2
loan in respect of the loan facility - cancellation is the most onerous of the remedies
provided for- defence raised, amongst others, that cancellation was unlawful in
circumstances where the plaintiff had unilaterally elected the most onerous
consequence it is empowered to exercise from a list of consequences the contract
provides for, without any warning- Botha v Rich NO 2014 (4) SA 124 ( CC), Beadica
231 CC and others v Trustees, Oregon Trust and others 2020 (5) SA (CC) and AB v
Pridwin Preparatory School 2019 (1) SA 327 (SCA) considered
Introduction and background
[1] During 2021, the plaintiff and the first defendant concluded a Mortgage Backed
Business Loan Agreement (“the 2021 contract ”). There is a dispute whether the
contract was concluded on 11 February 2021 as the plaintiff alleges, or 13
October 2021 as alleged by the defendants.
[2] The 2021 contract consists of two parts being Commercial Terms and Standard
Terms. In terms of the contract the plaintiff lends to the first defendant a
maximum aggregate sum under the facility of R 5 600,000,00 which consists of
drawdowns in the amount of R 5 535 600,00, charges and costs in the sum of
R 56 000,00 and VAT on the charges and costs in the amount of R 8 400,00.
[3] Apart from existing security which the plaintiff held for amounts owed by the
first defendant to it, further security was provided by the registration of a
mortgage bond by the first defendant over an immovable property ranking first
for an amount of R 5 600 000,00 and an additional amount to secure interest
and costs, charges and disbursements due the plaintiff should it exercise any
right under the mortgage bond, limited to 20% of the aforesaid amount. A
limited guarantee by respectively by the second defendant and third defendants
for R 5 600,000,00 including a cession of claims and loan amounts were also
provided.
[4] In terms of the mortgage bond, the first defendant acknowledged its
indebtedness to the plaintiff in the total sum of R 5 600 000,00 together with an
additional amount of R 1 120 000,00. It was agreed the mortgage bond shall
3
remain in place as continuing security for the capital amount, the interest
thereon as well as the additional amount, notwithstanding any intermediate
settlement, for each sum the first defendant may be indebted to the plainti ff
from any cause whatsoever. Should the first defendant fail to comply with its
obligations or upon demand fails to pay any amount which is legally claimable,
then all amounts secured under the bond shall at the option of the plaintiff and
without notice become immediately payable in full and the plaintiff shall be
entitled to institute proceedings to recover such amount as well as for an order
declaring the property executable.
[5] In terms of the guarantees, the second and third defendants undertook,
amongst others, to irrevocably and unconditionally guarantee to the plaintiff the
punctual payment by the first defendant of the guaranteed liabilities as and
when the plaintiff asserts such guarantees liabilities have become due and
payable. Should the first defendant fail to pay the guaranteed liabilities, the
second and third defendants shall immediately on demand pay such amount as
if they were the principal debtor and indemnify the plaintiff against any costs,
loss or liability suffered.
[6] Around July 2023, the plaintiff issued summons against the defendants
alleging that as at 28 June 2023 the first defendant was arrears in the sum of
R 434 324,36 representing 5 instalments. In consequence, so it is alleged,
notice was given to the first defendant that as a result of its default it had
elected to cancel the “… available facility …” the “… 2019 agreement… ” and to
declare all outstanding amounts immediately due and payable. Immediate
payment of any amounts payable under the “… 2019 agreement …” was
demanded. The notice recorded the plaintiff will be proceeding with legal action
to recover the amounts outstanding. In its particulars of claim, the plaintiff
alleges that as at 23 May 2023 the defendant was and remains indebted to it in
the sum of R 5 276 441,91 together with interest thereon. The claim is
premised upon a certificate of balance signed by the manager of the plaintiff‟s
banking recovery department. It records the “total amount due and payable” on
23 May 2023 as R 5 276 4 41,91 and the “current arrears” as R 419 970,53.
4
[7] Essentially and in summary, the defendants in their plea denied the existence
of any “ 2019 agreement ”. They further denied that the arrears on the account
as at 28 June 2023 in respect of the 2021 contract amounted to R 434 324,36
or that any amount was outstanding. They pleaded that a loan statement
received by the first defendant dated 6 June 2023, duly annexed to the plea,
reflected an arrears of R 184 909,34 and not R 434 324,36. Two payments
were made in the amounts of R 90 000,00 each on 11 June 2023 and 2 August
2023 respectively. On 6 September 2023 it received an updated statement,
duly annexed to the plea reflecting an arrears of R 165 591,97. On 7
September 2023 payment of R 194 015,05 was made and accepted by the
plaintiff.
