IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )
Case number: 9102 /2024
In the matter between:
NEDBANK LIMITED Plaintiff
and
SIMPHIWE VAROYI Defendant
JUDGMENT DELIVERED ON 3 JUNE 2025
VAN ZYL AJ :
Introductio n
1. This is an opposed application for summary judgment. The plaintiff’s claim
arises from the defendant's breach of a written credit agreement concluded in
November 2017 , in terms of which the defendant purchased a motor vehicle
described as a 2015 Hyundai H -1 2.5 CRDI (VGT) Wagon A/T .
2. It is common cause that t he agreement is standard in form, and compliant
with the provisions of the National Credit Act 34 of 2005 (“the NCA”). It
provides that ownership of the vehicle would remain vested in the plaintiff until
the full collectable amount was paid. The total collectable amount agreed to
was R 713 714.62, payable by way of structured in stalments over a defined
term. The plaintiff duly delivered the vehicle to the defendant and complied
with all of its obligations under the agreement and the NCA, including the
delivery of pre -agreement statements and statutory notices.
3. It is also not in dispute that the defendant has been in default of his
obligations under the agreement since February 2020 , and has failed to
remedy the breach despite amendment of the repayment terms and the
further indulgences granted by the plaintiff from time to time . The plaintiff, as
it was entitled to do under the agreement, and after having met the NCA’s
requirements, elected to cancel the agreement. It wrote off the vehicle,
because it could not be traced. The plaintiff’s “ Loss and write off report ”
attached to the summons indicates that the vehicle was not recovered.
4. The plaintiff's claim is for what remains outstanding under the credit
agreement , as verified by a certificate of balance annexed to the summons. In
terms of the parties’ agreement,1 a certificate from one of the plaintiff’s
managers , indicating the amount that is due and how it is calculated, is prima
facie proof of the plaintiff’s claim in the event of legal action being taken.
5. The plaintiff instituted action in May 2024. In November 2024 the defendant
delivered a plea which contains various admissions and which, so the plaintiff
submits , raises no bona fide triable defence – hence the application for
summary judgment.
6. The defendant takes no issue with any of the procedural or technical aspects
regulating summary judgment applications, but opposes the application on
other bases, which will be discussed below.
1 Clause 17.4 of the agreement.
The r elevant legal principles
7. The purpose of Rule 32 is to a fford a plaintiff, in clear cases where the
defendant cannot demonstrate a bona fide defence, a remedy to avoid the
costs and delay of unnecessary trial proceedings. The Court must be
satisfied that the plaintiff’ s claim is unassailable on the merits , and that the
defendant's opposition is not genuine, but merely a delaying tactic.
8. It is well -established through authorities such as Breitenbach v Fiat SA
(Edms) Bpk,2 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint
Venture,3 and Tumileng Trading CC v National Security and Fire (Pty) Ltd4
that the summary judgment procedure is aimed at distinguishing between
genuine and sham defences . The Court is not obliged to indulge a defendant
who merely seeks to delay the inevitable enforcemen t of a liquid claim.
9. In Breitenbach, the Court remarked that that summary judgment should not be
refused on the basis of mere technical denials or hypothetical defences, but
only where the defendant places before the court sufficient facts which , if
prove n at trial, would constitute a valid defence. The defendant must ''fully
disclose the nature and grounds of the defence and the material facts relied
upon. "5
10. The S upreme Court of Appeal (“S CA”) in Joob Joob held that the rationale for
summary judgment is to provide a remedy for a plaintiff who can demonstrate
that the defendant's opposition is a stratagem for delay and that , in the words
of Rule 32, "there is no bona fide defence and appearance is entered solely
for the purpose of delay." The SCA affirmed that the procedure is not meant to
deprive a defendant of his day in court , but provides a tool for the expeditious
disposal of cases where the defendant has no reasonable prospect of
success.6
2 1976 (2) SA 226 (T).
3 2009 (5) SA 1 (SCA).
4 2020 (6) SA 624 (WCC).
