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
(EASTERN CAPE DIVISION – GQEBERHA )
CASE NO.: 3135/2022
Matter heard on : 13 November 2024
Judgment delivered on: 06 February 2025
In the matter between: -
FIRSTRAND BANK LIMITED Plaintiff
and
GAWIN BHIKA First Defendant
ZURAIDA BHIKA Second Defendant
JUDGMENT
ROSSI AJ:
[1] The plaintiff seeks an order for summary judgment1 against the first and
second defendant s,2 jointly and severally, the one paying the other to be absolved,
for the amount of R1 157 861.883 plus interest thereon, calculated daily and
compounded monthly from 1 October 2022 to date of final payment , both dates
inclusive, at the variable rate which is linked to the plaintiff’s mortgage bond base
rate, which variable interest rate is presently 1 2.45% per annum, and costs on the
scale as between attorney and client.
[2] The plaintiff instituted action proceedings against the defendants for capital
judgment in October 2022. The action was defended, and a plea was filed.4 The
plaintiff applied for summary judgment in January 2024 contending that the plea
raised no triable defences . An opposing affidavit to the summary judgment was filed
by the defendants . In August 2024 the defendants’ attorneys of record withdrew . The
application for summary judgment, which was originally set down for hearing on 3
September 2024 , was postponed on several occasions to accommodate the
defendants. Ultimately, the application was argued before me on the 13 November
2024 ;5 which marked its fifth appearance on the unopposed motion court roll. The
first defendant represented himself and his wife, the second defendant, at the
hearing.
[3] The plaintiff’s case on the pleadings is summarised as follows:
(a) The defendants entered into a home loan agreement and a further loan
agreement (collectively ref erred to as the ‘loan agreements’) with the
plaintiff in January 2011 and February 2012 in order to acquire the
immovable property , more properly described as erf 7[...] Framesby
situated in the Nelson Mandela Bay Metropolitan Municipality, Division of
1 In terms of rule 32 (1) of the Uniform Rules of Court.
2 The first and second defendants , who are married to one another in community of property , entered
into the home loan agreement and further loan agreement with the plaintiff.
3 An updated certificate of balance was handed up at the hearing of the matter. The certificate dated
13 November 2024 indicate s that the capital amount outstanding ha s increased to R1 333 553.06
(from R1 157 861.88) and the arrears component ha s increased to R 482 861.07 (from R308 448.06 ).
4 The date of the plea and counterclaim is not apparent from the documents filed of record. The
defendants’ plea was filed following an upliftment of bar by court order dated 17 October 2023.
5 The application was enrolled for hearing on 12 November 2024 but due to it being crowded out was
argued the following day.
Port Elizabeth,6 Eastern Cape in the extent of 1 152 square metres,
situated at 3[...] C[...] Avenue, Framesby, Gqeberha (the ‘immovable
property’).
(b) The capital sum s of R975 000.00 and R325 000.00 were lent and
advanced by the plaintiff to the defendants pursuant to the loan
agreements.
(c) On 28 February 2011 and 20 March 2012 , mortgage bond s in favour of
the plaintiff were registered over the immovable property .
(d) Clause 4.25 of the loan agreements states that if the defendants fail to
pay any amount due in terms thereof and remain in default , subject to
clause 4.25.177 which deals with the application of the National Credit Act,
38 of 2005 (the ‘NCA’) , the plaintiff may at its option claim immediate
repayment of the full outstanding balance or terminate the agreement, in
which event all amounts whatsoever owing by the defendants shall then
forthwith become payable in full.
