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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA )
CASE NO: 2023/100165
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED. YES
DATE 23 May 2025
SIGNATURE
In the application between:
THE STANDARD BANK OF SOUTH AFRICA LIMITED
(Registration number: 1962/000738/06) APPLICANT
and
REYENCK BUTHANI MAGUDU KHOZA RESPONDENT
(Identity number: 6[...])
JUDGMENT
Introduction :
1. The applicant has instituted an application in which it seeks the following relief
against the respondent:
1.1. Confirmation of cancellation of the agreement entered into between
the applicant and respondent;
1.2. Payment in the amount of R341,333.021 together with interest at the
rate of 12.75% per annum, calculated daily and compounded monthly
in arrears from 16 May 2025 , to date of payment, both days inclusive;
1.3. Cost of suit on an attorney and client scale.
2. The a pplicant is Standard Bank of South Africa Limited, a public company
registered and incorporated in accordance with the laws of the Republic of
South Africa that trades as a registered deposit -taking institution in terms of
the Banks Act, 94 of 1990 and a c redit provider duly registered as such in
terms of the National Credit Act, 34 of 2005 (“the National Credit Act”).
The Credit Agreement and its terms:
3. The applicant alleges that during or about 21 August 2018, and in Rosebank,
the applicant and the resp ondent entered into a written agreement in respect
of a World Elite Credit Card and other banking facilities (“the Credit
Agreement”) , in terms of which the applicant would from time to time provide
the respondent with credit. The applicant alleges that i t is not in possession of
a signed copy of the Credit A greement , but it has annexed as annexure “FA3”
a true copy of the terms and conditions which apply to the Credit Agreement .
4. The relevant terms of the Credit Agreement pleaded by the applicant are the
following:
4.1. The applicant granted the respondent a credit card facility of
R1,000,000.00 .
4.2. Interest would be charged at the rate equal to the applicant’s prime
1 This is in terms of an updated Certificate of Balance dated 16 May 2025.
interest rate .
4.3. The applic ant may charge the respondent a separate transaction fee
for certain transactions. The transaction fees are not part of the
principal debt .
4.4. The account has a credit limit, and the respondent may not exceed it.
Any transactions honoured by the applicant, o r any interest, costs,
fees, and charges that are due and payable by the respondent and
that caused the credit limit to be exceeded, will be treated as a
temporary increase in the credit limit .
4.5. The applicant will provide the respondent with monthly stateme nts on
the account .
4.6. The respondent may dispute all or part of the statement by sending
the applicant written notice of the dispute within 30 days of the
statement date .
4.7. The respondent must contact any of the applicant’s branches or
contact centres if the r espondent did not receive a statement. If the
respondent fails to receive a statement, this will not entitle the
respondent to refuse or fail to pay any amount due to the applicant .
4.8. The respondent must pay all repayments on or before the repayment
due dat e, without deduction or demand, for the duration of the
agreement and while any amounts are owed to the applicant .
4.9. Each repayment will be credited to the account on the date of receipt,
firstly to satisfy any due or unpaid interest, secondly to satisfy any due
or unpaid costs, fees and charges, and thirdly to reduce the principal
debt amount .
4.10. The respondent must pay the applicant at least a minimum repayment
amount as ind icated on the statement .
4.11. The interest rate applicable to the agreement may change if the prime
interest rate fluctuates .
4.12. Interest will be payable:
4.12.1. If, with reference to the minimum repayments, the
respondent does not pay the full amount due on or before
the repayment due dates .
4.12.2. On the amount of each cash advance, if the cash
advance results in a debit balance on the account .
4.13. If the respondent is in default under the agreement, the applicant may
draw such default to the respondent’s attention in writing and suggest
that the respondent refer the agreement to a debt counsellor or a
dispute resolution agent or the Consumer Court, or the Ombud with
jurisdiction .
4.14. The applicant will charge collection costs that the applicant incurred in
collecting any amount due an d/or payable in terms of the agreement .
