IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
NEDBANK LIMITED
and
MATTHYS JOHANNES LOURENS WESSELS NO
MARYNA WESSELS NO
JACOBUS ELISA KRITZINGER NO
[In their capacities as trustees for the time being
of the Kombi Trust, IT1704/2001]
MATTHYS JOHANNES LOURENS WESSELS NO
MARYNA WESSELS NO
WILLEM CHRISTIAAN HENNING NO
[In their capacities as trustees for the time being
of the Ses Is Genoeg Trust, IT569/1995]
Not reportable
Case no: 6626/2024
PLAINTIFF
FIRST DEFENDANT
SECOND DEFENDANT
THIRD DEFENDANT
FOURTH DEFENDANT
FIFTH DEFENDANT
SIXTH DEFENDANT
Neutral citation: Nedbank Limited v Matthys Johannes Lourens Wessels NO and
Others (6626/2024) [2025] ZAFSHC 211 (10 July 2025)
Coram:
Heard:
Delivered:
Ntanga AJ
8 May 2025
10 July 2025
Summary: Civil procedure - application for summary judgment - statement of material
facts in a plea and/or in affidavit opposing summary judgment required - principles
regarding summary judgment restated - application for summary judgment refused.
ORDER
1 The application for summary judgment is dismissed;
2 The defendants are granted leave to defend; and
3 Costs of this summary judgment application to be costs in the course.
Ntanga AJ
Introduction
JUDGMENT
2
[1] This is an application for summary judgment against defendants for payment of the
amount of R7 077 969.37 plus interest on the amount of R7 055 969.37 at the rate of
10. 75% per annum, compounded daily and capitalised monthly from 20 November 2024
to date of final payment and other orders ancillary thereto. The defendants have opposed
the application for summary judgment and filed an affidavit opposing the application.
[2] Prior to the application for summary judgment, the plaintiff caused summons to be
issued against the defendants who defended the matter and filed a plea. After delivery of
the defendants' plea, the plaintiff launched an application for summary judgment.
The plaintiff's case
[3] In its particulars of claim, the plaintiff avers that on or about 26 October 2018, the
Kombi Trust bound itself as surety and co-principal debtor in solidium with for the
repayment on demand of all amounts which Varymix may at any time owe to the plaintiff,
arising from whatsoever cause. The terms of the suretyship agreement are set out in the
particulars of claim.
[4] The plaintiff further averred that on or about 26 October 2018, the Ses Is Genoeg
Trust bound itself as surety and co-principal debtor in solidum with for the repayment on
demand of all amounts which Varymix may at any time owe the plaintiff, arising from
3
whatsoever cause. The terms of the suretyship agreement are set out in the particulars
of claim.
[5] The plaintiff further averred in its particulars of claim that on or about 21 May 2021,
Varymix bound itself as surety and co-principal debtor in solidum with the TNT Trust, IT
1679/2001 for the repayment on demand of all amounts which the TNT Trust may at any
time owe the plaintiff, arising from whatsoever cause. The terms of the suretyship
agreement are set out in the particulars of claim.
[6] Prior to these proceedings, the plaintiff avers that it launched application
proceedings against, inter a/ia, the TNT Trust under civil case number 2036/2023 in terms
whereof it claimed payment of the amount of R10 401 716.84, together with interest at
the rate of 10.75% per annum . On or about 31 May 2023, the plaintiff and, inter alia, the
TNT Trust concluded a written settlement agreement in respect of the proceedings and
the settlement agreement was made an order of the court. In terms of the settlement
agreement, the TNT trust acknowledged its indebtedness to the plaintiff in the amount of
R10 401 716.84, including further interest at the applicable contractual rate.
[7] On 16 March 2023, Varymix was provisionally liquidated and, on 11 May 2023, it
was finally wound-up. The plaintiff averred that the deemed date of commencement of
liquidation of Varymix is 16 February 2023, it being the date upon which the application
was launched.
[8] The plaintiff further averred that it proceeded to prove claims in the insolvent estate
of Varymix as follows:
(a) In the amount of R21 488.28;
(b) In the amount of R1 O 247 157.01; and
(c) In the amount of R36 610.10.
