SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HGH COURT OF SOUTH AFRICA
HELD AT PRETORIA
CASE NO: 2023 -114200
DOH: 28 JANUARY 2025
DECIDED: 05 JUNE 2025
1) REPORTABLE: NO
2) OF INTEREST TO OTHER JUDGES : NO
3) REVISED.
SIGNATURE
DATE: 05 June 2025
In the matter between:
SB GUARANTEE COMPANY (RF) Respondent/Plaintiff
PROPRIETARY LIMITED
(REGISTRATION NO. 2006/021576/07)
And
HAVA TAYOB (ID: 7[...] Excipient/ Defendant
This judgment has been handed down remotely and shall be circulated to the parties
by way of email / uploading on Caselines. The date of hand down shall be deemed
to be 05 June 2025 .
________________________________________________________________
ORDER
________________________________________________________________
1. The exception is dismissed with costs on the scale as between attorney and client.
________________________________________________________________
JUDGMENT
________________________________________________________________
Bam J
Introduction
1. The Plaintiff, SB Guarantee Co (RF) (Proprietary) Limited , (SB) instituted action
proceedings against the defendant , arising from breach of her home loan
agreement with Standard Bank of South Africa Limited, (the bank) . The plaintiff
alleges in its Particulars of Claim, PoC, that the home loan agreement was
subject to certain terms . They include, inter alia, the conclusion of two further
agreements , namely, the guarantee issued by the plaintiff to the bank ,
guaranteeing the defendant’s performance in respect of the home loan
agreement , and the Indemnity signed by the defendant, undertaking to hold the
plaintiff harmless against any claim made by the bank on the basis of the
guarantee. The same terms required that the defendant register a mortgage
bond over the property purchased in favour of the plaintiff in the amount of R 4
500 000,00 plus an additional amount of R 1 150 000.00.
2. The PoC allege that during or about May 2022, the defendant fell into arrears
with her monthly installments and further failed to regularize such payments after
receiving a notice directing her to do so. Acting on indemnity , the plaintiff
instituted the action . The summons initiating the plaintiff’s claim was issued and
served on 2 and 7 November 2023 , respectively . The defendant took an
exception to the particulars of claim , suggesting that the plaintiff had failed to
allege facts to sustain a cause of action.
3. In summary, it was submitted on behalf of the defendant that since the plaintiff
has made no allegation that the plaintiff and the bank are registered credit
providers , both the indemnity signed by the defendant and the guarantee
provided by the plaintiff to the bank will be rendered void in terms of the National
Credit Act1. It was further submitted on behalf of the defendant that if the main
loan is void, there is no obligation that could trigger the guarantee and, if the
guarantee itself is void, the causa for the mortgage bond falls away, entitling the
plaintiff to claim only on enrichment or some other causa.
4. Premised on the alleged failure to allege registration as credit providers, the
defendant submitted that failure to register as a credit provider , where the lender
was required to register , renders the credit agreement unlawful and void ab initio,
in terms of Section 89(2) (b) of the Act, and, in terms of Section 89 (5) this court
is enjoined to pronounce them void and further make any order that is just and
equitable .
Parties
5. SB, is a ring fenced private ly incorporated company with limited liability , with its
principal place of business at 9th Floor, Standard Bank Centre, [...] S[...] Street,
Johannesburg . The defendant is Ms Hava Tayob, an adult female whose
domicilium citandi et executandi is 3[...] B[...] Street, Laudium, 0037 .
Background
6. As to the background, the particulars of claim allege the following: On 14 March
2017, the bank and the defendant entered into a written Home Loan Agreement
for the purchase of an immovable property. In terms of the home loan
agreement, the defendant was obliged to make monthly payments to the bank to
discharge the home loan. The Home Loan agreement attached to the PoC
further evinces that the bank is a registered credit provider with registration
number N[...] .
1 Act 34 of 2005 .
7. It is alleged in the PoC that on the same day, 14 March, the plaintiff furnished the
bank with a written Guarantee in terms of which it, inter alia, guaranteed the
punctual payment of all sums payable or which may become due by the
defendant to the bank , pursuant to the loan.
