IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN)

Case number: 1294/2016

In the matter between:
SEAN MORNÉ BROWN First app licant
ZANDRA SURETA BROWN Second applicant

and

NEDBANK LTD Respondent


JUDGMENT DELIVERED ON 24 MARCH 2025


VAN ZYL AJ :

Introduction

1. These proceedings we re born out of frustration because the applicants felt that
they were not getting through to the respondent.

2. Unfortunately, the pursuit of this litigation has not served the applicants well, however much sympathy one may have for their position. Much of the relief
originally sought and addressed in the papers was abandoned when the
replying affidavit was delivered. The relief that was persisted with cannot be

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granted. I discuss this below.

The previous litigation between the parties

3. Over the period 2005 to 2013 the respondent concluded various credit
agreements with the applicants. The applicants’ liability under the credit agreements were secured by covering mortgage bond s registered over their
immovable property. The provisions of the National Credit Act 34 of 2005 (“the
NCA) applied to these agreements.

4. It is common cause that, for the reasons set out in the founding papers, the applicants could not comply with their bond obligations, and fell in arrears. The
situation is summarized in the applicants’ heads of argument as follows:

“The Respondent extended credit to the Applicants to finance the construction of
their home on a stand in the prestigious Pearl Valley Estate that the Applicants
had purchased with their own funds . As security for this indebtedness, mortgage
bonds were secured over the property. During the final stages of construction, the
builder absconded with the last progress payment , leaving only the installation of
finishes , plumbing, electrical work , fencing, and the issuance of a waterproofing
certificate to be completed. Despite the Applicants' good payment history , the
Respondent refused to release the remaining R1.2 million in available funds necessary to complete the construction. Furthermore , the Respondent ignored the
Applicants ' repeated requests for credit and failed to engage with them on the
matter. As a result of the financial strain caused by the incomplete project, ongoing
bond repayments , and the need to pay rental , the Applicants fell into arrears.
”

5. It is clear from the history detailed by the applicants in the founding affidavit that
they experienced a very unfortunate series of events, resulting in financial dire straits at the time.

6. On 1 February 2016 the respondent issued summons against the applicants.

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The ar rears at the time were about R67 000,00. Instead of defending the claim,
the applicants concluded a settlement agreement with the respondent on 22
April 2016. In terms of the settlement agreement, the applicants admitted
liability for payment of the capital amount of R6 803 217,06 to the respondent,
together with interest, as well as costs on an attorney and client scale.1 The
applicants' immovable property was declared specially executable, but the sale
in execution was stayed for a period of 60 days, commencing 1 March 2016, to
allow the applicants to sell the property themselves . If the applicants were
unable to sell the property themselves , the respondent was entitled to pr oceed
with a sale in execution.

7. Notably, t he terms and conditions of the relevant loan and bond agreements
would continue to apply :2
“
The terms and conditions of the Loan Agreement and Mortgage Bonds [numbers]
remain unaffected and will continue to be of full force and effect and the Applicant /
Plaintiff will be entitled to rely on the aforementioned documents for any purposes. It
is specifically recorded that the Applicant / Plaintiff does not waive or abandon any of
its rights contained in the Loan Agreements and Mortgage Bonds [numbers]. ”

8. The settlement agreement provided that the applicants w ould make payment
of R5 000,00 per month until all the amounts contemplated by the settlement
agreement have been settled in full.

“The Defendant will continue to make payment towards the arrears with reference to
the amount claimed under the above case number in the amount of R5 000,00 per
month from the 1st of April 2016 and monthly thereafter until the full amount detailed
above has been settled” .

9. The settlement agreement was made an order of court on 6 May 2016.

1 The scale of costs was provided for in the relev ant credit agreements.
2 Under clause 8 of the settlement agreement.

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10. The applicants were unable timeously to find a purchaser for the property
through private treaty. There is some wrangling on the papers as to what
communications had passed between the parties at the time, and whether the
respondent should have accommodated the applicants by postponing the sale in execution. While there was an unformalized offer to purchase the property on the cards, the property was sold by way of a sale in execution on 11 August
2016. The applicants were clearly dissatisfied with the situation but they took
no formal action have the sale in execution set aside. It is common cause that
the property was sold for R3 855 000.00, which was insufficient to settle the
capital of the judgment amount, let alone the interest that had accrued. As at
the date of the sale in execution, the a pplicants' arrears had increased to R437
454,99.

