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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG .
Case Number: 2024- 034828.
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED: NO
26.5.2025
In the matter between:
NEDBANK LIMITED Applicant
And
ARNOLD STEY NBERG First Respondent
MARTHINUS GODFRIED STRUWIG Second Respondent
XBS GROUP ( PTY) LTD Third Respondent
LBS HOLDINGS ( PTY) LTD Fourth Respondent
JUDGMENT
NOKO J
2
Introduction.
[1] The applicant launched an application against respondent s for judgment in
the sum of R65 168 242.62 due from the third respondent in respect of sale
instalment agreements entered into with the third respondent . The suit against the
respondents is predicated on the suretyship agreement s entered into with the
applicant for the liabilities of the third respondent towards the applicant .
[2] The first respondent is being sued for R 43 200 000.00 (jointly and severally
with t he other respondents) plus interest thereon at 13.25% per annum ,
compounded daily and capitalized of final payment both days inclusive monthly from
12 October 2023 to date of payment. The second, third and fourth respondent s are
being sued jointly and severally with one another and first respondent, the one paying the other to be absolved, for the payment of the sum of R65 168 242.62.
[3] The total of the amount claimed is reflected in the cer tificate of balance
attached to the applicant’s founding papers.
1
[4] The application is opposed by both first and second respondents. The third
and fourth respondent s are placed under liquidation and are not represented or
participating in this lis .
Parties
[5] The applicant is Nedbank Limited, a registered bank and a public company
with registration number 1951/000009/06 duly incorporated in accordance with the
company laws of the Republic of South Africa. The applicant ’s place of business is
situated at […] Floor , M[…] M[…] Campus, 1[ …] B[…] Avenue, W […] G[…], Pretoria.
[6] The first respondent is Arnold Steynbe rg, an adult male whose domicilium
citandi et executandi is 1[…] W[…] Drive, W […] G[…] E[…], Pretoria.
1 The Certificate is issued in terms of clause 6 of the Suretyship Agreement, at CL 02- 91.
3
[7] The second respondent is Marthinus Godfr ied Struwig, an adult male whose
domicilium citandi et executandi is 7[…] Unit 1 […], M[…], Mahikeng.
[8] The third respondent is XBS Group ( Pty) Ltd a private company duly
incorporated in accordance with the company laws of the Republic of South Africa,
with it s domicilium citandi et executandi at Site 5[…] P[…] Mall, 2 […] G[…] Road,
M[…] Park Pretoria.
[9] The fourth respondent is LBS Holdings (Pty) Ltd a private company duly
incorporated in accordance with the com pany laws of the Republic of South Africa
with its registered address at DED Building, MIGA, Ramatlabama, Mahikeng, North West Province.
Background
[10] During 2022 the applicant and XBS Quantum ( Pty) Ltd (forme rly know n as
Loubser Bulk Services (Pty) Ltd ( “XBS”) entered into several instalment sale
agreement s of motor vehicles (“vehicle/s”). The ownership of each vehicle remained
with the applicant until full payment of each vehicle is effected.
[11] The first and second respondent s entered into suretyship agreements in
terms of which they agreed to stand as sureties and co- principal debtors in favour of
the applicant for XBS’ obligations arising from the instalment sale agreements on 18 and 20 September 2022 respectively. The first respondent’s liability under the suretyship agreement was limited to amount of R43 200 000.00 plus interest and
legal costs whereas the liability for second, third and fourth respondents was limited
to R108 000 000.00 plus interest and legal costs. The sureties waived their rights to
the common law exceptions of excussion and division; renounced exception of non
numeratae pecuniae, non- causa debiti and errore calculi.
2
[12] The liquidators appointed in the estate of XBS, namely, Mr K van der
Westhuizen and Ms T Vimbi accepted the claim by the applicant in the said sum of
2 See clause 11 and 12 of the agreement at CL 02- 91.
4
R65 168 242.62 on 30 October 2023. The liquidators sold the vehicles via public
auction for R48 179 250.00 and paid a provisional dividend in the sum of
R32 283 050.14 to the applicant from the proceeds of the auction.3
[13] Pursuant to the liquidation of XBS t he applicant instituted these proceedings
against the respondents qua sureties for the payment of the balance due by XBS ( in
liquidation ).
