Meiring [2022] ZAWCHC 31; 2022 (3) SA 449 (WCC).
6 Ibid para 20.
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bona fide defence.
[13] The defendant does not deny his indebtedness to the plaintiff. He also does not
deny that his account is in arrears. The only issue raised regarding the debt itself is that there are certain payments not credited by the plaintiff to his account . The plaintiff
referred the court to annexures ‘FA2’ and ‘FA3 attached to the application, to wit, the
certificate of balance and defendant’s statement of account . It argued that all payments
received from the defendant were duly credited by the plaintiff . When this submission
was made nothing, much came from the defendant to controvert this . The difficulty with
this defence is that the defendant did not amplify it. In his affidavit, he did not detail
these payments, did not tell when and how these payments were made and for how
much. It is not surprising that t his argument was not pursued by the defendant in his
heads of argument. Therefore, th is defence is untenable.
[14] Second, the other defences raised relate to allegations of non-compliance with
the NCA by the plaintiff. The defendant chastised the plaintiff’s manner of service of the
s 129 notice. He further averred that he did not receive the notice. The first notice was
served by the sheriff at no 4[ …] C[…] S[…], Newcastle . The defendant conceded that
this is his chosen dom icilium citandi et executandi . The return of service shows that the
notice was served upon Mrs Mila nze, a tenant at this address. The defendant
bemoaned that the return of service did not reflect that it was served on a person above
the age of 16 years. Correctly so, the return of service does not reflect that Mrs Mi lanze
is a person above the age of 16 years . Nevertheless, it can be inferred that by virtue of
her title ‘Mrs’ that she is a person over the age of 16 years as contended by the plaintiff .
The defendant did not refute that Mrs M ilanze is a tenant at this address. Whilst the
defendant need not deal exhaustively with the facts and the evidence relied upon to substantiate them, he must at least disclose his defence and material facts relied upon with sufficient particularity and completeness to enable the court to decide whether the affidavit discloses a bona fide defence or not .
7 No explanation has been proffered by
the defendant as to what might have resulted in a notice served on a tenant at his
address not reaching him. Wh at might have caused Mrs Milanze to keep this notice and
not furnish it to the defendant. In the absence of an explanation, it is difficult t o fathom
why he did not receive the s 129 notice.
7 See Maharaj fn 3 at 426C -D.
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[15] The s 129 notices were further sent by registered mail to two other addresses.
These two addresses are 1[ …] E[…] D[…], eThekwini Metro , Westville and P.O. Box
9[…], Newcastle 2940. The defendant did not deny that these are his addresses.
However, he disputed that the two addresses were chosen by him as addresses upon
which he may receive notices in terms of the agreement. This denial cannot endure the
evidence in the form of a written agreement attached to the application. The defendant
further contended that no proof has been furnished by the plaintiff to show that the mail
(the notices) was delivered to his post office. Annexures ‘P2 ‘and ‘P3’ are’ trace and
track ’ reports in respect of the notices. They both indicate that a notification was sent to
the intended recipient by the post office. One must understand that it is sufficient that
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s 129 notice is sent to the defendant by the plaintiff and notification is dispatched. It is
up to the defendant to collect the notice. The plaintiff does not have a duty to ensure
that the notices have been collected.8 The issue of these two addresses is not a matter
that should detain us longer than it is necessary as I am of the opinion that even this
defence cannot be sustained.
[16] I am satisfied that the plaintiff’s claim has been clearly established and the
defendant has failed to raise a bona fide defence to the pl aintiff’s claim. The general
rule is that costs follow suit. There are no reasons to deviate from the rule.
[17] For the above reasons I make the following order:
The application for summary judgment is granted against the defendant as per the first
to third prayer s of the notice of motion.
L. MPAMA, AJ
Appearances:
For the applicant: Adv L .B.J Moeng
Instructed by: Strauss Daly Inc orporated
Bloemfontein
8 Kubyana v Standard Bank of South Africa [2014] ZACC 1; 2014 (3) SA 56.
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For the respondent : Adv Z. Nyezi
Instructed by: M.A.K Ameen & Company
Durban
c/o Blair Attorneys
Bloemfontein