11. As at 31 July 2024, after the current application was launched, the applicants were still indebted to the respondent in the amount of R2 977 921,79.

12. Whilst the applicants made some payments towards payment of the balance
outstanding over time, it is common cause that they missed several payments.
During 2020 , they increased the payments to R5 200,00 per month. T he
applicants concede, however, that they unilaterally decided to suspend these
payments when they embarked on this litigation. At the hearing of these
proceedings, counsel for the applicants acknowledged that they were in
contempt of the court order embodying the settlement agreement.

The main application, and the application for an amendment of the notice of
motion

13. The applicants instituted the current application i n July 2024, some eight years
after the s ettlement agreement had been made an order of court. It is
necessary to refer to the nature of the relief sought.

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14. The main focus of the application was an order seeking the reinstatement of
the credit agreement s that were the subject of the settlement agreement. Aside
from prayer 1, which deals with condonation,3 the notice of m otion seeks the
following relief:

"2. Declaring that:
2.1 The applicants had remedied their default by operation of law
on the basis that the applicants paid all the arrears on the
loan agreement at a time that the loan agreements were in
full force and effect prior to the sale in execution;
2.2 The loan agreements dated 11 March 2005, 4 July 2007, and
15 October 2013 ("the loan or credit agreements") which the
respondent sought to enforce in Western Cape Division case
14272/10 has become revived and reinstated in terms of
section 129(3) of the National Cr edit Act.
3. Pursuant to such reinstatement the respondent be directed to make the
remainder of the credit in terms of the reinstatement credit agreements
available to the applicants by such further term as agreed to by the
respondent.
4. In addition to the relief formulated above, and in the alternative in the event of an inability to make such orders, the applicants ask the
following relief:
4.1 Directing the respondent to, subject to its standard terms and
conditions grant the applicants access to further credit, the proceeds of which shall be used for the purchasing of
immovable property in their name;
4.2 Declaring that the monthly payment to the respondent in the
amount of R 5 200 currently in effect, be applied towards the
reduction of the shortfall remaining owning by the applicants, until such time that the parties reach agreement on an

3 Condonation was sought in respect of the “ late service and filing” of the main application, but it
was accepted that no suc h condonation was in fact required, given the nature of the application.

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increased payment.
5. That all fresh processes contemplated by the respondent and
emanating from the judgment of 9 May 2016 under case number 1294/2016 be stayed, pending the outcome of this application.
6. That the respondent be directed to immediately cause to be
expunged from the records retained by the credit bureaus, any
adverse information concerning the applicants, thereby restoring
their good standing.
7. That each party pay their own costs in this application. "

15. In its answering affidavit, delivered on 28 August 2024, the r espondent raised
various points in limine, submitting that the relief sought i s either bad in law, or
that no case for it has been made out. These points will be discussed in due
course below.

16. The applicants delivered their replying affidavit on 16 September 2024. In it,
they changed tack by indicating that they we re abandoning prayers 2, 3 and 6
of the notice of motion. This was because the respondent had pointed out, in
its answering affidavit (as well as in correspondence preceding the delivery of
the answering affidavit), that a reinstatement of the relevant credit agreement would not be permissible in the circumstances.

17. The applicants persist ed in seeking the relief set out in prayer s 4, 5 and 7 of
the notice of motion.4 The replying affidavit further conceded that the wording
of prayer 5 "does not make sense", and indicated that this w ould be changed
by a subsequent notice of intention to amend. The replying affidavit did not indicate how, exactly, the wording of prayer 5 was to be amended.