8. The defendant, on 14 March 2017, executed a written Indemnity Agreement
(Indemnity) in favour of the plaintiff and its successors in title or assigns . In terms
thereof, the defendant , inter alia, indemnified and held the plaintiff harmless from
any loss or damage the plaintiff may suffer as a result of any claims which may
be made against it by the bank or the transferee arising out of the guarantee . If
the defendant did not pay any amount due and payable to the bank, immediately
following a notice of demand, the plaintiff upon being notified by the bank would
have the right to and be obliged to take all steps as may be reasonably
necessary to realise the mortgage bond and, out of the proceeds, pay the bank’s
or transferee’s claims in accordance with the provisions of the guarantee and the
costs provided for in the Indemnity.
9. Pursuant to the conclusion of the loan agreement, the defendant caused a
mortgage bond to be registered over the immovable property , in favour of the
plaintiff, as security for the defendant’s indebtedness to the bank under the loan
agreement for the amount of R 4 500 000.00 , with the additional sum of R 1 125
000.00 . It is, according to the particulars of claim, a material term of the
mortgage bond that in the event the defendant (i) fails to observe or perform any
of the provisions of the mortgage with bond; or (ii) fails to pay any sum which
may be legally claimable by the plaintiff, or (iii) fails to perform any other
obligation on the due date thereafter or at all; then all amounts secured by the
mortgage bond would become immediately due and payable in full, at the
plaintiff’s option , even if the plaintiff made use of any other right it may have , and
the plaintiff may institute proceedings for the recovery thereof and for an order
declaring the immovable property specially executable.
Defendant’s breach
10. The particulars of claim allege that the defendant fell into arrears on or about
May 2022. Attemp ts by the bank to have her pay the arrears proved
unsuc cessful. Thus, on 14 August 2023, the bank notified the plaintiff of the
defendant’s breach . The plaintiff was thus required forthwith to discharge of its
obligations to the bank in terms of the guarantee, by promptly proceeding against
the defendant in a competent court on the strength of the indemnity, by calling up
and foreclosing on the mortgage bond and enforcing any other remedy it may
have in law. To this end, the plaintiff sent a demand to the defendant on 16
August 2023 for payment of the full amount due in terms of the Indemnity .
The law on exception
11. It is trite that ‘exceptions should be dealt with sensibly. They provide a useful
mechanism to weed out cases without legal merit. An over-technical approach
destroys their utility.’2 The ‘burden rests on an excipient, who must establish that
on every interpretation that can reasonably be attached to it, the pleading is
excipiable. The test is whether on all possible readings of the facts no cause of
action may be made out; it being for the excipient to satisfy the court that the
conclusion of law for which the plaintiff contends cannot be supported on every
interpretation that can be put upon the facts.’3 It is further trite that ‘an exception
taken against a pleading is not directed at a particular paragraph or paragraphs
within the pleading. An exception is directed at the formulation of the claim as a
whole. No paragraphs can be read in isolation. ’4
Discussion
12. The single ground of attack is that the particulars of claim do not allege that the
plaintiff and the bank are registered providers in terms of the NCA. That failure,
claims the defendant, renders the particulars excipiable on the basis that they do
not allege facts as to sustain a cause of action.
2 Telematrix (Pty) Ltd v Advertising Standards Authority SA (459/2004) [2005] ZASCA 73; [2006] 1 All
SA 6 (SCA); 2006 (1) SA 461 (SCA) (9 September 2005), paragraph 3; Luke M Tembani and Others
v President of the Republic of South Africa and Another (Case no 167/2021) [2022] ZASCA 70 (20
May 2022, paragraph 14.
3 Luke M Tembani , supra .
4 Adise v Minister of Defence and Military Veterans (32474/2022) [2023] ZAGPPHC 732 (21 August
2023 )
13. The defendant relies for her exception on several authorities emanating from this
court. These include , inter alia, Van Heerden v Nolte , where the court upheld the
defendant’s exception. It is important to set out the court’s reasoning in that case:
‘[16] It follows that when an unregistered credit provider who is required to be
registered lends money to a consumer [,] he or she will have no contractual
cause of action..’
[17] …The failure to plead such facts renders the summons excipiable for
want of necessary averments on which to found a contractual cause of action.
This is not a matter that should be left for evidence at trial. Registration as a
credit provider is an essential allegation in an action on a credit agreement …
in the absence of which the particulars fail to disclose a cause of action.
