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: 37766/2020
(1) REPORTABLE:
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED:
DATE 30 JULY 2025
SIGNATURE
In the matter between:
SB GUARANTEE COMPANY (RF) (PTY) LTD
(Registration Number: 2006/0216576/07)
Plaintiff
and
MXOLISI ZONDO
(Identity Number: 7[...])
First Defendant
THANDEKA BRIDGETTE ZONDO
(Identity Number: 8[...])
Second Defendant
These reasons are prepared and authored by the Judge whose name is reflected
as such 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
Case Lines. The date for handing down is deemed to be 30 July 2025.
REASONS
RETIEF J
INTRODUCTION
[1] These are reasons for an application which served before this Court in
which the Plaintiff sought summary judgment against the First and Second
Defendants, [Defendants] jointly and severally for the payment of a debt in the
amount of R 5,057,616.44 [the debt] in respect of an accelerated loan amount,
other charges and interest pursuant to a home loan agreement. It too sought
attachment relief in respect of Erf 1[...], K[...], Extension 33, Township Registration
JR, Province of Gauteng [the property], pursuant to a mortgage agreement.
[2] This application served before me on the allocated opposed roll on the 28
August 2024 . On the date of the hearing both Counsel for the Plaintiff and
Defendants appeared and argued. As will be demonstrated below, the First
Defendant’s Counsel requested to be excused during the proceedings after he had
been provided leave to obtain a telephonic instruction from the First Defendant
during the hearing. The Defendants, their attorney of record were aware that the
application would proceed on the merits and, they unfortunately elected not to
appear at Court nor did they elect to participate in the proceedings at the date of
the hearing. To date, it is unclear whether a request for a copy of the typed record
was ever requested by the Defendants and their legal team.
[3] Be that as it may, generally, in opposed Court if a matter does not become
settled or is not settled in terms of a draft order or an amended draft by
agreement, the Court after hearing may reserve the judgment or if it is in a position
to, it can at the hearing grant the appropriate order after having provided reasons
into the record on the date of the hearing itself. At the date of the hearing in this
application, being the 28 August 2024, the latter was the position and the order
and reasoning is clear . At the time, the pleadings in the action, a ful l set of
affidavits in the rule 32 application including the appropriate heads of argument
affidavits in the rule 32 application including the appropriate heads of argument
were filed by both parties. Furthermore, both Counsel appeared for the Plaintiff
and the Defendant s, albeit in the beginning of the hearing . This Court was
therefore in a position to deal with the summary Judgment application and bring
finality to the matter without further delay.
[4] The difficulty of course arises when attorneys, as ethically required, do not
accompany their advocate to Court and, as in this case , the Defendants
themselves do not come to Court . The First Defendant being aware of the matter
only elected to participate via telephonic communication with his Counsel when
the Court stood the matter down for that very purpose. This will be discussed more
fully below. Elective absence results in an attorney’s inability to take notes during
the proceedings in the interest of t heir clients. Furthermore, if they are present in
Court but fail to take meaningful notes, they, after the fact, may be unable to recall
what happened during the proceedings. This too, equally applies to Counsel who
are at present but who fail to take notes and who fail to record rulings, orders and
reasons. Whatever the reason may be, this may explain why parties generally and
erroneously so, rely on rule 49(1)(c) and file a notice [notice].
[5] The purpose of rue 49(1)(c) is missed and the procedure and expectation,
at times, misplaced. The Plaintiff and the First Defendant have been made aware
and were both reminded of the purpose of this sub-rule but, to consider the sub -
rule again will , in this matter, be a purposeful exercise. The First Defendant has
uploaded two such notices one after the order of the 22 April 2024 and one after
the hearing of the 28 August 2024. Uniform rule 49(1)(c) unambiguously state:
“49.(1)(c) When in giving an order the court declares (own emphasis)
that the reasons for the order will be furnished to any of the
parties on application, such application shall be delivered
within 10 days after the date of the order.”
