SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 13329/2022
Reportable: NO
Of interest to other Judges: NO
Revised: YES
Signature:
Date: 6/6/25
In the matter between:
FIRSTRAND BANK LTD Plaintiff
(Registration No: 1929/001225/06)
and
PAULO JORGE DE SANTOS First Defendant
(ID No: 6[...])
(Married out of community of property)
LIBBY AMELIA DE SANTOS Second Defendant
(ID No: 7[...])
(Married out of community of property)
This judgment is issued by the Judge whose name is reflected hereon. This
judgment is handed down electronically by circulation to the parties by email and by
uploading it to the electronic file of this matter on Case Lines.
The date of this judgment is de emed to be the date upon which it is uploaded onto
Case Lines.
JUDGMENT
GEACH, AJ
Introduc tion
[1] The Plaintiff seeks summary judgment and ancillary relief, jointly and severally
against the two Defendants, encompassing a monetary judgment, an order in terms
of Rule 46A that the relevant mortgaged immovable property, Erf 1[...] Greenstone
Hill Extension 18, the primary residence of the First Defendant, be declared specially
executable,1 together with an order in terms of Rule 46(1), authorizing the issuance
by the Registrar of a suitable warrant of execution.2 Both Defendants are cited as
being married out of community of pro perty (presumably to each other3).
[2] In this court the ap plication for summary judgment was opposed by the First
Defendant, but not by the Second Defendant, although both of them had filed
affidavits opposing summary judgment.
1 A mortgagee competently claims judgment for the money debt and for executability of the
mortgaged property in a single action (Absa Bank Ltd v Mokebe and rela ted cases 2018 (6) SA 492
(GJ); Barclays Nasionale Bank Bpk v Registrateur van Aktes, Transvaal en 'n ander [1975] 4 All SA
655 (T); Absa Bank Ltd v Sawyer (2018/17056) [2018] ZAGPJHC 662 (14 December 2018) par 13 -16;
FirstRand Bank Ltd t/a First National Bank v Stand 949 Cottage Lane Sundowner (Pty) Ltd and
another (2014/10545) [2014] ZAGPJHC 117 (4 June 2014) par [6]; Changing Tides 17 (Pty) Ltd NO v
Rademeyer and another (1911/ 2019) [2019] ZAGPPHC 165 (31 May 2019) par [20]).
2 But the relief in terms of Rule 46A was not pursued by Plaintiff before this court, there being no sign
of the promised affidavits in this regard (Affidavit supporting summary judgment against First
Defendant par 51; and against Second Defendant par 32). S uch relief may be deferred (Nedbank Ltd
v Richardson (2184/21) [2022] ZAECGHC 96 (12 December 2022) par [4]; Changing Tides 17 (Pty)
Ltd NO v Frasenburg [2020] 4 All SA 87 (WCC) par [30]).
3 It is to be gathered from First Defendant's affidavit opposing summary judgment par 3 and par 31,
that they were indeed married to each other, albeit in the throes of a divorce. See also par [1] of the
judgment in (36581/2 020) Gauteng Division, Johannesburg (21 February 2023) involving all three
parties. The default judgment obtained against them records: " The 1st and 2nd Defendants married in
Community of Property to each other " (Court Order dated 20 March 2018 per Kubushi , J), not out of
community.
[3] The object of summary jud gment is the time and cost -effective disposal of an
action in a matter that is amendable to the procedure and in which a defendant is not
able to show that it has a legitimate defence to an action:4 "if the plaintiff has an
unanswerable claim against the defendant and the defendant has no bona fide
defence to the claim of the plaintiff, and the notice of appearance to defend was filed
solely for the purposes of delay, the plaintiff would b e entitled to summary judgment.
The plaintiff is entitled to a quick remedy rather than to wait for a long period. The
waiting period for allocation of a trial date, which takes place after the close of
pleadings, is currently not less than eleven months i n this division".5 Rule 32 sets out
the procedure regarding summary judgment.6
Cause of action
[4] The Plaintiff's combined summons dated and issued on 3 March 2022, alleges
that: "The mortgage bond account held with the Plaintiff is in arrears with the a mount
of R74,137 -87, with monthly instalments currently being R 8,819-97, which arrears
the Defendants simply fails to settle ( sic)"7; and claims payment of a liquidated
amount in money,8 the sum of R592,106 -78, plus interest at the rate of 5.00%
nominal per annum calculated daily and compounded monthly from 31 January 2022
to date of payment, together with costs on the attorney and client scale. This claim is
supported by a Certificate of Balance dated 23 February 2022 and attached to the
particulars of claim.9 Claims of this nature ar e customarily dealt with under Rule 32.
It is not based upon a liquid document.
[5] According to a further Certificate of Balance dated 18 March 2024 the relevant
monthly instalment is R9,565 -50, the arrear amount is R205,057 -50 and the account
4 Capitalbox Green Energy Finance {Pty) Ltd v Baruk Petrol eum (Pty) Ltd and others 2024 JDR 4640
(FB) par [7]; FirstRand Bank Ltd v Sayelo (Pty) Ltd 2024 JDR 5351 (GP) par [14]; Basdeo and
another v Discovery Life Ltd 2024 JDR 3911 (GP) par [7] -[8]; Standard Bank of SA Ltd v Zada Tech
(Pty) Ltd and another 2024 J DR 4932 (FB) par [5]; Majola v Nitro Securitisation 1 (Pty) Ltd 2012 (1)
SA 226 (SCA) at 232; Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek JV 2009 (5) SA 1
(SCA) par (29] -[31] at 11; Arend and Another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 ( C) at 304.
5 PCL Consulting (Pty) Ltd t/a Phillips Consulting SA v Tressa Trading 119 (Pty) Ltd (A5005/2005)
Witwatersrand Local Division (26 September 2005) Full Court par [3].
6 Standard Bank of SA Ltd v Luvhomba Financial Services CC 2025 JDR 1933 (GP) par [18].
7 Plaintiff's particulars of claim par 20.10.
8 Rich & Others v Lagerwey 1974 (4) SA 748 (A) at 754.
9 Particulars of Claim par 15 and Annexure 'E'.
balance in the Plaintiff's books at midnight on 17 March 2024 was then R 589,918 -89;
with interest calculated daily and compounded monthly running at a variable rate of
9.75% nominal per annum from 29 February 2024, calculated daily and compounded
monthly. This Cert ificate of Balance was filed on 19 March 2024.10
[6] The Plaintiff alleges that on 7 May 2007 the parties entered into a written
Loan Agreement in the form of a Grant of Loan,11 with interest running at an initial
variable rate of 10.00% nominal per annum, calculated daily and compounded
monthly.12 This loan was allegedly secured by a Mortgage Bond registered over the
aforesaid immovable property on 29 August 2007.13 Thereafter as alleged by the
Plaintiff:14 "On or about 27 July 2010, the Plaintiff (duly represented) and the
Defendants personally, e ntered into a further Loan Agreement. A true copy of the
aforesaid written Loan Agreement is annexed hereto marked Annexure 'C'."15
However, Annexure 'C' to the particulars of claim is not a Loan Agreement as such,
but merely a Quotation, not signed on behalf of the Plaintiff. This Annexure 'C'
stipulated an initial variable rate of 9.00% nominal per annum, calculated daily and
compounded monthly.16 Such alleged further loan was then allegedly secured by a
Second Covering Mortgage Bond registered over the same immovable property on 8
December 2010.17
[7] Alleging due compliance by the Plaintiff with its obligations in terms of the loan
agreements and mortgage bonds and default on the part of the Defendants,18 the full
amount outstanding allegedly became immediately due and payable,19 with the
alleged result that the Defendants are jointly and severally indebted to the Plaintiff as
set out above and claimed by the Plaintiff.20
10 Quite validly so (Rossouw and another v FirstRand Bank Ltd 2010 (6) SA 439 (SCA) par [48] at 4 54)
despite Rule 32(4): Vukile Property Fund Ltd v Naledi Bakeries CC and others (2022 - 033617)
Gaut eng Division , Johannesburg (7 March 2024) par [13].
11 Plaintiff's particulars of claim par 4 -5 and Annexure 'A'.
12 Plaintiff's particulars of claim Annexure 'A' clause 5.5.
13 Plaintiff's particulars of claim par 6 -7 and Annexure 'B'.
14 Plaintiff's particulars of claim par 8.
15 Particulars of Claim par 8 -9; Annexure 'C'. Repeated in par 3.1 of Plaintiff's Rule 32(2)(a) affidavits.
16 Plaintiff's particulars of claim Annexure 'C' clause 9.2.
17 Plaintiff's particulars of claim par 10 -11 an d Annexure 'D'.
18 Plaintiff's particulars of claim par 12 -13.
19 Plaintiff's particulars of claim par 14. 071-4
20 Plaintiff's particulars of claim par 15.
[8] The Plaintiff alleges compliance with the National Credit Act, stra ngely
enough "in the event of the court finding that the requirements of the Act apply".21
[9] On the face of it, this is a simple claim based upon Defendants' default without
more. However, as will appear,22 this is misleading.
History of the litigation
[10] Despite having been duly served with the Plaintiff's aforesaid summons on 11
March 2022, together with the Plaintiff's Notice of Opposition to Mediation, the
Defendants failed timeous ly to enter appearance to defend, resulting in a Notice of
Application for Default Judgment dated 3 June 2022 being filed on 17 June 2022,
supported by an affidavit deposed to by Luqmaan Alli, esquire, on 2 June 2022 and
set down for hearing firstly in Jul y 2022, only to be removed by Notice dated 20 June
2022 and enrolled yet again for 4 August 2022. Joined in such Application for Default
Judgment were the City of Johannesburg Metropolitan Municipality (as third
respondent) and the Waterstone Home Owners A ssociation (as fourth respondent)
each of whom was cited allegedly "as a party having an interest herein".23 Evidently,
that is no longer the case.
[11] Belated Notices of Inten tion to Defend were filed by both the Defendants only
towards the end of July 2022. These were filed individually; each Defendant
instructing his and her own Attorney of Record: Norman Seppings Attorney of
Durban acting for the First Defendant and whose No tice of Intention to Defend was
dated 28 July 2022; with L Cirone Attorney at Law of Johannesburg acting for the
Second Defendant and whose Notice of Intention to Defend was dated 27 July 2022.
As a result, the Application for Default Judgment was removed from the roll.24 When
no plea from either Defendant was forthcoming, Plaintiff was constrained to serve a
Notice of Bar on 15 September 2022.
21 Plaintiff's particulars of claim par 17.
22 See par [24](c) below.
23 Founding Affidavit filed in support of Default Judgment par 5.3 and par 5.4.
24 Court Order dated 4 August 2022 (per van der Schyff, J).
[12] Pursuant to the above, the Second Defendant served her plea on 22
September 2022 followed by the First Defendant's plea served on 26 September
2022. No objection to the late service of the latter has been raised by the Plaintiff
herein.
[13] On 13 October 2022 within 15 (fifteen) days of service of the D efendants'
pleas as required by Rule 32(2)(a), the Plaintiff served two Notices of Application for
Summary Judgment, one in respect of each Defendant, inasmuch as each had filed
a separate plea. Although two separate notices of application for summary judg ment
both dated 13 October 2022 were served,25 the Plaintiff has dealt with this as a
single matter. Plaintiff's applications for summary judgment, were each supported by
an affidavit purportedly in terms of Rule 32(2)(a), by Roy Gomes, "employed by the
Plaintiff as Manager''.26 However, the Commissioner of Oaths, despite initialling each
page, omitted to sign her certificate at the bottom of the purported affidavit in respect
of the Second Defendant. Her official stamp is no substitute for such missing
signature.
[14] The First Defendant's Notice opposing Summary Judgment was served on 20
October 2022 and the similar Notice from Second Defendant is likewise dated 20
October 2022. However, the Second Defendant subsequently withdrew her
opposition to summary judgment by way of a n otice dated and served on 11 August
2023.27 These applications were set down as one (as indeed, is still the situation) for
hearing on 21 November 2022. Litera lly at the eleventh hour on 21 November 2022,
the First Defendant's affidavit opposing summary judgment was served and was
accompanied by a substantive application for condonation for the late filing thereof.
The application for summary judgment was remove d from the roll, with First
Defendant being ordered to pay the wasted costs occasioned by such removal.28
[15] The Plaintiff having on 2 July 2023 served heads of argument, a practice note,
a chronology and a list of authorities in respect of the now opposed application for
summary judgment, on 16 October 2023 served an application to compel the First
25 Plaintiffs Practice Note par 6. Plaintiff's Heads of Argument par 2.4.
26 Plaintiff's Rule 32(2)(a) Affidavits par 1.1.
27 Affidavit by Riana van den Burg in support of Application to Compel par 3.1 and Annexure 'RB1'.
28 Court Order dated 21 November 2022 (per Nichols, AJ) par 1 -2.
Defendant to do the same, which application was supported by an affidavit deposed
to by Riana van den Burg on 11 September 2023 and was set down for hearing on 7
December 2023. What happened on 7 December 2023 is not disclosed; and what
became of this application to co mpel is unknown. It was only on 11 March 2024 that
the First Defendant's heads of argument and practice note both dated 10 March
2024 were filed; and thereafter on 15 March 2024 the First Defendant unilaterally
filed a so -called "Joint Practice Note".
[16] In a flurry on 11 March 2024 the following additional documents had also
been filed by the First Defendant together with his aforesaid heads of argument and
practice note, viz an application dated 11 March 2024 to file a supplementary
affidavit in respec t of the Plaintiff's application for summary judgment for 18 March
2024 (which was uploaded twice); the following collection of documents: a judgment
by Makume J plus its service e -mail dated 11 March 2024, a Filing Sheet in respect
of a supplementary aff idavit dated 11 March 2023 (i.e., a year earlier) and a
Supplementary Affidavit together with its annexures (annexures 'A' to 'K') deposed to
by the First Defendant on 12 December 2022; all in respect of Case No: 36581/20 in
the Gauteng Local Division, Joh annesburg, "in the application in terms of the actio
communi dividundo " brought by Second Defendant against both the First Defendant
and the Plaintiff (although that Filing Sheet dated 11 March 2023 is under the wrong
Case Number 13329/202029). These additional documents were accompanied on 11
March 2024 by an affidavit from First Defendant's Attorney in support of condonation,
deposed to on 11 March 2024, seeking not only condonation for the late filing of First
Defen dant's heads of argument and practice note in order to resist summary
judgment,30 but also, simultaneously, condonation for the late filing of that
supplementary application, the supplemen tary affidavit with annexures; and the
judgment.31 (Although the First Defendant's Attorney refers to a "supplementary
affidavit" deposed to by the First Defendant "that was submitted in that application32
on 21 November 2022 ", 33 same is nowhere to be found34).
29 The Case Numb er herein (in Pretoria).
30 Affidavit by First Defendant's Attorney dated 11 March 2024 par 3.
31 Affidavit by First Defendant's Attorney dated 11 March 2024 par 12.
32 Possibly the one in Johannesburg?
33 Affidavit by First Defendant's Attorney dated 11 March 2024 par 8 (allegedly as annexure 'C'
thereto).