[19] The particulars of claim are also excipiable on the grounds that they do
not allege compliance with section 129 of the NCA ... If the agreements are
credit agreements, then the averments in the particulars of claim must include
allegations that the plaintiff has complied with the provisions of section 129
and 130 of the NCA, which permit a credit provider to enforce an agreement
only once alternative procedures have been pursued. ’5
14. The court in Van Heerden relied on the ratio in the cases of IS and GM
Construction CC v Tunmer 2003 (5) SA 218 (W), Tyrone Seimon Properties (Pty)
Ltd v Phindana Properties 112 (Pty) Ltd, [2006] 1 All SA 545 (C). More recently,
in the case of AD All CC t/a Millenium Bodyguards v Joinbach (Pty) , it was said
that the plaintiff had to plead that it was a registered security service provider , in
terms Private Security Industry Regulation Act, 56 of 2001. As the plaintiff had
not done so, it had failed to establish its legal entitlement to payment and its
particulars of claim thus failed to disclose a cause of action.6
5 (19428/11) [2014] ZAGPPHC 12; 2014 (4) SA 584 (GP) (28 January 2014), paragraphs 16.17 and
19.
6 Ltd (22464/2022) [2025] ZAGPPHC 143 (14 February 2025) .
15. The court in Millenium Bodyguards cited , amongst others, Taljaard v TL Botha
Properties , where the Supreme Court of Appeal confirmed that an estate agent
who claims remuneration in conflict with s 34A, that is without being in
possession of a valid fidelity fund certificate when she performed the relevant
act, she will be prevented from enforcing her/his claim. However, the court in
Taljaard was concerned not with an estate agent enforcing their claim to
remuneration but a recovery of the commission paid in circumstances where no
fidelity fund certificate had been issued to the agent concerned .
16. Are the cases mentioned in paragraphs 12-14 in this judgment of any assistance
to the defendant in the present case ? I think not. As I demonstrate, it seems to
me that the defendant’s exception is not well founded and appears to be built on
stilts. The test on exception is ‘whether on all possible readings of the facts no
cause of action is made out. It is for the defendant to satisfy the Court that the
conclusion of law for which the plaintiff contends cannot be supported upon
every interpretation that can be put upon the facts.’7
The alleged failure to allege that the bank is a registered credit provider
17. I first dispose of the attack against the home loan concluded with the bank , and
the alleged failure to allege that the bank is a registered credit provider. It is a
fact that the bank is a registered credit provider with registration number 15. This
is evident from, amongst others, the home loan agreement annexed to the PoC.
Pleadings , according to the Supreme Court of Appeal in Telematrix , must be
read as a whole . In deciding the exception in Telematrix , the court did not confine
itself to the allegations in the PoC but on allegations fleshed out by means of
annexures , including documents that were handed in which did not form part of
the pleadings. The reasoning of the court was that pleadings must be read as a
whole ; and in deciding an exception a court is not playing games, blindfolding
itself. I am bound by the ratio of the court in Telematrix .
7 Trustees for the time being of Children's Resource Centre Trust and Others v Pioneer Food (Pty) Ltd
and Others (050/2012) [2012] ZASCA 182; 2013 (2) SA 213 (SCA); 2013 (3) BCLR 279 (SCA); [2013]
1 All SA 648 (SCA) (29 November 2012), paragraph 36.
18. Thus, regard must be had to the loan agreement, one of the annexures to the
PoC, which makes plain that the bank is a registered provider as is required in
Section 40 of the Act. The PoC further set out in detail the bank’s allegation on
compliance with the relevant protective legislation, namely, the Act. These
include the notice in terms of Section 129 of the Act, dispatched on 29
September 2023 via registered mail. The fact that the matter of breach of the
home loan is not before an ombudsman, and further that the bank had complied
with Section 130 of the Act. Van Heerden espouses , amongst others, that
alleging compliance with the protective legislation is essential.
19. In all the cases set out in paragraph s 13-15 of this judgment, the facts
established that the plaintiffs , who were required to be register ed with the
relevant regulators, in line with the protective legislation quote d in those
judgments , were not registered. There is no such question in this case, as the
PoC attach a home loan agreement evincing that at the time of the agreement,
the bank was a registered credit provider. I may further add in conclusion that the
plaintiff’s claim is based on the Indemnity signed by the defendant and not on the
home loan.