[6] The record is clear the that it is the Court who declares that reasons will be
forthcoming on request. At the hearing of the 28 August 2024, this Court reasoned
forthcoming on request. At the hearing of the 28 August 2024, this Court reasoned
its finding in respect of both the request for postponement and the outcome of
summary judgment application and attachment relief. There was therefore no
reason for the Court to make a declaration as catered i n the sub -rule. In
consequence the purpose and expectation of the First Defendant misplaced.
[7] Furthermore, if a litigant notwithstanding the purpose of the rule, unilaterally
decides to file a notice, as in this matter, it stands to reason and is logical that the
presiding Judge should be informed of such request as soon as possible. To
explain, if a Judge does not declare that reasons will follow the order such Judge,
will not anticipate that the sub-rule will be invoked. Furthermore, once a matter has
been finally dispensed with, a Judge does not retain the matter and therefore has
no knowledge of any further procedural steps taken by any of the parties . The
Judge’s knowledge of the sub-rule is either triggered by the party who requested it
by bringing it to the Judge’s secretary without delay or, at times, by the Registrar if
such party, like the First Defendant files an application for leave to appeal with the
sub-rule no tice. It is common cause that the First Defendant did not inform the
Registrar of the pending leave to appeal.
[8] The First Defendant nor the attorney brought the sub -rule request to my
secretaries’ attention. Not even an enquiry was made from me why no reasons
were forthcoming. This explains the Courts late response . Both the First
Defendant and the attorney remained silent, and any anticipated delay created by
such silence achieved. However, eventually the Plaintiff’s attorney did contact my
secretary to enquire about a date in respect of the leave to appeal as the required
finality. Unfortunately their request was initially sent via email to my previous
secretaries’ email address on the 9 May 2025 . Fortunately on the 28 May 2025 it
was corrected and sent to my present secretary . A delay to bring the notice to my
attention of was approximately 8 (eight) months during . During the time of delay,
the Defendants and the attorney remained inactive.
[9] To avoid any confusion and to avoid further unnecessary delays this Court
will deal with the notice notwithstanding the fact that the record is clear. In doing
will deal with the notice notwithstanding the fact that the record is clear. In doing
so, this Court first speaks to a brief history of the matter to place what happened
before it to place everything which followed into context.
PROCEDURAL BACKGROUND HISTORY
[10] According to the evidence the Defendants initially fell into arrears under the
home loan agreement in July 2019. The Plaintiffs allege that they repeatedly
attempted to assist the Defendants to regularise their arrear position. Despite the
attempts, the Defendants failed to conclude a payment arrangement with the
Plaintiff, alternatively failed to adhere to any payment arrangements and legal
action against the Defendants commenced by the issuing of a summons. Due to
the Defendants procedural inaction to def end the action, t he Plaintiff initially
proceeded to take default judgment and served the notice of motion together with
such request personally on the First Defendant on the 6 August 2021. On the 19
August 2021 the Defendants through their attorney who was now on record, SS
Masondo Attorneys attorney [the attorney], filed a notice of intention to defend. No
notice of withdrawal by the attorney has ever been filed on caselines.
[11] Notwithstanding the Defendants notice of their intention to defend the action
and again, due to their inaction , they failed to file a plea in terms of the uniform
rules. T he Plaintiff then caused a notice of bar to be served on the 9 February
2023, approximately six (6) months after the notice to defend was filed . In
response to the notice of bar and on the 13 February 2023, the Defendants,
through the attorney, filed a plea.
[12] On the 3 March 2023, the Plaintiff applied for summary judgment in terms of
which it sought judgment against the First and the Second Defendant jointly and
severally for the payment of the debt together with attachment relief in respect of
the property.
[13] The attorney acknowledged receipt of the summary judgment application on
the 6 March 2023. Simultaneously, the First Defendant deposed to an affidavit
resisting the application for summary judgment and stated in paragraph 1 thereof:
“1. I am an adult male of full legal capacity, the first respondent in these
“1. I am an adult male of full legal capacity, the first respondent in these
proceedings, am lawfully married husband to the second respondent
and therefore duly authorised to depose this affidavit and resist the
granting of the judgment.”