[8] The defendants plead further that on 19 September 2023 an updated statement
was received which reflected a credit balance of R 119 339,06, confirming that
the arrears had been settled. On 6 October 2023, the plaintiff‟s attorneys
addressed correspondence requesting payment of the monthly instalment of
R 85 000,00 for October 2023. Payment of R 85 000,00 was made on 9
October 2023. This was followed by a further statement from the plaintiff dated
10 October 2023, recording the arrears as nil. A copy of the statement is duly
annexed to the plea.
[9] It is further plead ed that on 2 November 2023 the plaintiff‟s attorneys
addressed correspondence to the defendants‟ attorneys recording that the
account was in arrears in the amount of R 312 714,63. In the light of what is
pleaded before, the defendants denied any arrears and that the certificate of
balance was correct. They furthermore denied the plaintiff was entitled to
cancel the 2021 contract and plead ed in the alternative that it was reinstated in
consequence of the plaintiff‟s conduct in accepting payments after the alleged
cancellation and the full paying up of the account as well as the
correspondence dated 6 October 2023 by the plaintiff‟s attorneys requestin g
payment of the monthly instalment of R 85 000,00 in respect of October 2023.
[10] On 29 November, the plaintiff brought an application for summary judgment
claiming payment from the defendants jointly and severally, the one paying th e
other to be absolved, of R 5 276 441,91 together with interest. It also claims
5
that the property belonging to the first defendant be declared specifically
executable. Costs are claimed on the scale as between attorney and client.
This is in accord with the relief sought in its summons and particulars of claim.
In its supporting affidavit it records, in its conclusion, that it seeks an order in
terms of the notice of motion.
[11] In some respects the contents of the supporting affidavit contradicts what is set
out in the plaintiff‟s pa rticulars of claim and the relief sought therein particularly
pertaining of the amount claimed. It also is not in accord with the amount
claimed in the notice of motion and as recorded in the conclusion to the
supporting affidavit. Instead, it is conceded that an error exists in the bank
statements. It seeks to explain this by alleging that when the plaintiff made its
election to terminate the 2021 contract, “ …pursuant to non -payment during
various months during 2023 and on or about June 2023… ”, the first defendant
was in arrears in the amount of R 419 970,53 as alleged in the letter of its
attorneys in which the first defendant was informed that the plaintiff had
elected, amongst others, to cancel the “… available facility and the agreement; ”
and to declare all outstanding amounts immediately due and payable as well as
claim immediate payment of same. The payments by the first defendant on 11
July and 7 September 2023 were made after the election to cancel the contract.
These were insufficient to purge the alleged total amount claimed in terms of
the acceleration clause following upon the cancellation of the agreement.
[12] Allegations are then set out in the supporting affidavit which is not included in
the particulars of claim. It states that discussions took place between the
defendants‟ attorneys and Mr. Olivier who drafted the particulars of claim. After
investigations at the plaintiff it was discovered that “… the correct arrear sum
was not pulling through onto the statements issued… ” It is further all eged that
upon the discovery of the error, a correct statement was issued and sent to its
client. A copy of the purported correct statement is annexed to the affidavit.
This is dated 30 October 2023. It is not annexed to the particulars of claim. It
reflects a closing balance of R 5 025 689,24 as at 9 October 2023. It is then
alleged it was sent to the defendants attorneys annexed to the letter of 2
6
November 2023 which is referred to in the defendants plea as referred to
before.
[13] The plaintiff further alleges that it provided what is referred to as a
„recalculation document‟, which is an annexure to the supporting affidavit. Its
heading frames it as a “ RECONSTRUCTION ”. It is dated 1 November 2023
and spans the period from 30 April 2021 until 9 October 2023. At the top of the
recalculation , below the heading, it records the “system balance” to be
R 5 025 689,24 and the “recalculated balance” as R 5 025 787,85. Apparently
the difference between these two numbers is an “interest difference” of R98,61.
In terms of the recalculation , the total interest calculated and capita lised equals
R 1 290 788,31, total debits is R 5 535 896,73 and total credits R 1 865 297,19.