[14] On the first day of hearing before me (i.e. 29 April 2025) , the second
respondent ’s counsel brought an application from the bar for the postponement of
the application as he was not ready , having been instructed few days before. He
therefore needed to appraise himself with the case and also file heads of argument.
The first respondent did not take issue with the request for postponement and agreed that the second respondent should be given an opportunity to prepare and
argue its defence. After the discussion with the parties, I ordered that the application
be postponed to 2 May 2025 and second respondent should file heads on 30 April
2025 and be ready to argue the matter on 2 May 2025.
Parties ’ contentions and submissions
Condonation [15] The second respondent applied for condonation of the late filing of the
answering affidavit. The explanation provided by the second respondent is plausible
and there is no prejudice to be suffered by other parties. With no opposition from the
other parties , I granted condonation for the late filing of the answering affidavit .
Point s in limine
[16] First respondent contended that the applicant has irregularly sought to amend
the notice of motion by amending the amount claimed in the founding papers with out
3 This payment was not disclosed at the time when the applicant instituted the proceedings against
the respondents and only stated in the Applicant ’s Replying Affidavit.
5
serving a notice of intention to amend which would afford the respondent an
opportunity to consider and object (if appropriate) to the said notice which process is
regulated by Rule 28 of the Uniform Rules of Court.
[17] The first respondent further contended that the applicant has changed its
cause of action by attaching a revised certificate of balance containin g a different
amount . This route is prescribed by the rules and t he applicant should have either
invoked, the first respondent ’s counsels contended, the provisions of rule 6(5)(e) and
sought to introduce new material , alternatively refer the matter to oral evidence or
started the proceedings afresh. The rules and authorities are clear that a party’s case should be made in its founding papers and introduction of new issues should generally not be accommodated.
[18] The second respondent supports the arguments raised by the first respondent
regarding the irregular process of amending the court papers which was not in accordance with the Rule 28.
[19] The applicant in reply, argued that the notice to amend and the new certificate
were intended only to change the amount due being R36 147 859.75 as determined
after the deduction of the provisional payment effected by the liquidator. Counsel argued that this would not prejudice the respondents.
[20] Applicant’s counsel further put in dispute the argument that the applicant is
introducing a new cause of action in the reply. She contends that the suit is
predicated on the suretyship agreement entered into between the parties . That the
Certificate of balance is not a cause of action but a method to show proof of the amount due. To this end she persist s that the notice of amendment should
nevertheless be accepted by the C ourt as none of the respondents will be prejudiced
by its introduction.
6
[21] It is trite that affidavits filed in legal proceedings serve as both evidence and
pleadings and the applicant is required to detail its case in the founding affidavit.4 To
this end, it is impermissible for a party to introduce new evidence in the replying
affidavit. That being a general legal proposition, it is also trite that a court may under
exceptional circumstances receive new material in the replying affidavit. One may
defer to the sentiments echoed in Rippert’s Estate5 where the court held6 that the
rule was not absolute and the court has discretion to permit new material in the replying affidavit.
7 One of the considerations would be whether the applicant knew of
the material prior to the launching of the proceedings. It was stated in Shakot Investments (Pty) Ltd
8 that:
“In consideration of the question whether to permit or strike out additional
facts or grounds for relief raised in the replying affidavit, a distinction must, necessarily be between a case in which the new material is first brought to light by the applicant who knew of it at a time when his founding affidavit was prepared and a case in which facts alleging that respondent’s answering affidavit reveal the existence of effective ground for relief sought by the applicant. In the latter type of case the Court would obviously be more readily
allow the applicant in his replying after and enlarge upon what has been
revealed by the respondent, and to set up such additional ground for a leaf as might arise therefrom.”
[22] There is no argument mounted by the applicant that there are exceptional
circumstances to warrant the admission of new material in the replying affidavit
4 See Botha v Smuts and Another 2025 (1) SA 581 (CC) at para 58 where the court set out the
principle as follows that “ In our law, there is a general rule that in motion proceedings “it is to be
founding affidavit w hich a judge w ill look to determine what the complaint is. Ordinarily a new case or
new facts in support of the relief claimed should not be advanced in their planning affidavit or on
appeal. There are exceptions to the general rule which I consider below.