[14] It is unclear what authority the First Defendant refers to in respect of his
own evidence but what is clear is that n o confirmatory affidavit by the Second
Defendant was attached nor referred to. I n consequence, the Second Defendant
did not confirm any evidence deposed to by the First Defendant. According to the
papers, the Second Defendant is married, out of community of property to the First
Defendant. The Second Defendant did not in terms of uniform rule 32 take any
positive step/s to resist summary judgment.
[15] Nearly nine (9) months after receiving the First Defendant's opposing
affidavit, the Plaintiff, due to the Defendants inaction once again, this time for their
non-compliance of the directive of this Division , the Plaintiff obtained a compel
order with ancillary relief to strike on the 27 November 2023. The Defendants were
compelled t o file their heads of argument and practice note in terms of the
directive. The First Defendant however, acting in person and citing himself as an
advocate practising in this Division, filed a combined document, a practice note
and his heads of argument on the 12 December 2023.
[16] On the 18 January 2024, the Plaintiff caused a notice of set down for the 22
April 2024 of the summary judgment on the opposed roll. However,
notwithstanding the heads of argument drafted and filed by the First Defendant
himself he on that date, argued for the removal of the matter arguing non -
compliance of the directive . In consequence from the 18 January 2024 to 22 April
2024, both he and the attorney were unable to secure Counsel during the 3
months.
[17] The matter did not proceed on the 22 April 2024 and Van Der Westhuizen J
placed the Defendants on terms allowing the m and/or the attorney of record to
appoint Counsel within 10 (ten) days of the granting of the order and directing that
proof of the same is to be provided to the Plaintiff’s attorney. Furthermore Van Der
proof of the same is to be provided to the Plaintiff’s attorney. Furthermore Van Der
Westhuizen J directed that the application was to be set down for hearing on the
opposed roll within 10 (ten) days from date of the order . Van Der Westhuizen J
granted the Plaintiff attorney and client costs. The First Defendant then uploaded
his first rule 49(2)(c) notice regarding the punitive costs order. It is unclear whether
this first notice ever been came to the Learned Judge’s attention by the
Defendants. A further delay to pay costs achieved.
[18] The matter was finally set down on the opposed roll for the week
commencing the 26 April 2024. The matter was allocated by myself to be heard on
the allocated opposed roll for the 28 August 2024. My directive and allocated roll
was uploaded onto caselines for all the parties attention already on the 22 August
2024.
[19] However, on the 23 August 2024 the First Defendant , without a
confirmatory affidavit filed by the Second Defendant and, without leave or proof of
service simply uploaded an affidavit duly commissioned by a Senior Counsel. In
this affidavit, the First Respondent under oath now explained the circumstances
under which he released his previous unnamed Counsel from a brief . This being
the Counsel in compliance of the 22 April 2024 order . In short , he released his
Counsel from brief for his failure to inform him and the attorney that he was trying
to settle and entertain a joint minute without his instructions . In other words , he
released his Counsel’s attempt to comply with the directive. He stated that:
“No updates were ever given to either my attorney or myself (own
emphasis) and we were never even copied in such communications, let
alone being invited to participate in those engagements and it appears that
these discussions were taking place outside of the parameters of what is
lawful and ethical between the applicant, its counsel and our counsel”(own
emphasis).
[20] The attorney failed to confirm these facts under oath in circumstances when
he too, as an officer of the Court had to comply with the 22 April 2024 order,
alternatively, he failed to provide an explanation under oath for the present non-
compliance.
[21] The First Defendant under oath confirmed that on the 23 August 2024, a
date after my allocated directive, he managed to secure the services of Counsel.
date after my allocated directive, he managed to secure the services of Counsel.
This Counsel he stated was in his own Group. No particulars were provided, the
Counsel and his/her details remained nameless . This affidavit was uploaded on
the 27 August 2024 , the day before the hearing and several court days after my
directive.
