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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

Case Number: 24/040313
1. Reportable: NO
2. Of interest to other Judges: NO
3. Revised
Date : 3 June 2025
Signature:

In the matter between:

First Rand Bank Limited Applicant
Reg No.: 1929/00122506

And

Jaques Cilliers First Respondent
Id No: 7[...]

Jannie Johanna Cilliers Second Respondent
Id No.: 7[...]

JUDG MENT


Ncongwane AJ:

Summary: Relief for monetary judgment and leave to perfect security. Grounds for
price reservation established – Rule 46A (8)(e) complied. Benefit of
Excussion in suretyship when renounced – cannot be raised as
defence.

Introduction

[1] This is an application for a monetary judgment against the respondents in their
capacity as sureties for, and co -principal debtors with, JC Trading CC (“JC
Trading”) for its debts owed to the applicant. The matter came before me on the
27th of May 2025 and I reserved the judgment.

[2] Before me, Mr De Oliveira appeared on behalf of the applicant. Respondents,
who have been acting in person, from the inception of the litigation in this
matter, filed the notice to oppose1 and later an opposing affidavit2 but have
neither filed heads of argument nor appeared at the hearing despite being duly
served with the notice of set down on the 24th of January 2025. On the 26th
January 2025, the first respondent acknowledged receipt o f the notice on behalf
of both respondents.3

[3] In the opposing affidavit, condonation is sought for the late filing of the
opposing affidavit. Applicant does not strenuously oppose condonation. Despite
that the respondents ’ application for con donatio n not being satisfactory, in the
exercise of my discretion , I condon ed the late filing of the answering affidavit in
the interest of justice. All affidavits filed are considered in the evaluation
process of this matter.

[4] The respondents ’ indebte dness to the applicant arises out of several loan
agreements and a written facility agreement concluded between the applicant
and JC Trading, for which the respondents are liable a s sureties and co -
principal debtors. As further security for the debts of JC Trading and the
respondents, the respondents agreed to provide three mortgage bonds over the
respondents’ immovable property situated in Brits , in favour of the applicant.

1 Respondent’s notice of intention to oppose dated 27 August 2024, caseline item 006 -4 to 006 -
6.
2 Opposing affidavit (5th November 2024) Caseline 003-1 to 003 -38.
3 Caseline – acknowledgement of receipt , (27 January 2025) 007 -25 to 007 -27.

[5] It is common cause that JC Trading was voluntarily liquidated on the 19th
December 2023. The commencement of the liquidation of JC Trading
constituted a breach of the agreement entered into with the applicant. This
spurred the applicant into a recovery action as it turned to the respondents for
payment of JC Trading debts owed to the applicant.

[6] In the answering affidavit, the respondents admit that JC Trading defaulted on
its various obligations to the applicant and that the y executed deed s of
suretyship in favour of the applicant for the debts of JC Trading.

Background f acts

[7] The applicant and JC Trading concluded three written loan agreements, on the
13th December 2013, (the first and the second loan agreements) and on the
27th July 2019 , (the thir d loan agreement). The material terms of the loan
agreement s were, inter alia, that the applicant loan ed and advanced to JC
Trading a sum of R 1 100 000.00 (One million one hundred thousand r ands)
and the loan ed amount was repayable over ten (10) years4, in respect of the
first loan agreement, loaned and advanced a sum of R 900 000.00 ( Nine
hundred thousand r ands) repayable over sixty (60) months5, in respect of the
second loan. A third loan agreement, in terms of which the applicant loaned
and advanced to JC Trading a fur ther sum of R1 000 000.00 (One m illion
rands), was repayable over sixty (60) months.6

[8] Two unlimited deed s of suretyship were obtained and executed by the first and
the second respondent s on the 13th December 2013.7


4 FA paras 13.1 and 16 at 001 -12-13, Loan Agreement 31 December 2023 at 001 -47.
5 Id at paras 13.1 and 19, Loan Agreement 31 December 2023 at 001 -78.
6 Id at paras 13.2 and 22, Loan Agreement 27 July 2019 at 001 -109.
7 As security for JC Trading’s indebtedness to the applicant. One was executed by the first
respondent on the 31st December 2013 a nd the other was executed by the 2nd respondent on
the 23rd June 2022.
[9] Three mortgage bonds were registered over the respondents’ immovable
property for the combined ca pital of R 3 053 000.00 (Three million and fifty
three thousand r ands)8.

