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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
1
Case Number: 068622/2024
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTAB LE : NO
(2) OF INTERES T TO O THER JUD G ES NO
(3) RE VISED: YES
DA TE : 18 July 2025
S IGNAT URE: JANSE VAN NIEUWENHUIZEN J
In the ma tter between:
ANNETTE CAPPER
and
AJAY WASSERMAN
JUDGMENT
JANSE VAN NIEUWENHUIZEN J:
Applicant
Respondent

2

Introduction

[1] This application concerns trust that was tragically misplaced. The applicant, a
72-year-old female, claims payment of an amount of R 1 million from the
respondent, a 31-year-old male, who for all intends and purposes, she deemed
to be like a son to her. The respondent does not deny that the applicant
advanced the amount of R 1 million to him in terms of a written loan agreement
and that the amount is due and owing. The respondent’s refusal to pay the
amount is based on the provisions of the National Credit Act, 34 of 2005.
According to the respondent, the loan falls foul of the provisions of the Act, is
thus void ab initio and absolves him from his liability to repay the loan.

Background

[2] The applicant’s deceased husband, Peter, was a close friend of the
respondent’s grandfather, Paul Jacobs. Paul passed away on 29 December
2015 and the applicant and her husband (“the couple”) met the respondent at
Paul’s funeral.

[3] After the funeral the respondent, being 23 years old at the time started visiting
the couple’s house on a regular basis. The respondent was keen to become
involved in business and during his various visits he relied on Peter for advice
and guidance. Due to Peter’s constant support and advice in respect of the
respondent’s plans, the respondent l ooked up to Peter as a father figure and
mentor. The visits were also social and nurturing in nature and the relationship
between the couple and the respondent became so close that they considered
him as another son.

[4] During 2017 the respondent told the couple that he planned to start a business
but had no money as start -up capital. He asked whether Peter could lend him
R 100 000, 00. The couple discussed the request and decided to each loan a
R 100 000, 00 to the respondent. The applicant explained that they advanced
the R 200 000, 00 to the respondent out of affection, not really expecting the
respondent to pay it back.

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[5] The respondent gladly accepted the couple’s offer and insisted to pay interest
at the rate of 10% per annum. Although the couple did not want to accept the
interest payment, the respondent insisted, and the applicant stated that she
thought that it was a point of honour for him. The regular visits continued and
the respondent would monthly hand an amount of cash to the couple that was
equal to the approximate of monthly interest.

[6] The loans were eventually repaid and the couple noted that the respondent
grew more and more financially successful. They were, naturally, very proud of
and happy for him. As time passed, the couple grew confident enough in the
respondent to appoint him as an executor in both their estates and as a trustee
in their family trust.

[7] During January 2020 the couple departed to their holiday home in Portugal and
planned to return on 1 April 2020. The COVID pandemic, however, struck and
they were stranded in Portugal. On 6 July 2020 Peter had a stroke, followed by
a long period of hospita lisation and recovery. The applicant stated that the
period was extremely stressful and distressing for her, more so being in a
foreign country with a completely foreign language. The respondent proved to
be an invaluable source of moral and practical support to the applicant during
this difficult period.

[8] Whilst still in Portugal in extremely stressful circumstances, the respondent
called the applicant and informed her that he had a cash flow problem. He
requested a loan of R 2 million which he would repay after five years. The
applicant stated that she was surprised at both the timing and the amount of
the request. At that stage Peter was paralyzed and bedridden, and almost in a
vegetative state. The applicant could not ask or get guidance from Peter which
caused further stress and turmoil. Being at wits end, the applicant asked herself
what Peter would have done in the circumstances. The applicant was

what Peter would have done in the circumstances. The applicant was
convinced that Peter, out of concern for the respondent’s wellbeing would have
advanced the money to the respondent.

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[9] At that stage the respondent ‘s request was for R 1 million repayable over two
years. The respondent once again insisted on paying interest at the rate of 10%
per annum. The applicant agreed to the terms and advanced the R 1 million to
the respondent. The couple returned from Portugal in mid-November 2020 and
the respondent’s frequent visits continued. During one of the visits the
respondent presented the applicant with a written loan agreement and told the
applicant it would be in both their best inter ests to have a written loan
agreement. The agreement was drafted by the respondent.

[10] The applicant trusted the respondent wholeheartedly and did not concern
herself with the details in the agreement. At the insistence of the respondent,
the applicant signed the agreement without any hesitation. The applicant paid
the loan amount to the respondent on 9 December 202 0. In terms of the
agreement an am ount of R 8 334, 00 was payable monthly in respect of the
interest.

[11] Peter passed away on 22 July 2022. Some months after Peter had passed
away, the applicant noticed that the respondent had fell into arrears on the
monthly interest payments. Thereafter requests by the applicant for payment of
the interests and thereafter the capital amount were met with promises,
delaying tactics and overall emotional manipulation. Needless to say, the
frequent visits became sporadic and at some stage seized all together. The
respondent’s conduct led to the applicant seeking legal advi ce and
notwithstanding various letters of demand, the respondent did not honour his
obligations. His failure resulted in the present application.

Point in limine: Incorrect procedure

[12] The respondent submitted that a dispute of fact exists and because the
applicant has a damages claim, she should have utilised summons proceedings
as contemplated in rule 18 of the uniform rules of court.

[13] The point is ill conceived and devoid of any merit. The facts are common cause

[13] The point is ill conceived and devoid of any merit. The facts are common cause
between the parties, and a party is in any event at liberty to choose whichever

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process he/she deems prudent for the prosecution of his/her claim. The risks
consequent upon the choice is upon the party that is dominus litis.