(e) Clause 4.28 of the loan agreement provides that a certificate purporting to
be signed on behalf of the plaintiff shall be proof, until the contrary is
proved, of the balance owing and the fact that it is due and payable, and
6 Now known as Gqeberha.
7 Which reads ‘If the [National Credit] Act applies and the customer is in default under this agreement,
then the lender will draw the default to the customer’s notice in writing, and will propose that the
customer refers this agreement to a debt counsellor with the intent to develop and agree on a plan to
bring the payments under this agreement up to date. The customer further has the right to approach
an alternative dispute resolution agent, consumer court or ombud with jurisdiction in order to resolve
any dispute under this agreement. If the customer is in default under the agreement which is being
reviewed in terms of section 86 of the Act and the review has not been finalised within 60 (sixty)
business days after the date on which the customer applied fo r the debt review, the lender may give
notice to terminate such review in the prescribed manner to the customer, the debt counsellor and the
National Credit Regulator. If the customer is in default and has been in default under this agreement
for at least 20 (twenty) business days and at least 10 (ten) business days have elapsed since the
lender delivered a notice to the customer as stipulated in section 86(10) or section 129(1) of the Act,
as the case may be, and if in the case of a notice as stipulated in section 129(1) , the customer has
not responded to that notice or responded to the notice by rejecting the lender’s proposal, the lender
may then approach the court for an order to enforce or terminate this agreement.’
the authority of the signatory or of the validity of the signatur e need not be
established .
(f) The defendants nominated the postal address reflected on the first page
of the loan agreement s, being, 3[...] C[...] Avenue, Framesby, Port
Elizabeth, 6059 as their domicilium citandi et executandi.8 This becomes a
relevant aspect in relation to compliance (or the alleged non -compliance)
with s 129 of the NCA.
(g) Collection costs on the attorney and client scale will be charged by the
plaintiff in the event of the plaintiff having to enforce the agreement.9
(h) In terms of the loan agreements, t he defendants undertook to pay interest
on all amounts outstanding, which interest rate w as variable and linked to
the plaintiff’s prime overdraft rate . The interest rates were stipulated at the
time as 9.5% and 9.7% nominal per annum in respect of the first and
second loan agreements respectively .10
(i) The plaintiff alleges that the defendants are in breach of their obligations
under the loan agreements by failing to timeously pay the instalments due
to the plaintiff . The plaintiff attached a certificate of balance to its
particulars of claim evidencing an amount of R986 720.88 together with
interest at the variable rate of 10.45% nominal per annum, calculated daily
and compounded monthly from 1 October 2022 , being due and payable.
(j) The plaintiff pleads that n otice in terms of s 129(1) of the NCA was
despatched to the defendants by registered post to their chosen address.
The s 129 notice was delivered to and reached the relevant post office for
delivery to th e defendants. A copy of a track and trace print -out from the
South African Post Office is attached to the particulars of claim.
8 The address of the immovable prop erty.
9 Clause 2.15.2 of the loan agreements.
10 Clause 2.6 of the loan agreements.
(k) The statutory 10 (ten) business days have lapsed since delivery of the s
129 notice , and t he defendants have not responded thereto.
[4] The following facts , gleaned from the particulars of claim read in conjunction
with the plea, are common cause:
(a) The defendants entered into the loan agreement s with the plaintiff , copies
of such loan agreements appear as annexures POC1 and POC2 to the
particulars of claim.
(b) At the time of concluding the loan agreements, the defendants had
appropriate means to repay the capital sum and finance charges.
(c) Mortgage bonds were registered over the immovable p roperty .
Incongruous to this admission is a denial that the mortgage bonds were
registered as a consequence of the loan agreements.
(d) The defendants are in breach of the loan agreements and have been in
default for more than 20 (twenty) business days .
[5] The defence to the summary judgment is summarised as follows:
(a) The plaintiff has not attached its registration certificate in terms of s 40 of
the NCA to its particulars of claim nor has it attached the pre-agreement
quotations . It is contended that there has been non-compliance with s 92
of the N CA.
(b) The plaintiff’s authorised representative’s signature does not appear on
the loan agreements , which indicates that the loan agreements were not
accepted by the plaintiff.
(c) The plaintiff has failed to make out a case for execution in terms of rule
46A.
(d) The indebtedness to the plaintiff is disputed.
(e) The plaintiff’s notice in terms of s 129(1) of the NCA was not received by
the defendants.