[10] JC Trading breached the agreement in various respects including failing to
repay one or more instalments on time, exceeded the facility limit and resolv ed
that JC Trading be voluntarily liquidated.9

[11] On the 3rd August 2023, the applicant delivered a letter of demand to JC
Trading requesting that it remedy its breaches to the loan agreements by
paying ar rears and rectifying the excess.10 JC Trading failed to remedy its
breaches despite the demand.

[12] On or about the 6th November 2023, the appli cant elected to accelerate the
demand on JC Trading’s indebtedness to the applicant under the agreements
and it did so by sending a further letter of demand.11In addition thereto, a
similar letter of demand was also delivered to the first respondent.12

[13] It is noted that th ese formal demands resulted to the parties engaging each
other in an end eavour to consider settlement proposals and counter proposals
but nothing came out of that limited engagements. As at the 23rd of January
2024, JC Trading and by implication the respondents were indebted to the
applicant in the aggreg ate sum of R 2 100 000.00 (Two million one hundred
thousand r ands)13.

Applicant’s case

[14] Applicant contends that when concluding the loan agreement s, the applicant
insisted on the suretyship to which the respondents agreed to provide and

8 Id at para 52, mortgage bond s 11 March 2014, 15 June 2019, and 8 November 2021 at 001 -
222, 001 -226 and 001 -250 respectively.
9 Id at paras 29 -32.
10 Id at para 33, letter of demand 3rd of August 2023 at 001 - 179
11 Id at para 34, letter of demand 6th November 2023 at 001 – 0183 ,
12 Id at para 35, letter of demand 6 November 2023 at 001 – 192.
13 Id at para 41, Certificate of Balance 23rd January 2024 at 001 -217-220
bonded their immovable property situated at Brits for a combined capital sum of
R 3 053 000.00 (Three million and fifty three thousand r ands).

[15] Pursua nt to the breaches of the agreements, applicant issued a formal demand
to JC Trading calling it to remedy its breach. JC Trading failed to remedy its
breach. The applicant contends that it has complied with Rule 4 6A with regards
to the legal requirements a pplicable for the case , pursued relief in getting an
order, declaring the immovable property of the respondents specially
executable. I will revert to this aspect later on in this judgment.

The respondents’ case

[16] As pointed out above, respondents opposed the application and raised the
following grounds:

[16.1] Firstly , the respondents contend that the applicant’s failure to join JC
Trading erstwhile employees and their families to the application, all of
whom according to the respondents reside on the immovable property
amounts to a material non -joinder.14

[16.2] Secon dly, the respondents dispu te the evidential value of the valuation
relied on by the applicant on the basis that the valuer did not access
the property , therefore the value is guess timated and that he is
allegedly not impartial.15

[16.3] Thirdly, the respondents contend that the applicant can and should
prove a claim in an insolvent estate of JC Trading, or as the first
respondent puts it, the applicant should not, “… enforce a claim directly
against [“the respondents” ] without first exhau sting the remedies
available against the principal debtor.16


14 AA para 2 at 003 -3-4.
15 Id para 3
16 Id para 4.9.
[16.4] Lastly, the respondents contend that the applicant failed to comply with
Rule 46A in that, inter alia , it has not indicated what immovable
properties owned by the respondents with which t heir debts can be
settled, or what alternative means, if any, are available for their
indebtedness to be settled without having to execute against the
immovable property.17

Evaluation

[17] In so far as the ground for non -joinder is concerned, it is trite that the test is
whether or not a party has a “direct and substantial interest” in the subject
matter of the proceedings, that is, a legal interest in the subject matter of the
litigation which may be affected prejudicially by the judgment of the court.18

[17.1] A mere financial interest is an indirect interest and may not require
joinder of a person having such interest. The mere fact that the party
may have an interest in the outcome of the litigation does not warrant a
non-joinder plea. The rule is that any part y is a nec essary party and
should be joined if such p arty has a direct and substantial interest in
any order the court might make, or if such an order cannot be sustained
or carried into effect without prejudicing that party.

[18] JC Trading’s erstwhile employees have no interest in the subject matter of
these proceedings, let alone a direct and substantial interest in the subject
matter. In casu , the applicant does not seek an order that JC Trading’s
erstwhile employees be evicted from the immovable prop erty belonging to the
respondents . (I make this statement without making any comment as to
whether indeed JC Trading’s employees reside on the property). There is no
allegation made that the erstwhile JC Trading’s employees have a contractual
or other form of relationship with the respondent s or the applicant . In the result ,
the non -joinder plea stands to be dismissed.

