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 HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

Case Number: 2023/034419
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 05 JUNE 2025
SIGNATURE

In the matter between:

SB GUARANTEE COMPANY (RF) (PTY) LTD
(Registration Number: 2006/021576/07) Plaintiff

and

KHENSANI GAYLE MANZINI
(Identity Number: 8[...]) Defendant



JUDGMENT
Van Aswegen AJ


INTRODUCTION:
[1] In this application, SG Guarantee company (RF) (Pty) Ltd (the applicant)
pursues a securitized claim .

[2] The applicant seeks judgment against KHENSANI GAYLE MANZINI (the
respondent) in the following terms: -
[2.1] Payment of the amount of R3 188 865.94 (THREE MILLION ONE
HUNDRED AND EIGHTY -EIGHT THOUSAND EIGHT HUNDRED
AND SIXTY -FIVE RAND AND NINETY -FOUR CENTS);

[2.2] Interest on the amount referred to immediately above at the rate of
11.200% per annum from 04 MARCH 2023 to date of payment both
dates inclusive;
[2.3] That the immovable property described as: 

ERF 6 […] THE HILLS EXTENSION 5 TOWNSHI P
REGISTRATION DIVISION J.R.., PROVINCE OF GAUTENG
MEASURING 786 (SEVEN HUNDRED AND EIGHTY -SIX)
SQUARE METRES HELD BY DEED OF TRANSFER T44594/2020

SUBJECT TO THE CONDITIONS THEREIN CONTAINED AND

MORE ESPECIALLY SUBJECT TO THE CONDITIONS IMPOSED

IN FAVOUR O F THE HILLS HOMEOWNERS ’ ASSOCIATION, NPC

REGISTRATIO N NUMBER 2007/016285/08 ("the Property");

be declared executable for the aforesaid amounts ;

[2.4] An order authorising the issuing of a writ of execution in terms of Rule
46 as read with rule 46A for the attachment of the Property;
[2.5] That a reserve price be set for the sale of the Property, at a sale in
execution, at a value to be determined by the Honourable Court;
[2.6] Costs on the party and party scale;

CHRONOLOGICAL SEQUENCE OF EVENTS:
[3] The summons in this matter was served on the 21st of April 2023 at Unit 1[...]
D[...] H[...] , 1[...] S[...] Street, Halfway House, 1 […] being the chosen domicilium
citandi et executandi of the defendant a copy of the Combined Summons was
duly served by affixing copies to the outer or principal door at the given
address.1
[3.1] Counsel for the Plaintiff referred me to the return of service which
reflected that M r. Baaitjies - the present occupier - indicated that the
defendant was unknow n.

[4] Yet, s ubsequent thereto a Notice of Intention to Oppose was served on 3 May
2024 with the address of NG DLAMINI ATTORNEYS INC for acceptance of
notices and documents and their e -mail address namely i[...] for electronic
service by consent.2 The defendant had clearly bec ome aware of the
summons.

[5] The respondent thereafter delivered an answering affidavit dated 24 May 2024.

[6] No replying affidavit was provided, possibly because the plea is a simple denial.

[7] The matter was then set down on the opposed roll of 19 May 2025 and
allocated for hearing on 20 May 2025.

[8] The Notice of Set -down of 19 May 20253 was served as agreed to via
electronic mail on the defendant’s attorneys on 10 January 2025 at 09:21.4

[9] On 20 May 2025, no representative appeared on behalf of the Defendant. I
adjourned the matter temporarily to enable the plaintiff’s attorney to contact the
defendant’s attorneys. Despite this adjournment, the defendant’s attorney could
not be reached. Plaintiff's counsel, Adv K Reddy, informed me that her
instructing attorney had spoken with the defendant's attorney the previous

1 A111
2 C5
3 G1
4 G3
afternoon. The defendant's attorney had confirmed his intention to appear in
court the following day.

[10] The defendant’s attorneys were aware of the court date but chose not to
attend.

[11] In assessing the evidence, I will first address the salient facts that form the
basis of the applicant's claim.

CONTRACTUAL MATRIX:
[12] The contractual matrix in this case is as follows:

[12.1] On or about 25 MAY 2020, the Respondent and the Standard Bank of
South Africa Limited (“SBSA”) entered into a home loan agreement
(“loan agreement”) .