[22] Simultaneously however, the First Defendant , again without any
confirmation from the attorney nor a confirmatory affidavit from the Second
Defendant, deposed to yet a f urther affidavit in which he now sought a
postponement. This postponement request was not brought by way of a brought
by way of substantive application, nor did he tender costs.
[23] The only reason advanced for the postponement was that his unnamed
Counsel was only available on the 26 August 2024 and not on Wednesday 28
August 2024, as allocated. Of significance, was that the unnamed Counsel never
attempted to inform my office of his predicament to ensure a reallocation
notwithstanding the ethical rule that Counsel must make themselves available for
the entire week in anticipation of the allocation in opposed motion court.
[24] As anticipated, t he Plaintiff opposed the postponement request and
uploaded written argument to assist the Court.
THE POSTPONEMENT REQUEST , THE OPPOSED SUMMARY JUDGMENT
APPLICATION AND RULE 46 AND RULE 46A RELIEF
[25] Notwithstanding the affidavits which were simply uploaded onto caselines ,
the First Defendant was represented at the hearing by Advocate Sibisi. Advocate
Sibisi and on the record stated that he acted on behalf of the ‘Respondent’. The
Court accepted that he must have meant the First Defendant . N o mention was
made of the Second Defendant nor as will be illustrated did Advocate Sibisi ever
refer to the Second Defendant in the record, not even erroneously as the Second
Respondent. This must also be considered against the fact that Advocate Sibisi
called the First Defendant during the hearing for further instructions. The Second
Defendant did not file papers nor confirm the request for postponement. Advocate
Sibisi stated that he and the attorney had been instructed on a pro bono basis.
Advocate Sibisi appeared without the attorney and was not accompanied by either
the First or Second Defendant.
[26] Absent a notice of motion to support of a substantive application for a
postponement, the Court , none the less , heard both parties . Advocate Sibisi
confirmed for record purposes that his instructions were only to advance
submissions in respect of the postponement and that he was not to make
submissions regarding the merits of the matter set down before Court . In
amplification, he stated the following:
“If the Court does not grant this postponement, My Lady, that is the end of
it. I do not have instructions for the postponement – for to argue merits. I did
have a word with the applicant because I also said that look, a
postponement is discretionary after all. However, My Lady, I was simply told
that you cannot argue, you know the merits. I am a creature of instructions,
after all, My Lady. I cannot do what is beyond my scope, My Lady.”
[27] The First Defendant had filed papers in the opposed summary judgment
and written and filed the heads of argument , yet he elected not to be present to
assist his own Counsel nor the Court , as its Officer . The election not to assist is
seen against the backdrop of the fact that when the First Defendant want ed to
assist himself, he did, and he could. This fact is borne out in his own evidence at
the hearing of the 22 April 2024 at paragraph 4 he states “- I appeared in my own
capacity (own emphasis) Justice Van Der Westhuizen, and vehemently argued the
matter (own emphasis) as was not properly before the Court, as the applicant -
plaintiff had failed to comply with the provisions of the 2024 practice directive .” In
other words , this demonstrates that he was capable and able to make
submissions then, and it is on this basis that it appears unclear that he now, i n
respect of resisting summary judgment as envisaged in terms of rile 32 , cannot
respect of resisting summary judgment as envisaged in terms of rile 32 , cannot
assist himself nor the Court. A change in professional circumstances or ability was
not clear from the papers.
[28] In any event, i rrespective of Advocate Sibisi’s instructions and irrespective
of his statement into the record, he did go into the merits . The highwater mark of
his merit argument was: “ However, what I can actually submit before this Court is
that this is a primary residence, and obviously, it will have an effect on the children
because they also attending school around the area My Lady.”
[29] Notwithstanding these submissions, Advocate Sibisi informed the Court that
the unnamed Counsel who was briefed to deal with the merits was in fact Byron
Morris and he advanced the reason why Byron Morris could not argue the merits :
“- if this matter was going to be argued either on Monday or Tuesday, he was, but
because it’s Wednesday, he is not available. ” Byron Morris filed no papers nor a
practice note.