5 Body Corporate, Shaftesbury Section Tile Scheme v Rippert’s Estate and Others 2003 (5) SA 1 (C).
See also Hano Trading CC v JR 209 Investment (Pty) Ltd [2021] ZASCA 127 (21 September 2012)
6 Having referred to Shephard v Tuckers Land and Development Corporation (Pty) Ltd 1978 (1) SA
173(W).
7 See also Hano Trading CC v JR 209 Investment (Pty) Ltd [2021] ZASCA 127 (21 September 2012)
8 Shakot Investments (Pty) Ltd v Town Council of Borough Stanger 1976 (2) SA 701 (D) at 705H -
706B
7
except the argument that there is no prejudice9 to visit the respondent and that
instead the amendment is to respondents’ benefit.
[23] The contention that the respondents would not suffer any prejudice if the rules
were not followed is unsustai nable. The rule enjoins the applicant to afford the
respondent s an opportunity to consider the notice to amend and raise an objection if
they so find necessary. Subject to what I set out in the conclusion; the point raised
by the respondent s that the new material cannot be raised in the reply is sustainable.
Merits
[24] The applicant contended that an act of placing XBS under liquidation is
identified as one of the acts of default which trigger ed the launching of the
proceedings against the respondents. In addition, t he indebtedness has been
established as the amount for which the respondents are being sued has been
admitted by the liquidators. Furthermore, the National Credit A ct is not applicable as
the dis pute relates to the amount in excess of R250 000.00.
[25] Applicant’s counsel stated further that contrary to the first respondent ’s
submission that he is being sued for the amount which is in excess of his liability as
set out in the suretyship agreement , prayer 1 of the notice of motion states that the
applicant is sued for R43 200 000.00 being the limit set out in the suretyship
agreement. To this end the counsel argues that the applicant has made out a case
for judgment as prayed for against the first respondent.
[26] The counsel for the first respondent raised several defences on which it was
argued that the claim s by the applicant should be dismissed. Firstly, counsel for the
first respondent demon strated that the applicant ’s counsel is incorrect that t he claim
against him is limited to the amount set out in the suretyship as prayer 2 in the notice
of motion provides for judgment against the other respondents jointly and severally
with the first respondent. I therefore find that t he point raised by the first respondent
9 It was held that prejudice is not the test, and it is u incumbent on the applicant to establish
exceptional circumstances which render it fair to permit filing of additional affidavit. See Impala
Platinum Ltd v Monageng Mothiba N.O. and Others (ZALCJHB 475 (10 June 2016) .
8
is valid and sustainable and this issue is decided on the version of the first
respondent that his liability is limited .
[27] Second ly, the first respondent contended that the certificate of balance
attached to the founding papers is disputed as it does not reflect the correct balance
due to the applicant because the applicant had received payment from the
liquidators subsequent to the sale of the vehicles at an auction. The conduct of the
applicant of not disclosing this fact , counsel argued, amount s to attempt to be paid
twice for the same debt which conduct should not be countenanced by this Court.
Furthermore, failure to disclose the amount received meant that the applicant
approached t he Court with unclean hands.
[28] The applicant in retort contended that clause 10 of the suretyship agreement
stipulates in no uncertain terms that payments effected can be retained by the applicant as security until the indebtedness is cleared and to this end there is nothing
untoward for having claim ed the total amount as appearing in the founding papers. In
the premises , counsel argued, the dispute raised by the first respondent is
unsustainable. That notwithstanding, counsel argued further, the applicant is
prepared to ask that an order be granted for the lesser amount .
[29] Thirdly, first respondent further contends that the amount which was paid to
the applicant by the liquidator is provisional and this implies that further payments
will be effected in due course. In retort the applicant correctly contended that t his
argument is bound to fail as the first respondent has waived the common law exception relative hereto.
[30] Fourthly, first respondent, contended that the applicant acknow ledged receipt
of R32 283 050.14 from the liquidators who (liquidators) received R48 179 250.00
from the auction. The difference between the two amounts , being in the region of
R15 000 000.00, need to be accounted for before judgment is granted against the
respondents. The applicant submitted, correctly, that this contention is hopeless in
view of the common law exception relative hereto is waived.
