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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
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case No: 1398/2023
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA LIMITED Applicant
(Registration Number 1962/000738/06)
And
DANIEL JACOBUS DE WAAL Respondent
Coram: Lever J
JUDGMENT
Lever J
Reportable: YES/NO
Circulate to Judges: YES/NO
Circulate to Magistrates: YES/NO
Circulate to Regional Magistrates: YES/NO
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1. This is an application for summary judgment under the amended Rule 32(1),
(2) and (3) that came into effect on the 31May 2019. The applicant has three
claims for which it now seeks summary judgment. The first claim is in
respect of an overdraft facility. The remaining two claims are for instalment
sale agreements involving what can be described for present purposes as
vehicles or implements intended primarily for agricultural use.
2. The relevant underlying written agreements for each of these claims are
annexed to the Particulars of Claim served on the respondent. None of these
written agreements are disputed.
3. In respect of both of the instalment sale agreements the relief set out in the
prayers included in the Particulars of Claim are: Confirmation of
cancellation of the agreement; Return of the specified goods in the respective
claims; Retention of the respective amounts paid by the respondent to the
applicant in respect of e ach of the two relevant agreements; Leave to
approach the court on the same papers, supplemented if necessary, to claim
such damages as it may be able to prove pursuant to the sale of the relevant
goods; and Costs on an attorney and client scale.
4. Mr Ts angarakis, who appeared for the applicant in this matter, indicated at
the oral hearing of this matter that, at this stage of the proceedings, the
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applicant was not seeking the alternative relief sought in the Particulars of
Claim for both instalment sale agreements.
5. The respondent has not disputed the underlying facts in the matter. In my
view, there is no substantive defence based on the underlying facts. If one
were to characterise the issues raised by the res pondent in both the plea and
the opposing affidavit filed on his behalf, the respondent has marshalled
every technical defence that could conceivably be raised in the
circumstances, with little else.
6. It is useful as a starting point to set out the comm on cause and undisputed
facts . These facts are as follows: The conclusion and terms of the overdraft
facility agreement; That appli cant advanced and made available to the
respondent the overdraft facility of R715 000.00; That from the 30
November 2020 the credit limit available under the overdraft facility would
reduce to an amount of R260 000.00; That the overdraft would be reviewed
annually; The conclusion of the first instalment sale agreement, the written
terms of such agreement, and the subject matter thereof; The conclusion of
the second instalment sale agreement, the written terms of such agreement,
and the subject matter thereo f; That the applicant delivered the subject matter
of both instalment sale agreements to the respondent; That in terms of the
respective written instalment sale agreements, the applicant remained the
owner of the respective goods until the full amount due in terms of the
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respective written agreement had been paid; and The applicant demanded
payment of the full outstanding balances due in terms of the overdraft
facility and instalment sale agreements which demand also constituted due
notice in terms of the p rovisions of section 129 of the National Credit Act1
(“the NCA).
7. Turning now to the first point in limine raised by the respondent. The
respondent contends that the deponent to the applicant’s affidavit filed in
support of the applica tion for summary judgment is a Mr Kieran Lionel
Sharpley who the respondent contends is employed in the applicant’s Durban
Branch , had no dealings with the respondent . The Particulars of Claim
establish that the underlying written agreements in respect of the overdraft
and both instalment sale agreements were signed by the respondent in
Upington.
8. Respondent contends in his opposing affidavit that all the relevant
agreements were signed in Upington. That the discussions leading up to such
agreements too k place in Upington with different people. That the
administration of the transactions relevant to the said contracts took place in
the Northern Cape. That the deponent to the affidavit in support of the
1 Act 34 of 2005.
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application for summary judgment is based in KwaZulu -Natal a different
province some 1000 kilometres away.
9. Ms Boonzaaier, who appeared for the respondent, argued that the said
deponent to the affidavit in support of the application for summary judgment
does not set out the salient facts. She contends th at the said deponent ought
to have set out that: the records were captured electronically; that he has
certified that the electronic records are correct; that he is authorised to do so;
that on the basis of the electronic records which he has certified to be correct
he can swear positively to the facts.
10. Ms Boonzaaier submits that the affidavit in support of summary judgme nt
does not identify the nature and the content of the records to which the
deponent had reference. Ms Boonzaaier also contends that the said affidavit
does not identify the facts established with reference to the records or
contain any averments that woul d indicate the admissibility of their content
in terms of section 15 of Act 25 of 2002.