17 Id at para 5.
18 See: generally DE van Logge renberg Erasmus: Superior Court Practice (Jutastat E Publication )
at RS 24 , 2024, D1 Rule 10 -2-3 and authorities referred to.

[19] The applicant assert s that valuation for the immovable property was procured
and this assertion was challenged by the respondents when raising a
contention that the valuation is unreliable because the valuer had no access to
the property and only valuated the outside of the property. On the other hand,
the applicant contends that it is disingenuous of the respondents to make the
assertion that the valuation is unreliable when it was the respondents
themselves who denied the valuer access to the property. It is further submitted
that having being denied access to the property by the respondent, the valuer ’s
valuation was concluded based on the previous inspection of the property
conducted by a certain Mr Havenga on the 3rd of July 2019. At that stage, an
appointment was made by Mr Havenga with the first respondent to conduct an
inspe ction , and he was granted access to the property by the first respondent to
facilitate the inspection.19

[20] On the 5th of November 2024, it was brought to the attention of the deponent in
the founding and replying affidavit s that Mr Havenga has passed away, hence
the failure to file a confirmatory affidavit by him to the founding affidavit20. The
applicant further contends that the valuer has approximately 25 years of
experience in valuing properties. The assertion made in re spect of the earlier
valuation report made by Mr Havenga, even though not confirmed by a
confirmatory affidavit is not disputed and as such I find no reason not to admit
that as evidence before me.

[21] The respondents have not procured their own valuation of the property to
gainsay the findings that are made in the applicant’s valuer. The independence
of the valuer is not disputed on its individual merit s. The applicant made an
assertion that the valuer is not employed by itself, and any bald allegations
made by the respondents are unsubstantiated. I am not persuaded that there
are any merits in the respondents’ attempt to dispute the evidential value of the
valuation relied upon by the applicant. In the result s, I find a proper case to
have been made out by the applicant in this regard.

19 FA, paras 26 – 27.
20 Affidavit 12 November 2024 at 004 -91.

[22] A further contention by the respondents i s that the applicant should first
exhaust any remedies it may have against JC Trading (in liquidation) prior to, or
as a precondition to claiming the indebtedness from the respondents. This
proposition is unsustainable when regard is had to the legal principles
applicable in agreements of surety where parties like the respondents,
conclude a surety agreement binding themselves as surety and the co -principal
debtors with the main debtor. In the pres ent matter, the respondents renounce d
the benefit of inter alia, excus sion, the full force, meaning and effect of which is
that the respondents declared themselves to be fully acq uainted .21 It is trite that
the benefit of excussion is to the effect that, until the principal debtor has been
excused, there is no liquid claim against the surety and set off can not
operate.22It is common cause that the effect of renouncing this benefit is
precisely that the applicant need not look to a principal debtor prior to, or as a
precondition to looking to a surety for payment. That is also the effect of biding
oneself as a co -principal debtor23, which both respondents did.

[23] In Kilroe -Daley Barclays National Bank Ltd24, the court quoted with approval
what was said in Union Government vs Van der Merwe ,25 regarding the
consequences of signing a surety in solidum and co -principal debtor and said:

"The present case is, however, stronger for the surety has signed as
surety and co -principal debtor. We must give some meaning to the words
'co-principal debtor'. That the addition of these words operate as a
renunciation of the benefits of the surety is clear, but they have a still
greater force. T he addition of these words show that the surety intends
that his obligation shall be co -equal in extent with that of the principal
debtor: or intends that his obligation shall be co-equal in extent with that of
the principal debtor, or otherwise expressed, that his obligation shall be o f
the same scope and nature as that of the principal debtor.”

21 Clause 31 or at 001 – 170 and 001-174
22 See: For example Asco Carbon D ioxide Ltd vs Lahner 2005 (3) SA 213 at 216H -I.
23 Neon and Cold Cathode Illuminations (Pty) Ltd vs Ephron 1978 (1) SA 463 (A) at 472 B -C.
24 [1984] (2) ALL SA 551A (1984 (4) SA 609 (A).
25 1921 PPD 318 at 321 .