18. On 20 September 2024 the a pplicants delivered their notice of intention to
amend. The notice confirm ed the abandonment of prayers 2, 3 and 6. It further

4 It is unclear form the replying affidavit whether both paragraphs 4.1 and 4.2 would be relied
upon, but counsel confirmed at the hearing that the applicants sought the relief set out in both.

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sought the reformulation of the existing prayer 4, and the reformulation of prayer
5.

19. On 27 September 2024 the r espondent delivered a notice of objection to the
proposed amendments .5 Despite this, no formal application for amendment
was launched.6 With the knowledge that the time period for the launching of
the application to amend was overdue, the a pplicants consented to a court
order postponing the main application for hearing on 5 March 2025. T he court
order (dated 18 October 2024) provided a timetable for the delivery of heads of
argument, but not for the delivery of an application for amendment.

20. On 6 February 2025, the a pplicants delivered a formal application to amend
their notice of motion in the terms indicated in their notice delivered some four
and a half months earlier.

21. On the morning of the hearing, when the matter was called, counsel informed the Court that the application for amendment had been withdrawn. It transpired that counsel for the respondent only learned of the withdrawal moments before the commencement of the hearing. Counsel for the applicants indicated that
they did not wish to have the main application postponed for the delivery of
further answering affidavits should the proposed amendments be granted. This was in reaction to the respondent’s indication in its heads of argument that it would (in the event of a successful amendment application) need to deal with the amended relief sought in fresh affidavits – a not unreasonable stance on
the respondent’s part .

22. In any event, the parties were agreed7 that the amendment application could

5 This was done within the 10- day period prescribed by Uniform Rule 28(2).
6 In terms of Uniform Rule 28(4), the formal application for amendment had to be delivered 10
days after delivery of the notice of objection, that is, by no later than 11 October 2024.
7 In terms of Rule 41(1)(a) : “A person instituting any proceedings may at any time before the
matter has been set down and thereafter by consent of the parties or leave of the court withdraw
such proceedings, …” (emphasis added).

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be withdrawn, but the costs thereof remained in dispute. The applicants did not
wish to make any tender in that respect , despite the merits of the amendment
application having taken up a considerable portion of both parties’ heads of
argument . When counsel for the applicants was asked where the costs burden
should lie if a party launched an application but abandoned it on the morning of the hearing in the face of much time and effort having been expended on it, she conceded that such party ought to bear the costs of the application :
8
“
Where a party withdraws a claim the other is entitled to costs unless there are good
grounds for depriving him: Germishuys v Douglas Besproeiingsraad 1973 (3) SA 299
(NC) and Sentraboer Kooperatief Bpk v Mphaka 1981 (2) SA 814 (O) .”

23. In the present case, no sound reasons were furnished as to why the respondent should not be entitled to costs. That was the end of that matter.

24. The main application is thus the only application that needs to be considered. Of the original notice of motion, only prayers 4 and 5, as well as 7 (in relation
to costs) , remain for determination.

The relief sought in prayer 4.1

25. Prayer 4.1, in its unamended form, is couched in peremptory terms: "Directing
that the respondent ... grant the applicant s access to further credit . .. ".

26. The fundamental difficulty with this prayer is that it seeks to compel the
respondent to enter into a credit agreement with the a pplicants. While section
60(1) of the NCA does afford a person the right to apply for credit, this right is qualified by sections 60(2) and 60 (3) which state, inter alia, that a credit provider
cannot be compelled to enter into a credit agreement, at least not without it

8 Waste Products Utilisation (Pty) Ltd v Wilkes and another (Biccari Interested Party) 2003 (2)
SA 590 (W) at 597A -B.

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having done an affordability analysis and a risk assessment. Section 60 reads
as follows:

“60 Right to apply for credit
(1) Every adult natural person, and every juristic person or association of
persons, has a right to apply to a credit provider for credit.
(2) Subject to sections 61 and 66, a credit provider has a right to refuse to
enter into a credit agreement with any prospective consumer on reasonable commercial grounds that are consistent with its customary risk management and underwriting practices.
(3) Subject to sections 61 and 92(3), nothing in this Act establishes a right
of any person to require a credit provider to enter into a credit
agreement with that person. ”9

27. An order as formulated in prayer 4.1 will therefore amount to a contravention of
the NCA and the provisions relating to risk assessment and providing reckless
credit.10 It is not only bad in law given the provisions of the NCA, but also under
the common law : it is trite that a court cannot compel parties to conclude a
contract.