5 Breitenbach supra at 229F.
6 Joob Joob supra para 32.
11. Similarly, in Tumileng the Court restated that t he amended Rule 32 does not
represent a dilution of the summary judgment procedure , but continues to
serve its vital function in the expeditious disposal of claims where no genuine
dispute of fact exists. The Court observed that summary judgment may and
should be granted where a defendant's plea consists only of "hollow denials,
technica l points, or hypothetical defences ”. The evidentiary burden on the
defendant to set out the facts relied upon for any triable defence is a
substantive one.7 He needs to set out in clear and unequivocal terms the
nature and grounds of any defence, with su fficient detail to satisfy the Court
that such defence, if proven at trial, would be a legally cognisable defence.
His prospects of success are irrelevant.
The defences raised in the defendant’s plea
12. As indicated, t he defendant admits both the existence of the credit agreement
and the fact that a balance remains owing to the plaintiff. The defences
advanced are limited to:
12.1. a challenge to the correctness of the outstanding balance claimed,
based on an al legation that t he vehicle was repossessed and sold at
auction, with the proceeds allegedly not allocated or accounted for by
the plaintiff , and
12.2. a request for a repayment arrangement under the agreement due to
the defendant’s changed health circumstances.
13. The plaintiff's claim in this matter is for a liquidated amount, and is supported
by a certificate of balance which constitutes prima facie proof of the amount
owed in the absence of cogent evidence to the contrary. The defendant's
recourse, if genuinely a ggrieved by the calculation of the outstanding balance,
would be to place specific facts or figures before the Court.
7 See the discussion in Tumileng supra para 13ff.
14. In his plea, the defendant denies that the quantum of the outstanding balance
as claimed by the plaintiff is correct.8 The plea frames the issue as follows:
“11. …the defendant pleads that plaintiff repossessed the vehicle and sold
it at an auction. The sale amount of the vehicle at an auction offset
some of the outstanding balance.
12. Notwithstanding the aforesaid however, the defendant admits that
there is an outstanding amount owing towards settling the outstanding
debt. The defendant is willing to enter into a repayment arrangement
with the plaintiff subject to reasonable terms and conditions agreed t
between the parties, taking into account the defendant’s changed
health condition. ”
15. This is repeated later in the plea, as follows:
“17. ….the defendant pleads that the plaintiff repossessed the vehicle.
18. …the defendant denies that he refused to voluntarily surrender the
vehicle. It was repossessed by the plaintiff and sold at an auction…. ”
16. This, in my view, amounts to a bare denial.9 The defendant provides no
factual foundation for his dispute of the quantum . He provides no details in
support of the assertion – in the face of the plaintiff’s “Loss and write off
report” - that the vehicle was repossessed and sold at auction . At least some
of these details would be within his knowledge, because he expressly pleads
that he did not refuse to hand the vehicle over to the plaintiff.
17. In the case of repo ssession, moreover, t he plaintiff would have had to comply
with the notice , valuation , and statement requirements set out in section 127
of the NCA . There would have been a record of the documents generated
8 The denial appears at various instances in the plea. In other instances the plaintiff’s
allegations are answered by the meaningless (and unhelpful, as far as the defendant’s case
is concerned) formulation that the defendant “ neither admits nor denies ” the position as
plead ed by the plaintiff.
9 Counsel for the defendant’s invocation of the Plascon Evans rule in relation to disputes of fact
on the affidavits delivered in the summary judgment application does not assist the defendant.
throughout the process , which the plaintiff woul d have been obliged to provide
to the court. It is clear from the papers that no such documents exist
because, as the plaintiff avers, the vehicle was not repossessed . It was not
sold at an auction, and there is no amount arising from any such sale that
would reduce the plaintiff’s claim .
18. The affidavit opposing summary judgment is equally bare. Counsel for the
defendant submitted that there was no time to take proper instructions from
the defendant in relation to his affidavit, which was delivere d one court day
prior to the hearing of the summary judgment application . This submission
does not assist the defendant . At the time of the drafting of his plea in
November 2024 – a period in respect of which no time constraints have been
alleged - he wou ld surely have been able to provide instructions to his legal
representatives in relation to when and how the vehicl e had been
repossessed .