11. At this point, it is necessary to set out the relevant passages of the affidavit
filed on behalf of the applicant verbatim. The said passages read:
“I the undersign ed, KIEREN LIONEL SHARPLEY do hereby declare
under oath and state that:
1. I am a major male Manager, Business Support and Recoveries,
Business and Commercial Banking Credit, employed as such by the
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plaintiff at its branch office situate at 1st Floor, NE Q […], 1 K […]
Way, Durban, Kwazulu Natal Province.
2. The content of this affidavit falls within my personal knowledge,
except where the context indicates the contrary, and is both true and
correct.
3. I can swear positively to the facts contained i n this affidavit as I have,
in my aforementioned capacity as Manager Business Support and
Recoveries, Business and Commercial Banking Credit, in my
possession and in my control all of the plaintiff’s records, accounts
and other documents relevant to the cl aims forming the subject matter
of the action instituted by the plaintiff against the defendant in the
main action proceedings.
4. I am duly authorised by the plaintiff to depose to this affidavit and to
prosecute the present application for summary judgme nt against the
defendant as more fully evident from a resolution to this effect
attached hereto and marked “STB 1”.
5. In the ordinary course of my duties as Manager, Business Support and
Recoveries, Business and Commercial Banking Credit, and having
regar d to the plaintiff’s records, accounts and all other relevant
documents in my possession, and under my control, I have acquired
personal knowledge of the defendant’s business dealings and financial
standing with the plaintiff, and can positively swear to t he facts
alleged in the particulars of claim and to the amounts claimed.
6. I verify the cause(s) of action against the defendant, as more fully
pleaded in the particulars of claim filed in the main action
proceedings, as well as the amount(s) claimed from the defendant as
set out in the particulars of claim.
7. I additionally swear positively to the facts set out in the particulars of
claim on which the aforesaid causes of action, as well as the amount(s)
claimed, are based. …”
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12. Ms Boonzaaier for the respondent based her arguments set out above on the
judgment of Binns -Ward J in the matter of ABSA BANK v LE ROUX2, in
particular, she relied on the following passage of th e said judgment:
“Thus, if the deponent to a supporting affidavit in summary judgment
proceedings were to be able to aver that he is (i) an officer in the service
of the plaintiff, (ii) that the salient facts – which should be particularised –
are electron ically captured and stored in the plaintiff’s records, (iii) that
he had regard thereto, (iv) that he is authorised to certify and has executed
a certificate certifying the facts to be contained in such record to be
correct , and (v) on the basis thereof i s able to swear positively that the
plaintiff will – having regard to the provisions of s 15(4) of act 25 of 2002
– be able to prove the relevant facts at the trial of the action by producing
the electronic record or an extract thereof, the requirement of subrule
32(2) would be satisfied.”
13. In response to these arguments raised by the respondent Mr Tsangarakis has
done a comprehensive review of the authorities going back to the case
MAHARAJ v BARCLAYS NATIONAL BANK LIMITED3. It is not
necessary for me to assess and repeat Mr Tsangarakis’ research and
submissions related thereto as for the most part the authorities assessed by
Mr Tsangarakis have been dealt with by the SCA in the case of REES v
INVESTEC BANK4. The SCA appears to endorse the same authorities
referred to by Mr Tsangarakis and in any event comes to the same
conclusion.
2 2014 (1) SA 475 (WCC) at 485E -H and particularly at F to H.
3 1976 (1) SA 418 (A).
4 2014 (4) SA 220 (SCA).
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14. It is clear from a reading of the REES case that context is important and
what I mean by that is , what is pleaded, what documents are annexed to the
pleadings and what is disputed by the respondent in the plea. The SCA in the
REES case endorsed Maharaj’s case where one looks at all the documents
properly before the court at the “end of the day”5.
15. In the present case, after the 2019 amendment of the Rules, we have the
respondent’s plea. From such plea it is evident that none of the written
contracts entered into, or their initial terms are in dispute. Further, neither the
applicant nor the respondent have made the Electronic and Communications
and Transactions Act6 applicable to this case. Finally, it is evident from the
annexures to the Particulars of Claim that the certificate of balance signed by
the pres ent deponent w ere indeed dispatched to the respondent together with
the section 129 of the NCA notice s. This shows that the said deponent
corresponded with the applicant’s attorneys in order for them to send the said
section 129 notice. In other words, he must have acquainted himself with the
salient facts even at that stage.
