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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: B1133/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
DATE 17/7/2025
In the matter of:
GCINA LOUIS HLABISA First Applicant
LESEGO JANET HLABISA Second Applicant
and
FIRSTRAND BANK LIMITED First Respondent
SHERIFF OF THE HIGH COURT:
PRETORIA SOUTHEAST Second Respondent
In re:
FIRSTRAND BANK LIMITED Plaintiff
And
GCINA LOUIS HLABISA First Defendant
LESEGO JANET HLABISA Second Defendant
JUDGMENT
Coram Ferreira AJ
1. This is an urgent application for a final interdict to restrain the first
respondent from proceeding with the sale in execution of the applicants’
immovable property situated at [...] S[...] T[...] Crescent, The Hills Extension 5,
Pretoria.
2. The applicants contend that they have complied with the court order of
Kooverjie J, dated 9 April 2024, 1 granted by default (“the default judgment”),
and that they remedied the default as it existed at the time of t he default
judgment and as contemplated by section 129(3) of the National Credit Act
34 of 2005 (“NCA”).
3. The urgent relief is sought against the background of the aforesaid default
judgment and the subsequent execution process initiated against the
applicants’ property. The first respondent has publicized a notice to sell the
applicants’ property on 17 July 2025.
4. The default judgment provides for payment of R2,198,564.55, clearly
including an accelerated payment beyond the then existing arrears. In
addition, it records that the immovable property, declared executable, shall
be sold subject to a reserve price of R3,000,000.00. Furthermore, the
operation of the entire default judgment was suspended for a period of 6
months, affording the respondent an opportunity to settle the arrears owing
or to enter into a suitable arrangement with the first respondent.
5. The applicant contends that the first respondent unlawfully and fraudulently
debited legal costs into the applicants’ bank account. Annexure “M2” to the
first respondent’s application for summary judgment indicates that a legal fee
of R9,723.00 was debited into the applicants’ account (p.001 -35 to 001 -36,
CaseLines). Annexure “A” to the first respondent’s Rule 46A application
indicates that the legal fee debited into the applicants’ account is R14,231.00
1 CaseLines 015-34
(p.010-18/20, CaseLines).
6. The first respondent opposes the application on the basis that:
6.1 applying the Constitutional Court judgment of Nkata,2 the applicants
will receive substantial relief in due course, resulting in the
application not being urgent;
6.2 the order did not absolve them of their obligation to pay their
monthly instalments pending the sale, resulting in the payments
made by the applicants being insufficient to reinstate the
agreements as alleged.
7. Of relevance in the present app lication is the consideration of section 129(3)
& (4) and as to who bears the responsibility to ensure that the arrears are
paid in full in order to reinstate a credit agreement. In this regard , the
applicants contend that they need to be notified of the arrears by the Bank
rather than establishing the precise arrears themselves.3
8. The main thrust of the applicants ’ case is that at the time of judgment they
were R245,405.67 in arrears and that they’ve paid R254,000.00 in the 6
months following the default judgment, thus reinstating the agreement.
9. Unless the agreement is cancelled, the arrears on the credit agreement do
not remain static after the delivery of a section 129 notice or after judgment
is granted.3 For this reason, consumers are obliged and advised to obtain the
arrears from the credit provider for the purposes of seeking to reinstate the
agreement.
10. The applicants seek a final interdict despite the existence of a genuine
dispute of fact. Thus, the relief can only be granted if the facts averred in the
applicant’s founding affidavit which have been admitted by the respondent
2 2016 (4) SA 257 (CC)
3 Le Feuvre v Standard Bank of South Africa Limited and Others – 2024 JDR 4261 (GJ) at [10] –
[11]; Pule v Nedbank Limited and Others – 2022 JDR 0844 (GP) at [32]
and those facts alleged by the respondent justify such an order.4
11. The arrear amount as at the time of the default judgment was R245 ,405.67.
In addition, in the months following the default judgment, the applicants were
required to pay monthly instalments, varying between R26,335.67 and
R25,374.16,5 as a result of the variable interest rate and amounting to a total
amount of instalments due, after the default judgment of no less than
R389,082.82.
12. On the applicant’s version they paid a total amount of R474,000.00 between
20 April 2024 and 7 June 2025. It is clear from what is stated in paragraph
11 hereinabove that total payments were due in an amount of no less than
R634,488.49.
13. On the respondents ’ version, the closest that the applicants came to
extinguish the arrears in full was on 23 May 2024 following a payment of
R27,000.00 whereafter the arrear balance was R17,741.346.
14. When seeking to reinstate an agreement, consumers are obligated and
advised to obtain the arrear amount from the credit provider. This is included
in all execution draft orders for the purpose of informing consumers of their
rights before the sale in execution.7
15. The first respondent furthermore contends that n either the agreement, the
Act, the default judgment or any other obligation rests upon the credit
provider to inform a consumer, such as the applicants, of the precise
amount of the arrears.
16. Mindful thereof that the applicants are seeking a final interdict and have to
establish, with the application of the principles Plascon-Evans,8 its clear
right, at least insofar as demonstrating that all arrears have been paid
4 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd – 1984 (3) SA 623 (A) at 634E-G
5 AA para 30 at 026-14
6 CaseLines 026-15
7 Practice Manual of Gauteng Local Division of the High Court of South Africa May 2017, chapter 10.17
paragraph 8
8 Plascon-Evans Paints Ltd v Van Riebeeck Pants (Pty) Ltd – 1984 (3) SA 623 (A) at 634E-G
timeously in order to re -instate the agreement and thereby rendering the
default judgment inoperative. This is disputed on bona fide grounds by the
first respondent and must be decided in favor of the first respondent. On the
applicants’ own version in their replying affidavit ,9 it is averred that the
account will have to be audited, despite the common cause payments by
the applicants to the first respondent. Such an audit can only be to establish
what is really due, if anything, by the applicants to the first respondents. I
am bound, in terms of Plascon-Evans in the light of the final interdict
sought to find against the applicant in favor of the respondent. It is
remarked, obiter only, that had the relief sought to be of an interim nature,
the applicants may have found themselves in a different position as a result
thereof that the test is different and that only a prima facie right, though
open to some doubt, would have been required.
17. Furthermore, a reserve price of some R3,000,000.00 has been set by the
default judgment. The current total outstanding amount, even on the
applicant’s version and as per the most recent bank statements amount to
slightly over R2,000,000.00. This has the effect that if a successful sale
occurs, which is by no means certain, the applicants will have a credit
available to them in the upper hundreds of thousands of rand. This casts
serious doubt as to whether the applicants will suffer an actual injury or an
injury reasonably apprehended.
18. In consequence, having heard the matter in urgent court yesterday, 16 July
2025, limited time for a comprehensive judgment, the court can make no
other order than dismissing the application.
19. Cost should follow the result. In the exercise of the court’s discretion, party
and party costs, with counsel’s costs on scale B is appropriate.
20. The following order is made:
“1. The application is dismissed with costs.
2. The applicants, jointly and severally, the one paying, the other to be
2. The applicants, jointly and severally, the one paying, the other to be
absolved is ordered to pay the first respondents on a party and party
9 CaseLines 027-30
scale with the costs of counsel on scale B.
EJ FERREIRA
Acting Judge of the High Court
Gauteng Division
Date of hearing: 16 July 2025
Judgment delivered: 17 July 2025
For the Applicants: Fenyane & Associates Inc.
Counsel for the Applicants: Advocate P Mbana
Attorney for the Respondents: Van Hulystens Attorneys
Counsel for the Respondents: Advocate KM Boshomane