28. Counsel for the applicants sought to argue that what the relief sought in prayer 4.1 amounts to is merely an order compelling the respondent to consider the applicants’ application for credit. The argument amounts to a reintroduction of the abandoned application for amendment, with its proposed reformulation of prayer 4.1.
11 Be that as it may, the respondent has in its answering affidavit
invited the applicants to submit a credit application, and has undertaken to consider it. There is no need for an order under the “reformulated” prayer 4.1.


9 Emphasis added. Neither section 61 nor section 92(3) is relevant for present purposes .
10 See, for example, sections 61(5) and 78 to 88 of the NCA.
11 The proposed (but abandoned) amended prayer 4.1 reads: " Directing the respondent to
examine the applicants' financial situation thoroughly as part of an affordability analysis and if
determined to be eligible for credit to purchase immovable property in their name, grant the
(sic) same to them, under such terms and conditions imposed by the respondent. "

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The relief sought in prayer 4.2

29. Prayer 4.2 in its original form is vague,12 and the respondent initially interpreted
it to mean that the applicants were seeking to reformulate the payment
arrangement in the existing settlement agreement. In the replying affidavit,
however, the applicants clarified that what was meant by the prayer "is simply
my request that they [the respondent] adhere to the terms of the settlement and reduce the shortfall with the monthly payments" .
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30. If this is the proper interpretation of prayer 4.2, then it is a brutum fulmen. It
makes little sense for a court to make a declaratory order which amounts to duplicating an existing order.

31. In argument, counsel for the applicants indicated that it was the applicants ’
case, to be confirmed by the relief sought in prayer 4.2, that the respondent
was never entitled to claim anything more than R5 000,00 per month on the
outstanding balance under the mortgage bonds. Given the current formulation
of prayer 4.2 I do not have to decide this question. I point out however that, on the applicants’ argument, it will take the m about 49 years to repay the capital
currently outstanding (leaving aside interest ).
14 The argument also ignores
paragraph 8 of the settlement agreement which , as indicated earlier, retains the
respondent’s rights under the relevant loan agreements and the mortgage bonds .

32. Another consideration arises in relation to this prayer. I have mentioned the

12 Eke v Parsons 2016 (2) SA 37 (CC) at para [64]: "The rule of law requires not only that a court
order be couched in clear terms but also that its purpose be readily ascertainable from the
language of the order. This is because disobedience of a court order constitutes a violation of
the Constitution" .
13 The proposed (but abandoned) amended prayer 4.2 reads: "Directing that the monthly payment
made by the respondent as stipulated in clause 9 of the settlement agreement, or such increased payment agreed between the parties, be applied to the reduction of all amounts remaining due as contemplated by the settlement agreement, including the shortfall."
14 The outstanding capital, as at 31 July 2024, was R2 977 921,79. This amount divided by R5 000.00 results in a repayment period of about 595 months (49,63 years).

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fact that, o n the a pplicants' own version, they have unilaterally suspended
payment of the monthly amount of R5 000,00 required by the settlement
agreement . The a pplicants are therefore seeking protection from the court in
circumstances where they are in contempt of the very court order (that is, the
settlement agreement) which is the subject of their relief. As a matter of
principle, the court should not come to the assistance of a litigant who is in
contempt, and who has not purged his or her contempt :15 “…no application to
the Court by a person in contempt will be entertained until he or she has purged
the contempt .”

33. In these circumstances, there is no basis for the grant of the relief sought in prayer 4.2 of the notice of motion.

The relief sought in prayer 5

34. This prayer, in its current form, effectively seeks an interim interdict prohibiting
the respondent from instituting any proceedings under or pursuant to the settlement agreement and the action that gave rise to it. The applicants do not,
however, make out any case for the grant of such an interdict.