16. The pleadings also show that respondent does not dispute being served the
said section 129 notices together with the relevant certificates of balance. If
respondent disputed the relevant certificates of balance, one would have
5 Maharaj ., above at 423H.
6 Act 25 of 2002.
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expected him to do something about it when they were served on him on the
23 June 2023. It is evident from the pleadings and the respondent’s affidavit
opposing summary judgment that when the section 129 notice was served on
him together with the relevant certificates of balance, he did nothing to
protect his interests or dispute the section 129 notices , the attached
certificates of balance or the status of any of the relevant accounts . This is
the context in which Mr Sharpley’s affidavit in support of the summary
judgment must be assessed.
17. At the end of the day taking all the documents properly before the court
together with the common cause facts and wh at is not disputed on the
pleadings and in the affidavit opposing the summary judgment application , it
is evident that the said deponent can and did swear positively to the relevant
facts necessary for the plaintiff’s claim as contemplated in Rule 32(2) of the
Rules. In my view Mr Sharpley, in the relevant affidavit did indeed comply
with the approach taken by the SCA in the REES case cited above.
Accordingly, the first point in limine cannot stand and is dismissed.
18. Turning now to the second point in limine . The respondent objects to the
deponent in the affidavit filed in support of summary judgment verifying the
causes of action relevant in this matter by referring to specified passages in
applicant’s Particulars of Claim and incorporating such pass ages into the said
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affidavit by reference instead of repeating the facts upon which such causes
of action are based in such affidavit.
19. Muller J in the matter of ALL PURPOSE SPACE HEATING Co. v
SCHWELTZER, in essence dealt with this situation in the context of Rule
32(2) before the 2019 amendment to the said Rule. Muller J concluded:
“…On the other hand, such an affidavit must verify all o f the facts
supporting the cause of action. It is impossible to lay down any rule of
general application as to the degree of particularity required of an
affidavit under Rule 32(2). In view of the infinite variety of causes of
action each case must depend on its own circumstances. In my view, it is
permissible for a plaintiff in an affidavit in support of a summary
judgment application, to incorporate by reference only the allegations
contained in his summons. By doing so the plaintiff takes a calculated
risk that his summons does not contain sufficient allegations to enable the
Court hearing his application for summary judgment to hold that his
claims are of a nature specified by Rule 32(1).”7 (references omitted)
20. It must be remembered that Muller J in the ALL PURPOSE SPACE
HEATING case was dealing with a simple summons as contemplated in
Form 9. Muller J i n that case went on to conclude that the summons
indicate d the nature of the claims.8 However, summary judgment was
refused on facts peculiar to the case before him.
7 ALL PURPOSE SPACE HEATING v SCHWELTZER 1970 (3) SA (D& CLD) at p 563G to 564A.
8 ALL PURPOSE SPACE HEATING case., above at 564B.
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21. If as Muller J pointed out in the A LL PURPOSE SPACE HEATING case
that it was permissible to grant summary judgment where the applicant
simply incorporated the facts asserted in the summons into the affidavit in
support of the summary judgment application in circumstances where such
applican t brought itself within the circumstances contemplated by Rule
32(1), then it would be so much less problematic to do so where a combined
summons has been filed incorporating a proper Particular s of Claim . It is
clear that prior to the 2019 amendment of th e Rule it was proper to
incorporate by reference the cause of action set out in the combined
summons or simple summons in the affidavit in support of summary
judgment.
22. Whether this position remains the same after the 2019 amendment to the said
Rule was dealt with by Leech AJ in the matter of FIRSTRAND BANK
LIMITED v BADENHORST N.O. and OTHERS9. Leech AJ in the said
judgment at paragraph 9 thereof quotes Erasmus’ work on SUPERIOR
COURT PRACTICE and c ertain other authorities which seem to have
concluded that such facts as are set out in the ‘Declaration’ or ‘Particulars of
Claim’ must be repeated in the affidavit in support of the application for
summary judgment or at least such facts should be cross -referenced in such
affidavit. However, after considering the developments required by the 2019
amendment of Rule 32 reached the conclusion at paragraph 12 of his
9 SAFLII (2022/5936)[2023] ZAGPJHC 779 (10 July 2023).
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judgment that: “The repetition of the alleged facts is no more necessary
under the amended rul e, and the introduction of an express requirement to
reference the alleged facts would be superfluous in the context of the
established interpretation of the requirement to verify the cause of action.”