34 Perhaps the description "supplementary affidavit" is inaccurate and should have read "opposing".
[17] An application for a date for the hearing of Plaintiff's Summary Judgment on
this Opposed Roll seems to have been made on 30 November 2023 although n o
Notice of Set Down for 18 March 2024 can be located. Nevertheless, First
Defendant's Attorney states that he "discovered that this application is set down for
the 18 March 2024".35 It is accepted that it was indeed properly set down.36
Condonation
[18] Plaintiff seeks condonation for the failure of the Commissioner of Oaths to
have sign ed her certificate on the affidavit by Roy Gomes in support of the Plaintiff's
application for summary judgment against the Second Defendant.37 Although this
defect was raised by the Second Defendant in her opposing aff idavit,38 such relief is
not opposed. The necessity of meticulous compliance by a plaintiff with Rule 32(2)(a)
is emphasised.39 Nonetheless, in her affidavit the Commissioner, Barbara Seimenis,
adequately explains this oversight.40 In the circumstances of the present case, such
condonation is apposi te, with the result that Roy Gomes' supporting affidavit
tendered by the Plaintiff in respect of the Second Defendant, be accepted as an
affidavit properly commissioned. The Plaintiff's application for summary judgment
against the Second Defendant will the n be properly supported by an affidavit.
[19] It was argued on behalf of the Plaintiff with regard to the several applications
for condonation brought herein by the First Defendant, that this court ought to reject
the First Defendant's abovementioned supp lementary affidavit and other documents
as impermissible.41 "An applicant for condonation must fully explain the delay, which
must cover the entire period and which explanation must be reasonable [van Wyk v
Unitas Hospital and another 2008 (2) SA 472 (CC) par [22] at 477]" ( FirstRand Bank
35 Affidavit by First Defendant's Attorney deposed to on 11 March 2024 par 6 .
36 As suggested by the 'widely shared note' on Case Lines by Kubushi, J dated 29 February 2024.
37 Plaintiff's Practice Note par 10.2.
38 Second Defendant's affidavit opposing summary judgment par 5 to par 12.
39 Pareto (Pty) Ltd and another v Theron and another (9804 /2023) (2024] ZAWCHC 138 (6
September 2024); 2024 JDR 3832 (WCC) par 11 and par 14; Absa Bank Ltd v Botha NO and others
2013 (5) SA 563 (GNP) par [5] -[8] at 565 -7; Absa Bank Ltd v van der Walt (8817/2022) [2023]
ZAGPJHC 680 (9 June 2023) par 27.
40 Supplementary Affidavit dated 21 June 2023. Plaintiff's Heads of Argument par 13.
41 Despite Plaintiff itself having attached documents to its affidavits (Annexures 'SJ1 -6' in respect of
the First Defendant; and Annexures 'SJ1 -2' in respect of the Second Defendant).
Ltd v Signature Bakery (P ty) Ltd and another 2025 JDR 1458 (GJ) par [15] ). "The
explanation must be reasonable in the sense that it must not show that his default
was wilful or was due to gross negligence on his part. If the explanation passes that
test, then the Court will consi der all the circumstances of the case, including the
explanation, and will then decide whether it is a proper case for the grant of
indulgence (Kajee and others v G & G Investment and Finance Corporation (Pty) Ltd
1962 (1) SA 575 (N) at 577)" ( Alexandra Fo rbes v Luvi Cingo (A94/2022) Gauteng
Division, Pretoria (24 October 2023) Full Court par [16] -[17]). In the present matter,
the First Defendant's failures are prima facie satisfactorily explained;42 and no
wilfulness on the part of the First Defendant is apparent.43 The matters raised in
these additional papers were indeed referenced in First Defendant's Plea.44 Since
the filin g of First Defendant's affidavit opposing summary judgment, developments
germane to the issues herein have occurred in the relationship between all three
parties. No prejudice to the Plaintiff in receiving these additional documents was
raised by the Plain tiff; nor can this court conceive of any.45 On the contrary, it was
argued on behalf of the Plaintiff that these documents do, in any event, disclose no
defence whatsoever. Furthermore, Plaintiff did no t seek an opportunity of addressing
any unfairness by way of supplementing its affidavit in support of summary judgment
against the First Defendant, as it could have done.46 Given all these considerations,
the various condonations sought by the Firs t Defendant are also apposite. It is in the
interest of justice that condonation be granted;47 and for all the issues pertaining to
42 Affidavit in support of condonation par 4 -5.
43 Affidavit in support of condonation par 7.
44 AC-DC Dynamics (Pty) Ltd v Elucidation Pro (Pty) Ltd and others 2024 JDR 4151; 2024 JDR 4319
(GP) par 17 -8; Bragan Chemicals (Pty) Ltd v Devland Cash and Carry (Pty) Ltd 2020 JDR 1742 (GP )
Nedbank Ltd v Uphuliso Investments and Projects (Pty) Ltd [2022] 4 All SA 827 (GJ) par 37;
FirstR and Bank Ltd v Sayelo (Pty) Ltd 2024 JDR 5351 (GP) par [27]; AHMR Hospitality (Pty) Ltd
Winelands Venue v DA Silva 2024 (3) SA 100 (WCC) par [14] at 105; Jovan Projects (Pty) Ltd v ICB
Property Investments (Pty) Ltd 2022 JDR 0 051 (GJ) par [67]; FirstRand Mortgage Co (RF} (Pty) Ltd v
Pretorius 2025 JDR 1052 (WCC) par 43; Compensation Solutions (Pty) Ltd v Compensation
Commissioner and others (56219/21; 49156/21) Gauteng Division, Pretoria (17 July 2023) par [6].
45 Affidavit in support of condonation par 7 and par 9.
46 City Square Trading 522 (Pty) Ltd v Gunzenhauser Attorneys (Pty) Ltd ( sic) and ano ther 2022 (3)
SA 458 (GJ); Compensation Solutions (Pty) Ltd v Compensation Commissioner and others
(56219/2021; 49156/2021) Gauteng Division, Pretoria (17 July 2023) par (23) -(24); ldwala Industrial
Holdings (Pty) Ltd v JB Lime Distributors (Pty) Ltd 2025 JDR 1236 (FB) par [17]; FirstRand Bank Ltd v
Sayelo (Pty) Ltd 2024 JDR 5351 (GP) par [32]; FirstRand Bank Ltd v Signature Bakery (Pty) Ltd and
another 2025 JDR 1458 (GJ) par [16 ].
47 "It is settled law that the standard for considering an application for condonation is the interes t of
justice (Brummer v Gorfil Brothers Investments (Pty) Ltd a nd others 2000 (2) SA 837 (CC) par 3 at
830)” (FirstRand Bank Limited t/a Wesbank and Suzuki Mobility Finance v Farrar (19950/2022) [2023]
ZAGPJHC 954 (25 August 2023) par [14]).
First Defendant's defence to be ventilated. The additional papers will accordingly be
incorporated into First Defendant's opposition to summary judgment, forming part
and parcel thereof.
First Defendant's Plea
[20] The First Defendant's Plea to Plaintiff's Particulars of Claim reads as follows:
(a) First plea in limine : 1. The summons under case number 13329/22 has
not been signed by the Registrar of the High Court (Gauteng Division, Pretoria)
and in the premises the combined summons is fatally defective and stands to
be dismissed with costs.
(b) Second plea in limine : 2. The Plaintiff has failed to comply with Rule
41A read with Rule 41A(2)(a) in that the Plaintiff has failed to serve on the
Defendants a notice regarding medi ation. 3. In the premises the Plaintiff's
combined summons is premature and stands to be dismissed with costs.
(c) Third plea in limine : 4. Plaintiff issued a summons under case number
2499/18 in the above Honourable Court for the same cause of action base d
on the same written agreements. 5. In the premises the First Defendant raises
a special plea of res judicata as you [ sic] cannot have two summonses based
on the same action and written agreements at the same time. 6. The Plaintiff
with the First and Seco nd Defendants entered into a written settlement
agreement in respect of case number 2499/18 in order to settle the arrears
which was done. The First Defendant pleads: " This agreement is considered a
novation to any prior agreements concluded between the pa rties."
(d) As far as the merits of Plaintiff's claim are concerned, the First
Defendant in his Main Plea (paragraph 7) "pleas [ sic] to the particulars of
claim as follows":
(1) The citation of the Plaintiff:48 "The averments are unknown to the First
Defendant and they are not admitted".49
(2) The citations of both Defendants are admitted,50 save that insofar as
the alleged chosen domici lia of First Defendant are concerned, the First
48 Plaintiff's Particulars of Claim par 1.
49 First Defendant's Main Plea par 8.
Defendant pleads that the domicile address is used (sic) by the Plaintiff are
(sic) incorrect and not in terms of Annexure D and therefore not the correct
domicile address for service for any documents in respect of this action.51
Nevertheless, jurisdiction of the Gauten g Division, Pretoria, is admitted.52
(3) The loans and mortgage bonds, the Plaintiff's compliance with its
obligations, the Defendants' alleged breaches of contract, the consequen ces
thereof and Defendants' resultant indebtedness to the Plaintiff, as well as the
Certificate of Balance (Annexure 'E'),53 are all merely "not admitted and the
Plaintiff is put t o the proof thereof',54 albeit the First Defendant adds: 13. The
First Defendant alleges that the Second Defendant was an employee of the
Plaintiff until recently when she resign ed and subsequently received the
pension pay out in July 2022 of approximately R1 600 000.00 (One Million Six
Hundred Thousand) before tax. 14. Given the above the Plaintiff could attach
the arrears from this pension pay out to the Second Defendant instead of
seeking an order to declare the property executable which has a conservative
value of R3 000 000.00 (Three Million) if sold urgently. 15. As ( sic) the Plaintiff
has failed to proceed on movable assets that they are fully aware of as they
(sic) were the Second Defendants employer. The above pension mentioned in
paragraphs 13 and 14 [of the Main Plea] is sufficient to cover the R592 106.78
monetary claim if the bond is cancelled. However the arrears are
approximately R143 000.00. 16. The First and Second Defendant are
severely prejudice ( sic) if the immovable property is auctioned when the
auction price will in all probability realize the Plaintiff's monetary claim of R592
106.78. 17. The First Defendant pleads that an order in terms of RULE 46A as
set out in Plaintiff's pray ( sic) paragraphs 3 and 4 be dismissed with cost ( sic)
on a ( sic) attorney client scale.
(4) Regarding Plaintiff's alleged compliance with the provisions of the
National Credit Act:55 The First Defendant pleads as set out in paragraph 9 [of
the Main Plea] above that the Plaintiff has not used the correct domicile
50 Plaintiff's particulars of claim par 2.1 and par 2.2; First Defendant's Main Plea par 10.
51 Plaintiff's particulars of claim par 2.1 and Annexure 'D'; First Defendant's Main Plea par 9.
52 Plaintiff's particulars of claim par 3; First Defendant's Main Plea par 11.
53 Plaintiff's particulars of claim par 4 to par 15 and Annexures 'A' to 'D'.
54 First Defendant's Main Plea par 12.
55 Plaintiff's particulars of claim par 16 to par 18.
address and therefore has not complied with Section 129 of the National
Credit Act.56
(5) In respect of section 26 of the Constitution57 and Rule 46(1),58 the
following: 19. First Defendant pleads that the immovable property is the First
and Second Defendants only private property for private dwelling and
therefore in terms of the Constitution should not be declare ( sic) executable.
20. The First Defendant draws the above Honourable Courts attention to
paragraphs 12 - 17 [of the Main Plea] above that define the First Defendant's
defense ( sic) and prejudice to an order declaring the property executable. 21.
The First Defendant will be settling the arrears in respect of this action which
the Plaintiff accepted by emailing a settlement agreement that the First
Defe ndant did not sign as yet. 22. Should this action proceed further the First
Defendant will provide proof of payment of the arrears in order to resolve this
action. 23. The First and Second Defendants are in the process of divorcing
with acrimonious proceed ings and any compromise has been difficult between
the parties. 24. The Second Defendant did pay Plaintiff's bond in this action
from the rentals that where ( sic) received from a tenant Melissa Tied at
R8000.00 per month. However the above tenant vacated h er flat in March
2021 and the Second Defendant thereafter stopped paying the bond from her
salary which was by debit order. 25. The First Defendant notified the Plaintiff
that the Second Defendant who is employed by them has deliberately stopped
paying the bond and that they should continue to take debit order. This
proposal was rejected by the Plaintiff. 26. The First Defendant personally
attended home loans department of the Plaintiff to settle the arrears and it
was agreed that a debit order would be put in place on his account and only
one debit order was taken by the Plaintiff. The First Defendant was able to
establish that certain employees of the Plaintiff had interfered with the First
Defendant's debit order so it would not continue. 27. The Second D efendant
has brought an application in the Gauteng Local Division in terms of the Latin
principle actio communi dividundo to sell the joint [ sic] owned property as the
Second Defendant wants the divorce to proceed urgently . This was
56 First Defendant's Main Plea par 18.
57 Plaintiff's particulars of claim par 19.
58 Plaintiff's particulars of claim par 20.
precipitated by the Sec ond Defendant making it very difficult for the First
Defendant to instruct renting agencies as she refused to sign consent for
replacement tenants.
Second Defendant's Plea
[21] The Seco nd Defendant pleaded as follows to the Plaintiff's particulars of claim
dated 3 March 2022:
(a) First Special Plea: 1. The Plaintiff instituted an action against the First
and Second Defendants, which summons is dated 5 May 2022, wherein the
Plaintiff all eges that it has a claim which arose pursuant to the conclusion of
written agreements so concluded between the Plaintiff and the First and
Second Defendants of which annexures "B" to "D" so annexed to the
particulars of claim are purported to be true copie s. 2. The Second Defendant
specially pleads that the Plaintiff instituted an action against the First and
Second Defendants in the above honourable Court, which summons is dated
the 16 January 2018, bearing case number 2499/18, wherein the Plaintiff
allege s that it has a claim which arose pursuant to the conclusion of the same
written agreements so concluded between the Plaintiff and First and Second
Defendants which are attached to the Plaintiff ( sic) current Particulars of
Claim being annexures "B" to "D" . 3. On the 26th March 2018, the Plaintiff
obtained a default judgment against the First and second Defendants, the
consequences of which was ( sic) as follows: 3.1 The written agreements
concluded between the parties is cancelled; 3.2 The First and second
Defendants are ordered to the to the ( sic) Plaintiff the sum of R820 709.22,
jointly and severally, the one paying the other to be absolved; 3.3 The First
and second Defendant are ordered to the to the ( sic) Plaintiff interest on the
sum of R820 709.22 cal culated at the rate of 8.25% daily and compounded
monthly from the 10th January 2018 to date of final payment; Costs in the
amount of R200.00 together with sheriff's fees in the sum of R1 109.45. 4.
Subsequent to obtaining the default judgment, the Plainti ff and the First and
Second Defendant concluded a new agreement pertaining to the payment of
any amounts owing to the Plaintiff by the First and Second Defendants. 5.
