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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT )
NOT REPORTABLE
CASE NO. EL 780/2024
In the matter between:
ABSA BANK HOME L OANS GUARANTEEE First Applicant ( Plaintiff )
COMPANY (RF) (PROPRIETARY LIMITED)
(Registration Number : 2003/029628/07)
ABSA BANK LIMITED Second Applicant ( Plaintiff )
(Registration Number : 1986/004794/06)
and
KONDWANI TITU S KAMANGA Respondent /Defendant
Identity Number : 7 […]
JUDGMENT IN RESPECT OF APPLICATION
FOR SUMMARY JUDGMENT
HARTLE J
[1] In this application for summary judgment the plaintiff s seek only a monetary
judgment against the defendant in favour of the first plaintiff.
[2] The defendant appeared in person.
[3] He filed a “ notice of intention to plea ” in which he in essence puts forward
reasons for his default and pleads with the plaintiff s not to execute against the
mortgaged property because it is his primary residence . He also notes that he made
an offer to pay reduced i nstalments to bring his arrears up to date.
[4] It is abundantly plain from the plea that he has raise s no real defence to his
indebtedness. As for the contention that he made an offer, the principal deponent on
behalf of the first plaintiff states that his offer was not acceptable to the bank
because the monthly instalment tendered would not even cover his interest on the
mortgage loan. The plaintiffs fairly point out that the defendant is asking the court
unilaterally to rewrite his contract and impose new contractual obligations on them
for him to pay his monthly bond payments according to what he can afford as
opposed to what he is contra ctually obligated to pay.
[5] The offer , ostensibly engaged with by the plaintiffs, is not acceptable to them.
I am further satisfied that the plaintiffs have not merely paid lip service to the
defendant’s section 129 rights. They have actually considered his proposal to bring
the payments under the agreement up to date.1
[6] The defendant conceded that he is in arrears and can offer no retort to the
particulars of claim regarding the alleged breach of contract and/or the fact of his
indebtedness in the exte nt claimed.
[7] The plaintiffs are certainly entitled to their judgment , which I hereby grant.
1 Section 129 (1)(a) of the National Credit Act, No. 34 of 2005.
[8] The matter appeared before me on a busy motion court day. I reserved my
ruling but due to a fortunate stroke of serendipity for the defendant I took ill and was
absent from the bench for a lengthy period.
[9] The defendant has hopefully in this inter vening period had an appropriate
opportunity to bring up the arrears on his instalments which would entitle him to have
the agreement reinstated within the meaning co ntemplated in section 129 (3) and (4)
of the National Credit Act , this notwithstanding the plaintiffs’ success in the
application .
[10] In the premises , I make the following order:
1. The defendant is to pay the sum of R5 590 996.40 to the first plaintiff .
2. The defendant is to pay interest on the amount of R5 590 996.40 at the
prime lending rate plus 1.25% per annum from 22 December 2023,
calculated daily and capitalized monthly, to date of final payment, both
dates inclusive.
3. The defendant is to pay the c osts of suit on the agreed attorney and own
client scale.
_________________
B HARTLE
JUDGE OF THE HIGH COURT
DATE OF HEARING : 17 SEPTEMBER 2024
DATE OF JUDGMENT : 4 FEBRUARY 2025
Appearances:
For the Plaintiff s : Mr. D Kotze instructed by McWilliams & Elliot Inc,. c/o Bax
Kaplan, East London (ref. Mr. J de Klerk ).
For the Defendant : In person.