[12.2] Pursuant to the conclusion of the loan agreement5, the Respondent
caused to be registered over the property in favour of the Applicant a
continuing covering mortgage bond registered under bond numb er
B[...] (“the mortgage bond”).6

[12.3] The Applicant as security for the loan on or about 1 March 2015
concluded a written guarantee (the Common Terms Agreement) in
favour of SBSA, in terms of which, inter alia , the
Applicant guaranteed the due and punctual payment of all sums now
and subsequently due by a debtor (who has borrowed money from
SBSA pursuant to a home loan agreement) to SBSA (“Guarantee”).7

[12.4] The Respondent was required by the Applicant, and also as security
for the loan to conclude a written indemnity agreement on or about 2 5
May 2020 in terms of which, inter alia, the Respondent (as borrower)

5 Annexure PoC1 at A44
6 Annexure PoC2 at A65
7 Annexure PoC4 at A101
indemnified and held the Applicant harmless from and against all loss,
costs, expenses and liabilities which the Applicant may suffer in
connection with SBSA an d the Guarantee (“Indemnity Agreement”).8

[13] The applicant relies on the provisions of a written indemnity agreement,
combined with the provisions of a mortgage bond, granted by the Respondent.
These agreements are part of a set of agreements between the Applicant, the
Respondent, and SBSA.

[14] The Respondent has breached the loan agreement in that she has failed to pay
the monthly amounts due in terms thereof and as at 2 6 January 2023 the arrear
amount owing was R126 160.17 .

[15] On 7 March 2023, the Plaintiff sent a written demand to the Defendant stating
that an amount was due, owing and payable under the Home Loan Agreement
to the Bank. Therefore, in terms of the Indemnity Agreement the Defendant
would immediately be required to pay such amount without any deduction to
the Plaintiff.9

[16] On 14 March 2023, due to the Defendant's breach, the Bank made a claim
against the Plaintiff wh ere the Plaintiff became liable to pay to the Bank in
terms of the guarantee.10 This had the effect of the Defendant becoming
immediately liable to the Plaintiff in terms of the Indemnity for the amount for
which the Plaintiff was liable under the guarantee given to the Bank.

[17] The Defendant did not fulfil the payment obligation upon demand.

PROOF OF DEFENDANT’S INDEBTEDNESS :
[18] The Plaintiff's indebtedness is evidenced by a certificate of balance,
establishing prima facie proof .


8 Annexure PoC3 at A72
9 A103 to A104
10 A102
[19] Clause 6 of the mortgage bond states the following:
“Certificate of Amount Owing
A certificate signed by any director or administrator of the Mortgagee, whose
appointment need not be proved, will on its mere production be sufficient
proof of any amount due and/or owing by the Mortgagor to the Mortgagee and
secured by or in terms of this bond, unless the contrary is proven .” (my
underlining)

[20] The Certificate of Balance11 in this matter is signed by a manager and
therefore prima facie proof of the indebtedness.

[21] A certificate -clause, it has been held in a number of cases, is designed to
facilitate proof of the amount of liability ( See Nedbank Ltd v Abstein
Distributors (Pty) Ltd and Others 1989 (3) SA 750 (T); Bank of Lisbon
International Ltd v Venter en ‘n Ander 1990 (4) SA 463 (A) at 478 E).

[22] Certificate of balance clauses are valid and enforceable and are part of
established banking practice in South Africa . Its effect is that unless the
Defendant's evidence disturbs the prima facie proof the Certificate of Balance
provided, it becomes conclusive proof .

[23] I will no w evaluate the Defendant’s opposition to the Plaintiff’s claim.

DEFENDANT’S OPPOSITION:

[24] The Defendant in her answering affidavit denies :

[24.1] the indebtedness,
[24.2] compliance with section 129 of the National Credit Act, Act 34 of
2005 (‘the Act”) and
[24.3] any assistance by the Plaintiff to regularise the payments.


11 A105
[25] In assessing the bare denials , as outlined in paragraph 2 4 here in above,
I will sequentially deal with the denials.

ASSES MENT OF DENIALS:
INDEBTEDNESS
[26] The Defendant in her answering affidavit denies the arrears and indebtedness
of the amount claimed by the Plaintiff.

[27] Despite the denial, the Defendant has failed to identify any error in the
calculation of the indebtedness or provide evidence indicating what the correct
amount should be. The allegations have been made without any supporting
evidence.

NON -COMPLIANCE WITH THE NATIONAL CREDIT ACT
[28] Section 129 of the National Credit Act mandates that credit providers issue a
written notice of default to consumers and present them with a list of possible
remedies for addressing the default. Section 130(1) of the Act specifies that
credit providers are prohibited from initiating legal proceedings to enforce
credit agreements until the notice outlined in section 129 has been delivered.

[29] Section 129(5) of the Act stipulates that the default notice must be delivered to
the consumer either by registered mail or in person to an adult at the address
specified by the consumer, and in accordance with the manner specified in
writing by the consumer.