23. I agree with the approach taken by Leech AJ in the above quoted case. It is
not necessary to repeat the facts upon which the cause of action is based or
to incorporate them by cross -referencing them in the affidavit in support of
summary judgment. If I am wrong in this conclusion, the applicant has in
any event cross -referenced its cause of action by incorporating into the
relevant affidavit specific paragraphs of its Particulars of Claim. That is
indeed sufficient for the post 2019 Rule 32(2) .
24. In thes e circumstances the respondent’s second point in limine cannot stand
and is also dismissed.
25. Turning now to the third point in limine . The substance of this objection is
that some of the relief claimed in the Notice of Application for Summary
Judgment is not competent in such an application. In relation to the claims in
respect of the two instalment sale agreements the said Notice of Application
for Summary Judgment includes notice that the applicant will seek the
following relief:
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Retention of all mo nies already paid by the respondent to the
applicant for each of the respective instalment sale agreements; and
That leave be granted to the applicant to approach the court, on the
same papers duly amplified, if necessary to claim such damages
together w ith interest at the applicable rate, that the applicant may
be able to prove pursuant to the sale of the goods in respect of each
instalment sale agreement.
26. It is contended by the respondent that these prayers are not competent relief
that can be granted by this court in summary judgment proceedings.
27. As an aside, it seems that respondent has misunderstood the intentions of the
applicant in this regard. Th is is evident from two passages of the affidavit
opposing the summary judgment application. These read:
“26 The prayer for the retention of all monies already paid to the
plaintiff is an invalid and unlawful prayer. On what grounds can the
plaintiff reques t that all monies already paid to it in regard to the
loan agreement (sic) (the agreement referred to here should be one
of the instalment sale agreements) may be retained by the plaintiff,
and that I then have to repay the total amount outstanding? This is
relief for which no case exists.
27 The amounts already paid to the plaintiff should be taken into
consideration when determining the full outstanding amount,
which, I submit, the plaintiff has not done and it is now seeking
relief that this need not be done at all.”
28. If one has regard to the Notice of Application for Summary Judgment, the
applicant seeks damages after the relevant goods are returned to it and
subsequently sold in order to place it in the position it would have been in,
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but for the respondent’s default . This clearly shows that the applicant seeks
to follow the process contemplated in the NCA.
29. Aside from the obvious misunderstanding outlined above this court still
needs to deal with the question as to whether the prayers objected to are
competent in summary judgment applications. Before I turn to this question
the respondent included in this third point in limine an unconnected question
which ought to have been raised as a point in limine on its own. This point
can be disposed of quickly and expeditiously so I will deal with it in the
sequence in which respondent raised it. The respondent’s additional
objection is that in respect of the instalment sale agreements the applicant
sought alternative relief to the return of the goods which amounts to the
respondent keep ing the goods but in that instance the applicant seeks the
outstanding balance in respect of e ach contract. As already indicated at the
outset Mr Tsangarakis indicated that the applicant will not be seeking this
alternative relief. In the present context this disposes of this additional
objection.
30. Returning now to the question of whether praye rs for retention of all monies
already paid and whether leave can be granted to return to court on the same
papers supplemented if needed to claim damages after the goods have been
sold is competent relief in summary judgment proceedings.
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31. In dealing w ith this question Mr Tsangarakis referred me to the decision of
the SCA in the case of FIRSTRAND BANK t/a WESBANK v DAVEL
(UNIVERSITY OF THE FREE STATE LAW CLINIC AS AMICUS
CURIAE )10.
32. In respect of the point that the court in summary judgment proceedings
cannot postpone the damages claim , as such relief is not provided for in Rule
32(1), it is clear from the ruling made by the SCA in the case of
FIRSTRAND BANK t/a WESBANK v DA VEL, that the SCA as a matter of
fact granted summary judgment in that case and included an order that the
damages component be postponed sine die . That disposes of that objection to
the relief claimed in the Notice of Application for Summary Judgment.
33. Turning now to the second objection under this point in limine , being the
prayer to order retention of the monies already paid by the respondent in
respect of the relevant instalme nt sale agreements is not competent relief
under the provisions of Rule 32 .
34. Mr Tsangarakis submitted that an order in those terms was given in the court
below and the SCA did not object to it in the FIRSTRAND BANK t/a
WESBANK v DAVEL case. If this was as far as it went, I would have
difficulties with it. However, if one refers to the order made by the SCA in
10 [2020] 1 All SA 303 (SCA).