"The Second Defendant accordingly pleads that there was a novation of any
prior arrangeme nts concluded between the parties, which substituted the prior
agreements entered into by and between the Plaintiff and the First and
Second Defendants, being Annexures "B" to "D" of the Plaintiff's particulars of
claim ". 6. The Second Defendant pleads tha t the Plaintiff has failed to make
out a valid cause of action. 7. The Second Defendant therefore pleads that
there is a final judgment between the same parties relating to the same facts
and therefore the Plaintiff cannot obtain a further judgment and the refore the
matter is r es judicata.
(b) Second Special Plea : 8. The Second Defendant specially pleads that
the Plaintiff has not complied with the provisions of Section 129(1) of the
National Credit Act 34 of 2005 in that: 8.1 On the 19th August 2021, the
Second Defendant sent a written notification to the Plaintiff in which she
confirmed that she was no longer resident at the immovable property situate
at 1[…] B[...] Crescent, Waterstone Park, Greenstone Hill Ext 18, Edenvale.
8.2 On the 12th October 2021 t he Second Defendant sent a written notification
to the Plaintiff in which she changes her domicilium citandi et excecutandi
address from 1 […] T[...] Road, Edenglen, Edenvale, to number [...] C[...] Road,
Croydon, Kempton Park. 8.3 The Plaintiff alleges that it discharged its
obligations in terms of Section 129(1) of the National Credit Act 34 of 2005,
and attaches, as Annexure 'F" to its Particulars of Claim, the written notice
sent via registered m ail to the Second Defendant. 8.4 The Plaintiff sent three
registered letters to the Second Defendant as follows: 8.4.1 Letter dated the
8th February 2022 addressed to the Second Defendant at: 1 […] E[...] Mews,
6[…] T[...] Road, Edenglen, Edenvale, 1610, po sted on the 11th February
2022; 8.4.2 Letter dated the 8th February 2022 addressed to the Second
Defendant at: 1 […] T[...] (T[...]) Road, Edenglen, Edenvale, 1609, posted on
the 11th February 2022; 8.4.3 Letter dated the 8th February 2022 addressed to
the Second Defendant at 1 […] B[...] Cresce nt, Waterstone Park, Greenstone
Hill Ext 18, Edenvale, 1609, posted on the 11th February 2022; 8.5 Plaintiff
failed to give the second Defendant proper notice in terms of section 129(1) to
the second Defendant's chosen domicilium citandi et exceutandi nor to the
Second Defendant's place of residence. 8.6 In terms of Section 129(1)(b}(i)
the Plaintiff did not provide the Second Defendant the required Notice before
commencing legal proceedings against her.
(c) Plea over : In the event of Second Defendant's special pleas not being
upheld, the Second Defendant pleads as set out hereunder:59
(1) The citation of Plaintiff is admitted,60 as is Second Defendant's name
and identity number, plus the fact that she is [or was then] married Out of
Community. 61 The remainder of the allegations contained in the citation of the
Second Defendant, encompassing it s eems, the allegation that she is a major
female, are denied as if specifically traversed and the Second Defendant
pleads that her domici lium citando (sic) et executandi at the time of issuing
(sic) the summons is neither of the addresses alleged in this pa ragraph, and
Second Defendant repeats the contents of her first special plea,62 as set out
herein above.63 Inasmuch as Second Defendant omitted to plead thereto,64
the citation of First Defendant65 is deemed to be admitted.66 The same applies
to the allegation,67 likewise not pleaded to by Second Defendant,68 that on 7
May 2007 the Plaint iff (duly represented ...) and the Defendants personally,
entered into a written Loan Agreement in the form of a Grant of Loan, a copy
of which is Annexure 'A' to the particulars of claim. Also admitted, is the
jurisdiction of the Gauteng Division, Pret oria, herein,69 notwithstanding the
Second Defendant's statement that the most appropriate forum for the sake of
convenience of all parties in the action would have been the Johannesburg
Division.70
59 Second Defendant's Plea par 9.
60 Plaintiff's particulars of claim par 1; Second Defendant's Plea Over par 10.
61 Plaintiff's particulars of claim par 2.2; Second Defendant 's Plea Over par 11.1 and par 11.2.(Note:
par 11 of the Second Defendant's Plea erroneously refers to par 2.1 of the Particulars of Claim. A
proper interpretation of the plea as a whole {Absa Bank Ltd v I W Blumberg and Wilkinson 1997 (3)
SA 669 (SCA) at 6 73-4} dictates however that it was probably intended to refer to par 2.2 of the
particulars of claim which does in fact pertain to the Second Defendant).
62 Second Defendant's Plea Over par 11.3.
63 See par [16](a) above.
64 The reference in Second Defe ndant's Plea par 11 to par 2.1 of the Particulars of Claim is a
misnomer.
65 Plaintiff's particulars of claim par 2.1.
66 Rule 22(3).
67 Embodied in par 4 of the Particulars of Claim.
68 Par 4 of the Particulars of Claim is nowhere even mentioned in the Second Defendant's Plea.
69 Plaintiff's particulars of claim par 3; Second Defendant's Plea Over par 12 and 12.1.
70 Second Defendant's Plea Over par 12.1. However, Plaintiff had the choice of forum.
(2) The remainder of the allegations concerning the content (rather
surprisingly) of the admitted Loan Agreement Annexure 'A' to the particula rs
of claim; as well as the Second Loan Agreement, the mortgage bonds, the
Plaintiff's compliance with its obligations, the Defendants' alleged breaches of
contract, the consequences of such breaches, Defendants' resultant
indebtedness to the Plaintiff and the Certificate of Balance (Annexure 'E'),71
are all denied as if specifically traversed and the Plaintiff is put to the proof
thereof.72
(3) Regarding the Plaintiff's alleged compliance with the provisions of the
National Credit Act:73 The Second Defendant pleads as follows:74 14.1 The
Second Defendant de nies that the Plaintiff has complied with the provisions of
the National Credit Act and denies that she received notification. 14.2 The
Second Defendant repeats the contents of her second special plea as set out
herein above.75 14.3 The Second Defendant specifically denies the
allegations not already dealt with herein and the Plaintiff is put to the proof
thereof.
(4) In respect of section 26 of the Constitution,76 Second Defendant's Plea
Over reads simply that Plaintiff's allegations in this regard77 "are noted",78
which is tantamount to the admission thereof.79
(5) The Plaintiff's allegations in respect of Rule 46(1),80 are dealt with as
follows:81 16.1 The Second Defendant denies that she has been given proper
notice in terms of the Nationa l Credit Act, and puts the Plaintiff to the proof
thereof. 16.2 The Second Defendant pleads that attempts have been made to
rehabilitate the account, and as such, a payment has already been made to
the Plaintiff for these purposes.
71 Plaintiff's particulars of claim par 5 to par 15 and Annexures 'B' to 'D'.
72 Second Defendant's Plea Over par 13.
73 Plaintiff's particulars of claim par 16 to par 18.
74 Second Defendant's Plea Over par 14.
75 See par [16](b) above.
76 Plaintiff's particulars of claim par 19.
77 Plaintiff's particulars of claim par 19.1 and par 19.2.
78 Second Defendant's Plea Over par 15 and 15.1.
79 V N Dlamini v RAF and others (7658/08) Gauteng Division, Pretoria (21 May 2019) par [20];
FirstRand Bank Ltd v Malesela and others (11366/2022) [2024] ZAGPPHC 935 (25 September 2024)
par 3.
80 Plaintiff's particulars of claim par 20.
81 Second Defendant's Plea Over par 16.
[22] The separate plea by each Defendant culminates in a prayer that the
Plaintiff's claim is (First Defendant) or be (Second Defendant) dismissed with costs.
Basis for summary judgment and the court's analysis
[23] The exact wording of Rule 3 2(2)(b) requires the affidavit supporting summary
judgment referred to in Rule 32(2)(a) in each case to verify the cause of action and
the amount claimed ( contra Raumix Aggregates (Pty) Ltd v Richter Sand CC and
another (2019/8153) and other cases [2019 ] ZAGPJHC 386; 2020 (1) SA 623 (GJ)
(4 October 2019) Full Court par [15 ]), in addition to identifying any point of law relied
upon and the facts upon which the plaintiff's claim is based, and to explain briefly
why the defence as pleaded does not raise any is sue for trial.82 A plaintiff is required
to engage with the content of the defendant's plea in order to substantiate its
averments that the defence is not bona fide and has been raised merely as a
delaying tactic.83 By virtu e of Rule 32(4), no evidence may be adduced by the
Plaintiff otherwise than by these affidavits referred to in Rule 32(2).84 In the case of
each Defendant, the Plaintiff relies upon an affidavit deposed to by Roy Gomes who
is held out to be "employed by the Plaintiff as Manager" and who in confirming and
verifying the cause of action as set out in the particulars of claim as well as the relief
claimed against both Defendants, professes to have the requisite personal
knowledge thereof.85 There appears no reason to doubt this;86 and the correctness
thereof is not challenged except with regard to the Certificate of Balance (Annexure
'E'). The attachment of new documents to this affidavit in support of summary
judgment is not objectionable in the circumstances of this case.87 Certainly, these
82 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) par [17] -(23] at
633-5.
83 Nedbank Ltd v Richardson (2184/2021) (2022] ZAECGHC 96 (12 December 2022) par [7];
Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) par [21] at 634.
84 FirstRand Bank Ltd v Badenhorst NO and others (2022/5936} [2023] ZAGPJHC 779 (10 July 2023);
Rossouw and another v FirstRand Bank L td 2010 (6) SA 439 (SCA) par [36] at 451.
85 In FirstRand Mortgage Co (RF) (Pty) Ltd v Pretorius 2025 JDR 1052 (WCC) par 38 -9 the self -same
Roy Gom es was held validly to have deposed to such an affidavit in that case (although therein he
was then employed as 'manager' in a different entity, viz the Home and Structured Lending
Depart ment of FirstRand Mortgage Co (RF) (Pty) Ltd).
86 FirstRand Mortgage Co (RF) (Pty) Ltd v Pretorius 2025 JDR 1052 (WCC) par 35 -41.
87 FirstRand Bank Ltd v Badenhorst NO and others (2022/5936) [2023] ZAGPJHC 779 (10 July 2023);
BC Fund ing Solution (Pty) Ltd v Estate Agency Affairs Board 2024 JDR 1058 (GJ) par [23]; Nedbank
Ltd v Magadla (11517/2021 P) [2023] ZAKZPHC 54 (24 May 2023) par [17]; Absa Bank Ltd v Mali
Zabilon Mashinini and another NNO (32016/19; 32014/19) Gauteng Division, P retoria (22 November
2019 revised 10 December 2019) par 3.5 -6.
affidavits in support of summary judgment against the Defendants are each deposed
to by a person who it may be accepted can swear positively to the facts and who has
verified the amount claimed from each Defendant as well as the Plaintiff's cause of
action insofar as it is set out in the particulars of claim.88
[24] Against First Defendant, the Plaintiff submits that no issue fit for trial has been
raised.89 Save for one factual or legal dispute, the Plaintiff is correct.
(a) First plea in limine :90 The original summons was signed by the
Registrar L Motau.91 Even if it had not been, that would have been
irrelevant.92 There is absolutely no merit in this defence.
(b) Second plea in limine :93 The factual premise of this plea is erroneous.
The Rule 41A notice was indeed served at the chosen domicilium citandi et
excecutandi of the First Respondent,94 as appears from the Sheriff's return of
service dated 11 March 2022.95 It has been held that non -compliance with
Rule 41 A and its provisions is not fatal to the proceedings.96 First Defendant
from his side did himself not comply with Rule 41A(2)(b);97 nor did he file a
Rule 30 Notice as he should have done.98 Despite Rule 41A being couched in
peremptory terms,99 its purp ose is to ensure that parties explore alternative
dispute resolution at the commencement of their matters in court to avoid
88 See: Rule 32(2)(a) -(b). Standard Bank of SA Ltd v Luvhomba Financial Services CC 2025 JDR
1933 (GP) par [20.1] and par [20.2].
89 Affidavit in support of summary judgment against 1st Defendant par 50.
90 See par [19](b)} above. See, too, par 21 of the First Defendant's affidavit opposing summary
judgment.
91 Affidavit in support of summary judgment against pt Defendant par 5 and Annexure 'SJ1'.
92 Motloung and another v The Sheriff, Pretoria East and others 2020 (5) SA 123 (SCA).
93 See par [19](b) above.
94 Affidavit in support of summary judgment against 1st Defendant par 8.
95 Together with Plaintiff's summons. The Sheriff's return does form part of the pleadings bundle
herein even though it is not attached to the affidavit in support of summary judgment against First
Defendant.
96 Absa Bank Ltd v Gaberton Investment (Pty) Ltd (2359/2020) Limpopo Division, Polokwane (29
October 2024) par [30]; Sokhani Development & Consulting Engineers (Pty) Ltd v Alfred Nzo District
Municipalit y (1254/2024) [2024] ZAECGHC 40 (26 April 2024) and Growthpoint Properties Ltd v Africa
Master Blockchain Co (Pty) Ltd (2020/43806) [2022] ZAGPJHC 836 (26 October 2022) par 26 -27.
97 Madikizela v Nkosi and another (19408/2021) [2023] ZAGPJHC 322 (13 April 2023) par 7; and the
defendant's compliance is not dependant on the plaintiff's compliance with Rule 41A(2)(a):
Nomandela and another v Nyandeni Local Municipality and others 2021 (5 ) SA 619 (ECM).
98 Lamroo (Pty) Ltd and others v Theron and others (3019/2023) [2024] ZAFSHC 32 (8 February 2024)
par [43]; Absa Bank Ltd v Gaberton Investment (Pty) Ltd (2359/2020) Limpopo Division, Polokwane
(29 October 2024) par [32].
99 Small Enterprise Finance Agency SOC Ltd v Fumiel Transport and Projects (Pty) Ltd (M281/2024)
North West Division, Mahikeng (6 September 2024) par [39].
protracted litigation.100 In Kalagadi Manganese (Pty) Ltd v IDC of SA Ltd and
others (2020/12468) [2021 ] ZAGPJHC 127 (22 July 2021), the Court defined
the mediation in terms of Rule 41A as a voluntary non -binding prescriptive
dispute resolution.101 There is no provision in Rule 41A to c ompel any party to
submit to mediation; and there is also no sanction provided in the rule for
noncompliance.102 In any event, the First Defendant did ultimately receive a
copy of the Pla intiff's Notice of Opposition to Mediation.103 This is quite
indicative of the parties' unsuitability to the mediation process.104 This second
plea in limine hardly constit utes a meritorious defence. There is no succour for
the First Defendant in putative technical defences of this nature.105
(c) Third plea in limine :106 It transpires that this is clearly not just a simple
case of the Defendants having fallen into default. The Plaintiff concedes1107
that it did previously issue summons in this court against both the Defendants
under Case Number 2499/18. It appears that default judgment was granted
against the Defendants,108 jointly and severally, for payment of R820 709.72
plus interest thereon at the rate of 8.25% calculated daily and compounded
monthly from 10 January 2018 to date of payment.109 Agreeing with
paragraph 6 of the First Defendant's Main Plea, Plaintiff acknowledges that
100 Y[... ]: M[...] N[...] v Y[... ]: J[... ] (2024/013982) Gauteng Division, Johannesburg (24 July 2024) par
[20]; MD v RJD (053357/2022) [20241 ZAGPPHC 79 (5 February 2024).