[24] In Absa Bank vs Lowting and Others26, the court held that the renunciation of
the ‘benefit of excussion ’ has the effect of permitting the creditor to proceed
directly against the surety before excusing the principal debtor. The court
further held that it shou ld be noted that a surety who binds himself or herself as
a co-principal debtor is taken to have tacitly placed himself or herself in the
same position as that of the principal debtor . I have also taken note of the fact
that the applicant points out, without it being denied by the respondents, that it
is likely that there will only be limited recovery to be made by applicant in the
insolvent estate of JC Trading in any event. In the liquidator’s report, it is
estimated that the JC Trading’s unsecured cred itors amount to approximately
R155 000.00 .27This of course , is incorrect having regard to the exten t JC
Trading’s l iabilities owed to the applicant , so it is contented by the applicant.
The liquidator’s estimate is shortfall of approximately R 412 000.00 which is
before the administration expenses having been taken into account, and also
without knowing JC Trading’s liability to SARS, (‘who will be a preferent
creditor ’), is said to have been under -estimated and inaccurate.

[25] Accordingly, I agree tha t the applicant is within its rights to look for the
respondents for payment of JC Trading ’s debts without even proving a claim in
JC Trading insolvent estate, if it thinks there is no prospect of any meaningful
recovery from JC Trading’s liquidation. In l ight of the above, the respondents’
defence that the applicant should first search and execute on the assets of JC
Trading before turning to the respondents for a recourse , when they renounced
the ’benefit of exc ussion’ is legally untenable and stands to fail.

[26] With regard to the respondents’ contention that the applicant has not complied
with Rule 46A in that it has not adequately indicated what alternative means are
there, if any, by which the responden ts’ debts to the applicant can be settled.
The applicant contends that in applications of this nature, it has neither or very
limited knowledge of the respondents financial affairs other than that which can
be accessed on publicly available databases , such as those in respect of the

26 (39029/2011) [213] ZAGP PHC265 (19 August 2013)
27 FA at 48 -49, liquidator’s report 20th March 2024 at 004 -31.
ownership of immovable property and applicant referred me to the Supreme
Court of Appeal decision where SCA held that, in opposed proceedings, there
is an onus on the debtor, at the very least, to provide the court with information
concerning whether the property is his or her personal residence, whether it is
the primary residence, whether there are other means to discharge the debt
and whether there is disproportionality between execution and other possible
means to exact payment o f the judgment .28

[27] It is contended by the applicant that the respondents have not discharged this
onus. I agree. It is one thing to criticise a creditor for not adequately indicating
what alternative means are there , if any, by which debts to the creditor can be
settled , but it is an affront to do this and then for the debtor not to indicate
whether there are any su ch alternative means , and in which case why they
have not been explored by the debtor himself or herself for purposes of settling
his or her debts .

[28] I must emphasise the fact that it has been held by the courts that it is
incumbent upon the debtors to place all the relevant information concerning
their property so as to put the court in a position to make an evaluation of the
information in reaching a just a nd equitable decision, fulfilling the requirements
of Section 26 (1) of the Constitut ion as well as the requirements for Rule 46A of
the Uni form Rules.

[29] In further analysis of whether Rule 46A has been completely complied with by
the applicant, it is necessary that at this stage I deal with the issue of the
reserve price with regard to the immovable property of the respondents.

Reserve price

[30] The issue of the reserve price requir es this court, as part of its duty to prevent
unjust and inequitable outcome, to ensure that the property owners’ rights in
terms of Section 26 (1) of the Constitution are not eroded. The consideration is

28 NPGS Protection and Security Services CC and Another vs First Rand Bank 2020 (1) SA
494 SCA at (55).
centred on preserving the right in terms of Section 2 6 as it becomes implicated
whenever the homeowner’s property is sold in execution and the inequities that
may be caused, if the property is sold well below its market value.

[31] The determination of the reserve price is an issue which is provided for i n Rule
46A of the Uniform Rules of court . The sale of the respondents’ property, their
primary residence, for a low amount will be to the detriment of the respondents.
They will not only lose their place of residence, but will remain indebted to the
applican t for a substantial amount. In the founding affidavit, the applicant avers
that no reserve price should be set by the court due to reasons that when
bidders have knowledge of the reserve price, they are reluctant to bid at an
amount higher than the reserve price . Further, the effect of the reserve price
would hinder the obtaining of a highest possible price for the property at the
auction, resulting to the property being sold for less.

[32] This is a typical argument that has been found by the courts to be without any
foundation. Even if there is merit in this contention, the full bench in the South
Gauteng Provincial Division held that there is no reason that the applicant
cannot approach the court for a variation of an exist ing order making it more
likely to find a buyer, should the perceived difficulties arise.29

[33] In the heads of argument, applicant asse rts that in the event th e court being
inclined to set a reserve price in respect of the immovable property as
contemplated in Rule 46 A (8)(e) it is submitted that the reserve price be in the
amount of R2 030 700.00 million.