The total outstanding capital and balance are recorded as being
R 5 025 787,85. It further records that the “Instalment due” is R 2 177 715,09
and that the arrear amount is R 312 417,90.
[14] Regarding the 2019 agreement, the plaintiff‟ explains it was the result of an
error committed by the author of the particulars of claim. Reference to it in the
particulars of claim is alleged to have been an oversight.
[15] In their affidavit resisting summary judgment, the defendants assert that the
application for summary judgment and the supporting affidavit does not
properly disclose the events that transpired between the parties and fails to
demonstrate it is certain whether anything is due and how much is due in
relation to the amount claimed and the calculation thereof. The defendant refers
to the payments that had been made as set out in their plea and attaches the
various statements received from the plaintiff as it did in their plea as well as an
additional statement dated for August 2023.
[16] In an e-mail annexed to the resisting affidavit dated 6 October 2023 addressed
to the plaintiff‟s attorneys, the defendants attorneys record that arrears has
been settled in full and the first defendant has been furnished with a statement
from the plaintiff confirming same. The plaintiff‟s attorneys are requested to
confirm their client‟s instructions. It expresses the view that the matter may be
resolved amicably without litigation. In response, on the same day, the plaintiff‟s
7
attorneys addressed an e- mail to the defendant‟s attorneys which records the
following:
“Please note that our client has received payment however the account is still in
arrears.
Our instructions are that your client should settle the remaining arrears of
R 120 000,00 (rounded off) as well as the instalment of R 85 000,00 (rounded off)
which is due on 9 October 2023 in order for us to pend legal action. ”
[17] On 9 October 2023 the defendants ‟ attorneys transmitted correspondence to
the plaintiff‟s attorney wherein it is recorded that the plaintiff‟s instructions to its
attorneys do not accord from the statements of account transmitted to the first
defendant. It explains the first defendant received a statement on 6 September
2023 reflecting an alleged arrears of R 165 591,97 and that it had made
payment in the amount of R 194 025,05 on 7 September 2023. It further
records it received an updated statement on 19 September 2023 which
reflected a credit balance of R 119 339,06. It is recorded that despite the
discrepancy, as a show of bona fides , payment of R 85 000,00 requested in the
correspondence of 6 October 2023 was made.
[18] Then, on 10 October 2023, the first defendant received a further loan statement
from the plaintiff recording that the arrears amount was R 0,00 and that the
payment of the R 85 000,00 was a “ pre-payment ”.
[19] On 12 October 2023 the plaintiff‟s atto rney responded to the defendants ‟ e-mail
of 9 October 2023 stating the plaintiff was not amenable to pending or
suspending litigation until the arrears have been paid. It states the arrear
amount is attached to the e- mail “ …indicat ing the arrear amount owing by your
client. ” The heading of the document referred to bears the plaintiff‟s logo and
records it to be from Relationship Banking Recoveries. It is dated 11 October
2023. At the bottom it bears a signature identifying it as that of the “ Legal
Specialist: Special Projects Recoveries Relationship Banking Lega l
Recoveries .” It spans the period of 6 June 2023 until 11 October 2023. On the
latter day it records the current balance as R 5 025 985,97, the arrears as
R 118 986,31 and the arrear days as 126.
8
[20] In their resisting affidavit the defendants point out that the document attached
to the e-mail of 12 October 2023 omitted the payment of R 90 000,00 made on
or about 11 July 2023. The first defendant‟s representative telephonically
informed the plaintiff ‟s attorneys accordingly , who directed a further e-mail to
the defendant‟s attorneys on 12 October 2023 in which it states that the e-mail
was manually drafted by their client as the system does not generate a
statement specifically showing the arrear amount. It is s tated there was a
“typographical erro r” and that the July payment of R 90 000-00 had been taken
into account, though it is not so indicated. It further states that an account
statement from January 2023 is attached which indicates all payments made
and that the arrear amount is still R 118 986,31. The defendants point out that
the latter amount does not accord with the statement it received on 10 October
2023 which recorded a balance of R nil.
[21] In response, also on 12 October 2023 , the defendant‟s attorneys addre ssed an
e-mail to the plaintiff‟s attorneys pointing out the discrepancies in the plaint iff
statements and documents as well as their various correspondences. A request
is made for an explanation on the calculation of the arrears. It is recorded that
the plaintif f‟s system does indeed generate statements specifically showing
arrears on the accounts as evidenced by the loan statements. It is proposed
that the matter be resolved by mediation. In response, on 13 October 2023, an
e-mail was received from the plaintiff ‟s attorneys wherein it is stated the plaintiff
is amenable to pending legal action to reach a settlement. It is recorded the
plaintiff has been provided with the relevant documentation and their attention
drawn to the discrepancies.