101 Lamroo (Pty) Ltd and others v Theron and others (3019/2023) [2024] ZAFSHC 32 (8 February
2024) par [41].
102 P v O (21264/2019) [2022] ZAGPJHC 826 (30 September 2022) par [20].
103 Affidavit in support of summary judgment against 1st Defendant par 11 and Annexure 'SJ2'. Absa
Bank Ltd v Gaberton Investment (Pty) Ltd (2359/2020) Limpopo Division, Polokwane (29 October
2024) par [31].
104 Y[... ]: M[... ] N[...] v Y[...]: J[... ] (2024/013982) Gauteng Division, Johannesburg (24 July 2024) par
[20].
105 AC-DC Dynamics (Pty) Ltd v Elucidation Pro (Pty) Ltd and others 2024 JDR 4151; 2024 JDR 4319
(GP) par 19; ldwala Industrial Holdings (P ty) Ltd v JB Lime Distributors (Pty) Ltd 2025 JDR 1236 (FB)
par [13] -[14]. SB Guarantee Co (RF) (Pty) Ltd v Vestgro Capital (Pty) Ltd and another (45317/2021)
Gauteng Division, Pretoria (25 June 2024) par [27]; Liberty Group Ltd v Singh and another 2012 (5 )
SA 526 (KZD) par [43] at 538.
106 See par [19](c) above.
107 Affidavit in support of summary judgment against 1st Defendant par 13.
108 See par [6] of the judgment in (36581/2020) Gaut eng Division, Johannesburg (21 February 2023)
involving all three parties.
109 Cour t Order dated 20 March 2018 granted by Kubushi, J (par 16 of the Second Defendant's
affidavit opposing summary judgment) as unambiguously reflected in Annexure 'SJ3' to the Affidavit in
support of summary judgment against 1st Defendant and Annexure 'SJ1' t o the Affidavit in support of
summary judgment against 2nd Defendant, each of which according to Roy Gomes is "a true copy of
the aforesaid Default Judgment Order" ( ibid). It was not at all granted "by the Registrar on 26 March
2018" as asserted in par 13 of the Affidavit in support of summary judgment against 1st Defendant and
in par 7 of the Affidavit in support of summary judgment against 2nd Defendant, raising a doubt as to
the real extent of Roy Gomes' actual knowledge of this case.
the arrears were settled.110 Remarkably, nothing in this regard appears in the
particulars of claim.111 This was done (according to the Main Plea of First
Defendant), once all three parties had "entered into a written settlement
agreement".112 It is by no means improbable that a settlement agreement was
reached in this reg ard. A bald averment of such an agreement is
unimpressive.113 However, the First Defendant does at least contextualize the
alleged novation with reference to the prior judgment and the subsequ ent
settlement agreement. There exists a material factual or legal dispute about
whether or not this agreement constituted a novation of their prior agreements,
as is unequivocally alleged by the First Defendant114 and si mply denied by the
Plaintiff,115 with the terse observation: "Simply put, there was no novation of
the credit agreements which agreements have been re -instated by the
operation of the l aw, automatically upon settlement of the previous arrears".116
However, neither "the well -known Nkata judgement",117 nor sections 129(3) -(4)
of the National C redit Act relied on by the Plaintiff,118 resolves the dispute
regarding the nature and effect of the written settlement agreement concluded
between the parties.119 It is not denied that there was any such agreement
whatever. A court is unwilling at the summary judgment stage to determine
such disputes relating to the merits of the principal case.120 Although the
110 Affidavit in support of summary judgment ag ainst 1st Defendant par 14 and par 15.
111 Rule 18(4).
112 First Defendant's Main Plea par 6.
113 Nichas & Son (Pty) Ltd v Papenfus 1969 (2) SA 494 ( O) at 496 -7.
114 First Defendant's Main Plea par 6.
115 Affidavit in support of summary judgment against 1st Defendant par 16.
116 Affidavit in support of summary judgment against 1st Defendant par 16 and par 14. It may be that
in observing: "In essence, the credit agreement was reinstated as the Nkata -judgment explains" (p ar
27 of the First Defendant's affidavit opposing summary judgement), the First Defendant purports to
agree with the Plaintiff's exposition in this regard (par 8.3.2 of the Plaintiff's Heads cites this as an
admission thereof), but that is not certain and this seems to be a statement of law on the part of the
First Defendant, rather than one of fact. (See par 5 of such opposing affidavit). Furthermore there is
some evidence of prevarication on Plaintiff's part regarding such alleged reinstatement in the let ter
dated 13 October 2021 by the Plaintiff's Attorney: "Kindly do note that even though the arrears were
settled in respect of the account, the legal costs were never settled and resultantly the account has
not been reinstated '' (par 20 of Secon d Defendant's affidavit opposing summary judgment and
Annexure 'B' thereto).
117 Presumably Nkata v FirstRand Bank Ltd 2016 (4) SA 257 (CC) par [104] -[105] at 284.
118 Affidavit in support of summary judgment against 1st Defendant par 14.
119 Absa Bank Ltd v Etsane 2016 JDR 0142 (GP ) par [20 ]; Chapmans Peak Hotel v South Peninsula
Municipality 1998 (4) All SA 619 (C ) at 634; van Zyl v Niemann 1964 (4) SA 661 (A) at 669 -70) Road
Accident Fund v Ngubane 2008 (1) SA 432 (SCA) par [12] at 436 -7; Mafisa v Road Accident F und
2024 (4) SA 426 (CC} par [33] at 436.
120 Tumileng Trading CC v N ational Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) par [23 ] at
634- 5; Jovan Projects (Pty) Ltd v ICB Property Investments (Pty) Ltd 2022 JDR 0051 (GJ) par [143].
Plaintiff criticises the First Defendant for "regrettably" not attaching this
agreement or at least that portion thereof referring to 'novation',121
conspicuously the Plaintiff itself has not done so either. As a result, this cour t
is at a disadvantage. A defendant is not obliged at this stage to prove its
defence in order to ward off summary judgment.122 The test to be applied in
deciding whether or not to grant summary judgment is whether the facts put
up opposing summary judgment raise a triable issue and a sustainab le
defence in the law, deserving of their day in court,123 and all that a defendant
has to do is set out facts which if proven at trial will constitute a good defence
to the claim, the pr ospects of success being irrelevant at this stage ( Cohen
NO and others v Deans (Case no 368/2022) [2023] ZASCA 56 (20 April 2023)
par [29] -[31]).124 "The defendant is not a t the stage of summary judgment
required to persuade the court of correctness of the facts stated by him or,
where the facts are disputed, that there is a preponderance of probabilities in
his favour, nor does the court at this stage endeavour to weigh or decide
disputed factual issues or to determine whether or not there is a balance of
probabilities in favour of the one party or another" ( Liquor Network Agency CC
and another v Skylim Beverages CC 2025 (2) SA 507 (GJ) Full Court par [29]
at 513 -4). The Fir st Defendant's plea that this settlement agreement is
considered a novation to (sic) any prior agreements that were concluded
between the parties cannot, even in the face of the Plaintiff's vehement denial,
without more be denigrated as unreasonable and mala fide or typified, in any
sense, as a 'sham defence'.
(d) Main plea :125
121 Affidavit in support of summary judgment against 1st Defendant par 16, as required by Rule 18(6).
122 ZTE Corporation So uth Africa v Arbiwizn (Pty) Ltd and others 2024 JDR 4048 (GP) par [31]; Arend
v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) at 303 -4;The Trustees for the Time Being of the
Pieter van der Merwe Trust v 412 Brandfordt CC (A45/2024) Free State Division, Bl oemfontein (2
August 2024) par [8] and par (12]; Malherbe v Absa Bank Ltd (A202/2013) (2014] ZAFSHC 200 (30
October 2014) par 4. "Rule 32, in its amended form, can never be construed to be a vehicle to resolve
genuine disputes of fact" (Absa Bank Ltd v Mph ahlele NO and others (45323/19, 42121/19) [2020)
ZAGPPHC 257 (26 March 2020) par [37]).
123 Basdeo and another v Discovery Life Ltd 2024 JDR 3911 (GP) par [11].
124 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) par [13) at
632:
"A defenda nt is not required to show that its defence is likely to prevail [and in this respect] the
defendant's prospects of success are irrelevant". See: Blatew Security (Pty) Ltd v Matjhabe ng Local
Municipality 2024 JDR 4509 (FB) par [23].
125 See par [19](d) above.
(1) The identity of Plaintiff and the fact that it trades as First National Bank
appears unequivocally from the documentation. As pointed out by the Plaintiff,
the First Defendant on its own version has interacted and engaged with the
Plaintiff directly, as is evinced by First Defendant's papers.126 This bare denial
is disharmonious and does not raise any issue fit for trial.127
(2) The Plaintiff glibly states that "it should be common cause that the 1st
Defendant resides at the p roperty",128 yet on its own version the Plaintiff
knows that the address of the mortgaged property is '1 […] B[...] Crescent,
Waterstone Park Estate, Greenstone Hill, Ext 18, Edenvale',129 which is a
different address from the chosen domicilium of '1[…] E[...] Mews, 6 […] T[...]
Road, Edenglen, Edenvale 1610'130 and/or '1 […] T[...] Road, Eden glen,
Edenvale 1609'.131 Plaintiff's statement in this respect is unimpressive, to say
the least. Be that as it may, it is true that First Defendant, as opposed to the
Second Defendant, never formally changed his chosen domicilium citandi et
executandi .132
(4) First Defendant's denial of the loan agreements and mortgage bonds is
difficult to reconcile with and indeed contradictory of, his contentions
regarding the payment of the arrears;133 as well as the alleged agreed debit
order.134 This bare denial cannot sustain a defence. As far as the compla int
that the Plaintiff ought to have retained or seized a portion of the Second
Defendant's pension to cover the arrears, that was simply not a viable option
for the Plaintiff.135
(5) Plaintiff in fact duly complied with the provisions of s ection 129 of the
National Credit Act insofar as First Defendant is concerned, 136 in accordance
with Sebo la and another v Standard Bank of SA Ltd and another 2012 (5) SA
126 Affidavit in support of summary judgment against 1st Defendant par 19.1 -2 and par 21.
127 Affidavit in support of summary judgment against 1st Defendant par 22.
128 Affidavit in support of summary judgment against 1st Defendant par 23.
129 Affidavit in support of summary judgment against 1st Defendant par 2.3.
130 Plaintiff's particulars of claim par 2.1 Annexure 'A'; Annexure 'B' clause 20.
131 Plaintiff's particulars of claim par 2.1 Annexure 'C' clause 5.31.2.2.
132 Affidavit in support of summary judgment against 1st Defendant par 23.
133 Affidavit in support of summary judgment against 1st Defendant par 27 and par 47.
134 Jovan Projects (Pty) Ltd v ICB Property Investments (Pty) Ltd 2022 JDR 0051 (GJ) par [69 ]: “when
the defence raised in the affidavit resisting summary judgment is inconsistent with the plea it cannot in
the absence of an explanation for the inconsistency be said to be bona fide ".
135 Absa Bank Ltd v Mokebe and Related Cases 2018 (6) SA 492 (GJ); Standard Bank of SA Ltd v
Jan Hendricks and another (11294/18) Western Cape Division, Cape Town (14 December 2018) and
related cases. Affidavit in support of summary judgment against 1st Defendant par 29 -31.
136 Affidavit in support of summary judgment against 1st Defendant par 36 -7 and Annexure 'SJ3(a)'.
142 (CC) as further elaborated on in Kubyana v Standard Bank of SA Ltd
2014 (3) SA 56 (CC) .137 The domicilium address used was indeed that chosen
by the First Defendant, 138 as set out above; and his denial of compliance with
section 129 of the National Credit Act goes no fur ther than that.139 Plaintiff
complied with the dispatching of the section 129 notices as far as First
Defendant is concerned and same had reached the destination post offices of
the First Defendant. Nothing more is expec ted of Plaintiff.140 The accusations
pertaining to an irregular interference by some unidentified employees of
Plaint iff with the First Defendant's debit order, are not only unhelpfully vague
but are also wholly unsubstantiated.141 It is difficult to conceive of any kind of
sustainable defence in this regard.142 On the First Defendant's own version
there has still not been any further settlement reached, inasmuch as he has
yet to sign the new agreement.143 On the other hand, however, Plaintiff itself
is deafeningly silent with regard to the then pending actio communi
divivundo144 in which matter, it is common cause, the Plaintiff itself was cited
as a party; nor has Plaintiff at any stage endeavoured to address this
development in its papers. Plaintiff's omission to deal with this actio communi
divivundo or the resultant judgment dated 21 February 2023, even though it
may only have been served on Plaintiff under cover of the filing notice dated
11 March 2024,145 is significant.
[25] Against Second Defendant, the Plaintiff likewise submits no issue fit for trial
has been raised:146
(a) First Special Plea : As before,147 the Plaintiff concedes that it did indeed
previously issue summons under Case Number 2499/18 and did in fact obtain
137 FirstRand Bank Ltd v Meyer Engelbrecht and another (010183/2022) Gauteng Division, Pretoria (2
March 2025) par 12.
138 Amcoal Collieries Ltd v Truter 1990 (1) SA 1 (A) at 5 -6.
139 First Defendant's Main Plea par 18.
140 SB Guarantee Company (RF) (Pty) Ltd v Ramosebi Paul Pule and another (62497/2020) Gauteng
Division, Pretoria (17 September 2021) par [32].
141 See par 34 of First Defendant's affidavit opposing summary judgment.
142 Affidavit in support of summary judgment against 1st Defendant par 43 -4 and par 46.
143 Affidavit in su pport of summary judgment against 1st Defendant par 48.
144 First Defendant's Main Plea par 27.
145 See par [19] above and par [31] below.
146 Affidavit in support of summary judgment against 2nd Defendant par 31.
what is described as "Monetary Default Judgment" against both First and
Second Defendants.148 Plaintiff avers with reference to the Court Order
Annexure 'SJ1': "that the written Agreements were most definitely not
cancelled as alleged by the 2nd Defendant"149 and indubitably that Court Order
itself nowhere states that the agreements were in fact cancelled. It is s ilent in
this regard. However, that is by no means the final word on whether or not the
agreements were cancelled as was pleaded, by way of "the consequence of"
such default judgment. For the rest, the Plaintiff repeats its contentions
regarding payment of the arrears on First Defendant's version, the automatic
reinstatement ex lege of the agreements, once more relying upon " inter alia
the well -known Nkata judgment as well as Section 129(3) of the National
Credit Act 34 of 2005",150 pointing out that the current action is based upon
new arrears which accumulated.151 According to Plaintiff, the result is that the
Court Order under Case Number 2499/2018 "has no force and effect" and res
judicata does not apply.152 As noted earlier, none of this appears in the
Plaintiff's particulars of claim.153 Regarding the Second Defendant's plea of
novation by way of a new agreement subsequent to Plaintiff obtaining default
judgment,154 the Plaintiff, identically with regard to the same plea raised by the
First Defendant, once agai n denies "that there was an agreement which
constituted a novation of the credit agreements. Regrettably the 2nd Defendant
does not attach the alleged written agreement or at least the portion referring
to 'novation'.155 Simply put, there was no novation of the credit agreements
which agreements have been reinstated by the operation of the law,
automatically upon settlement of the previous arrears".156 This denial seems
carefully crafted. It is to be observed that there is no outright denial of any
agreement whatsoever; merely that there was "an agreement which
147 See par [22](c) above.
148 Affidavit in support of summary judgment again st 2nd Defendant par 7 and Annexure 'SJ1' which ex
facie the Court Order itself is dated 20 March 2018 and not 26 March 2018 as alleged by Roy Gomes.