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that case a different picture emerges. In this regard, I refer specifically to
20.3 and 20.4 of the said Order, which reads as follows:
“20.3 Upon the return of each of the vehicles described in paragraph
20.1.2(a), 20.1.2(b) and 20.2.2 to each respective plaintiff:
20.3.1 The plaintiff shall, within 10 business days from the date of
receiving return of the vehicle, give the defendant written no tice:
(a) setting out the estimated value of the returned vehicle;
(b) informing the defendant that it intends to sell the returned
vehicle as soon as is practicable for the best price reasonably
obtainable; and
(c) informing the defendant that the pric e obtained for the
returned vehicle upon its sale may be higher or lower than the
estimated value.
20.3.2 The plaintiff shall sell the vehicle as soon as practicable for the best
price reasonably obtainable.
20.3.3 After selling the returned vehicle, the p laintiff shall:
(a) credit or debit the defendant with a payment or charge
equivalent to the proceeds of the sale less any expenses reasonably
incurred by the plaintiff in connection with the sale of the goods;
and
(b) give the defendant written notice s tating the following:
(i) the settlement value of the agreement immediately
before the sale;
(ii) the gross amount realised on the sale;
(iii) the net proceeds of the sale after deducting the
plaintiff’s permitted default charges, if applicable, and
the re asonable costs allowed under paragraph (a); and
(iv) the amount credited or debited to the defendant’s
account.
20.3.4 The notice referred to in paragraph 20.3.3(b) above shall state that:
(a) …
(b) …
20.3.5 If any amount falls to be credited to the def endant’s account which
exceeds the settlement value immediately before the sale of the
returned vehicle, the plaintiff must remit such excess amount to the
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defendant together with the notice referred to in paragraph
20.3.3(b) above.
20.3.6 If an amount is credited to the defendant’s account which is less
than the settlement value before the sale, or an amount is debited to
the defendant’s account , the plaintiff may demand payment from
the defendant of the remaining settlement value in the notice
referred to in paragraph 20.3.3(b) above.
20.3.7 If the defendant fails to pay the amount demanded in terms of
paragraph 20.3.6 above within 10 business d ays, the plaintiff may
commence proceedings against the defendant for any outstanding
damages .
20.3.8 …
20.3.9 …
20.4 The respective plaintiff shall aver and prove in its action for any
outstanding damages, that it has complied with the requirements set
out in paragraph 20.3 above.”
35. The orders set out in paragraphs 20.3.1, 20.3.3, 20.3.5, 20.3.6, 20.3.7, and
20.4 only make sense if the payments alr eady paid by the respondent to the
applicant are in fact retained by the applicant . Clearly, these provisions are
designed to put the plaintiff in the position it would have been in if the
defendant had not defaulted and the instalment sale contract had ru n its full
course.
36. Consequently, the effect of these parts of the order in the case of
FIRSTRAND BANK t/a WESBANK v DA VEL are that the payments
already made by the respondent to the applicant are to be retained by the
applicant. This follows the archi tecture of the NCA.
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37. As already set out the case of FIRSTRAND BANK t/a WESBANK v
DA VEL dealt with and is applicable to summary judgment applications. The
only conclusion that can be reached in the circumstances is that the SCA
clearly regarded retenti on of the monies paid and leave to approach the High
Court for damages after the sale of the relevant goods as merely ancillary to
the order for return of the specified goods, which certainly is competent
relief under Rule 32(1).
38. This court bound by t he approach adopted by the SCA in the case of
FIRSTRAND BANK t/a WESBANK v DA VEL. In the circumstances this
third point in limine cannot be upheld and is dismissed.
39. Turning now to the further defences raised by the respondent.
40. The next issue raised by the respondent that needs to be considered is the
issue of whether the certificate of balance relied upon by the applicant is
contra bonos mores . The applicant relies on a certificate in respect of each of
its three claims. That is the claim in respect of each of the overdraft credit
facility and the two instalment sale agreements.
41. The respondent at the hearing argued in respect of the overdraft credit
facility that the applicant’s claim is not for a liquidated amount in money and
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the only thing that makes it for a liquidated amount in money is the
certificate of balance, but that the said certificate of balance being contra
bonos mores the applicant cannot rely on it. Then , Ms Boonzaaier argued
that being the case the applicant ’s claim is not for a liquidated amount in
money and accordingly the applicant cannot seek summary judgment in
respect of that claim. In relation to the two instalment sale agreements the
respondent simply maintains that such certificates are contra bonos mores .