The absence of an allegation that the plaintiff is a registered credit provider
20. On the issue of registration of the plaintiff as a credit provider , this court has in
several of its judgment s held that the Indemnity relied on by the plaintiff is not a
credit agreement. In SB Guarantee Company (RF) Proprietary Limited v Edwoud
Frederick Botes8, this court dismissed the idea that the Indemnity is a credit
agreement stating that: (i) the Defendant entered into a Loan Agreement with
Standard Bank (the Credit Provider) subsequent to which funds were advanced
to the Defendant by Standard Bank with which he purchased the immovable
property; and that the vinculum juris between the plaintiff and defendant flows
from the Indemnity agreement.
8 (87458/2019) [2024] ZAGPPHC 161; [2024] 2 All SA 529 (GP) (15 February 2024), paragraphs 16.
21. The court further distinguished the Indemnity in question from transactions such
as those in Shaw & Another v Mackintosh & another (267/17) [2018] ZASCA 53
(29 March 2018) . Mackintosh was concerned with a guarantee to an agreement
that was itself not subject to the Act, and Firstrand Bank Ltd v Carl Beck Estates
(Pty) Ltd and Another (56174/2007) [2008] ZAGPHC 423 (25 September 2008) .
Carl Beck has no relevance to the issues in the present case .
22. In Leshika v SB Guarantee Company (RF) Proprietary Limited (2023 -037065)
[2024] ZAGPJHC 1030 (10 October 2024), this court dismissed the idea that the
Indemnity is a credit agreement. In that case, it was argued, inter alia, that the
Indemnity agreement did not exist independently of the mortgage agreement;
that it did not create any special and/or separate and independent claim or cause
of action ; and that it did not create special immunity from the NCA. In rejecting
the arguments, the court held that the Respondent , (plaintiff in the present case)
had neither advanced any credit and/or funds to the Applicant (defendant in our
case) in terms of which payment of an amount owed by one person to another is
deferred. I conclude that the Indemnity is not a credit agreement, nor is the
guarantee in question a credit transaction.
23. Section 8 (5) describes an agreement as a credit agreement if:
‘in terms of that agreement , a person undertakes or promises to satisfy upon
demand any obligation of another consumer in terms of a credit facility or a credit
transaction to which this Act applies.’ The guarantee between the bank and the
plaintiff is simply not a credit agreement. In any event, it is repeated that the
basis of the plaintiff’s claim against the defendant is the Indemnity. It follows that
the exception is not well founded and cannot be upheld.
Concluding remarks
24. Finally , I note from the defendant’s Heads of Argument that she neither denies
the home loan between herself and the bank. Nor does she deny being party to
the Indemnity signed in favour of the plaintiff. Similarly, the registration of the
mortgage over her property and the material terms thereof have not been placed
in dispute in her heads. Her default and failure to regularize the home even after
being issued with a notice in terms of Section 129 was not placed in dispute. In
Luke M Tembani and Others v President 9, the SCA observed:
‘ …In Maize Board v Tiger Oats Ltd this Court held: ‘ . . . it now has to be
accepted that a dismissal of an exception (save an exception to the jurisdiction of
the court), presented and argued as nothing other than an exception, does not
finally dispose of the issue raised by the exception and is not appealable. Such
acceptance would on the present state of the law and the jurisprudence of this
court create certainty and accordingly be in the best interests of litigating parties.
If litigating parties wish to obtain a final decision, whichever way the decision of
the court goes on an issue raised by an exception, they should make use of the
procedure designed for that purpose namely the procedure provided for in Rule
33 and either agree on a special case in terms of that rule or request the court to
direct that the issue be finally disposed of in an appropriate manner. If that is
done any misunderstanding on the part of any of the parties and any resulting
prejudice should be avoided.’
Maize Board has been consistently followed by this Court and it is well
established that this Court will not readily depart from its previous decisions. It
follows that the dismissal by the high court of the legal duty exception is not
appealable. ’
Order
In the result, the following order is granted:
1. The exception is dismissed with costs on the scale as between attorney and
client.
N.N BAM J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION , PRETORIA
Date of Hearing : 28 January 2025
9 Id, paragraph 27.
Date of Judgment : 05 June 2025
Appearances :
Counsel for the Excipient / Defendant: Adv A.C Diamond
Instructed by: Mahdiy yah Patel Attorneys Valhalla,
Pretoria
Counsel for the Respondent / Plaintiff: Adv S Webster
Instructed by: Vezi & De Beer Inc
Lynnwood, Pretoria