149 Affidavit in support of summary judgment against 2nd Defendant par 7 and Annexure 'SJ1'.
150 Affidavit in support of s ummary judgment against 2nd Defendant par 8.
151 ibid
152 Affidavit in support of summary judgment against 2nd Defendant par 9.
153 See par [24](c) above.
154 First Special Plea par 4 -5.
155 Which in terms of Rule 18(6) should have been done upon pain of the plea being deemed irregular
in accordance with Rule 18(12).
156 Affidavit in support of summary judgment against 2nd Defendant par 10.
constituted a novation" and "there was no novation" which appears to raise a
factual dispute between the parties. "Summary judgement proceedings are
not and never have been intended as a forum for the resolution of factual
disputes [Maharaj v Barclays Nati onal Bank Ltd 1976 (1) SA 418 (A) at 426A]"
(FirstRand Bank Ltd v Tshepori Holdings (Pty) Ltd and another 2025 JDR
1036 (GJ) par [17 ]).157 At the very least, it boils down to a legal enquiry
concerning the nature and the effect of such ensuing agreement, a matter
which cannot simply be dismissed out of hand on the information currently
available to this court. It is indeed noteworthy that both the Defendants
independently pleaded novation.
(b) Second Special Plea : Plaintiff denies that the Second Defendant ever
did give written notice of her change of domicilium from those chosen in the
agreements (the existence of most of which agreements she denies) to " [...]
C[...] Road, Croyden, Kempton Park". It may perhaps be a bit of a stretch for
Roy Gomes to declare, as he does: "The Plaintiff did not receive any written
notification of change of domicilium address from the 2nd Defendant at the
aforesaid postal and physical ad dress",158 or stated email address,159 as
opposed to just 'there being no record of any such receipt'. Be that as it may,
this affects solely the efficacy of the Notice in terms of Section 129 of the
National Credit Act, which was dispatched to the or iginal domicilium ,160 and as
stressed by the Plaintiff, not the validity of the summons:161 and is at best
merely a dilatory defence.162 Nonetheless, if correct, it does constitute a
defence to the immediate granting of summary judgment forthwith.163 There is
undeniably uncertainty surrounding the Second Defendant's chosen address.
157 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) par [23] at
634- 5; FirstRand Bank Lt d v McCallum 2024 JDR 4396 (GJ) par [10]. Compare: Blatew Security (Pty)
Ltd v Matjhabeng Local Municipality 2024 JDR 4509 (FB) par [22].
158 Affidavit in support of summary judgment against 2nd Defendant par 14 (Third Floor, First Place,
Bank City, Johannesburg 2000' and 'PO Box 1065, Johannesburg 2000').
159 Affidavit in support of summary judgment against 2nd Defendant par 14 ('h […]’)
160 Affidavit in support of summary judgment against 2nd Defendant par 13; and Annexure 'F' to the
Plaintiff's particulars of claim.
161 Affidavit in support of summary judg ment against 2nd Defendant par 18 -22.
162 Benson and another v Standard Bank of South Africa (Pty) Ltd and others 2019 (5) SA 152 (GJ)
par [16] at 156; Standard Bank of SA Ltd v Rockhill and another 2010 (5) SA 252 (GSJ) par [17] -[18]
at 258; contra Standard Bank of SA Ltd v van Vuuren 2009 (5) SA 557 (T) par [11] at 561 -2.
163 Standard Bank of SA Ltd v Rockh ill and another 2010 (5) SA 252 (GSJ) par [19] at 258.
Apart from the two initially chosen domici lia,164 the Second Defendant quite
obviously did inform the Plaintiff of her move to "1 […] B[...] Crescent,
Waterstone Park, Greenstone Hill Ext 18, Edenvale 1609".165 The probabilities
lend credence to her contention of having similarly advised the Plaintiff of her
subsequent move. On the other hand, her plea glaringl y lacks details in this
regard. Nevertheless, such factual dispute is irresolvable on the papers at this
stage. Alternatively to simply discounting this plea, which in the face of the
said uncertainty regarding her actual domicilium address would be imprud ent,
the Plaintiff seeks, the opportunity of complying with Section 129,166 by now
serving upon the Second Defendant the requisite Section 129 Notice.167 In the
event of non -compliance with section 129, section 130(4) of the National
Credit Act would apply,168 in which case such request would have to be
acceded to and granted.169 However, given the factual dispute concerning the
question of whether or not the Second Defendant did indeed as a matter of
fact properly advise Plaintiff of the ultimate change of her domicilium addre ss
after she had left the matrimonial home;170 as well, consequently, the dispute
as to precisely what her relevant domici lium is for purposes of section 129
notices, this court cannot be sati sfied one way or the other whether or not
there was indeed due compliance with section 129(1) of the National Credit
Act in respect of the Second Defendant. It is not suggested that Second
Defendant ever actually received the requisite notice. At summary j udgment
stage it is truly simply the right to defend that is in issue;171 and the
adjudication of a summary judgement application does not entail the
adjudication of the entire action;172 nor is a summary judgment application,
164 '1[…] T[...] Road Eden glen, Edenvale 1609' and '1[…] E[...] Mews, 6[…] T[...] Road, Edenglen,
Edenvale 1610'.
165 Second Defendant's Second Special Plea par 8.4.3. Annexure 'F' to Plaintiff's particulars of claim.
166 Affidavit in support of summary judgment against 2nd Defendant par 15 and par 23.
167 Affidavit in support of summary judgment against 2nd Defendant par 17.
168 Affidavit in support of summary judgment against 2nd Defendant par 16.
169 Investec Bank v Olivier Charles Zouzoua (21/44429) Gauteng Division, Johannesburg (7 Feb ruary
2023) par [13]. See Ryan Williams v Shackleton Credit Management (10771/2020) Western Cape
Division, Cape Town (10 November 2023) par [61].
170 First Defendant's affidavit opposing summary judgment par 11.3.
171 van Heerden v Samarkand Motion Picture Productions 1979 (3) SA 786 (T) at 789.
172 FirstRand Bank Ltd v Tshepori Holdings (Pty) Ltd and another 2025 JDR 1036 (GJ) par [16]. See:
Mercedes -Benz Financial Services v M Magome Inc 2022 JDR 0219 (GP) par [11]. Compensation
Solutions (Pty) Ltd v Compensation Commissioner and others (56219/21; 4 9156/21) Gauteng Division,
Pretoria (17 July 2023) par [32].
some kind of preliminary trial173 of the issues involved:174 "the inquiry in
summary judgme nt applications is simply whether the requirements for the
grant of summary judgment are present on the papers" ( Something Different
Concepts and Shows CC and another v South African Securitisation
Programme (RF) Ltd and others (A200/2023) [2024] ZAWCHC 10 3 (19 April
2024); 2024 JDR 2113 (WCC) par [16 ]).
(c) Plea over : The remainder of Second Defendant's Plea (the Plea Over)
comprises mere denials,175 save for the rather contradictory admission of the
First Loan Agreement,176 together with her denial of compliance by Plaintiff
with the National Credit Act.177 The latter plea has already been considered
above. The mere denials of Plaintiff's cause of action are in the circum stances
of this particular case,178 insufficient to constitute any bona fide defence to
Plaintiff's claim.179 Moreover, such denials are in conflict with the contents of
the Second Defendant's Special Pleas regarding her domicilium , the default
judgment that was obtained by the Plaintiff, the subse quent novating
agreement and her discordant admission of the First Loan Agreement. To say
the least, the denials in the Second Defendant's Plea Over are implausible.
Bare denials typically entitle plaintiff to summary judgment.180
Security
173 Or a "mini -trial" with "extensive facta probantia " (Absa Bank Ltd v Mali Zabilon Mashinini and
another NNO (32016/2019; 32 014/2019) Gauteng Division, Pretoria (22 November 2019 revised 10
December 2019) par 3.11).
174 Absa Bank Ltd v Mphahlele NO and others (45323/19, 42121/19) [2020] ZAGPPHC 257 (26 March
2020) par [36].
175 See par [19](c)(2 ) above.
176 See pa r [19](c)(1 ) above.
177 See par [19](c)(3) and (5) above.
178 Contrast: FirstRand Bank Ltd v Badenhorst NO and others (2022/5936) [2023] ZAGPJHC 779 (10
July 2023) par 91 -3; First Rand Bank Ltd v V&N Agencies CC and another 2025 JDR 1131 (GP);
Lurlev (Pty) Ltd v Unifreight General S ervices (Pty) Ltd and others 1978 (1) SA 74 (D) at 77 -8.
179 Bragan Chemicals Pty Ltd v Devland Cash and Carry Pty Ltd and Another (11096/20) [2020]
ZAGPPHC 397 (5 August 2020) par 1 0; Cellsecure Monitoring and Response (Pty) Ltd and others v
SA Securitisation Programme (RF) Ltd 2025 JDR 0594 (GP) Full Court par [26]; MJG Logistics (Pty )
Ltd v Foloyi Construction and Projects CC (2863/2023) Mpumalanga Division - Middelburg Local Seat
(10 July 2024) par [11] -[12]. See: Rule 22(2) read with Rule 18(4).
180 Cellsecure Monitoring and Response (Pty) Ltd and others v SA Securitisation Programme (RF) Ltd
2025 JDR 0594 (GP) Full Court par [24]; Absa Bank Ltd v Mali Zabilon Mashinini and another NNO
(32016/2019; 32014/2019) Gauteng Division, Pretoria (22 November 2019 revised 10 December
2019) par 5.3.
[26] Neither Defendant put up security in order to defeat summary judgment.181
Any defendant resisting summary judgment who does not give security, must file an
opposing affidavit.182
Opposing affidavits
[27] Both Defendants elected to furnish affidavits in terms of Rule 32(2)(b). Such
an opposing affidavit must 'satisfy the court'183 that the defendant has a bona fide
defence to the action and fully disclose the nature and grounds of that defence and
the material facts relied upon in support thereof.184 The facts must not be inherently
and seriously unconvincing;185 and, if they are found to be true, must constitute a
valid defence.186 A bona fide defence is accordingly one that is good in law, and that
is pleaded with sufficient particularity.187 Incongruous though it might now appear to
be, it seems that the defendant is nevertheless nowadays still not expected to
formulate the op position to the claim with the precision that would be required of a
plea; nor will the court examine it against the standards of pleading.188 However, the
defendant is nowadays expected to engage with the plaintiff's averments189
conc erning the pleaded defence;190 but is still "not meant to set out chapter and
181 Rule 32(3)(a).
182 Standard Bank of SA Ltd v Rockhill and another 201O (5) SA 252 (GSJ) par [17] at 258. Rule
32(3); Something Different Concepts and Shows CC and another v South African Securitisation
Programme (RF) Ltd and others (A200/2023) [2024] ZAWCHC 103 (19 April 2024); 2024 JDR 2113
(WCC) par [16].
183 "'Satisfy' in Rule 32(3)(b) does not mean 'prove"' (FirstRand Bank Ltd v McCallum 2024 JDR 4396
(GJ) par [1 0]).
184 Rule 32(2)(b); RSC Avelo (Pty) Ltd v Afrilink Building and Civils (Pty) Ltd and ano ther 2024 JDR
4398 (GJ) par [9]; Lourens v Mathie NO and another 2025 JDR 1505 (GP) Full Court par [16].
185 IPH Finance (Pty) Ltd v Agrizest (Pty) Ltd (21771/2021) Western Cape Division, Cape Tow n (28
February 2023) par 1; Standard Bank of SA v Friedman 1999 (2) SA 456 (C) at 461 -2; SA
Securitisation Programme (RF) Ltd and others v Cellsecure Monitoring and Response (Pty) Ltd and
others (21647/ 2021) [2022] ZAGPPHC 925 (25 November 2022) par [33].
186 FirstRand Mortgage Company (RF) (Pty) Ltd v Pretorius 2025 JDR 1052 (WCC) par 15;
Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 227 -8; Standard Bank of SA v Friedman
1999 (2) SA 456 (C) at 461 -2.
187 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426; IPH F inance (Pty) Ltd v Agri zest
(Pty) Ltd (21771/2021) Western Cape Division, Cape Town (28 February 2023) par 2.
188 Lourens v Mathie NO and another 2025 JDR 1505 (GP) par [16]; Maharaj v Barclays National
Bank Ltd 1976(1) SA 418 ( A) at 426; Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek JV
2009 (5) SA 1 (SCA) par [32] at 12; Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020
(6) SA 624 (WCC) par [26] -[27] at 635 -6.
189 "The plea contains facta probanda; the affidavit also contains facta probantia" ( Vukile Property
Fund Ltd v Naledi Bakeries CC and others (2022 - 033617) Gauteng Division, Johannesburg (7
March 2024) par [3]).
190 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) par [24] at 635;
verse of the particulars of the defence" ( Mason NO v Mason and another (1286/2023)
[2025] ZASCA 44 (14 April 2025) par [22 ]). It is true that opposing affidavits in
summa ry judgment proceedings are customarily treated with a certain degree of
indulgence and even a tersely stated defence may pass muster in a given case
(Absa Bank Ltd v D C Peacock and another (1340/2020) Western Cape Provincial
Division, Cape Town (26 Octob er 2020); Koomklip Beleggings (Edms) Bpk v Allied
Minerals Ltd 1970 (1) SA 674 (C) at 678) . Nonetheless, any defences emerging from
the opposing affidavit that are inconsistent with the plea,191 should not, without more,
be regarded as bona fide.192 Indeed it has been held that a defendant "is confined t o
the defences raised in the plea already filed" and that "it is irregular for a defendant
to raise ... a defence in the answering affidavit resisting summary judgment that was
not raised in the plea that was filed".193
First Defendant's affidavits
[28] In his initial affidavit opposing the granting of summary judgment (especially
emphasizing his opposition to those orders sought in terms of prayers 3 to 9 of the
particulars of claim194), the First Defendant, 55 years old,195 contradicts the non -
admission thereof that is embodied in his Main Plea,196 by explaining "why t hese
agreements were signed and the context of each agreement".197 The defence raised
in the opposing affidavit should be consistent with the plea.198 Also, it is First
Defendant's unexpected "submission that the Plaintiff is entitled to recover from us
the money that is owed over these agreements and two mortgage bonds registered
and a defendant cannot rely on defences not canvassed in such opposing affidavit (Petersen and
others v Kgopelang Medical Servi ces Inc 2025 JDR 0988 (GJ) par [14)).