[34] In the founding affidavit, applicant deposed to the fact that the market value of
the immovable property is R 4,25 million.30 The applicant, as it is r equired by
the Constitution and Rule 46A and as referred to above , filed a valuation report

29 Absa Bank Limited vs Dok kie Kenn eth Moke be and Others case 2021/00612 , Absa Bank
Limited vs RL Kobe case 2017/28091, Absa Bank Limted vs Bokwane 2018 – 1459,
Standard Bank vs Colo Brink and Others 2017/355/79, Judgment delivered on the 12th of
September 201 8.
30 FA para 68 -69, caseline 001 -31, Rule 46A (5)(a)
attached to t he founding affidavit and updated the valuation report in its
replying affidavit reflecting the market value of R2 070 000.00 million.

[34.1] The municipal value of t he immov able property is R 1 552 000.00.31

[34.2] An indication that th ere was an amount of R 5 413.00 that was owing to
the local municipality as at the time of deposing to the affidavit.

[35] Given this information, I am able to establish a reserve price to the sum of
R2 070 000.00 (Two million seventy thousand r ands).

[36] I am satisfied that the determined reserve price will, in all likelihood, assist in
the possible extinguish of the respondent s’ debt or leave them with a balance in
their favour, and place them in a positio n that stems from a just and equitable
process and from the proper application of th e legal position .

[37] I find no reason to depart from the general practice of setting the reserve price
for the property of the sale in execution as empowered by Rule 46A (8)(e) of
the Rules of court. During the hearing my attention was drawn to the copies of
the current certificates of balance for the respondents’ debts.

[38] It is common cause that the National Credit Act does not apply to loan
agreemen ts and the facility agreement between the parties and to buttress any
contention on non -compliance with the NCA, Section 4 (1)(a) or (b) , read with
Section 7(1)(a) and Section 9 (4) respectively and Section 4 (2)(c ) of the
National Credit Act 34 of 2005 make clear provisions that the NCA does not
apply to Loan Agreement s or Deed of S uretyship. In my view, the point with
regard to the applicability of the provisions of NCA is accordingly not
sustainable when regard is had to the provisions of Section 4 (1) and Section
7(1) read with Section 9(4) of the NCA.


31 FA para 70 -71, caseline 001 -31, Rule 46A(5)(b)
[39] In the premise, the applicant has made out a proper case for the relief sought
and a draft order was prepared and availed to court at the hearing of the
matter, I therefore, make an order in favour of the applicant in the following
terms :

Order

[40] The late filing of the respondents’ answering affidavit is condoned.

[41] Payment of the sum of R 121,142.00 together with interest thereon at the prime
rate plus 1% per annum compounded monthly and calculated from 2 January
2024 until date of payment.

[42] Payment of the sum of R 1,101,408.64 together with interest thereon at the
prime rate plus 1% per annum compounded monthly and calculated from 1
January 2024.

[43] Payment of the sum of R 298 ,297.32 together with interest thereon at the prime
rate plus 1.5% per annum compounded monthly and calculated from 1 January
2024 until date of payment.

[44] Paym ent of the sum of R 1,089,319.09 together with interest thereon at the
prime rate plus 2.5 % per ann um compounded monthly and calculated from 1
January 2024.

[45] The immovable property of the Respondents, more fully described as
Remaining Extent of Portion 173 (a Portion of Portion 54) of the Farm
Roodekopjes 417, Registration Division J.Q., North West Province, measuring
in extent 6,8615 hectares, held by Deed of Transfer No.: T154720/2006 (“the
Property”), is declared specially executable.

[46] The Respon dents’ p roperty may be sold with a reserve price in the sum of
R2 070 000.00 million .

[47] Leave is granted to the applicant to approach the court, on the same papers,
duly supplemented, if necessary , for a reduction of the reserve price in the
event that an offer is rec eived at a sale in execution that is less than the
reserve price.

[48] Paym ent of costs on an attorney and client scale.



NCONGWANE AJ
Acting Judge of the High Court
Gauteng Division Pretoria


Representation :

For the a pplicant: Adv M. De Oliveira
Instructed by: Cox Yeats Attorneys

For the respondent: No Appearance

Heard: 27 May 2025
Delivered: 3rd June 2025

This judgment was handed down electronically by circulation to the parties and/or
parties’ representatives by email and by upload to Caselines. The date and time for
the hand down is deemed to be 10 h00 on the 3rd June 2025.