[30] The Constitutional Court in Kubyana v Standard Bank of South Africa
Ltd 2014 3 SA 56 (CC) at paragraph 53 held:

“Once a credit provider has produced the track and trace report
indicating that the section 129 notice was sent to the correct branch of
the Post Office and has shown that a notification was sent to the
consumer by the Post Office, that credit provider will generally have
shown that it has discharged its obligations under the Act to effect
delivery. The credit provider is at that stage entitled to aver that it has
done what is necessary to ensure that the notice reached the consumer.
It then falls to the consumer to explain why it is not reasonable to expect
the notice to have reached her attention if she wishes to escape the
consequences of that notice. And it makes sense for the consumer to
bear this burden of rebutting the inference of delivery, for the information
regarding the reasonableness of her conduct generally lies solely within
her knowledge. In the absence of such an explanation the credit
provider's ave rment will stand. Put differently, even if there is evidence
indicating that the section 129 notice did not reach the consumer's
attention, that will not amount to an indication disproving delivery if the
reason for non -receipt is the consumer's unreasonable behaviour. ”

[31] When the section 129 notice is delivered via postal service, the credit provider
must demonstrate that it has fulfilled its statutory obligations by providing
evidence that:
(a) the section 129 notice was sent via registered mail and was sent to
the correct branch of the Post Office, in accordance with the postal
address nominated by the consumer. This may be deduced from a
track and trace report and the terms of the relevant credit
agreement;
(b) the Post Office issued a notification to the consumer that a
registered item was available for her collection;
(c) the Post Office's notification reached the consumer. This may be
inferred from the fact that the Post Office sent the notification to the
consumer's correct postal address, which inference may be
rebutted by an indication to the contrary; and
(d) a reasonable consumer would have collected the section 129
notice and engaged with its contents. This may be inferred if the
credit provider has proven (a) -(c), which inference may, again, be
rebutted by a contrary indication: an explanation of why, in the
circumstances, the notice would not have come to the attention of a
reasonable consumer.

[32] In the Kubyana case , the court found that the credit provider had fulfilled the
required conditions. Consequently, it could be reasonably assumed that the
notifications from the Post Office had been delivered to the consumer.

[33] In the matter before me the requisite section 129(1) notice12 was
dispatched on 31 January 2023 by registered mail to the Defendant to her
chosen domicilium citandi et executandi address namely UNIT 1[...] D[...]
H[...] , 1[...] S[...] STREET, HALFWAY HOUSE .13 The track and trace
report from the South African Postal Service indicates that the first
notification was sent by the Halfway House Postal Office to the Defendant
on 22 February 2023.14

[34] In accordance with section 129 of the Act, the Plaintiff duly notified the
Defendant, who subsequently failed to respond or rectify the breach .

ASSISTANCE RENDERED TO REGULATE ACCOUNT
[35] The Defendant fell i n arrears round about February 2022.

[36] The Plaintiff stated in its founding affidavit , that the Bank had made multiple
attempts to help the Defendant regularize her account under the Loan
Agreement, as evidenced by the following, inter alia:
[36.1] The Bank had placed 2 (two) telephone calls to the Defendant to
discuss bringing the Defendant's arrears under the Loan Agreement
up to date.
[36.2] The Plaintiff transmitted 41 (forty -one) text messages to the
Defendant, requesting the Defendant to bring her arrears up to date,
alternatively to contact the Plaintiff to conclude a payment
arrangement;
[36.3] The Plaintiff's attorneys of record transmitted an email to the
Defendant's last known email address on 25 October 2023

12 A108
13 POC1 at A44
14 A110
requesting the Defendant to contact their office to enter a re -
payment arrangement.15
[36.4] The Plaintiff's attorneys of record transmitted a SMS message to the
Defendant's last known telephone number on 25 October 2023
requesting the Defendant to contact their office to enter a re -
payment arrangement.16

[37] The Plaintiff asserts that despite multiple efforts, the Defendant did not finalize
a payment arrangement with the Plaintiff or alternatively, failed to comply with
the agreed -upon payment arrangements. Consequently, legal action was
initiated against the Defendant.

[38] Excluding the denial of the afore said attempts, the Defendant has not
provided any facts to contradict the Plaintiff's claims. Therefore, I accept the
facts as pleaded by the Plaintiff.

CONCLUSION:
[39] In Bragan Chemicals (Pty) Ltd v Devland Cash and Carry (Pty) Ltd and Another
(11096/20) [2020] ZAGPP 387, 5 August 2020 it was held that :

“The role of pleadings in litigation is well -known and need not be restated in
detail. The object of the pleadings is to define the issues upon which a court will
be called upon to adjudicate and to enable the parties to prepare for trial on the
issues as defined. Pleas are answers by the defendant to the claims made
against it by the plaintiff and in which its defence is set out . Rule 22(2)
stipulates:
A defendant shall in its plea either admit or deny or confess and avoid all
material facts alleged in the combined summons or declaration or state which
of the stated facts are not admitted and to what extent and shall clearly and
concisely state all material facts upon which it relies. ” (my underlining)


15 Annexure CO3 at B27
16 Annexure CO4 at CO4
[40] The golden rule of a pleading is that the opposite party must be fairly appraised
of the case which is to be raised against him, and denials much accordingly be
pleaded with such certainty that he may be able to know what the issues in
dispute are.17

[41] Unless the facts are peculiarly within the knowledge of the Plaintiff , a bare
denial to allegation s is insufficient to raise a valid defence in law . This
qualification is however not applicable in this matter . The Defendant should
have substantiated any defences raised.