[9] The plaintiff further averred that on or about 20 May 2024, the defendants concluded
a written settlement agreement with the liquidators of Varymix. It is averred that the
defendants unconditionally acknowledged their indebtedness to the liquidated estate in
4
an amount of RS 000 000 and undertook to effect payment in terms of specified
instalments.
[1 0] The plaintiff averred that on 20 November 2024, the TNT Trust was indebted to the
plaintiff in the amount of R7 055 969.37 together with interest at 10.75% per annum
compounded daily and capitalised monthly from 20 November 2024 to date of final
payment.
[11] The plaintiff averred that, by virtue of Varymix binding itself as surety and co-principal
debtor in solidum with the TNT Trust, for the repayment on demand of all amounts which
the TNT Trust may at any time owe the plaintiff, arising from whatsoever cause, Varymix
was on 20 November 2024 indebted to the plaintiff in the amount of R7 055 969.37,
together with interest at 10.75% per annum compounded daily and capitalised monthly
from 20 November 2024 to date of final payment.
[12] The plaintiff further averred that by virtue of the Kombi Trust binding itself as surety
and co-principal in solidum with Varymix, for the repayment on demand of all amounts
which Varymix may at any time owe the plaintiff, arising from whatsoever cause, the
Kombi Trust was on 15 July 2024, indebted to the plaintiff in the amount of R7 055 969.37
together with interest at 10.75% per annum compounded daily and capitalised monthly
from 20 November 2024.
[13] The plaintiff further averred that, by virtue of the Ses Is Genoeg Trust binding itself
as surety and co-principal in solidum with Varymix, for the repayment on demand of all
amounts which Varymix may at any time owe the plaintiff, arising from whatsoever cause,
the Ses Is Genoeg Trust was as on 20 November 2024, indebted to the plaintiff in the
amount of R7 055 969.37 together with interest at 10. 75% per annum compounded daily
and capitalised monthly from 20 November 2024 to date of final payment.
The defendant's case
[14] In their plea, the defendants averred that their liability to the liquidated estate of
Varymix was settled by and between the defendants and the liquidators of Varymix
Varymix was settled by and between the defendants and the liquidators of Varymix
pursuant to the agreement dated 20 May 2024. The defendants averred that in
5
com pliance with their obligations in terms of the settlement agreement, they have paid
the total amo unt of R5 499 000 to the liquidated estate.
[15] The defendants further averred that, additionally, the liquidated estate received
payment in the appropriate amount of R1 005 690.65 from the payment of the guarantee
in respect of the KLK Build It Kuruman project, an erstwhile project of Varymix. The
defendants further averred that the liquidated estate has further additionally received
payment of the proceeds of the sale of certain movable assets of Varymix, including
various TLBs and other vehicles, in the appropriate amount of R1000 000.
[16] The defendants further averred that, in addition to the suretyships by inter alia the
defendants in favour of the plaintiff, the debt is secured by registered bonds in favour of
the plaintiff over four immovable properties of the TNT Trust. The defendants averred that
the plaintiff has partially realised this security and has sold two of these bonded properties
pursuant to the order of 1 June 2023, for a purchase price of R4 000 000, and the net
proceeds of this sale has been received by the plaintiff. Defendants averred in their plea
that the plaintiff's claim against the defendants has become distinguished.
Issues for determination
[17] This court is called upon to determine: (a} whether the defence raised in the
defendant's plea and affidavit opposing summary judgment constitute a bona fide
defence, good in law, and/or whether it raised a triable issue.
Legal framework and analysis
[18] Rule 32(1} and (2)(a) provides that:
'(1) The plaintiff may, after the defendant has delivered a plea, apply to court for summary
judgment on each of such claims in the summons as is only -
(2)(a) Within 15 days after the date of delivery of the plea, the plaintiff shall deliver notice of
application for summary judgment, together with an affidavit made by the plaintiff or by any other
person who can swear positively to the facts. '1
person who can swear positively to the facts. '1
1 Uniform Ru les of Co urt.
6
[19] In Firstrand Bank Ltd v De Santos and Another,2 the court stated that:
' ... 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 issue for
trial. 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.'