191 Standard Bank of SA Ltd v Amra 2025 JDR 1453 (FB) par (9] and par [11] -[12].
192 AHMR Hospitality (Pty) Ltd [t/a Bakenhof] Winelands Venue v da Silva 2024 (3) SA 100 (WCC) par
[14] at 105; FirstRand Mortgage Co (RF) (Pty) Ltd v Pretorius 2025 JDR 1052 (WCC) par 42 -3. "A
deviation in the answering affidavit to [ sic] a defence pleaded in [the] filed plea is a manifestation of a
lack of bona fides"(FirstRand Bank Ltd v Sayelo (Pty) Ltd 2024 JDR 5351 (GP) par [27]).
193 FirstRand Bank Ltd v Sayelo (Pty) Ltd 2024 JDR 5351 (GP) par [27].
194 First Defendant's Affidavit opposing summary judgment par 9 -10.
195 First Defendant's affidavit opposing summary judgment par 11.1.
196 First Defendant's Main Plea par 12. See par [19](d)(3) above.
197 First Defendant's affidavit opposing summary judgment par 11, especially par 11.1 and par 117-8
(par 11.10 to 12.1 -2. Summarize the documents set out in Plaintiff ’s particulars of claim and the terms
thereof).
198 Standard Bank of SA Ltd v Zada Tech (Pty) Ltd and another 2024 JDR 4932 (FB) par [9]. Subject
to a possible amendment of the plea (Absa Bank Ltd v Meir ing 2022 (3) SA 449 (WCC) par [20] at
457).
over our home".199 Apart from a rambling exposition of the nature or contents of the
various agreements attached to the particulars of claim,200 First Defendant raises the
following seemingly salient points, none of which, however, upon examination, can
be regarded as amounting to any defence defeating the application for summary
judgment:
(a) 'The Certificate of Balance (Annexure 'E') is incorre ct': First Defendant
disputes the amounts claimed,201 complaining that Plaintiff consolidated202
into one single account203 "two bonds",204 notwithstanding that each has a
different interest rate, amount and time periods, rendering it impossible to
"determine what is ow ing in each account and the interest charged in
accordance with each agreement".205 Consequently, according to First
Defendant, "Plaintiff has failed to prove our default".206 The First Defendant
does not endeavour to determine what, if anything, the correct amount might
be.207 Moreover, First Defendant has failed to establish an adequate factual
basis for doubting the validity or accuracy of this Certificate of Balance
Annexure 'E' .208 "The ever -increasing perception that bald averments and
sketchy propositions are sufficient to stave off summary judgment is
misplaced and not supported by the trite general principles developed over
many decades by our courts" ( NPGS Protection and Security Services CC v
FirstRand Bank Ltd 2020 (1) SA 494 (SCA) par [14] at 498 ). This court is
unpersuaded that the First Defendant has in t his regard set forth facts which if
proved at trial will indicate either that the stated balance is inaccurate; or that
the interest rate as contained in the Certificate of Balance is not the correct
interest rate.
199 First Defen dant's affidavit opposing summary judgment par 13.
200 First Defendant's affidavit opposing summary judgment par 11.10 to par 12.16.
201 First Defendant's affidavit opposing summary judgment par 13.
202 As appears from Annexure 'SJ4'
203 As reflected in Annexure 'SJ4' to the Plaintiff's Affidavit in support of summary judgment against
1st Defendant.
204 The Particulars of Claim refer to "the account" (par 20.4) and also to: "The mortgage bond account
held with the plaintiff" (p ar 20.10). Annexure 'E' is in respect of the "Home Loans' account balance"
under a single account number: 3 […].
205 First Defendant's affidavit opposing summary judgment par 14 and par 15.
206 First De fendant's affidavit opposing summary judgment par 16.
207 "approximately R143 000" (par [20](d)(3) above) does not measure up and relates merely to
arrears.
208 Compare: F & I Advisors (Edms) Bpk en 'n ander v Eerste Nasionale Bank van SA Bpk 1999 (1)
SA 515 (SCA) at 524.
(b) The First Defendant claims he himself made a payment of R65 000.00
on 14 October 2022 as his share of the arrears as well as paying the monthly
instalment amount of R9 350.00,209 suggesting perhaps that this was not
taken into accou nt.210 That is insufficient to constitute a bona fide defence.
(c) In his subsequent affidavit dated 12 December 2022,2111 First
Defendant provides ostensible proof that he has made payments in the total
amount of R93 050.00 (Ninety -Three Thousand and Fifty Rand) towards the
mortgage bond;212 plus a total payment of R20 000.00 (Twenty Thousand
Rand) towards the municipal account (City of Johannesburg);213 and R17
000.00 (Seventeen Thousand Rand) to repair the floor in the lou nge area of
one of the flatlets on the property.214 This however, is all by the way.
(d) The mortgaged property is First Defendant's primary residence.215 This
is not disputed by the Plaintiff, hence the relief sought under Rule 46A.216
(e) Their erstwhile matrimonial home is jointly owned by the Defendants
and is their major asset.217 That is of no consequence as far as this
application is concerned.
[29] There is no merit in the complaint, related to the non -admission of the
Plaintiff's citation,218 that the Plaintiff has failed to attach the National Credit
Regulators Registration Certificate to the particulars of claim.219 It is superfluous to
attach a copy of such registration ce rtificate to the pleadings.220 In any event, such a
certificate would merely serve to prove what is comprehensively alleged in
209 First Defendant's affidavit opposing summary judgment par 8.
210 Lack of knowledge of the amount outstanding constituting no defence (Petlen Properties (Pty) Ltd
v Boland Construction Co (Ply) Ltd 1973 (4) SA 557 (C) at 560 -1; Western Province Hardware &
Timber Co (Pty) Ltd v Frank Fletcher [1971] 2 PH F77 (C)).
211 In Johannesburg Case No: 36581/2020, incorporated in the present matter (see par [19] above).
212 Supplementary Affidavit in Johannesburg Case No: 36581/2020 par 4.2.
213 Supplementary Affidavit in Johannesburg Case No: 36581/2020 par 4.6.
214 Supplementary Affidavit in Johannesburg Case No: 36581/2020 par 4.7.
215 First Defendant's affidavit oppos ing summary judgment par 29 (see also par 11.2 thereof); par [3]
of the judgment in (36581/2020) Gauteng Division, Johannesburg (21 February 2023) involving all
three parties.
216 Plaintiff's affidavit in support of summary judgment against 1st Defendant par 52. See par [1] above.
217 First Defendant's affidavit opposing summary judgme nt par 7.
218 See par [20](d){1) above.
219 First Defendant's affidavit opposing summary judgment par 18.
220 Nedbank Ltd v Wiid Group of Companies (Pty) Ltd and others (4330/2024) [2025 ] ZAFSHC 97 (19
March 2025) par [12] and par [16].
paragraph 1.3 of the particulars of claim.221 The further complaint that the relief now
sought by way of summary judgment differs from the prayers in the particulars of
claim,222 is misplaced. The relief set out prayers 5, 7 and 8 of the notice of
application for summary judgement against First Defendant and regurgitated as
paragraphs 2.5, 2.7 and 2.8 of the affidavit in support of the summary judgment
against First Defendant, concerns ancillary matters that, at worst, fall under the
rubric "further and/or alternative relief' in prayer 6 of the particulars of claim. Their
inclusion does not, by any means, constitute a defence derailing Plaintiff's
application. The sa me applies to the point made that Annexure 'C' to the particulars
of claim does not authorize a claim for costs on an attorney and client scale.223
Second Defendant' affidavit
[30] Second Defe ndant similarly filed an affidavit opposing summary judgment in
which she raises by way of defence, in addition to the non -commissioning of the
Plaintiff's affidavit in support of summary judgment against her,224 also the earlier
action under Case Number 2499/18 and the default judgment already obtained
against the Defendants by the Plaintiff.225 Second Defendant does not, however,
engage with Plaintiff's averments concerning the pleaded defence.226
Deus ex machina
[31] Part of First Defendant's opposition to summary judgment before this court227
is the judgment in the matter of DE SANTOS LIBBY AMELIA v DE SANTOS PAULO
JORGE and also FIRST NATIONAL BANK228 (36581/2020) Gau teng Division,
221 See: FirstRand Bank Ltd v Bhika and another (3135/2022) [2025) ZAECQBHC 5 (6 February 2025)
par [11]. "The cause of action consists of the facts required for judgment, not the evidence" (FirstRand
Bank Ltd v Bad enhorst NO and others (2022/5936) [2023] ZAGPJHC 779 (10 July 2023) par 7).
222 First Defendant's affidavit opposing summary ju dgment par 20.
223 First Defendant's affidavit opposing summary judgment par 19.
224 Second Defendant's affidavit opposing summary judgment par 6 -12, which was justifiably raised as
a legal objection after her plea and which could obviously not have been covered by her preceding
plea.
225 Second Defendant's affidavit opposing summary judgment par 13 -20. See par [25](a) above.
226 Rule 32(2)(b). Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC)
par [24) at 635; Standard Bank of SA Ltd v Luvhomba Financial Services CC 2025 JDR 1933 (GP)
par [20.1] and par [20.3].
227 See par [19] above.
228 i.e. the Plaintiff herein.
Johannesburg (21 February 2023), First Defendant arguing,229 that this court "is
bound to consider, and abide by" that judgment. In that judgment the court (per
Makume, J) issued an order in the following terms:
1. "The co -ownership of [Second Defendant] and the [First Defendant] in
respect of the immovable property situ ated at 1 […] B[...] Crescent,
Waterstone Park, Greenstone Hill, Johannesburg, being Portion E1, Stand
0[…] ('the property') is hereby terminated". Although its description does differ
somewhat, this is undoubtedly the mortgaged property of which the Plaint iff is
mortgagee.
2. "The property is to be sold on the open market for the amount of not
less than R3,200 000.00 (Three Million and Two Hundred Thousand Rand).
The advert advertising such sale shall be visible for 3 months from date of this
order being se rved on the [First Defendant]".
3. "The costs relating to or associated with the property ( bond , levies,
rates, taxes, water and electricity) are to be shared equally between the
(Second Defendant] and the [First Defendant] during the first three (3) months
that the property is placed on th e open market" (emphasis added). Joint
liability is, of course, something different from joint and several liability.230See,
further, paragraphs 9 and 11 of this court orde r, below.
4. "If after three (3) months [of] the property being on the open market it
has not been sold, then the flats on the property must be rented out and the
property must remain on the open market for a reduced amount after
consideration by attorneys Wilsenach van Wyk Goosen & Bekker in
consultation with Estate Agents until the property is in ....". Unfortunately this
paragraph of the court order is incomplete. Nonetheless by virtue of
paragraph 6 thereof the said attorneys Wilsenach van Wyk Goosen & Bekker
are clothed with authority to sell the property (see below).
5. 'The net proceeds received in respect of the sale of the property shall
be kept in an interest bearing account with Wilsenach van Wyk Goosen &
Bekker for the benefit of the [Defendants] pending the final determination of
the divorce action between the parties".
229 In First Defendant's Heads of Argument dated 10 March 2024 par 1.
230 Lloyd v Richards and another (4892/2022) [2025] ZAWCHC 41 (13 February 2025) par 5.
6. "Messrs Wilsenach van Wyk Goosen & Bekker Attorneys are hereby
granted the authority to direct and effect the sale and disposal of the property
including the power and authorit y to solely negotiate ad agree on the terms
and conditions for the sale of the property".
7. "The [Defendants] shall co -operate fully in respect of the marketing,
sale and disposal of the property, by signing all the necessary documents to
give effect to t he sale of the property and renting out the flats on the property".
8. "Pending registration and transfer of the property into such purchaser's
name, that Wilsenach van Wyk Goosen & Bekker Attorneys, are empowered
and authorised to administer the property, including the power and authority to
let out the property to let out the property on such terms and conditions as it
may determine, and to receive the monthly rental income in respect of the
flats on the property in its trust account, to distribute the re ntal income
towards the costs of the property ( bond , levies, rates and taxes, water and
electricity)". [emphasis added].
9. "Any shortfall in respect of the monthly costs associated with the
property [see paragraphs 3 and 11 of the court order, above] will be shared
equally between the [Defendants] and any surplus in respect of the rental
income of the property must be kept on trust at Wilsenach van Wyk Goosen &
Bekker Attorneys until the final determination of the divorce action".
10. 'The [First Defendant ] is to remain in occupation of the main house of
the property pending the sale of the property to enable him to continue
maintaining the property for the purposes of letting and ensuring that it is
retained in a state which would ensure that it may be sol d at a realistic price".
11. "[Defendants] are equally responsible for the arrears of the costs
associated with the property, being the FNB bond account [held by the
Plaintiff], City of Johannesburg account (rates, taxes, water) and Waterstone
Park Owners Association account (levies, charges, penalties), taking into
account the amounts that the [First Defendant] already paid towards the
arrears".
12. "Each party to pay their own costs in respect of this application".
[32] Indubitably some of the relief sou ght by the Plaintiff in this summary judgment
application has been pre -empted by the aforesaid court order of 21 February 2023.
Despite the unavoidable conclusion that events seem to have overtaken this
application for summary judgment that was launched du ring 2022,231 the Plaintiff has
not dealt with this development whatsoever nor with its effect upon the earlier
obligations of the Defendants,232 notwithstanding Plaintiff's obligation "to come to
grips with the substantive elements of the pleaded defence and set out why, having
regard to those substantive elements, the defence does not constitute a bona tide
defence" ( Hennie Ehlers Boerdery CC v APL Cartons (Pty) Ltd (359/2022) Eastern
Cape Division, Gqeberha (8 August 2023) par 25.3 ). It is unknown what the present
state of play is regarding the sale and disposal of the immovable property and the
application of the proceeds thereof, if any; or the f ate of the Plaintiff's mortgage
bonds (which one would assume would have received preference); or the progress
of the Defendants' divorce action with its possible impact on the mortgaged property.
[33] The aforesaid judgment by Makume, J seems effectively to resolve the
outcome of this application. This judgment cannot simply be ignored, as Plaintiff
would have this court do; and it certainly cannot be held that this judgment is
wrong.233 This judgment affects the position not only of the Plaintiff but also of both
the Defendants.
Discussion
[34] Although this court is not persuaded that any bona fide defence has been
made out by either Defendant, it is not possible to make a positive findi ng in this
respect, given the paucity of available information and the existence of the
abovementioned disputes. The defence of neither Defendant has been set out with
clarity or particularity and completeness.234 By the same token, however, this court is
231 Plaintiff's Chronology Table.
232 Plaintiff's Chronology Table ends in November 2022 with the filing of the respect ive Defen dant’s
opposing affidavits. The Plaintiff's Heads of Argument although dated 19 June 2023 contain nothing
more than a mere passing reference to the "pending application" ( sic) for division of joint ownership
(in par 10.1.2 thereof) whereas that application was finalized already on 21 February 2023..