42. This line of argument is somewhat different to what the respondent set out in
its plea and in its affidavit opposing the summary judgment. The respondent
is confined to the defence it raises in its plea, but despite this and for the sake
of completeness, I will consider both arguments raised by the respondent.
43. In respect of the certificate of balance for the overdraft facility, the
respondent pleads:
“12 The defendant pleads that the provision in the agreement pertaining
to the overdraft facility namely clause 18.12, providing for a
certificate to be ‘afdoende bewys’, as referred to in this paragraph,
is void and invalid, as a result of the fact that it is against public
policy in that it refers to ‘afdoende bewys’, namely ‘sufficient
proof’ until the contrary is proved, which contains a reverse onus
that is placed on the defendant, and which has already been
determined by the South African courts as being void and invalid .”
44. Clause 18.12 of the relevant agreement reads as follows:
“18.12 ʼn Sertifikaat wat deur enige van ons bestuurders, wie se aanstelling
nie bewys hoef te word nie, onderteken is, waarin die bedrag wat
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verskildig en betaalbar is, g emeld word, sal by blote voorlegging
daarvan afdoende bewys wees van enige bedrag wat deur u
ingevolge hiedie Ooreenkoms verskuldig en/of betaalbaar is,
teensy die teendeel bewys word.”
45. The Afrikaans phrase ‘afdoende bewys’, usually means ‘conclus ive proof’,
but having regard to clause 18.12 read in its entirety, this is not what the
parties meant or agreed to when entering into the relevant contract. In fact, if
one reads the plea relating to this issue, which is quoted above, the
respondent has q uite correctly conceded that in its context in this matter,
‘afdoende bewys’ means nothing more than ‘sufficient proof’.
46. The agreements in respect of the instalment sale s are in English and the
terms relating to certificates of balance in th ose respec tive agreements make
it plain that in those agreements the parties agreed that such certificate would
be ‘sufficient proof’.
47. The two authorities referred to by Ms Boonzaaier in support of the
arguments raised on behalf of the respondent are the SASFIN11 case and
SOCIETY OF LLOYD’S v ROMAHN12. Neither of which support either
argument raised on behalf of the respondent.
11 SASFIN (PTY) LTD v BEUKES 1989 (1) SA 1 (AD).
12 SOCIETY OF LLOYD’S v ROMAHM & TWO OTHERS 2006 (4) SA 23 (C).
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48. The majority judgment in the SASFIN case set out the reason why the
‘certificate of balance’ clause relevant to that case was contra bono mores , in
the following terms:
“The effect of the provisions of clause 3.24.2 is that such certificate
cannot effectiv ely be challenged on any ground save fraud. It constitutes
the sole memorial of Beukes’ indebtedness, and is conclusive proof of
such indebtedness and the amount thereof. These clauses purport to oust
the court’s jurisdiction to enquire into the validity o r accuracy of the
certificate, to determine the weight to be attached thereto or to entertain
any challenge directed at it other than on the ground of fraud.”13
49. The minority judgment in the SASFIN case suppo rted the majority on the
above aspect and Van Heerden JA on behalf of the minority set out the
position as follows:
“Ek stem saam dat die klousule in stryd met die openbare belied is. Daar
is ʼn duidelike onderskeid tussen ʼn bepaling wat meebring dat ʼn sertifkaat
van ʼn skuldeiser prima facie bewys van die omvang van ʼn skuld is, en
een wat aan die setifikaat onweerlegbare bewyswaarde verleen.”14
In English this statement of the law by Van Heerden JA would read:
“I agree that the said clause conflicts with public policy. There is a clear
distinction between a provision in an agreement that amounts to such
certificate being prima facie evidence of the extent of the debt and a
provision that provides such certificate with irrebuttable (unassailable)
evidential value.”
13 SASFIN case., above at p. 14J to p . 15B.
14 SASFIN case., Above at p. 23C -D.
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50. Van Zyl J in the case of SOCIETY OF LLOYD’S v ROMAHN & 2
OTHERS identifies the law as set out by the AD in the SASFIN case but
indicates that the time might have come in cases of business and comme rcial
efficacy to allow ‘conclusive proof’ clauses and at the same time expand the
grounds upon which such certificates can be attacked15. Clearly, this case
does not support the contentions made on behalf of the respondent in this
matter.