[6] Prior to analysing the merits o f the opposition a few opening remarks stand to
be made regarding summary judgment in general . Rule 32 provides for two possible
responses to an application for summary judgment. A defendant may either provide
security for the debt (rule 32(3)(a)) or a defendant may satisfy the court by affidavit
or oral evidence that he/she has a bona fide defence to the claim (rule 32( 3)(b)). If
the defendant chooses the latter course, such as the defendants presently before
me, the defendant must, in his/her affidavit ‘disclose fully the nature and grounds of
the defence and the material facts relied upon therefor.’11
[7] In order to satisfy the court that a defendant has a bona fide defence , he/she
must allege facts in the affidavit which, if proved at the trial, will constitute an answer
to the plaintiff’s claim .12 The grounds for the defence referred to in this rule is the
factual basis for the defence.13 It has been held that while it is not required of a
defendant to exhaustively deal wi th the facts and the evidence relied upon to
substantiate the defence , he/she 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 decide whether a bona fide defence has indeed been disclosed.14
[8] I now proceed to deal with the defences raised by the defendants. As
execution is not sought by the plaintiff at this stage, it is unnecessary for me to deal
with the application of rule 46A .
[9] The defendants baldly deny that the plaintiff is a registered credit provider in
terms of s 40 of the NCA . The denial is premised on the plaintiff’s failure to attach to
11 Rule 32(3)(b) – my own emphasis.
12 See for example Breitenbach v Fiat (SA) Edms Beperk 1976 (2) SA 226 (T); Marsh v Standard
Bank of South Africa Limited 2000 (4) SA 947 (W).
13 Chairperson Independent Electoral Commission v Die Krans Ontspanningsoord (Edms) Beperk
1997 (1) SA 244 (T).
14 Maharaj v Barclays National Bank Limited 1976 (1) SA 418 ( A) at 426C -D.
its particulars of claim, a registration certificate issued by the National Credit
Regulator . A failure to register as a credit provider in appropriate circumstances
carries with it severe financia l consequences .15
[10] In answer to the denial , and in its summary judgment affidavit, it is repeat ed16
that the plaintiff is duly registered with the National Credit Regulator and attaches a
registration certificate dated 1 August 2023 .17 The pl aintiff ’s deponent alleges further
that it was duly registered on 19 January 2011 and 13 February 201218 and that
proof of registration for the relevant period will be made available in due course . I
remind ed the parties of the plaintiff’s undertaking and have since been provided with
a registration certificate issued by the National Credit Regulator dated 15 November
2024 which states that the plaintiff has been continuously registered as a credit
provider since its initial registration on 6 March 2007 . To my mind this puts paid to
this defence.
[11] In any event t he defendants fail to plead any material facts to substantiate th is
defence , other than one premised on a lack of the certificate/s having been attached
to the pleadings .19 Ex facie the registration certificates presented to me , the plaintiff
was (and remains) duly registered . The defendants also complain that new material
should not be introduced by the plaintiff. I do not consider proof of registration as
new material. The allegation is positively averred in both the particulars of claim and
the affidavit in support of summary judgment . The certificates serve only to verify
what has already been alleged.20 There can be no prejudice to the defendants.
[12] Applying the same method of reasoning , the defendants also dispute the
validity of the loan agreements as the pre-quotation agreements have not been
15 Prior to 13 March 2015 (the effective date of the National Credit Amendment Act 19 of 2014) a
court was obliged to order that an agreement entered into by an unregistered credit provider was void
ab initio. Section 89(5) , as amended, now gives a court a di scretion to order such agreement void,
and to make any further appropriate order - Scholtz et al supra 5-5 and fn 24.
16 As the positive averment was made in the particulars of claim.
17 The registration certificate which is issued annually is dated 1 Augu st 2023 and is valid until 31 July
2024. This is not for the relevant period concerned.
18 The dates on which the loan agreements were concluded.
19 Knox D’Arcy AG and Another v Land and Agricultural Bank of South Africa [2013] 3 All SA 404
(SCA) par 35.