[22] It is in this context the recalculation referred to by the plaintiff in its supporting
affidavit was received in the letter of 2 November 2023. The defendants point
out that this letter contradicts the prior correspondence received from the
plaintiff‟s att orneys and the statements of account received from the plaintiff.
[23] The defendants contend that the constant changes to the amounts reflected in
the statements demonstrate that the certificate of balance does not reflect the
correct balance. In the result, extrinsic evidence is required to prove
indebtedness and summary judgment is not available to the plaintiff.
9
[24] The defendants contend the plaintiff was not entitled to cancel the agreement
with the first defendant. As appears from the letter above, the plain tiff‟s
attorneys on 6 October 2023 requested payment of R 85 000,00 rounded off
towards an agreed monthly instalment. The first defendant as at the date of the
filing of the resisting affidavit, has been keeping up payments to meet its
monthly obligations timeously which the plaintiff has accepted. No notice of
breach at had been received prior to the alleged cancellation. The plaintiff
claimed interest and alleged late charges which it is contended demonstrates
the continued existence of the contract.
[25] The defendants contend they have a bona fide defence to the plaintiff‟s claim.
It is also contended that a clear dispute of fact exists which ought to be
adjudicated upon at trial after evidence has been adduced viva voce .
Furthermore, it is submitted a triable defence exists.
[26] The third defendant has been placed under voluntary liquidation. At the
hearing, the plaintiff sought an order for its claim against the third defendant to
be postponed sine die . According to a draft court order uploaded to Caselines
on the eve of the hearing, the plaintiff sought judgment against the first and
second defendants for payment in the reduced sum of R 4 274 658,30 together
with interest thereon and for the property belonging to the first defendant to be
declared specifically executable. It prays for its claim against the third
defendant to be postponed sine die .
Consideration
[27] The defendants‟ opposition centres around three issues as framed by the
defendant s‟ counsel. The fir st concerns the question whether the cancellation
was lawful in circumstances where the plaintiff had unilaterally elected the most
onerous consequence it is empowered to exercise from a list of consequences
the contract provides for, without any warning to the first defendant. The
second concerns the sum allegedly owed by the first defendant and the third
concerns procedural issues pertaining to the appropriateness of and manner in
which the application for summary judgment was brought.
10
[28] The 2021 contract‟s standard terms do not contain a breach clause. There is no
provision for notice to be given to the first defendant of it having breached the
contract due to failing to honour its obligations in terms of its provisions.
[29] In terms of the commercial terms of 2021 contract, the first defendant is the
borrower. The second and third defendants are the guarantors and, together
with the borrower, are referred to as the “ Relevant Parties. ” Clause 23 of the
Standard Terms of the 2021 contract deal s with “ Events of Default ” save for
clause 23.15 which deals with consequences of default. A multitude Events of
Default are defined in respect of the borrower and the Relevant Parties. Clause
23.2 refers to when a borrower does not pay on due date any amount payable
and clause 23.3 when a Relevant Party does not comply with any of its
obligations under or in connection with the facility held by the plaintiff in respect
of the facility. Clause 23.15 stipulates that when any event occurs similar to
those set out in the previous 14 sub-clauses, then the plaintiff may, on written
notice to the borrower:
“(a) review the Facility;
(b) cancel the available Facility;
(c) increase the interest rate Margin by a further 2%...per annum so long as the default
continues;
(d) declare that all or any part of the Loan become immediately due and payable;
(e) claim immediate payment of all or any part of any amounts outstanding under any
Finance Document;
(f) exercise its rights under any Security;
(g) cancel this Agreement; and/or
(h) institute action for damages. ”
[30] The defendants‟ counsel submitted that a proper construction of the contract
read with these clauses indicates that the exclusion of a contested liability as
creating an event of default is not an automatic consequence of any of the
Events of Default stipulated in sub-clauses 23.1 to 23.14. Counsel submitted
that the clause requires there to be a commensurate proportionality between
11
the nature and extent of the default and the selected remedy that may be
sought to be applied.