233 Compensation Solutions (Pty) Ltd v Compensation Commissioner and othe rs (56219/21; 49156/21)
Gauteng Division, Pretoria (17 July 2023) par [15] -[19] and par [28 ]; van Rensburg and another NNO
v Naidoo and others NNO; Naidoo and others NNO v van Rensburg NO and others 2011 (4) SA 149
(SCA) par [47] -[48] at 161 -2.
234 Marsh and another v Standard Bank of SA Ltd 2000 (4) SA 947 (W) par 4 at 949; SB Guarante e
Co (RF) (Pty) Ltd v Vestgro Capital (Pty) Ltd and another (45317/2021) Gauteng Division, Pretoria (25
June 2024) par [26].
surely not convinced that Plaintiff necess arily has an unassailable case; or has
properly satisfied every procedural prerequisite for summary judgment.
[35] The Full Court in Liquor Network Agency CC and another v Skylim Beverages
CC 2025 (2) SA 507 (GJ) par [26] -[28] at 512 -3 elucidating the proper approach to
an application for summary judgment favoured the approach that stresses: "it is only
where the Court has no reasonable doubt that the plaintiff is entitled to judgment as
prayed, that plaintiff has an unanswerable case, that summary judgment is
granted".235 This approach recognizes that summary judgment , albeit hardly
extraordinary,2236 is certainly robust,237 if not drastic.238 Clearly, it represents a very
stringent remedy,239 in that it permits a judgment to be given without trial.240 It closes
the doors of the court to the defendant.241 Summary judgment is not intended to shut
a defendant out from defending unless it is very clear indeed that the defendant has
no case ( Meek v Kruger 1958 (3) SA 154 (T) at 157 ) because "the grant of the
remedy is based upon the supposit ion that the plaintiff's claim is unimpeachable and
that the defendant's defence is bogus or bad in law" ( Maharaj v Barclays National
Bank Ltd 1976 (1) SA 418 (A) at 423 ).
[36] In addition to all of the above, it may quite justifiably be postulated that t he
facts of the previous default judgment together with the reinstatement of agreements
pursuant to the subsequent agreement and liquidation of the arrears, as alleged by
the Plaintiff in support of summary judgment, constitute material facts upon which th e
Plaintiff relies for this claim and, as such, ought rightly to have been incorporated into
the particulars of claim.242 The first duty of a pleader is to allege the material facts
235 See: Edwards v Menezes 1973 (1) SA 299 (NC) at 304.
236 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek JV 2009 (5) SA 1 (SCA) par [32] at 12.
237 SB Guarantee Company (RF) (Pty) Ltd v Ramosebi Paul Pule and another (62497/2020) Gauteng
Division, Pretoria (17 September 2021) par [1].
238 Something Different Concepts and Shows CC and another v SA Securitisation Programme (RF)
Ltd and ot hers (A200/2023) [2024] ZAWCHC 103 (19 April 2024); 2024 JDR 2113 (WCC) par [14]..
239 Nedbank Ltd v Kgobe 2024 JDR 4549 (GJ) par 23.
240 Beyonce Hairpie ce Salon and General Mechandiser (Pty) Ltd and another v Bester and another
(AR 423/2022) [2023] ZAKZPHC 92 (8 September 2023) par [4].
241 PCL Consulting (Pty) Ltd t/a Phillips Consulting SA v Tresso Tradin g 119 (Pty) Ltd (A5005/2005)
Witwatersrand Local Division (26 September 2005) par [1] -[2]; Mowschenson and Mowschenson v
Mercantile Acceptance Corporation of SA Ltd 1959 (3) SA 362 (W) at 366. See, further: Basdeo and
another v Discovery Life Ltd 2024 JDR 3911 (GP) par [7].
242 Rule 18(4).
upon which reliance is placed.243 "This must be seen against the background of the
further requirements that the object of pleadings is to enable each side to c ome to
trial prepared to meet the case of the other and not to be taken by surprise" ( Trope v
South African Reserve Bank and another 1992 3 SA 208 (T) at 210 ). "It is
fundamental to the judicial process that the facts have to be established. The Court,
on the established facts, then applies the rule of law and draws conclusions as
regards the rights and obligations of the parties and gives judgement" ( Buchner and
another v JC I Co Ltd 1995 (1) SA 215 (T) at 216 ). The particulars of claim appear to
be incompl ete in this regard. As a result, the attention of the Defendants was not
alerted to such allegations.244 Absent such legal and factual allegations in the
particulars of claim, it can hardly be said that the Plaintiff comprehensively stipulated
the points of law relied upon and the facts upon which its claim is based as required
by Rule 32(2)(b). After all, the Plaintiff is required to identify any point of law relied
upon in relation to the claim upon which summary judgment is sought as well as the
facts upon which Plaintiff's claim is based ( Absa Bank Ltd v Mphahlele NO and
others (45323/2019, 42121/ 2019) [2020] ZAGPPHC 257 (26 March 2020) par [18 ]).
Generally, a plaintiff is not entitled to introduce evidence of facts that do not appear
in the particulars o f claim or declaration ( Hennie Ehlers Boerdery CC v APL Cartons
(Pty) Ltd (359/2022) Eastern Cape Division, Gqeberha (8 August 2023) par [20];
Absa Bank Ltd v Mphahlele N.O. and others [2020] ZAGPPHC 257 (26 March 2020)
at [32]; Morgan Cargo (Pty) Ltd v Za kharov (11850/20) [2022] ZAWCHC 132 (4 July
2022) par [20 ]). Accordingly, Plaintiff's two applications for summary judgment are
243 Rule 18(4). Prinsloo v Woolbr okers Federation Ltd 1955 (2) SA 298 (N) at 299; Blos v Minister of
Police (114/2019) [2023] ZANWHC 126 (20 July 2023) par [22].
244 This action has more to it than an uncomplica ted and commonplace case of Defendants defaulting
on their loans, which is what it ex facie the particulars of claim purports to be. The rule that parties are
limited to their pleading (Jordaan v Koekemoer 2009 JDR 0504 (ECG) par (26]) is apposite in these
circumstances (Road Accident Fund v Malatje 2014 JDR 1248 (GP) Full Court par 40). "Factual
issues which form the basis of a party's case must be pleaded and not only raised during the trial"
(Jordaan v Koekemoer 2009 JDR 0504 (ECG) par (25)). "The object of pleading is to define the
issues" (Robinson v Randfontein Estates Gold Mines Co Ltd 1925 (AD) 173 at 198)."Generally
speaking the issues in civil cases should be raised on the pleadings" (Rule 18(4). Middleton v Carr
1949 (2) SA 374 (Al at 386). By neg lecting to allege the salient facts relating to the default judgment
and subsequent alleged reinstatement of the agreements, issues that are relied upon in support of
summary judgment, the Plaintiff in effect is attempting now to canvass an issue which was not
pleaded (Road Accident Fund v Malatje 2014 JDR 1248 (GP) Full Court par 43)) and to which
attention was not directed in the particulars of claim, which is impermissible (Kali v IGI Ltd 1976 (2)
SA 179 (D) at 182; Nyandeni v. Natal Motor Industries Ltd 1974 (2) SA 274 (D) at 279; Shil v Milner
1937 AD 101 at 106). "The whole purpose of pleadings is to bring clearly to the notice of the Court
and the parties to an action the issues upon which reliance is to be placed" (lmprefed (Pty) Ltd v
National Trans port Commission1993 (3) SA 94 (A) at 107; Durbach v Fairway Hotel Ltd 1949 (3) SA
1081 (SR) at 1082).
not entirely procedurally in order,245 and consequently cannot be said to satisfy that
initial requirement under Rule 32.246 In order for the affidavit in support of summary
judgment to comply with Rule 32(2)(b), that affidavit must contain inter alia an
identification of a ny point of law relied upon and an identification of the facts upon
which the plaintiff's claim is based; and the court needs to ensure that both of these
requirements have been fulfilled before it can hold that there has been proper
compliance with Rule 3 2(2)(b).247 Summary judgment "calls for strict compliance with
the prerequisites as provided for in Rule 32(2)(b)" ( Ummi Properties (Pty) Ltd v Absa
Bank Ltd (71053/2016) Gauteng Provincial Division (23 January 2023) par [15 ]). The
identification of facts upon which the plaintiff's claim is based does not provide for
"amplification" in the plaintiff's affidavit of the cause of action as set out in the
particulars of claim;248 and further, the identification of any point of law relied upon,
clearly refers to an identification of a point of law relied upon in relation to the claim
upon which summary judgment is sought, not in relation to the defence as pleaded
by the defendant.249 The reinstatement of the agreements and the prior default
judgment are matters that were not at all raised or foreshadowed in the particulars of
claim. Summary judgment is not simply for the taking.250
[37] Traditionally "our courts have always been reluctant to deprive a defendant of
his right to defend an action and proceed to trial, e xcept where there is a clear case"
(ZTE Corporation South Africa v Arbiwizn (Pty) Ltd and others 2024 JDR 4048 (GP)
par [33 ]). In the light of all the circumstances of the present matter, the Plaintiff
245 Standard Bank of SA Ltd v Luvhomba Financial Services CC 2025 JDR 1933 (GP) par [20.1] and
par (20.3).
246 Northern Cape Scrap & Metals (Edms) Bpk v Upington Radiators & Motor Graveyard (Edms) Bpk
1974 (3) SA 788 (NC) at 793; Nedbank Ltd v Kgobe 2024 JDR 4549 (GJ) par 8; Standard Bank of SA
Ltd v Zada Tech (Ply) Ltd and another 2024 JDR 4932 (FB) par [5]; "an applicant must properly
comply with the requirements of the Rule" (Shackleton Credit Management (Pty) Ltd v Microzone
Trading 68- CC and another 2010 (5) SA 112 (KZP) par [26] f22 at 123); Gauteng Refinery (Pty) Ltd v
Eloff 2023 (2) SA 223 (GJ) par [1 0] at 225.
247 Absa Bank Ltd v Mphahlele NO and others (45323/19, 42121/19) [2020] ZAGPPHC 257 (26 March
2020) par [15].
248 Absa Bank Ltd v Mali Zabilon Mashinini and another NNO (32016/2019; 32014/2019) Gauteng
Division, Pretoria (22 November 2019 revised 10 December 2019) par 3.1O; Absa Bank Ltd v
Mphahlele NO and others (45323/2019, 42121/2019) [2020] ZAGPPHC 257 (26 March 2020) par [19].
249 Absa Bank Ltd v Mphahlele NO and others (45323/19, 42121/19) [2020] ZAGPPHC 257 (26 March
2020) par [18]; Standard Bank of SA Ltd and another v Five Strand Media (Pty) Ltd and others
(745/20) (2020] ZAECPEHC 33 (7 Se ptember 2020) par [9]; Saglo Auto (Pty) Ltd v Black Shades
Investments (Pty) Ltd (53113/19) [2020] ZAGPPHC 808; 2021 (2) SA 587 (GP) (22 September 2020)
par [44].
250 Standard Bank of SA Ltd v Sandile Madolo (23434/2019) Gauteng Division, Johannesburg (12
June 2024) par 5.
cannot be found to have an unassailable case;251 nor can the doors of the court be
shut for the Defendants in view of the unresolved factual or legal dispute between
the parties concerning novation.252 A relatable attempt by a defendant to rely upon
compromise was rejected by the court in Nedbank Ltd v Richardson (2184/21) [2022]
ZAECGHC 96 (12 December 2022) par [16] -[21] following an exhaustive analysis of
the terms thereof. That is not possible here. Each case must be adjudicated on its
own merits in deciding whether the matter is ill -suited for summary judgment.253
Conceivably, there may be merit in the case of the Defendants, but there are also
merits in the case of the Plaintiff; and therefore that issue raised would best be dealt
with durin g the trial.254 Clearly Plaintiff's application for summary judgment cannot
succeed against First Defendant.255 There is also the vexed question of the
domicilium of the Second Defendant. Summary judgment against the Second
Defendant is equally inapt, absent, in her case, clarity regarding due compliance by
Plaintiff with sections 129(1) and 130(1)(a) of the National Credit Act,256
notwithstanding the wit hdrawal of her opposition.257 Rule 32(6)(a)(i) is consequently
inapplicable.
[38] This is no t a matter in which summary judgment can be granted for a part of
the Plaintiff's claim.258
251 BC Fun ding Solution (Pty) Ltd v Estate Agency Affairs Board 2024 JDR 1058 (GJ) par [24].
252 Tubular Technical Co nstruction (Pty) Ltd v Lindrew Kontrakteurs CC 2012 JDR 2028 (GNP) par
[11].
253 Ingenuity Property Investments (Pty} Ltd v Ignite Fitness (Pt y) Ltd (9845/2022} Western Cape
Division, Cape Town (29 May 2023} par 44.
254 The Trustees for the Time Being of the Pieter van der Merwe Trust v 412 Brandfordt CC (A45/2024)
Free State Division, Bloemfontein (2 August 2024) par [15].
255 "Naturally, summary judgment cannot be granted where it is clear that some ventilation of evidence
is required in order for the Court to come to a decision" (Fi rstRand Bank Ltd t/a Wesbank v Maenet JA
Attorneys Inc (8557/2021) (2021] ZAGPPHC 612 (17 September 2021} par [21).
256 Nkata v FirstRand Bank Ltd 2016 (4) SA 257 (CC) par [175] at 299; Blue Chip 2 (Pty) Ltd t/a Blue
Chip 49 v Ryneveldt and Ot hers (National Credit Regulator as Amicus Curiae) 2016 (6) SA 102 (SCA)
par [18] at 108; FirstRand Bank Ltd v Reineke and another (A103/2024) (2025] ZAGPPHC 57 (21
January 2025) Full Court. Sec 130 (3)(a) of the National Credit Act.
257 The initial enquiry being whether or not the Plaintiff's cause of action is in order: "Even befor e a
court considers whether the defendant has established a bona tide defence, it is necessary for the
court to be satisfied that the plaintiff's claim has been clearly established and its pleadings are
technically in order ( Gulf Steel (Pty) Ltd v Rack -Rite BOP (Pty) Ltd and another 1998 (1) SA 679 ( 0) at
683J -684A )" (Standard Bank of SA Ltd v Zada Tech (Pty) Ltd and another 2024 JDR 4932 (FB) par
[5]; Standard Bank of SA Ltd v Amra 2025 JDR 1453 (FB) par [71); and is also factually complete: "It
is clear t hat the cause of action to be verified must be complete" (du Coudray v Watkins (AR 613/09)
(2010] ZAKZPHC 9 (26 March 2010) par [22]; Nedbank Ltd v Kgobe 2024 JDR 4549 (GJ) par 9 and
par 11).