20 Caltex Oil (SA) Ltd v Crescent Express (Pty) Lt d 1967 (1) SA 466 (D) at 496C -D.
attached to the particulars of claim . Again , the defendants fail to allege any material
facts to support this defence ,21 especially since it is not disputed that they have been
living in the mortgage property for almost 15 years.
[13] In terms of s 92 of the NCA , a credit provider m ay not enter into an
intermediate or large credit agreement22 with a consumer unless it has complied with
s 92(2) . This section details the requirements of a pre-agreement quotation.
[14] Leaving aside that in answer to this defence, the pre-agreement quotations
are attached to the summary judgment affidavit which evidence compliance, this
defence fails for another reason. In terms of the acceptance and declaration clause
incorporated in the loan agreements , the defendants confirmed that t hey had
received and accepted the quotation /s and ha d received, read and understood the
terms and conditions therein .23 The clause also confirms that they have furnished the
plaintiff with true and accurate information.24 Accordingly, this defence fails.
[15] The defendants complain that the plaintiff’s authorised representative’s
signature does not appear on the loan agreements . The plaintiff thus did not accept
the loan agreements. This defence can be dealt with swiftly. Objectively, following
the conclusion of the loan agreements (which are admitted by the defendants in their
plea), funds were advanced by the plaintiff to the defendants which enabled them to
acquire the immovable property . This took p lace some 15 years ago. In
consequence of these advances, two mortgage bonds were registered over the
property to secure the plaintiff’s advances . These mortgage bonds are admitted. The
defendants have been living in the mortgaged property for a decade and a half . Both
parties have complied with the terms of the loan agreements , albeit partial
compliance by the defendants .25 The defendants also admit in their plea that
annexures POC1 and POC2 are true copies of the loan agreements. In the result, it
21 Knox D’Arcy AG and Another v Land and Agricultural Bank of South Africa [2013] 3 All SA 404
(SCA) par 35.
22 Section 9 of National Credit Act lists the categories of credit agreement and subsection (4) provides
that a mortgage bond is a large agreement.
23 Clause 5.1 of the loan agreements.
24 Clause 5.16 of the loan agreements.
25 On account of the breach.
cann ot be said that t he defendants have meaningfully dispute d these objective facts
or laid a factual foundation for this defence .26 Accordingly, th is defence must also
fail.
[16] I turn to the defendants’ arrears /indebtedness . As the defendants admit
conclusion of the loan agreements and the copies annexed to the particulars of
claim, they must equally accept application of clause 4.30 which concerns
certificates of balance. The defendants have established no factual basis for me to
doubt the validity or accuracy of the certificate. I accept that by application of clause
4.30, the certificate of balance constitutes proof of the balance due and owing to the
plaintiff , which in turn is sought in the summary judgment application. In any event,
the defence hinge s only on what has already been raised in relation to alleged non-
compliance with the NCA, and which I have already found to be devoid of merit.
Accordingly, this defence is also rejected.
[17] A parting remark stands to be made in relation to t he defence s raised by the
defendants .27 Since the enactment of the NCA, there has been a tendency for
defendants to make bland allegations that they are over -indebted or that there has
been reckless credit.28 These allegations like any other allegations ma de in an
affidavit opposing summary judgment should not be ‘inherently and seriously
unconvincing’ , should contain a reasonable amount of verificatory detail, and should
not be ‘needlessly bald, vague or sketchy’.29
[18] The purpose of the NCA is to provide a more efficient and equitable system
by balancing the rights of credit providers and consumers. The intention of the
legislature was not to shift the balance of power so much that all the power in the
credit relationship would amass into the hands of the consumer.30 The NCA is
structured in such a way as to prevent over -indebtedness and to provide for a more
efficient discharge of consumer debts. The purpose is not to enable an over -indebted
26 Knox D’Arcy AG and Another v Land a nd Agricultural Bank of South Africa [2013] 3 All SA 404
(SCA) par 35.