[31] In substantiation of his submission, defendants ‟ counsel referred the court to
authorities which includes the judgment of the constitutional court in Beadica ,1 I
was also referred to the judgment of the constitutional court in Everfresh2 as
well as the judgments of the Supreme Court of Appeal in Liberty,3 Mohamed’s
Leasure ,4 Roazar5 and South African Forestry6
[32] The issue of developing the common law with reference to the law of contract
to reflect constitutional values including equity, justice, fairness as well as
Ubuntu has been somewhat controversial.7 In times gone by the remedy for the
unfair enforcement of a contract8 was the exceptio doli general is. In Bank of
Lisbon and South Africa v De Ornelas9 in 1988 the exceptio was judged not to
be part of our law by the Appellate Division. The void left by the demise of the
exceptio is the source of many scholarly articles and presented our courts no
end of difficulties in its search to fill the vacuum. In my view this court sitting in
judgment of an application for summary judgment does not require an
extensive review of the authorities in this regard. I do, however, refer to some
authorities in considering if a bona fide defence and triable issue exist in this
regard, or whether it warrants the exercise of my discretion not to grant
summary judgment in the context of the facts and circumstances of this case.
[33] In Brisley10 the Supreme Court of Appeal held that a lack of good faith in
enforcing a contract could not be accepted as an independent ground for not
enforc ing contractual terms, but confirmed that good faith is the foundation and
justification of legal rules. Nevertheless a court should not act on the basis of
abstract ideas but on the basis of established legal rules. The court also stated
1 Baedica 231 CC & others v Trustees, Oregon Trust & others 2020 (5) SA (CC)
2 Everfresh Market Virginia (Pty) Ltd 2012 (1) SA 256 (CC)
3 Liberty Group Ltd & others v Mall Space Management CC 2020 (1) SA 30 (SCA) at [23]- [31]
4 Mohamed’s Leisure Holdings (Pty) Ltd v Southern Sun Hotels Interests (Pty) Ltd 2018 (2) SA
314 (SCA)
5 Roazar CC v The Falls Supermarket CC 2018 (3) SA 76 (SCA)
6 South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA)
7 See Christie Christie’s Law of Contract in South Africa 2022 8th Edition, paras 1.5 and 10.3
8 Also regarding the enforcement of an unfair contract
9 1988 (3) SA 580 (A) at 607B
10 Brisley v Drotsky 2002 (4) SA 1 (SCA) at [11] ff
12
that public policy is rooted in the Constitution and the fundamental values
therein enshrined, which includes, amongst others equality and the
advancement of human rights.11
[34] In South African Forestry the court found, in reference to Brisley , as follows:
“In these cases it was held by this Court that, although abstract values such as good
faith, reasonableness and fairness are fundamental to our law of contract, they do not
constitute independent substantive rules that courts can employ to intervene in
contractual relationships. These abstract values perform creative, informative and
controlling functions through established rules of the law of contract. They cannot be
acted upon by the courts directly. Acceptance of the notion that judges can refuse to
enforce a contractual provision merely because it offends their personal sense of
fairness and equity will give rise to legal and commercial uncertainty. After all, it has
been said that fairness and justice, like beauty, often lie in the eye of the beholder. In
addition, it was held in Brisley… that - within the protective limits of public policy that
the courts have carefully developed, and consequent judicial control of contractual
performance and enforcement - constitutional values such as dignity, equality and
freedom require that courts approach their task of striking down or declining to enforce
contracts that parties have freely concluded, with perceptive restraint. ”12
[35] It appears the preferred concept for dealing with contractual unfairness that
cannot be satisfactorily resolved by existing legal rules is that of public policy.
[36] In Barkhuizen v Napier the Constitutional Court held that public policy imports
the concepts of fairness, justice and reasonableness which preclude the
enforcement of a contractual term if it would be unfair or unjust. The Supreme
Court of Appeal in Bredenkamp v Standard Bank of South Africa13 interpreted
the effect of the judgment in Barkhuizen as follows:
“…as I understand the judgment, if a contract is prima facie contrary to constitutional
values, questions of enforcement would not arise. However, enforcement of a prima
facie innocent contract may implicate an identified constitutional value. If the value is
unjustifiably affected, the term would not be enforced. ”
[37] In Botha v Rich NO14 the Constitutional Court held that the enforcement of a
contractual right of cancellation would be unfair in the circumstances prevailing
in that c ase. A purchaser of immovable property in terms of an instalment sale
11 At [91]
12 At [27]
13 [2010] 4 All SA 113 (SCA) at [47]- [50]
14 2014 (4) SA 124 CC at [49]- [51]
13
had paid more than half of the due instalments and then defaulted. The contract
contained a forfeiture clause in terms of which the instalments already paid
were forfeited to the seller. The latter gave notice to the purchaser of its
intention to cancel the contract. In its judgment the c ourt found that granting
cancellation of the contract which would result in forfeiture of the instalments
already paid would be a disproportionate penalty for the breach committed.