51. The certificate of balance clause applicable to the overdraft facility has been
quoted above. The relevant clauses for the respective instalment sale
agreements are in similar terms. They are clearly distinguishable fro m the
clause found to be contrary to public policy in the SASFIN case. The clauses
relevant to the present matter provide that the relevant certificates of balance
would be no more than prima facie proof of the existence of the debt, the
extent of the debt and the fact that it is due , until the contrary is established.
On the approach set out by AD in the SASFIN case, these certificates are
not contrary to public policy. This approach was confirmed in the matter of
EX PARTE MINISTER OF JUSTICE : In Re DONELLY v BARCLAYS
NATIONAL BANK LTD16.
15 SOCIETY OF LLOYD’S case., above at para [125].
16 1995 (3) SA 1 (AD).
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52. In summary judgment proceedings, it has never been sufficient for the
respondent to say he does not know what is owed or how the amount is made
up17. Also, if the defence is that he has paid he must establish that by setting
up a factual basis for his position.18
53. A reverse onus where it has been agreed contractually in civil proceedings is
not contra bonos mores . The respondent has not established a basis for
claiming that a reverse onus in civil proceedings where such reverse onus
has been contractually agreed between the parties is contra bonos mores . In
my view, it is not against public policy.
54. In my view, the applicant has established that its claim in respect of the
overdraft faci lity is indeed for a liquidated amount in money and
accordingly, summary judgment is competent.
55. In respect of the first instalment sale agreement the respondent alleged that
there had been an oral variation of the said agreement in the plea filed on h is
behalf and by virtue of the said oral amendment respondent was not in
breach of the agreement. That the erstwhile branch manager of the applicant,
despite what is set out in the written agreement, assured him that the written
variation of the relevant a greement was not required. Respondent then also
17 Per Makgoka JA in the case of NPG S PROTECTION & SECURITY SERVICES CC & ANOTHER v
FIRSTRAND BANK LIMITED 2020 (1) SA 494 (SCA) at para [11].
18 NPGS PROTECTION & SECUTITY SERVIC ES case., above at para [11].
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contended that he relied upon such representation to his detriment. The
respondent then pleaded as a result of the representation made and his
reliance thereon, the applicant was precluded from alleging that respondent
had breached the agreement.
56. The relevant agreement included a clause that provided that a ny amendment
could only be made in writing and would only be effective if signed by both
parties. The said agreement also included a clause that the written agreement
constituted the entire agreement between the parties.
57. These non -variation clauses ha ve been found to be valid and binding.19 This
has come to be known as the Shifren clause. The validity and enforceability
of the Shifren clause has subsequently been upheld by the SC A.20
58. The next question to be considered is whether a representation by an
erstwhile employee of the applicant can form the basis of an estoppel by
representation in circumstances where the r elevant agreement contains a
‘Shifren clause’. This question was considered by the SCA in the case of
BA-GAT MOTORS CC t/a GYS PITZER MOTORING AND ANOTHER v
KEMPSTER SEDGWICK (PTY) LTD where the SCA held to uphold a plea
of estoppel by representation in th ese circumstances would negate and
19 SA SENTRALE KO -OP GRAANMKY. BPK v SHIFREN 1964 (4) 760 (A) at P 766C -G.
20 BRISLEY v DROTSKY 2002 (1) SA 1 (SCA) at paras [6] to [12].
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violate the very purpose of the non -variation clause (Shifren clause).21 In
these cir cumstances, the oral variation defence and the estoppel by
representation defence cannot assist the respondent and do not constitute a
defence to the application for summary judgment.
59. Finally, the respondent raised the issue that the applicant had not pleaded the
cancellation. Mr Tsangarakis argued that this matter was not raised in the
respondent’s plea and that it could not be raised in oral argument. I now
believe that Mr Tsangarakis was correct in making this argument. However,
at the time, I allow ed the parties an opportunity to file supplementary heads
of argument on this aspect.
60. The issue of not pleading a cancellation of the agreement clearly relates to
the two instalment sale agreements. In respect of both instalment sale
agreements the ap plicant has pleaded a breach thereof. This is disputed by
the respondent in respect of both such agreements.
61. The applicant in respect of both instalment sale agreements sent notices as
contemplated in section 129 of the NCA to the respondent. These se ction 129
Notices were served by the Sheriff on the 23 June 2023. This is not disputed
on the pleadings. The relevant returns of Service show that the relevant
section 129 notices were served on the respondent personally. The said
21 (511/2022) [2023] ZASCA 137 (25 October 2023) at para [23].