9
[31] Fifthly, the first respondent contended XBS had a debtors book valued at
R21 000 000.00 and to his surprise the liquidators contended that the said debtors
are fractured. This argument was also unsustainable in the face of the waiver of
exception. In any event it can be construed as res inter alios acta vis a vis
enforcement of the suretyship agreement.
[32] The second respondent joined issue with the first respondent and in addition
submitted that there is no dispute about the indebtedness to the applicant. The issue relate to the determination of the exact amount which is due. The applicant in retort contended that the amount has already been admitted by the liquidators and the Master of the High Court and second respondent’s contention is unsustainable.
[33] Also not related c losely to the claim under suretyship agreement the
respondents contended that the liquidators did not conduct themselves fairly and to the benefit of the creditors. The respondent s made an offer to the liquidators which
offer could have defrayed amount which w as due to the applicant and the applicant
rejected it . In the end, the vehicles were sold for the less than the offer which was
presented by the respondents. I n response, argument continued, the liquidator
imposed unreasonable conditions which were unachievable and unrealistic . The
responden ts are considering available legal recourses to take against the liquidators.
[34] In retort , the applicant submitted that the conduct of the liquidators w as
beyond reproach and the respondents were also kept abreast of the developments. If the respondents were keen to buy the vehicles, counsel for the applicant continued, they would have attended the auction and bid for the vehicles. In any
event , counsel contended, this is an accusation against the liquidators and cannot
successfully be used against the applicant in this suit.
[35] Applicant’s counsel argued further that the parties do not necessarily dispute
indebtedness to the applicant but only the amount. Bearing in mind the indebtedness has been accepted by the liquidators and Master of the High Court. The amount due is capable of determination or quantified withou t difficu lty and it is R36 147 859.75.
To this end, the dispute being raised by the respondents does not warrant dismissal
10
of the application nor the referral of the application for oral evidence in terms of rule
6(5)(f) of the Uniform Rules which endowed the C ourt with a discretion under the
circumstances to refer the issue in dispute for oral evidence or trial .
Issues
[36] Issue s for determination are whether the applicant had made out a case for
the relief sought and whether defences raised by the respondents are sustainable.
Legal principles and analysis
[37] The applicant referred to certain clauses in the suretyship agreement which
are directly implicated in this lis . Clause 6 provides that as proof of the amount due a
Certificate of Balance issued by the manager , whose authority and capacity would
need not be proved, would be sufficient proof without more. The certificate of
balance shall upon its mere production be binding and be prima facie proof of the
amounts which are due to the applicant.
[38] Clause 10 provides that “ Any moneys paid by us to Nedbank under this surety
may, at Nedbank’s discretion, be treated as security held by Nedbank until Nedbank
recovers the principal debtor’s indebtedness in full. ”
10
[39] Clause 11 provides that “We renounce the benefit of exc ussion ( beneficium
ordinis seu excussionis ), which means that we are no longer entitled to claim that
Netbank f irst exhaust its remedies against the principa l debtor before proceeding
against us in terms of this s uretyship. We also renounce the benefit of division
(beneficium divisionis ), which means that we are no longer entitled to claim that our
obligation be divided proportionately between us, any C o-sureties and the principal
debtor . 11
10 See Suretyship Agreement at CL 02- 90
11 See Suretyship Agreement at CL 02-91
11
[40] Clause 12 which provides that “We also renounce, to the extent not prohibited
by National Credit Act, 2005, the legal exception of non -numeratae pecuniae, which
means that we are no longer entitled to claim that no money s were in fact paid over
to the principal debtor, legal exception of non- cause debiti , which means that we are
no longer entitled to claim that the principal debt for which we undertook liability does
not exist ; the legal exception of errori calculi, w hich means that we are no longer
entitled to claim that the amount claimed has been incorrectly calculated and the
legal exception of revision of account, w hich means that you are no longer entitled to
claim that Nedbank revises its accounting in respect of our or the principal debtor’s
indebtedness . We also renounce all other exceptions which might or could be
pleaded in defence to the payment of our obligation, or any part thereof, with the
force and effect of which exception we declare ourselves to be fully acquainted. ”12
[41] The two defences which require closer scrutiny is the argument that a bona
fide dispute was raised in that the amount claimed does not fall within the limit said
out in the suretyship agreement. The first responden t was correct in this regard that
if there is a valid claim against him it can only be limited to the amount of R43 200 000.00. This aspect was conceded by the applicant and subject to the
findings below my decision will be in accordance with the first respondent’s version.