[30] To compound the First Defendant’s predicament, the Plaintiff’s Counsel
reminded the Court that if it had regard to the previous Court order by Van Der
Westhuizen J, and if the Court accepted the First Defendant’s evidence that he
released his previous Counsel on the 6 July 2024 both he and the attorneys had
ample time to adhere to the Court order and obtain Counsel to argue the merits of
the matter. Such an explanation of delay of the full period with any particularity
was not explained. Furthermore , that from the explanation the First Defendant
waited until the last minute to secure Counsel. In fact, his attorney has not even
bothered to comply with the order and not placed any version before court for his
non-compliance of the court order.
[31] Furthermore, my directive was published and uploaded onto caselines on
the 22 August 2024 , therefore, the First Defendant’s allegation when speaking for
both himself and the Counsel that he on the 23 August 2024 secured his counsel
stated under oath at paragraph 4 that: “ It was never within our foresight (his and
his Counsel-own emphasis) that the matter would not proceed as per the notice of
set down but would be rolled over for another day during the week” , is not only
watered down but disingenuous. M y allocated roll was uploaded before he
watered down but disingenuous. M y allocated roll was uploaded before he
secured the Counsel to deal with the merits and furthermore, the directives and
Practice Manual dealing with Counsels obligations in the opposed motion Court is
clear. This aspect has been mentioned before.
[32] Considering all the submissions, th is Court also acutely aware that the
Second Defendant had not filed a postponement made its ruling with reasons into
the record. Advocate Sibisi was present . The postponement was refused and
costs of suit on scale A was awarded to the Plaintiff.
[33] The Court then informed Advocate Sibisi that it was ready to proceed with
the merits of the summary judgment application and that it was willing to stand the
matter down for a number of minutes so that he could take instructions from his
client who could arrange to be at court and the Court adjourned to assist the First
Defendant. Advocate Sibisi was grateful for the indulgence.
[34] On Advocate Sibisi’s return he explained that he could not get hold of the
attorney, but he managed to get hold of the First Defendant. He stated the
following:
“I relayed; I conveyed the message to him regarding the order of the
postponement. And then I actually told him about now the fact that you are
only left with the merits, and he insisted on that I should not touch on the
merits. I said that it means the matter is unopposed if that is the case.”
[35] The Court enquired whether the First Defendant would then be on his way
to Court under these circumstances and the answer Advocate Sibisi gave was:
“Not at all.”
[36] In the premises, the First Defendant had elected to be absent after being
provided with a further opportunity to attend . The Second Defendant was also
absent. The First Defendant was steering the ship and trying to control a narrative
of absence which is untenable on the facts. If anything by his absence was at his
own hand and election. Advocate Sibisi excused himself and did not even remain
in Court to take notes for the Defendant /s. To obtain and understand, the reasons
for the judgment were accessible for all the parties at the time.
[37] The Court considered all papers file d and h aving regard to the pleadings
[37] The Court considered all papers file d and h aving regard to the pleadings
and the admission of the material relevant facts by the Defendants not triable
issue was raised on the plea dings. The Defendants admitted the conclusion of the
loan agreement and the material terms thereof, the failure to pay the mortgage
bond instalments and compliance with section 129 notice, including the admission
of the arrears and the debt. The nub of the plea was that the proceedings were
academic, because the First Defendant had undertaken from the end of March
2023 to extinguish the arrears. However, the Plaintiff’s Counsel argued that the
Defendants have failed to settle the arrears as of March 2023.
[38] In the affidavit resisting summary judgment the First Defendant raised
further defences in an attempt to extend the reach of the plea. The Plaintiff’s
Counsel reminded the Court that without a proper explanation it was not
permissible in a summary judgment application as such defence cannot be said to
be bona fide as the rule requires. The Court in this regard was invited to consider
the matter of Vukile Property Fund Limited v True Ruby Trading 1002 CC and
Others,1 which the Court highlighted that if allegations in an affidavit resisting
summary judgment are not consistent with that of the plea as in this case, it
cannot, in the absence of an explanation for the inconsistency to be said to be
bona fide. It is a prerequisite that a consideration of the defence must be bona fide
and in good faith in law.