[20] The purpose of summary judgment is to afford a plaintiff final and speedy relief
without undue delay of waiting for trial. The intention is, however, not to close doors of
access to justice for the defendant. The defendant is not barred from accessing justice
and the principle of audi alteram partem is not violated as the defendant is allowed to
deliver a plea and affidavit opposing summary judgment before a decision is taken. 3 The
court has a significant role to harmonise its decision with the ethos of the Constitution. In
this instant, the constitutionally entrenched right to have any dispute resolved and decided
in a fair public hearing before court is sacrosanct.4 The Constitution is the founding
principle of our legal system and the court is bound to observe, honour and apply
constitutional principles in its decision-making process. In S v Thebus and Another,5 the
court stated that:
'A different approach is required when a court deals with a constitutional challenge to a rule of the
common law. The common law is its law. Superior Courts are protectors and expounders of the
common law. The superior courts have always had an inherent power to refashion and develop
the common law in order to reflect the changing social, moral and economic make-up of society.
That power is now constitutionally authorised and must be exercised within the prescripts and
ethos of Constitution.
In a constitutional challenge of the first type, referred to in paragraph 28, to a common law rule,
the court is again required to do a threshold analysis, being whether the rule limits an entrenched
right. If the limitation is not reasonable and justifiable, the court itself is obliged to adapt, or develop
the common law in order to harmonise it with the constitutional norm.'
2 Firstrand Bank Ltd v De Santos and Another [2025] ZAGPPHC 606 para 23.
3 Van Niekerk et al Summary Judgment: A Practical Guide (issue 1) at 5-4.
4 See s 34 of the Constitution of the Republic of South Africa, 1996.
5 Thebus and Another v S [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC); 2003 (2)
SACR 319 (CC) paras 31-32.
7
[21] This remedy is available to the plaintiff where the defendant has failed to show a
bona fide defence that is good in law and a triable issue that should be ventilated at trial.
Amendment of rule 32 of the Uniform Rules of Court has enabled the court to make proper
evaluation of whether the defendant has raised a bona fide defence that is good in law
and whether the plea raises any triable issues that should be ventilated at trial. This is in
addition in certain circumstances, to the defendant's further opportunity to raise a defence
in its affidavit opposing summary judgment that was not raised in its plea. A plea is the
answer to the plaintiff's claim and the defendant must set out its defence in the plea. The
court must balance the interests of both parties, that is, to ensure that a plaintiff is not
prejudiced by a frivolous defence that is not bona fide to the claim, good in law or raises
no triable issues whilst the defendant's right of access to court is not encroached. It is
trite that the purpose of the summary judgment application is to prevent frivolous defences
from delaying speedy resolution of a dispute to the prejudice of the plaintiff.6 When
adjudicating summary judgment application, the court must exercise its discretion
judiciously to ensure that the court's door is not shut to the defendant that is entitled to
enjoy its constitutionally enshrined right of access to court. 7
[22] In Maharaj v Barclays National Bank Ltd,8 the court set out the principles relating to
summary judgment as follows:
'Accordingly, one of the ways in which a defendant may successfully oppose a claim for summary
judgment is by satisfying the Court by affidavit that he has a bona fide defence to the claim. Where
the defence is based upon facts, in the sense that material facts alleged by the plaintiff in his
summons, or combined summons, are disputed or new facts are alleged constituting a defence,
the Court does not attempt to decide these issues or to determine whether or not there is a
the Court does not attempt to decide these issues or to determine whether or not there is a
balance of probabilities in favour of the one party or the other. All that the Court enquires into is:
{a) whether the defendant has "fully" disclosed the nature and grounds of his defence and the
material facts upon which it is founded, and (b) whether on the facts so disclosed the defendant
appears to have, as to either the whole or part of the claim, a defence which is both bona fide and
good in law. If satisfied on these matters the Court must refuse summary judgment, either wholly
or in part, as the case may be.'
6 See Majola v N itro Securitisation 1 (Pty) Ltd [2011] ZASCA 180; 2012 (1) SA 226 (SCA); [2012] 1 All SA
628 (SCA) para 25.
7 See in this regard Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture [2009] ZASCA
23; 2009 (5) SA 1 (SCA) para 31.
8 Maharaj v Barclays National Bank Ltd [1975] ZASCA 102; 1976 (1) SA418 (A) (MaharaJ) at 426A-C; see
also South African Land Arrangements CC v Nedbank Limited [2015] ZASCA 88.