[38] Some seven years later Beadica revisited Botha . It stated that in Botha the
court was mindful of the unique statutory context of the matter, the
consequences of which would have been that enforcing the cancellation would
have resulted in the purchaser losing her right to claim transfer of the property
as provided for in the Alienation of Land Act15 and in forfeiture of the sum of
instalments already paid.16 The court affirmed that Barkhuizen remains the
leading authority in our law on the role of equity in contract. It found that Botha
is not authority for the general proposition that a party who breaches its
contractual obligations can avoid the termination of a contract by claiming that
the termination would be disproportionate or unfair.17
[39] In dispelling any notion of a divergence of views between the Supreme Court of
Appeal and the Constitutional Court, Beadica held that the principles articulated
by the Supreme Court of Appeal in AB v Pridwin Preparatory School18
regarding judicial control of contractual terms and its enforcement were
confirmed. These are that pacta sunt servanda applies but that a court will
declare a contract invalid which is prima facie inimical to constitutional values or
principles, or otherwise contrary to public policy. Whether a contract is not
prima facie contrary to public policy but its enforcement in particular
circumstances is, a court will not enforce it. A party seeking to avoid a contract
or the enforcement of its terms bears the onus to establish the facts and
circumstances in support thereof. The court will use its powers in these
respects sparingly and only in the clearest of cases in which harm to the public
is substantially incontestable and does not depend on the idiosyncratic
inferences of diverse judicial minds. The courts will decline to use its power to
15 68 of 1981, section 27
16 Beadica at [44]-[56]
17 At [58]
18 2019 (1) SA 327 (SCA) at [27]
14
invalidate a contract or to not enforce any of its terms where any of the parties
directly rely on abstract values of fairness and reasonableness to escape a
contract‟s cons equences because these values are not substantive rules to be
used for such a purpose.
[40] With the above in mind, I am of the view that the defendants have in this
respect raised facts and circumstances that should it be proved at trial in
accordanc e with the princ iples set out in AB v Pridwin , will in this respect
constitute a defence valid in law. For this reason alone, I am not inclined to
grant summary judgment.
[41] In any event, it seems clear to me that, regard being had to the correspondence
between the parties which I referred to at some length as well as the various
conflic ting loan s tatements it is evident the bookkeeping of the plaintiff was in
disarray. The plaintiff‟s counsel conceded it contained errors and sought to
explain it by submitting the errors occurred after the plaintiff had cancelled the
2021 contract. Even if that was correct, the fact remains, as is evident from the
correspondence as well as the various loan statements and the „re construc tion‟
that discrepancies exist. The loan statements for the most part deal with the
account as if the contract had not been cancelled, or if it had, that may have
been reinstated. It seems that as far as the plaintiff is concerned, the one hand
is unaware of what the other is doing. In my view the defendants have
succeeded in raising triable issues in these respects.
Conclusion
[42] Having regard to all of the above, I grant an order as set out below.
[43] It is noted the plaintiff has abnegated the defendants‟ request for the matter to
be mediated in terms of Rule 41A. I am of the view this matter might have been
well served by mediation.
Order
1. The application for summary judgment is dismissed;
2. The defendants are granted leave to defend; -
15
3. Costs are costs in the cause.
N. S. KRÜGER
NAME OF JUDGE
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Electronically submitted
Delivered: This judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically by circulation to the parties /
their legal representatives by email and by uploading it to the electronic file of this
matter on CaseLines. The date of the judgment is deemed to be 17 June 2025 .
For the plaintiff : Adv N Alli instructed by Jay Mothibi Inc
For the first defendant &
second defendant : Adv D Vetten instructed by Mahdi Attorneys Inc
Date of hearing: 10 March 2025
Date of judgment: 17 June 2025
1