[39] Without a proper explanation of the reason for the inconsistency caused
and having regard that all the material facts in support of judgment as praye d for,
not triable issue s warranting leave to trial was apparent. Furthermore , the
Plaintiff’s claim in respect of the debt was jointly and severally with the Second
Defendant not taking any steps to resist the same in terms of rule 32, Judgment as
prayed for was granted.
[40] The Plaintiff’s Counsel took the Court through the formalities with regard to
rule 46A. The Court was satisfied. Then having regard to the remaining provisions
rule 46A. The Court was satisfied. Then having regard to the remaining provisions
of rule 46A and considered the submissions in terms of sub-rule 46A(3)(b). It is for
this purpose that this Court considered the submission of the First Defendant . At
this juncture this Court considered it a grave pity that the voice of the Second
1 (Case number 2020/9705) per Moorcroft AJ, Gauteng Division, Johannesburg at par [10]
read together with ABSA Bank v Meiring 2022 (3) SA 449 (WCC) at par [14].
Defendant was not specifically heard, in that she , as previously stated numerous
times, did not prosecute her opposition in any way nor did she confirm any
evidence proffered by First Defendant not even pertaining to the alleged minor
children. She failed to provide any evidence in terms of sub -rule 46A(6) . No
submissions in respect of the Rule 46A relief was made by her by choice, to assist
this Court.
[41] The First Defendant , other than making reference to rights enshrined in
section 26, failed to advance any reasons or provide any facts to this Court to
substantiate why h is right to adequate housing would be infringed by the
attachment and execution relief. It was almost as if, by mere reference to the
Court’s Constitutional obligation, such right was established. However, that alone
does not translate into h is inability to have access to adequate housing whether
factually or financially. Factually he does not state that he ha s tried to obtain other
housing by rental or otherwise nor fully demonstrate that he does not factually
possess an inability to afford adequate housing elsewhere . His affidavits seem to
suggest that he still practises with the Group as a member of the Johannesburg
Bar. This Court without evidence is not asked nor required nor can guess what his
factual financial position is without proof. None the less if it was dire and
Constitutional protection clear, the Court could have ordered the Municipality to
assist him. No other submissions or facts were presented which bolstered the
case that both Defendants were indigent Defendants requiring t he protection of
section 26 of the Constitution . The First Defendant was not an indigent litigant a
consideration the Court applied having regard to section of the Constitution.
[42] As far as the best interest of the minor children are concerned , the Court
enquired whether proof of such children, other that the allegation was before it.
enquired whether proof of such children, other that the allegation was before it.
None was, no birth certificates were forthcoming to assist a Court to ascertain the
weight of the First Defendant’s allegations and reliance of the minor children.
[43] The Court made its enquiries, exercised its discretion , considered the facts
and was satisfied that the property could be declared attached and declared
executable but to assist the Defendants intended to suspend the execution of the
writ for 3 (three) months to enable the Defendants to relocate or to repay the
arrears as stated in the pleadings he would do. The Court then in favour of the
Defendants heard submissions in respect of setting a reserve price in terms of
section 46A(9) . It considered the updated and most recent valuation affidavit
(valuation of R 4 000 000.000) and the expenses (rates and taxes of R 10 563.27
and outstanding levies of R 3 074.25) and determined a reserve price of R 3 986
362.48.
[44] It was on this basis having regard to all before it that the order was granted.
COSTS
[45] The Plaintiff’s Counsel argued for attorney client costs as agreed to in the
loan and mortgage agreement and reference was made to clause 1.3.1.12 of the
agreement appearing on A -66 on caselines. The Court awarded attorney client
costs as per the agreement and having regard thereto.
[46] An amended draft order duly handed up by the Plaintiff’s Counsel with the
addition of prayer 9 including the suspension of the writ for 3 (three) months was
made an order of Court.
L.A. RETIEF
Judge of the High Court
Gauteng Division
Knowledge of date of request for reasons: 28 May 2025
Date of furnished reasons: 30 June 2025.