27 Which have been dealt with above.
28 SA Taxi Securitisation v Mbatha 2 011 (1) SA 310 (GSJ) (‘SA Taxi Securitisation’) par 26.
29 Ibid.
30 Ibid par 32.
consumer to retain a lender’s depreciating security while at the same time not
making debt payments.31
[19] The restoration of a lender’s security to the lender while it still has value
facilitates the efficient reduction and discharge of indebtedness.32 The retention of
deteriorating security has the opposite effe ct.33 As aptly said by Levenberg AJ in SA
Taxi Securitisation ‘the NCA does not contemplate the consumer retaining the
“money and the box”.’34
[20] Mr White for the plaintiff, correctly in my view, likens th e defendants’
opposition to an effort by them to retain the ‘money and the box’ . Such a s tance
clearly fl ies in the face of the purpose and object of the NCA. Nor does it satisfy the
threshold of a bona fide defence as required of a defendant in terms of rule 32(3)(b).
[21] As a last line of defence, the defendants baldly deny that the y received the s
129 notices which are attached to the particulars of claim.35 Their plea reads:
‘29.1 The contents of these paragraphs are admitted in [so] far as it refers to
section 129 of the National Credit Act.
29.2 The Defendants deny that the section 129 Notice was delivered to the
Defendants.’
[22] At best a ‘defenc e’ of this nature serves only as a dilatory measure as a credit
provider may resume proceedings against the consumer after complying with s 129
31 Ibid par 33.
32 Ibid.
33 Ibid.
34 Ibid par 50.
35 Which is the required procedure to be adopted before debt enforcement in terms of s 130 of the
NCA. As was said in Sebola v Standard Bank of South Africa Ltd 2012 (5) SA 142 (CC) par 59 –
‘These procedures are designed to help debtors to restructure their debts, or find other relief, before
the guillotine of cancellation or judicial enforcement falls.’ Section 1 30(2) of the NCA provides that a
credit provider may not commence any legal proce edings to enforce the agreement before first giving
notice to the consumer as contemplated in s 129(1)(a) or s 86(10), as the case may be, and meeting
any further requirements as set out in s 130.
of the NCA .36 Non-compliance with s 129 has been found not to constitute a bona
fide defence for purposes of summary judgment.37
[23] In any even t the plea does not meaningfully engage or dispute th e following
material averments by the plaintiff:
(a) The s 129 notice s were sent via registered mail to the defendants’ chosen
address, namely, 2 […] C[...] Avenue, Framesby, Gqeberha.
(b) The s 129 notice s were delivered to and reached the relevant, correct and
appropriate post office for delivery to the defendants.
(c) The post office would, in the normal course , have secured deliver y of a
registered item notification slip, informing the defendants that a re gistered
item (the s 129 notices) w as available for collection.
(d) Notification of the arrival of the said notices thus reached the defendants
and a reasonable consumer would have ensured retrieval of the said
registered item from the post office.
(e) The said n otices were thus delivered to the defendants.
(f) A print -out from the website of the South African Post Office (a ‘track and
trace print -out’) is annexed to the particulars of claim , which shows that a
first notification was sent to the recipient on 12 October 2022.
[24] In their opposition to the summary judgment, t he defendants contend that the
track and trace print -out fails to indicate the name of the accepting officer who
processed the transaction and further that the s 129 notice was delivered to the
36 In terms of s 130 (4)(b) of the NCA. Standard Bank of Sou th Africa Ltd v Rockhill 2010 (5) SA 252
(GSJ) at 255D and 255F.
37 Ibid.
incorrect post office .38 The defendants contend that the s 129 notice was received by
the Linton Grange post office whereas their address is in Framesby. It is not a
requirement of compliance to establish the identity of the accepting officer . Nor is it
required that the s 129 notice be delivered to the post office closest to the domicilium
address.39
[25] It has been definitively held by our courts that any notion that the NCA
requires a credit provider to ensure, as a matter of fact, that a s 129 notice has
reached the consumer is misconceived.40 This is so because a consumer could
simply eschew debt enfor cement efforts by a credit provider by failing to pick up
his/her registered mail.