[42] In Tumileng Trading CC v National Security and Fire (Pty) Ltd , the court held
that:
“The assessment of whether a defence is bona fide is made with regard to the
manner in which it has been substantiated in the opposing affidavit, viz upon a
consideration of the extent to which 'the nature and grounds of the defence
and the material facts relied upon therefor' have been canvassed by the
deponent. That was the method by which the court traditionally tested, insofar
as it was
possible on paper, whether the defence described by the defendant was
'contrived', in other words, not bona fide .”18 (my underlining)

[43] The Defendant has chosen not to provide detailed explanations or further
support for her denials, which is inadequate. Without clearly and concisely
stated facts from the Defendant, the Plaintiff is unable to formulate a
response.
[44] I therefore conclude that the Plaintiff has established a valid case for the relief
requested.

[45] Lastly, in granting executability of the immovable property I have to conside r
is the determination of a reserve price.

17 Modipane v MM Dada Bk h/a Dada Motors Lichtenburg (1559/2010) [2011] ZANWHC 43 (30 June
2011)
18 Tumileng Trading CC v National Security and Fire (Pty) Ltd; E and D Security Systems CC v
National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) [2020] ZAWCHC 28, 2020 (6) SA 624
(WCC) para 25.


RESERVE PRICE:
[46] To determine a reserve price, the Plaintiff provided the following information in
accordance with Uniform Rule 46A (5), as factors to be considered for
determining a reserve price for the sale of the immovable property:
[46.1] Market value - Rule 46A (5)(a)
the current market value of the immovable property is R3 800 000.00
(THREE MILLION EIGHT HUNDRED THOUSAND RAND);
[46.2] Forced sale value of the immovable property is R2 500 000.00
(TWO MILLION FIVE HUNDRED THOUSAND RAND);
[46.3] Local authority valuation - Rule 46A (5)(b)
the local authority valuation of the immovable property is
R900 000.00 (NINE HUNDRED THOUSAND RAND);
[46.4] Amounts owing to the local authority as rates and other dues –
Rule 46A (5)(d)
R103 138.57 (ONE HUNDRED AND THREE THOUSAND ONE
HUNDRED AND THIRTY -EIGHT RAND AND FIFTY -SEVEN
CENTS);

[47] The Defendant in her plea noted the aforesaid values and did not deny them.

[48] Taking into consideration the values mentioned above, I have established a
reasonable reserve price for the sale of the property at R2 397 000.00 (Two
Million Three Hundred Ninety -Seven Thousand Rands ).

Order

Judgment is granted against the Defendant in the following terms:

1 Payment in the amount of R3 188 865.94 ;

2 Interest on the aforesaid amount at a rate of 11,200% per annum calculated
from 4 March 2023 until date of final payment, both dates inclusive;

3 The immovable property described as:

ERF 6 […] THE HILLS EXTENSION 5 TOWNSHIP
REGISTRATION DIVISION J.R.
PROVINCE OF GAUTENG
MEASURING 786 (SEVEN HUNDRED AND EIGHTY -SIX) SQUARE
METRES HELD BY DEED OF TRANSFER T44594/2020
SUBJECT TO THE CONDITIONS THEREIN CONTAINED AND MORE
ESPECIALLY SUBJECT TO THE CONDITIONS IMPOSED IN FAVOUR OF
THE HILLS HOME -OWNERS ’ ASSOCIATION, NPC REGISTRATION
NUMBER 2007/016285/08 ("THE PROPERTY") is declared specially
executable;

4. The Registrar is authorised to issue a writ of execution in terms of Uniform Rule
46 read with Uniform Rule 46A for the attachment of the immovable property;

5. A reserve price of R2 397 000.00 is set for the sale of the property at a sale in
execution ;
6. The Defendant's attention is drawn to Section 129(3) of the National Credit Act
No. 34 of 2005 that she may pay to the Plaintiff all amounts that are overdue
together with the Plaintiff permitted default charges and reasonable taxed or
agreed costs of enforcing the agreement prior to the sale in execution and
transfer of the property, in order to revive the credit agreement, where the loan
agreement has not been cancelled, as provided for in Section 129(4) of the
National Credit Act; and
7. Attorney and client costs inclusive of counsel’s fees on Scale A.



S VAN ASWEGEN
ACTING JUDGE OF THE HIGH COURT
PRETORIA



For the Applicant: Adv K Reddy instructed by
Vezi de Beer Inc

For the Respondent: No appeara nce
15