19. I agree with the submission made by the plaintiff’s counsel that the
defendant’s case in relation to the alleged a uction falls woefully short of the
threshold articulated in Breitenbach . In any event, the plaintiff's claim is
supported by a certificate of balance, which stands as prima facie proof in the
absence of cogent evidence to the contrary:10
“[61] It was submitted on behalf of the defendant that, at best, the plaintiff’s
first claim was based on a liquidated claim in money since the continuing
covering bond “annexure a” itself did not constitute a liquid document within
the meaning of the rule. That the bond document per se does not constitute a
liquid document is undoubtedly correct. However, the bond document was not
the sole basis of the first claim. The bond document (annexure a) was
substantially amplified by the certificate of balance (annexure c). The latter,
unlike the former, was a perfectly liquid document. It derived its liqu id
character from clause 9 of “annexure a”.
[62] It was an express term upon which the parties had agreed that such a
10 ABSA Bank Ltd v Malherbe [2013] ZAFSHC 78 (16 May 2013) paras 62 -63. Emphasis
supplied.
certificate (annexure c) would prima facie constitute proof of the defendant’s
indebtedness to the plaintiff. Therefore, the onus of provi ng the contrary
squarely rested upon the defendant. He unsuccessfully tried to show that the
plaintiff had failed to comply with clause 9. Since he has failed to do so,
the prima facie proof tendered by the plaintiff became conclusive proof , not
only of th e averments contained in the certificate, but also of the legal nature
of the document itself. ”
20. The defendant ’s counsel submitted that the plaintiff approached the court in
bad faith because the plaintiff had been well aware that the defendant wished
to settle the matter. The matter should therefore not have been before the
court at all for argument of an opposed application. I agree with the
submission that the matter should not have reached summary judgment
stage, incurring th e costs of yet another day which the defendant will have to
bear, but this is not only of the plaintiff ’s doing. The defendant's willingness to
enter into a repayment arrangement, motivated by his changed health
circumstances, is neither a defence to liabi lity nor a bar to the grant of
summary judgment. The NCA does not entitle a debtor, post -default and
cancellation, to dictate new repayment terms or postpone enforcement on the
strength of personal circumstances and because of his wish to settle .
21. The def endant offers R1 500,00 per month to the plaintiff in what he regards
as a reasonable rearrangement. The plaintiff disagrees, seeing that it will
take years to pay off the debt, while interest continues to run. The in duplum
stage will inevitably be reac hed. It is not for this Court to tell the plaintiff to
conclude a contract with the defendant on the proposed basis. The
defendant’s stance is essentially a plea ad misericordiam ,11 seeking to play on
the emotions of the plaintiff and the Court. He is d elaying the inevitable.
Conclusion
22. In the premises, I am of the view that the plaintiff has demonstrated a clear
11 See Jili v FirstRand Bank Ltd t/a Wesbank 2015 (3) SA 586 (SCA) para 7.
and enforceable claim founded on a written credit agreement, full statutory
and contractual compliance, and the production of a n undisputed certificate of
balance. The defendant's plea is devoid of any factual or legal foundation
capable of sustaining a defence at trial.
23. It follows that the plaintiff is entitled to summary judgment in its favour.
Counsel for the plaintiff handed u p an updated certificate of balance at the
hearing of the application. Judgment will thus be granted in the amount
specified on the updated certificate.
Costs
24. The plaintiff’s claim falls within the jurisdiction of the magistrates’ court.12
Costs will thus be awarded on the scale applicable in that court.
Order
25. In the circumstances , summary judgment is granted against the defendant in
favour of the plaintiff for:
25.1. Payment of the amount of R208 324,96, plus interest there on at
10,25% per annum, calculated and capitalized from 22 May 2025
to date of payment, both days inclusive.
25.2. Costs of suit , to be taxed on the magistrates’ court tariff.
____________________
P. S. VAN ZYL
Acting Judge of the High Court
12 The parties’ agreement provides in clause 20 that legal proceedings may be brought in the
High Court regardless of the amount claimed.
Appearances:
For the plaintiff: Ms G. Slingers, instructed by Bornman &
Hayward Inc.
For the defendant: Mr N. Sibanda, instructed by Namane
Attorneys Inc.