258 Rule 32(6)(b)(ii).
Discretion
[39] "A court deciding a summary judgment application has an overriding
discretion [Soil Fumigation Services Lowveld CC v Chemfit Te chnical Products (Pty)
Ltd 2004 (6) SA 29 (SCA) at paras 1 0 and 11].259 What is mea nt by this is if the court
has any doubt as to whether the plaintiff's case is unanswerable at trial such doubt
should be exercised in favour of the defendant and summary judgment should be
refused" ( South African Securitization Programme (RF) Limited and others v Maxidor
SA (Pty) Ltd and others 2024 JDR 3169 (GJ) par [37 ]).260 The court retains this
residual discretion to refuse summary judgment, even where the defendant's
proffered defence or opposing affidavit fails to measure up fully to the requirements
of Rule 32(3)(b),261 and even if the defence appears weak or insubstantial.262 "This
discretion is not premised on mere conjecture or speculation but must be exercised
on the basis of the material before court" ( Absa Bank Ltd v Laduma Foods and
others (3083/2024) Limpopo Division, Polokwane (11 February 2025) par [13 ]).263
Obviously such discretion cannot be exercised capriciously, depriving a deserving
plaintiff of summary judgment ( FirstRand Bank Ltd v McCallum 2024 JDR 4396 (GJ)
par [11]),264 but will redound to a defendant's favour If it is reasonably poss ible that
the plaintiff's application is defective;265 or where the court is not persuaded that the
259 Rule 32(5). FirstRand Mortgage Company (RF) (Pty) Ltd v Pretorius 2025 JDR 1052 (WCC) par
18- 19; IPH Finance (Pty) Ltd v Agrizest (Pty) Ltd (21771/2021) Western Cape Division, Cape Tow n
(28 February 2023) par 4 -5; First National Bank of SA Ltd v Myburgh and another 2002 (4) SA 176 (C)
par (9] at 180; Arend and another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) at 304 -5.
FirstRand Bank Ltd t/a Wesbank v Maenet JA Attorneys Inc (855 7/2021) [2021] ZAGPPHC 612 (17
September 2021) par [63) -[65]; Capitalbox Green Energy Finance (Pty) Ltd v Baruk Petroleum (Pty)
Ltd and others 2024 JDR 4640 (FB) par [36]. Such discretion also arises inasmuch as the claim for
the accelerate d full outst anding balance (par 14 -5, prayers 1 -2 of the Particulars of Claim), is one for
specific perfor mance (Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) at 782; Absa
Bank Ltd v Mokebe and Related Cases 2018 (6) SA 492 (GJ) par [27]).
260 Jovan Projects (Pty) Ltd v ICB Property Investments (Pty) Ltd 2022 JDR 0051 (GJ) par [170) and
(172]; Edwards v Menezes 1973 (1) SA 299 (NC) at 304; ZTE Corporation SA v Arbiwizn (Pty) Ltd
and others 2024 JDR 4048 (GP) par [34].
261 Rule 32(5); ZTE Corporation SA v Arbiwizn (Pty) Ltd and others 2024 JDR 4048 ( GP) par [39];
Gruhn v N Pupkewitz & Sons (Pty) Ltd 1973 (3) SA 49 (A) at 58; Tesven CC v Bank of Athens 2000
(1) SA 268 (SCA) par [25] at 277; First National Bank of SA Ltd v Myburgh 2002 (4) SA 176 (C) at
180; Phillips v Phillips and another (292/2018) (2 018) ZAECGHC 40 (22 May 2018} par (38) -(43);
FirstRand Bank Ltd v McCallum 2024 JDR 4396 (GJ) par [11]; IPH Finance (Pty) Ltd v Agrizest (Pty)
Ltd (21771/2021) Western Cape Division, Cape Town (28 February 2023) par 4.
262 Pareto (Pty) Ltd and another v Theron and another 2024 JDR 3832 (WCC) par 12.
263 Gilinsky and another v Superb Launderers and Dry Cleaners (Pty) Ltd 1978 (3) SA 807 (C) at 811.
264 FirstRand Mortgage Company (RF) (Pty) Ltd v Pretorius 2025 JDR 1052 (WCC) par 18 -19.
265 Liquor Network Agency CC and Another v Skylim Beverages CC 2025 (2) SA 507 (GJ) Full Court
par [30] at 514; IPH Finance (Pty) Ltd v Agrizest (Pty) Ltd (21771/2021) Western Cape Division, Cape
plaintiff has an unanswerable case;266 or where there may be some doubt as to the
defendant's liability.267 In the pres ent case, all of these considerations do apply; and
on a conspectus of the full circumstances of this case there exists in the view of this
court, a reasonable possibility that an injustice may be done if summary judgment is
granted herein against the Defe ndants. 268
Conclusion
[40] Applying these principles and looking at the matter "at the end of the day, on
all the documents [properly] before court",269 this court is not inclined to grant
summary judgment against the Defendants, although this is not a case in which Rule
32(7) applies, the Defendants having neither furnished security, nor satisfied the
court that they have a bona fide defence to the action. As befit tingly observed in
Nedbank Ltd v Kgobe 2024 JDR 4549 (GJ) par 23 : "Here the plaintiff's pleaded claim
is incomplete and I have grave reservations about the defendant's defences".
[41] "The quest for summary Judgment is based on a trite argument that there are
no triable issues of fact and the application is initiated by a plaintiff that contends that
all the necessary factual issues are settled and, therefore, need not be tried. If there
are triable issues of fact in any cause of action or if it is unclear whether there are
such triable issues, summary judgment must be refused as to that cause of action
there appears to be a triable issue, the outcome which is not clear from the papers
and requires to be ventilated at a trial" ( SB Guarantee Company (RF) (P ty) Ltd v
Ramosebi Paul Pule and another (62497/2020) Gauteng Division, Pretoria (17
September 2021) par [50] -[51]).
Town (28 F ebruary 2023) par 5; FirstRand Mortgage Company (RF) (Pty) Ltd v Pretorius 2025 JDR
1052 (WCC) par 19; Arend v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) at 305.
266 Tesven CC and another v SA Bank of Athens 2000 (1) SA 268 (SCA} par (26] at 277 -8; Shepstone
v Shepstone 1974 (2) SA 462 (N) at 467; Jili v FirstRand Bank Ltd t/a Wesbank 2015 (3) SA 586
(SCA) par [13) at 590 -1; Gruhn v M. Pupkewitz & Sons (Pty) Ltd 1973 (3) SA 49 (A) at 58; Something
Different Concepts and Shows CC and another v South African Securitisation Programme (RF) Ltd
and others (A200/2023) [2024] ZAWCHC 103 (19 April 2024) par [15].
267 Jili v FirstRand Bank Ltd t/a Wesbank 2015 (3) SA 586 (SCA) par [27) at 594; SA Securitis ation
Programme (RF) Ltd and others v Cellsecure Monitoring and Response (Pty) Ltd and others
(21647/21) [2022 ] ZAGPPHC 925 (25 November 2022) par [33 ].
268 FirstRand Mortgage Company (RF) (Pty) Ltd v Pretorius 2025 JDR 1052 (WCC) par 19; First
National Bank of South Africa Ltd v Myburgh 2002 (4) SA 176 (C) at 184.
269 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 423; Absa Bank Ltd v Mali Zabilon
Mashinini and another NNO (32016/2019 ; 32014/2019) Gauteng Division, Pretoria (22 November
2019 revised 10 December 2019) par 6.
[42] In the final analysis this application for summary judgment fails in the exercise
of this court's overriding discretion270 to prevent possible injustice to Defendants and
due to perceived incompleteness in the presentatio n of its case by Plaintiff.
Costs
[43] Rule 32(9) provides that the court may at the hearing of an application for
summary judgment make such order as to costs as may seem just.271 Of course, this
accords with the general rule that the awarding of the costs, unless expressly
otherwise enacted, is in the discretion of the court.272 Furthermore, costs ordinarily
follow the result, being awarded to the successful litigant;273 yet even that rule is
subject to the discretion of the court.274 Unquestionably, such discretion must be
exercised judicially.275 Specifically with regard to applications for summary judgment,
costs are often left for determination by the trial court or in the cause,276 but not
necessarily s o. In appropriate cases, there has been no order as to costs despite the
270 As occurred in SB Guarantee Company (RF) (Pty) Ltd v Ramosebi Paul Pule and another
(62497 /2020) Gauteng Division, Pretoria (17 September 2021) par [53] -[56].
271 SA Securitisation Programme (RF) Ltd and others v WBT Auto Wholesalers and others
(1896/2023) Western Cape High Court, Cape Town (5 February 2024) par [17].
272 Petersen NO and other s v Shoe Warehouse South Africa (Pty) Ltd t/a Shoe Warehouse and
another (2022/8054) [2023] ZAGPJHC 934 (17 August 2023) par [18]; Kruger Bros & Wasserman v
Ruskin 1918 AD 69; Graham v Odendaal 1972 2 SA 611 (A) at 616; Compensation Solutions (Pty)
Ltd v Co mpensation Commissioner and others (56219/21; 49156/21) Gauteng Division, Pretoria (17
July 2023) par [41]. Generally, with regard to summary judgment: SB Guarantee Company (RF) (Pty)
Ltd v Ramosebi Paul Pule and another (62497/2020) Gauteng Division, Pret oria (17 September 2021)
par [58].
273 Absa Home Loan Guarantee Co (RF) and another v Moodley and another {33128/2021) [2023 ]
ZAGPJHC (26 July 2023) par [47]; Myers v Abramson,1951(3) SA 438 (C) at 455.
274 Ferreira v Levin NO and oth ers; Vryenhoek and Others v Powell NO and others 1996 (2) SA 621
(CC) par [3] at 624; Keele v Jansen van Rensburg and others (042870/2022) [2025] ZAGPPHC 292
(17 March 2025) par [12].
275 Compens ation Solutions {Pty) Ltd v Compensation Commissioner and others (56219/21; 49156/21)
[2023] ZAGPPHC 572 (18 July 2023) par [41].
276 SA Securitisation Programme (RF) Ltd and others v WBT Auto Wholesalers and others
(1896/2023) Western Cape High Court, Cape Town (5 February 2024) par [17] and par 3 of the order;
Petersen NO and others v Shoe Warehouse South Africa {Pty) Lt d t/a Shoe Warehouse and another
(2022/8054) [2023] ZAGPJHC 934 (17 August 2023) par [18] -[19]; Justice Reichlin Ramsamy v Zuko
Mack Michael Nonxuba (5008/07) Orange Free State Provincial Division (14 February 2008) par [24);
Maharaj v Barclays National Ba nk Ltd 1976 {1) SA 418 (A) at 428; The Trustees for the Time Being of
the Pieter van der Merwe Trust v 412 Brandfordt CC {A45/2024) Free State Division Bloemfontein {2
August 2024) par 1.3 of the order as varied; FirstRand Bank ta Wesbank v McCallum {2020/ 5463)
[2024] ZAGPJHC 1004 (7 October 2024) par [14](3); Blatew Security {Pty) Ltd v Matjhabeng Local
Municipality 2024 JDR 4509 (FB) par [24].3; BC Funding Solution (Pty) Ltd v Estate Agency Affairs
Board 2024 JDR 1058 (GJ) par [50].
dismissal of the application for summary judgment.277 In one case, the defendant
was even ordered to pay the costs notwithstanding refusal of the application for
summary judgment.278 The amended Rule 32 as a whole279 and the cost sanction in
Rule 32(9)(a) in particular,280 are designed to discourage plaintiffs from bringing
speculative or unjustified applications for summary judgment.281 Conversely,
defendants are not permitted to frustrate the plaintiff's claim with spurious defences,
playing for time or balking the plaintiff's right to relief by using delaying tactics.282 In
this case all the parties are to blame for the deficient way in which this matter has
been placed before this court:283 given Plaintiff's incomplete particulars of claim and
the Defendants' shoddy pleas and opposing affidavits.284 Fairness to both sides285
dictates that the appropriate costs order in the circumstances,286 would be to grant
an order that each party pays its own costs,287 not only with regard to the summary
judgment application itself but in the case of both Plaintiff and the First Defendant in
respect of condonation as well.
[43] Although the application for summary judgment fails, this court is loath to
award costs against the Plaintiff under the prevailing circumstances
277 Compensation Solutions {Pty) Ltd v Compensation Commissioner and others (56219/21; 49156/21)
[2023] ZAGPPHC 572 (18 July 2023) par [44]; Nedbank Ltd v Kgobe (2023/007205) [2024] ZAGPJHC
1056 (19 October 2024) par 32;
278 IPH Finance (Pty) Ltd v Agrizest (Pty) L td (21771/2021) Western Cape Division, Cape Town (28
February 2023) par 49 -50.
279 Mfazi v Z & Z Ngogodo Inc Attorneys 2024 JDR 4292 (GJ) par [23]; Tumileng Trading CC v
National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WC C) par [15 ] at 632.
280 Justice Reichlin Ramsamy v Zuko Mack Michael Nonxuba (5008/07) Orange Free State Pro vincial
Division (14 February 2008) par [24].
281 Absa Bank Ltd (Volkskas Bank Division) v S J Du Toit & Sons Earthmovers (Pty) Ltd 1995 (3) SA
265 (C) at 268.
282 FirstRand Bank Ltd v Tshepori Holdings (Pty) Ltd and another 2025 JDR 1036 (GJ) par [13];
Liquo r Network Agency CC and Another v Skylim Beverages CC 2025 (2) SA 507 (GJ) Full Court par
(26] at 513.
283 Compare: Lizinex (Pty) Ltd v F PC Solutions (Pty) Ltd and others (2022/17136) [2023] ZAGPJHC
1261 (3 November 2023) par [43] -(44].
284 Compare: Nedbank Ltd v Kgobe 2024 JDR 4549 (G J) par 29 -30 and Phillips v Phillips and another
(292/2018) [2018] ZAECGHC 40 (22 May 2018) par [52] -[53].
285 Standard Bank of SA Ltd v Zada Tech (Pty) Ltd and another 2024 JDR 4932 (FB) par [12]; Kruger
Bros and Wasserman v Ruskin 1 918 AD 63 at 69; Gelb v Hawkins 1960 (3) SA 687 (A) at 694; Ward
v Sulzer 1973 (3) SA 701 (A) at 706.
286 Tsela Tsweu Consulting Engineers (Pty) Ltd v Mangaung Metropolitan Municipality 2024 JD R
4544 (FB) par [45]; Mqocwa v Road Accident Fund 2024 JDR 3733 (NWM) par [33 ]; Daniel
Wellington South Africa (Pty) Ltd v Azrapart (Pty) Ltd 2023 JDR 4414 (GJ) par 73; Motswako Office
Solutions (Pty) Ltd v Luanelle -Yvonne Voigt (previously van Niekerk) (0 30796/2022) Gauteng Division,
Pretoria (13 January 2025) par [51].
287 Compare: Phillips v Phillips and another (292/2018) [2018) ZAECGHC 40 (22 May 2018) par [54]
and par [55].3; Compensation Solutions (Pty) Ltd v Compensation Commissioner and others
(56219/21; 49156/21) Gauteng Division, Pretoria (17 July 2023) par (44) and Order par (e).
Order
[44] In the premises, the following order is granted:
(a) Condonation as sought is hereby granted both to the Plaintiff and to the
First Defendant, respectively, with each party to pay its own costs.
(b) The application for summary judgment is dismissed with each party to
pay its own costs.
BP GEACH
ACTING JUDGE OF THE HIGH COURT