[26] In Kubyana v Standard Bank41 the Constitutional Court, having considered
the relevant provisions of the NCA and Sebola ,42 laid this vexed question of what
delivery entails to rest:
‘[54] The Act prescribed obligations that credit providers must discharge in order to
bring section 129 notices to the attention of consumers. When delivery occurs
through the postal service , proof that these obligations have bene discharged entails
proof that –
(a) The section 129 notice was sent via registered mail and was sent to the
correct branch of the Post Office, in accordance with the postal address
nominated by the consumer. This may be deducted from a track and trace
report and the terms of the relevant credit agreement;
(b) The Post Office issued a notification to the consumer that a registered item
was available for her collection;
38 In the court rejected an argument by the consumer that the s 129 notice had to be delivered to the
post office closest to her which was different from the post office in whose are a the domicilium
address was situated.
39 Nedbank Ltd v Ebrahim [2020] ZAGPPHC 460 (7 August 2020).
40 Kubyana v Standard Bank of South Africa Ltd [2014] ZACC 1 ; 2014 (3) SA 56 (CC) par 47 .
41 Ibid at par 54.
42 Sebola v Standard Bank of South Africa Ltd 2012 (5) SA 142 (CC).
(c) The Post Office’s notification reached the cons umer. This may be inferred
from the fact that the Post Office sent the notification to the consumer’s
correct postal address, which inference may be rebutted by an indication to
the contrary as set out in [52] above;
(d) A reasonable consumer would have collec ted the section 129 notice and
engaged with its contents. This may be inferred if the credit provider has
proven (a) - (c), which inference may, again, be rebutted by a contrary
indication: an explanation of why, in the circumstances the notice would not
have come to the attention of a reasonable consumer.’43
[27] There is nothing before me to gainsay that the Linton Grange post office is the
correct post office. Nor do they contend that the incorrect postal address was used.
The track and trace print -out shows that a notification was sent out to the
defendants . I have already mentioned that the defendants fail to meaningfully plead
to the se positive averments in the particul ars of claim.
[28] In the result, the plaintiff has complied with the requirements set out in
Kubyana and is found to have shown that it has discharged its obligations under the
NCA and is entitled to aver that it has done what is necessary to ensure that the
notice reached the consumer.44
[29] It is then for the consumer to explain why it is not reasonable to expect the
notice to have reached his/her attention and should bear this burden of rebuttal
because the information regarding the reasonableness of his/ her conduct generally
lies solely within the consumer’s knowledge.45 The defendants have not met this
burden of rebuttal . The inference has not been rebutted. The facts sustaining the ir
denial is conspicuous in its absence. In the result, the final defence based on non-
compliance with s 129 of the NCA is rejected.
43 My own emphasis.
44 Kubyana v Standard Bank of South Africa Ltd supra par 5 3.
45 Ibid.
[30] Accordingly, I am of the view that the plaintiff is entitled to summary judgment
as sought . The defendants have not raised a bona fide defence which, if proved at
trial, would constitute an answer to the plaintiff’s claims.
[31] In the result , the following order is issued:
1. Summary judgment against the first and second defendants ,
jointly and severally, the one paying the other to be absolved, is
granted for the amount of R1 157 861.88;
2. The first and second defendants are ordered to pay interest on
the aforesaid amount, calculated daily and compounded monthly
from 1 October 2022 to date of final payment, both days
inclusi ve, at a variable rate which is linked to the plaintiff’s
mortgage bond base rate, which variable interest rate is
presently 12.45% nominal per annum calculated daily and
compounded monthly from 1 December 2023;
3. Costs on the scale as between attorney and client.
________________________
T ROSSI
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff : Mr A White
Counsel for the plaintiff
Instructed by:
MINDE SCHAPIRO & SMITH INC.
Ascot Office Park Building No. 7
First Floor, Conyngham Road
Greenacres
GQEBERHA
Ref: Mr M Koen
For the defendant s: Mr G Bhika
Acting personally and on behalf of second
defendant