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section 129 notice inform ed the respondent that he was in breach of the
respective agreements. The said notice informed the respondent of certain
courses of action he could follow. The said notice also informed the
respondent that if he failed to respond, the applicant intended to protect its
rights and take the matter further. It is clear from the plea that the respondent
did not respond to the section 129 notice.
62. The applicant then issued summons. It is clear from the Particulars of Claim
and the relief sought therein that t he mere issuing of summons in this context
that applicant had cancelled the agreement . It is of no moment that this was
not specifically pleaded. Upon reading the Particulars of Claim, the
respondent could be in no doubt that this amounted to a cancellatio n of the
agreement. In the circumstances, this argument also does not assist the
respondent.
63. Finally, the respondent argued that in terms of the overdraft credit facility,
there was no fixed term to this agreement there were no predetermined
payments to be made into the associated bank account, that the agreement
was to be reviewed annually, and respondent denies that there was any
material deterioration in his financial position.
64. Applicant pleaded that the respondent had breached the overdraft a greement
in that he had: Failed to make payments of the amounts as agreed upon in the
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dates specified in the overdraft facility; failed to make payments on his other
agreements with the applicant; and despite demand failed to pay the
outstanding balance.
65. The import of the respondent’s stance is the contention that the applicant has
failed to establish a breach of the overdraft agreement.
66. In response to this Mr Tsangarakis pointed to the requirement in the relevant
agreement that on the 30 November 2020 the respondent would reduce the
balance of his overdraft from R715 000.00 to R260 000.00. Then Mr
Tsangarakis pointed to the relevant certificate of balance which showed a
balance as at the 6 June 2023 the respondent owed in the order of R1.3
million on such overdraft. Mr Tsangarakis contended that manifestly the
respondent had not reduced the overdraft facility in accordance with the
relevant agreement and that this constituted a materi al breach as respondent
had failed to pay when he was required to do so.
67. On the facts Mr Tsangarakis is undoubtedly correct. Clearly, the respondent
is in breach of the overdraft agreement and this has been sufficiently pleaded
in the Particulars of C laim.
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68. Accordingly, in all of these circumstances, the respondent has failed to
satisfy this court that he has a defence and that he raises such defence in a
bona fide manner.
In the circumstances, summary judgment is granted as follows:
1) Respondent shall make payment in the amount of R1,352,202.49 plus
interest at the rate of 7.5% per annum, calculated from the 25 May 2023
to date of payment, both dates inclusive.
2) Respondent shall pay costs of suit in respect of t he claim on the overdraft
on an a ttorney and client scale.
3) The first instalment sale agreement in respect of account 106 [… is hereby
confirmed to be cancelled .
4) Respondent is to restore to the applicant possession of the 2020 Krone
1290 HDP X Cut Skaal + V og B with serial numb er 1[…] (‘the goods’) so
as to enable the applicant to sell it.
5) Applicant shall retain all monies already paid to it by the respondent in
respect of the first instalment sale agreement .
6) Applicant is granted leave to apply to this court, on the sam e papers, duly
supplemented, if necessary to claim damages together with such interest
at the applicable rate that the applicant may be able to prove after the sale
of the goods.
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7) Respondent shall pay the costs relating to this first instalment sale
agreement on an attorney and client scale.
8) The second instalment sale agreement in respect of account number
106[…] is hereby confirmed to be cancelled.
9) Respondent is to restore to the applicant possession of the 2020 UBT 30 –
TON TRI -AXLE LIGHT DUTY LOW BED TRAILER with chassis
number AA9 […] (‘the goods’) so as to enable the applicant to sell it.
10) Applicant shall retain all monies already paid to it by the
respondent in respect of the second instalment sale agreement.
11) Applicant is granted leave to apply to this court, on the same
papers, duly supplemented, if necessary to claim damages together with
such interest at the applicable rate that the applicant may be able to prove
after the sale of the goods.
12) Respondent shall pay t he costs relating to this second instalment
sale agreement on an attorney and client scale.
__________________
L.G Lever
Judge
Northern Cape Division, Kimberley.
Representation:
For the Applicant : ADV S TSANGARAKIS
Instructed by: PGMO ATTORNEYS INC.
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For the Defendants : ADV MM BOONZAAIER
Instructed by: MAJIEDT SWART INC.
Date of Hearing: 23 August 2024
Date of Judgment: 04 April 2025