4.15. A default in terms of the agreement will occur:
4.15.1. If the respondent fails to pay any amount payable to the
applicant under the agreement on a due date ;
4.15.2. If the respondent breaches any of the terms and
conditions of the agreement or any agreement in terms of
which the respondent provided collateral, and the
respondent fails to remedy the breach within the
timeframe provided for in the written notice to do so ; or
4.15.3. The respondent defaults in the due and punctual
performance under any other agreement, including but
not limited to any other agreement concluded between
the respondent and a third party or any loan/credit facility
between the respondent and the applicant and same is
not remedied to the satisfaction of the applica nt within 14
days from the date of any written notice given by the
applicant to the respondent to remedy the default.
4.16. The applicant may commence legal proceedings if the applicant has
given the respondent notice and the respondent has been in default
under the agreement for at least 20 business days and at least 10
business days have elapsed after delivery of the notice .
4.17. A certificate signed by any of the applicant’s managers, whose
appointment need not be proved, specifying the amount which the
respondent owes and stating that such amount is due, owing and
payable by the respondent will, on its mere production, be sufficient
proof of any amount due and/or owing by the respondent to the
applicant, unless the contrary is proved.
The respondent’s fa ilure to settle his arrears:
5. The applicant alleges that the respondent breached the terms of the Credit
Agreement by failing to make timely payment of the amounts due in terms
thereof.
6. The applicant alleges that as of 10 August 2023, the account was in ar rears
for R50,771.89. In compliance with its obligations in terms of the National
Credit Act, the applicant alleges that it dispatched the necessary section 129
notices to the respondent by registered mail and email on 10 August 2023.
7. The respondent does not deny that the physical address and the e -mail
address used by the applicant when sending the section 129 notices are the
respondent's addresses .
8. The respondent failed to remedy his breach within 10 (ten) business days
after the deli very of the section 129 notice , with the result that the applicant
dispatched a written notice of cancellation to the respondent via email and
registered post on 14 September 2023.
9. Again, the respondent does not deny that the Credit Agreement was
cancelle d on 14 September 2023.
10. As at 14 September 2023, the total amount outstanding to the applicant was
an amount of R780,157.28, together with interest at the rate of 12.75% per
annum, which interest is calculated daily and compounded monthly in arrears
from 4 September 2023 to date of payment, both days inclusive.
11. Copies of the applicant’s certificate of balance and statement of account are
annexed to the founding affidavit .
The issues:
12. The respondent raises the following disputes in opposition to the present
application:
12.1. Firstly, as a point in limine , the applicant failed to annexe a true copy
of the Credit Agreement as required by Uniform Rule 18(6). In this
regard, the respondent admits that a Credit Agreement was
concluded in terms of which the respondent would have a credit limit
of R1,000,000.00 ( one million rand).2
12.2. Secondly, the respondent denies that the applicant was entitled to
cancel the agreement as the respondent had settled the arrears by
the 16th of September 2023.3
12.3. Thirdly, the respondent contends that there are foreseeable factual
disputes.
Brief analysis of the affidavit s:
13. In paragraph 13 of the founding affidavit, the applicant comprehensively sets
out what the terms are of the Credit A greement relied on by it. The majority of
these terms have been set out supra .
14. In response, the respondent indicated the following:4
“The terms are admitted insofar as they are consistent with the annexure
attached to the founding affidavit.”
15. Significantly, the respondent does not deny that these were the terms of the
agreement. Moreover, the respondent does not put up his own version of the
agreement and its terms.
16. It is trite that if a respondent’s affidavit in answer to the applicant’s founding
affidavit fails to admit or deny, or confess and avoid, allegations in the
2 The respondent contends that the Credit Agreement had a different name.
3 Page 0008 – 7, para 4.2.4.
4 Page 008 – 9.
applicant’s affidavit, the court will, for the purposes of the application, accep t
the applicant’s allegations as correct.5
17. Accordingly, the terms of the Credit Agreement between the applicant and the
respondent are not disputed and as such , are common cause.