[14] The point in limine is dismissed.

[15] The respondent’s main defence, i.e. that the loan agreement is unlawful and
void ab initio was pleaded as a second point in limine. The defence is directed
at the merits of the applicant’s claim and is not a point in limine.

[16] In the result, I proceed to consider the respondent’s defence to the merits of the
applicant’s claim.

National Credit Act, 34 of 2005 (“the Act”)

[17] As alluded to earlier, the respondent did not deny the factual averments made
by the applicant but relied on the provisions of the Act to avoid honouring his
obligations in terms of the loan agreement.

[18] The Respondent contended that the loan is a credit agreement as contemplated
in section 8(4)(f) of the Act, in that payment is deferred and interest is payable
in terms of the agreement.

[19] Being a credit agreement, the Act is applicable to the agreement in terms of
section 4(1) which section reads as follows: “Subject to sections 5 and 6, this
Act applies to every credit agreement between parties dealing at arm’s length
and made within, or having an effect within, the Republic… “1 (own emphasis)

[20] Since the Act is applicable to the loan agreement the applicant had to be
registered as a credit provider in terms of section 40(1) of the Act and due to
the applicant’s failure to register as a credit provider, the loan agreement is in
terms of section 40(4) unlawful and void to the extent provided for in section 89.


1 Section 4(1) of the National Credit Act, 34 of 2005.

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[21] Section 89(5) provides for the consequences of an unlawful credit agreement
and reads as follows:

“89(5) If a credit agreement is unlawful in terms of this section, despite any
provision of common law, any other legislation or any provision of an agreement
to the contrary, a court must order that-
(a) the credit agreement is void as from the date the agreement was entered
into;
(b) the credit provider must refund to the consumer any money paid by the
consumer under that agreement to the credit provider, with interest
calculated-
(i) at the rate set out in that agreement; and
(ii) for the period from the date on which the consumer paid the money
to the credit provider, until the date the money is refunded to the
consumer; and
(c) all the purported rights of the credit provider under that credit agreement to
recover any money paid or goods delivered to, or on behalf of, the consumer
in terms of that agreement are either-
(i) cancelled, unless the court concludes that doing so in the circumstances
would unjustly enrich the consumer; or
(ii) forfeit to the State, if the court concludes that cancelling those rights in
the circumstances would unjustly enrich the consumer.”2

[22] The applicant contended that the loan agreement, in terms of section4(2)(b),
does not fall within the ambit of the Act. The section provides as follows:

“4(2)(b) in any of the following arrangements, the parties are not dealing at
arm’s length:
(i) a shareholder loan or other credit agreement between a juristic person,
as consumer, and a person who has a controlling interest in that juristic
person, as credit provider;
(ii) a loan to a shareholder or other credit agreement between a juristic

2 Section 89(5) of the National Credit Act, 34 of 2005.

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person, as credit provider, and a person who has a controlling interest
in that juristic person, as consumer;
(iii) a credit agreement between natural persons who are in a familial
relationship and-
(aa) are co-dependent on each other; or
(bb) one is dependent upon the other; and
(iii) any other arrangement-
(aa) in which each party is not independent of the other and
consequently does not necessarily strive to obtain the utmost
possible advantage out of the transaction; or
(bb) that is of a type that has been held in law to be between parties
who are not dealing at arm’s length;”3

[23] The applicant, more specifically, place reliance on the provisions of section
4(2)(b)(iii)(aa).

Discussion

[24] The undisputed facts paint a picture of a close, loving relationship between the
applicant and the respondent. It is common cause between the parties that the
relationship was akin to a mother and son relationship. I find the respondent’s
denial that a close relationship existed to be contrary to good morals.

[25] To add insult to injury, the respondent, on all accounts a successful
businessman, drafted and presented the loan agreement to the applicant, an
elderly lady without any business acumen. It was the respondent who insisted
on the payment of interest, which insistence the applicant considered to be
borne out of a sense of pride. The respondent’s conduct has sadly proven the
exact opposite. Furthermore, the respondent took umbrage with the fact that
the applicant endeavoured through legal means to claim the amount that is due
and owing to her. The averment is astonishing, to say the least.


3 Section 4(2)(b) of the National Credit Act, 34 of 2005.

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[26] In the circumstances, I have no hesitation in finding that the applicant and
respondent w as not independent and that the applicant did not strive to obtain
the utmost possible advantage out of the transaction.
[27] In the result, the loan agreement is lawful and the applicant is entitled to the
relief claimed herein.
Costs
[28] The applicant did not seek a punitive cost order against the respondent. In the
exercise of my discretion and to demonstrate the court's utmost dismay w ith
the respondent's conduct, I am , how ever, of the view that a punitive cost order
should follow. Justice w ould not prevail if the court turns a blind eye to
conduct that is blatantly contra bones mores.
ORDER
Judgment is granted in favour of the applicant against the respondent for;
1. payment of the amount of R 1 000 000, 00;
2. interest thereon calculated at the rate of 10% per annum from 1 November 2023
until date of final payment;
3. costs on an attorney and client scale.
. JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

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DATE HEARD:

8 May 2025

DATE DELIVERED:

18 July 2025

APPEARANCES

Counsel for the Applicant: Adv BM Slon

Instructed by: Nicqui Galaktiou Incorporated


Counsel for the respondent: Adv IN Kruger


Instructed by: Brits Law Incorporated