[42] The second dispute relates to the challenge that the amount in the C ertificate
of balance does not reflect the correct amount as the liquidator has paid the applicant from the proceeds of the auction. The applicant’s version is that the dispute
is unsustainable because in terms of clause 10 of the suretyship agreement monies
paid by the sureties may be retained as security until the total indebtedness is
cleared. To the extent that the monies so paid by the liquidator (and not sureties)
which were only admitted in the replying affidavit did not ex tinguish the debt the
applicant had the right to keep the aforesaid payment till total debt is paid.
[43] The dispute raised by the first respondent does not unsettle the basis of the
claim , which is predicated on the indebtedness admitted by the liquidator . In any
event the applicant submitted that the cause of action has not changed and ordinarily
12 See Suretyship Agreement CL 02- 420.
12
the court may still grant an order for the amount which is proved. To this end I find
that clause 10 is a valid answer to the dispute raised by the first respondent as
against the indebtedness that has been admitted by the liquidators. However, I
cannot close my eyes to the concession in the reply that the amount has been
reduced granting an order for the lesser amount would not prejudice the respondents
and would be a decision consistent with the version of the respondents that at least
the balance should take into account payment already made by the liquidator s.
[44] The contention that there is an amount of R 15 000 000.00 not accounted for
by the liquidator is defeated by the waiver of the common law exception set out above. Another contention that the payment was provisional and further payment would be made in due course by the liquidator cannot be a valid defence and is defeated by the waiver of exception stated above. Further contentions raised
regarding a debtor ’s book and damages suffered as a result of the liquidator having
sold the vehicles for less are res inter alios acta as to the applicant and the
respondents qua sureties.
[45] The aforegoing reasons applies to the second respondent whose main gripe
relates to the amount payable and not the indebtedness. The amount has been
proved and admitted by the liquidators which has now been reduced by the applicant . I therefore find the opposition to be unsustainable.
Conclusion.
[46] Ordinarily disputes should not be enveloped in a fog which hides or distorts
reality . The reality in casu is that there is indebtedness which was admitted and the
amount is an issue. The decision on the amount is in sync with the versions of the
respondents that the claimed amount should be reduced by the total amounts received by the applicant from the liquidator s. Other defences were just raised to be
rejected.
Costs
13
[47] The applicant and the first respondent were in unison that the second
respondent should be ordered to pay costs for the postponement of 29 April 2025 as
the matter was postponed at his instance. The current counsel for the second
respondent was not present at the hearing on Tuesday , 29 April 2025 and she is
unable to present a view but the acknowledged that the issue of costs is within the
enclave of the court.
[48] It is also trite that generally costs follow the result. No arguments were
advanced to persuade me to deviate from this well- trodden path.
Order
[49] In the premises , I make the following order :
1. The first and second respondent s are ordered to pay the applicant
R36 147 859.75 jointly and severally the one paying the other to be absolved.
2. The first and second respondents are also ordered to pay i nterest on
the said sum of R36 147 859.75 at Nedbank's prime lending rate applicable currently , 11.75% plus 0.50%, thus 12.25% per annum, compounded daily
and capitalized monthly from 14 August 2024 to date of final payment both days inclusive.
3. The second respondent is ordered to pay the wasted costs occasioned
by the postponement on 29 April 2025.
4. Save as aforesaid both first and second respondent are ordered to pay
the costs on party and party scale and scale B for the Counsel.
M V NOKO
Judge of the High Court
Gauteng Division, Johannesburg.
14
DISCLAMER: This judgment was prepared and authored by Judge Noko and is
handed down electronically by circulation to the Parties /their legal representatives
by email and by uploading it to the electronic file of this matter on Case Lines. The date for hand- down is deemed to be 22 May 2025 .
Date s:
Hearing: 2 May 2025.
Judgment: 26 May 2025
Appearance:
For the App licant : S Kabelo, instructed by Kwa Attorneys.
For the first Respondent : JJ Scheepers , instructed by Bennecke Thom
Incorporated.
For the second Respondent: M Du Plessis , instructed by Vermaak Beeslaar
Attorneys.