18. Even if the Credit Agreement terms were not common cause, the respondent
has not introduced a bona fide dispute of fact . As set out by the Supreme
Court of Appeal in Wightman6:
“[13] A real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the dispute has in his
affidavit seriously and unambiguously addressed the fact said to be disputed.
There will of course be instances where a bare denial meets the requirement
because there is no other way open to the disputing party and nothing more
can therefore be expecte d of him. But even that may not be sufficient if the
fact averred lies purely within the knowledge of the averring party and no
basis is laid for disputing the veracity or accuracy of the averment. When the
facts averred are such that the disputing party m ust necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true or accurate but, instead of doing so, rests his
case on a bare or ambiguous denial the court will generally have difficulty in
finding that the test is satisfied …”
19. The respondent furthermore does not deny that the applicant complied with all
of its obligations in terms of the agreement and that the facility was made
available for the respondent’s use.7
20. The respondent does not deny that h is account fell into arrears. The
respondent alleges that he made several payments towards the arrears
pursuant to the delivery of the section 129 notice and after discussions with
5 Moosa v Knox 1949 (3) SA 327 (N) at 331. See, for example, United Methodist Church of South
Africa v Sokufundumala 1989 (4) SA 1055 (O) at 1059A; Ebrahim v Georgoulas 1992 (2) SA 151
(B) at 153D.
6 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another E 2008 (3) SA 371 (SCA)
7 Page 002 – 15, para 15 read with page 008 – 9, para 8.1.
the applicant .8
21. The proof of payment relied on by the respondent doe s not show that any
payments were made before the 16th of September 2023.
22. This is significant as the applicant elected to cancel the Credit Agreement
several days earlier on 14 September 2023, i.e., before the respondent made
any payment towards the arrear s.
23. The cancellation of the credit agreement necessarily meant that the full
outstanding amount became due and payable , and not just the arrears.
Significantly, the respondent does not deny receiving the notice of
cancellation that was sent on the 14th of September 2023.9
24. Accordingly, based on the allegations in the founding and the answering
affidavit, the Credit Agreement was validly cancelled.
The failure to annex e a true copy of the Credit Agreement to the founding
affidavit:
25. The respondent contends that the applicant has failed to:
25.1. Annex e a true copy of the Credit Agreement and as such has failed
to comply with Uniform Rule 18(6);
25.2. Provide an adequate explanation for its failure to do so.
26. Uniform Rule 18(6) provides as follows:
(6) A party who in his or her pleading relies upon a contract shall state
whether the contract is written or oral and when, where and by whom it was
concluded, and if the contract is written a true copy thereof or of the part
relied on in the pleading shall be annexed to the pleading.
8 Page 008 – 9, para 9.2.
9 Pages 002 – 17 to 002 – 18, para 24, read with page 008 – 10, para 12.1.
27. In Moosa and Others NNO v Hassam10 the court indicated inter alia the
following in the context of which factors the court would consider in
overlooking and/or condoning non -compliance with Uniform Rule 18(6):
However, this is not to say t hat a failure to annex a written agreement relied
upon may never be condoned in terms of rule 27(3).
Good cause would have to be shown why the party concerned is unable, at
that stage, to annex a copy of the written agreement relied upon. Relevant
consider ations would be the steps taken to obtain a copy of the written
agreement and the prospects of the written agreement being obtained in the
future. That a true copy will be available before the issues arising therefrom
have to be determined will be of parti cular importance in this regard. In
addition any prejudice to the opposing party caused by the failure to annex
the agreement to the pleading would have to be considered. Of significance in
this regard would be whether the pleading concisely and clearly se ts out the
terms relied upon in the written agreement upon which the cause of action is
based , and is not excipiable. The above factors are not exhaustive and each
case will have to be decided upon its individual merits.’