35. There is no indication as to what the prima facie right is that is relied upon for
the grant of interim interdictory relief. The applicants' heads or argument merely
state that the court has a "discretion" to stay "any fresh legal proceedings" . This
is not an accurate submission. While the court has a limited discretion to refuse the grant of an interdict, even when its requirements were met, the discretion does not operate in reverse, that is, there is n o discretion to grant an interdict
where none of the requirements for an interdict have been met.

36. There is no indication as to what irreparable harm the applicants would suffer if

15 Di Bona v Di Bona 1993 (2) SA 682 (C) at 688G. There are exceptions to this rule, but no
argument was addressed to me in support of the proposition that the applicants f ell within an
excepted category of litigants.

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this relief were not granted, where the balance of convenience lies, or why they
do not have a satisfactory alternative remedy. If, for the sake argument, the
respondent were to institute meritless legal proceedings against the a pplicants
in future, the obvious remedy would be to put up a defence, and to illustrate
why the r espondent's case has no merit. Any notional "harm" can be cured by
a costs order against the respondent. It is not for this court to pre
-em
pt what
proceedings the respondent may or may not institute in future, and it is not this
court's function to pre- judge those future proceedings before it has
materialised .

37. During argument counsel for the applicants contended that prayer 5 was
“incorrectly worded”, and that the applicants merely wanted to prevent the respondent from instituting any proceedings in the relation to the settlement agreement. This submission does not address the difficulties set out above in
relation to this prayer. It ignores , yet again, paragraph 8 of the settlement
agreement , which retains the respondent’s rights under the relevant loan
agreements and the mortgage bonds .

38. An order in terms of prayer 5 would in any event be meaningless at a basic level, because it seeks that the interdict be operative "pending the outcome of this application" . The notional interdict will therefore commence and lapse at
the same time. There is simply no sense in granting this relief.

Costs

39. The general rule is that costs should follow the event. The applicants insis t that
each party should pay their own costs, as sought in prayer 7 of the notice of motion. Counsel submitted that the applicants were compelled to institute these proceedings, given the history to the matter. The essence of the argument is captured in the following submission from the heads of argument:


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“The Applicants have been placed in a challenging financial position due to
circumstances largely beyond their control. However , with fair treatment and a
reasonable opportunity to restructure their obligations , they are fully capable of
restoring financial stability and achieving long-term economic growth. In the interests
of justice and equity , the Applicants respectfully request that this Honourable Court
grant the relief sought. ”

40. The reasons why the relief sought by the applicant s cannot be granted have
been dealt with above. I do not agree that the circumstances in which the
application was brought justifies an order that each party pay their own costs .
The application was brought with much emotional gusto but little merit. The
applicants abandoned most of the relief originally sought when the respondent,
in the answering affidavit, pointed the correct legal position out to them. Yet,
they persisted in seeking relief that was patently without merit. The amendment
application was abandoned at the last moment. The respondent had no choice
but to continue its opposition to both the main and the amendment application s,
and prepare argument for all the contingencies right up to the hearing of these proceedings .

41. Rule 67A(3)(b), in relation to the scale of counsel’s fees, refers to considerations which may include the complexity of the matter, the value of the claim , and the importance of the relief claimed. This is clearly not a closed list
of considerations. In the exercise of my discretion on the available facts as a
whole, I am of the view that an award of counsel’s fees on Scale B is warranted.

Order

42. In the circumstances, it is ordered as follows:

42.1. The main application is dismissed, with costs, including counsel’s fees
on Scale B.


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42.2. The costs of the application for amendment instituted on 6 February
2025 shall be borne by the applicants, including counsel’s fees on Scale
B.

____________________ P. S. VAN ZYL
Acting judge of the High Court
Appearances:
For the applicants: Ms R. Caprari, instructed by Francois
Pienaar Attorneys Inc. t/a FDP Law
For the respondent : Mr J. P. Steenkamp, instructed by Kemp &
Associates