28. Aside from the fact that the applicant has pleaded the terms of the Credit
Agreement quite extensively, none of these terms have been disputed. In the
absence of the terms being disputed, there can be no prejudice for the
respondent under the circumstances.
29. Significantly , the resp ondent does not allege that he also does not have a
copy of the Credit Agreement.
30. In Dass and Others NNO v Lowewest Trading (Pty) Ltd ,11 Tshabalala JP
held that non -compliance with rule 18(6) can be condoned in the absence of
prejudice to the other party.
31. As the applicant pleaded a complete cause of action, and there is very little, if
any, prejudice that the respondent can rely on, the applicant cannot be
10 2010 (2) SA 410 (KZP) at 413B –414B
11 2011 (1) SA 48 (KZD) at 53B –H.
deprived of a cause of action simply because it failed to annexe a true copy of
the Credit Agreement.12
32. I agree with the respondent that the applicant should have provided a better
explanation of what happened to the signed Credit Agreement and why it was
not attached to the founding affidavit.
33. But, given the fact that:
33.1. The applicant has comprehensively pleaded the terms of the Credit
Agreement ;
33.2. the respondent has not disputed the terms pleaded by the applicant ;
33.3. the respondent suffers very little (if any) prejudice as a result; and
33.4. the respondents failure to provide any explanation as to what he did
with his copy of the Credit Agreement,
the applicant’s failure to annex e a signed copy of the Credit Agreement is not
fatal to its case and will be condoned.
The letters of demand and the subsequent cancellation of the Credit
Agreement:
34. The respondent further contends he did not receive the section 129 notices .
35. The respondent does not deny that the section 129 notice was sent to the
correct physical and e -mail address .
36. The applicant has provided the necessary track and trace re ports to
demonstrate that the section 129 notice was delivered to the relevant Post
Office. In addition, the applicant also sent the section 129 notice to the
respondent by way of e -mail.
37. In terms of section 129(7) of the National Credit Act:
12 Nedbank Ltd v Yacoob 2022 (2) SA 230 (GJ) .
(7) Proof of delivery contemplated in subsection (5) is satisfied by -
(a) written confirmation by the postal service or its authorised agent, of
delivery to the relevant post office or postal agency …”
38. There is accordingly sufficient evidence that the section 129 notices were
properly delivered.
The attempted reinstatement of the Credit A greement:
39. The respondent seeks an order for the reinstatement of the credit agreement
because he brought his arrears up to date.
40. In terms of section 129(4)(c) of the National Credit Act:
“A credit provider may not reinstate or revive a credit agreement after
(c) the termination thereof in accordance with section 123.”
41. In terms of section 123:
“(2) If a consumer is in default under a credit agreement, the credit
provider may take the steps set out in Part C of Chapter 6 to enforce
and terminate that agreement.”
42. Given the fact that the credit agreement was lawfully cancelled, the
respondent cannot insist on reinstating the credit agreement because he
brought his arrears up to date after the Credit Agreement had already been
validly cancelled.
43. In the premises, a proper case has been made for the relief sought by the
applicant.
44. I accordingly grant an order in the following terms:
--
44.1. An order confirming the cancellation of the agreement entered into
between the applicant and the respondent.
44.2. The respondent is ordered to p ay the applicant an amount of
R341,333,02 together with interest at the rate of 12.75 % per annum,
calculated daily and compounded monthly in arrears from 16 May
2025, to date of payment, both days inclusive .
44.3. Costs on a party and party High Court Scale, whi ch costs include the
costs of the applicant’s counsel on scale “C”.
_____________________
SG MARITZ AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
On behalf of the applicant: Adv JC Viljoen
Attorneys for the applicant: Stupel & Berman Inc
On behalf of the r espondent: Mr Pather
Attorneys for Respondent: Tyron I Pather Inc
Date of Hearing: 20 May 2025
Date of Judgment: 23 May 2025