8
[23] In Bragan Chemicals (Pty) Ltd v Devland Cash and Carry (Pty) Ltd,9 the court stated
that:
The role of pleadings in litigation is well-known and need not be restated in detail. The
object of pleadings is to define the issues upon which a court will be called upon to
adjudicate and to enable the parties to prepare for trial on the issues as defined. A plea
is the answer by a defendant to the claims made against it by the plaintiff and in which
his defence is set out. Rule 22(2) of the Uniform Rules provides as follows:
"The defendant shall in his plea either admit or deny or confess and avoid all the material
facts alleged in the combined summons or declaration or state which of the said facts are
not admitted and to what extent and shall clearly and concisely state all material facts
upon which he relies."
An applicant for summary judgment is therefore entitled to rely on a plea in considering whether
to launch an application for summary judgment. Where a defendant has failed to disclose a
defence in its plea, a plaintiff would (in most instances) be entitled to the relief sought in its claim.
I say this, however, with caution. I accept that there may be circumstances in which a defendant
in summary judgment may well be able to raise a defence in the affidavit resisting summary
judgment, but which was not raised in the plea. However, this is not the case is the present matter.
In the present circumstances the defences raised in the affidavit resisting summary judgment
clearly were an afterthought for the reasons I have already alluded to. This is precisely what the
drafters of the new rule have tried to avoid.'
[24] I have set out above details of the defendants' defence which, in the main, is that
plaintiff's claim against the defendants has become extinguished. The defendants made
averments in their plea and affidavit opposing summary judgment that payments were
made to the liquidated estate in the amounts of: (a) RS 499 000; (b) R1 005 690.65; (c)
made to the liquidated estate in the amounts of: (a) RS 499 000; (b) R1 005 690.65; (c)
R1000 000; and (d) R4 000 000. These amounts total to R11 504 690.65. The amount
claimed by the plaintiff against the defendants is the sum of R7 055 969.37.
The plaintiff argued that there is no defence raised by the defendants and that reference
to the claim by TNT Trust is wrong. The principal debtor in terms of the surety agreement
is not TNT Trust. It was argued that the plaintiff is not a party to the agreement and that
what is settled is Varymix's indebtedness to the liquidators and not the plaintiff. The
9 Bragan Chemicals (Pty) Ltd v Devland Cash and Carry (Pty) Ltd [2020] ZAGPPHC 397 para 15-16.
9
plaintiff further argued that the settlement agreement refers to the liquidators and state
that this will not affect the plaintiffs rights.
[25] The plaintiff argued that its cause of action against Kombi Trust and the Ses Is
Genoeg Trust is premised on the suretyships concluded by each Trust in favour of the
plaintiff. The plaintiff argued that its cause of action is not premised on the settlement
agreement concluded between the defendants and the duly appointed liquidators of the
liquidated estate of Varymix. The plaintiff further argued that payment of R5 Million was
made before the certificate of balance was issued, and this was before the summons
were issued. The plaintiff argued that defendants still owe R7 Million. The plaintiff argued
that the certificate of balance was issued on 20 November 2024. The plaintiff argued that
the payments were made on 18 June 2024, 3 September 2024 and 5 November 2024.
The plaintiff acknowledged receipt of the monies accounted for but argued that the
defendants owed R10.3 million and that they currently owe R7 million.
[26] The defendants argued that the plaintiff was owed money by the liquidated Varymix
and that it proved its claim against the liquidated estate. The defendants argued that, as
sureties, they paid the amount owed in full. The defendants further argued that
considering periodical payments agreed to by the parties in terms of the settlement
agreement among the liquidators and defendants, as at the time that summons were
issued, payments were still to be made as set out in clause 4.2 of the settlement
agreement. They argued that monies paid are still with the liquidators and that the money
paid to the liquidators is more than R10 Million.
The plaintiff referred the court to the decision of Gruhn v Pupkewitz and Sons (Ty) Ltd,10
where the Court set out the principles relating to summary judgment in the translated
English summary version as follows:
English summary version as follows:
' ... Where the seller applies for summary judgment against the surety, and the surety alleges
that he has reason to believe that the amount claimed does not represent the correct price of the
goods sold, it cannot be said that he has no defence to the application, and the Court must
exercise its discretion and give the surety the opportunity of asking for further particulars and of
defending the action.'
10 Gruhn v M. Pupkewitz and Sons (Pty) Ltd 1973 (3) SA 49 (A) at 49. See also Jacobsen van den Berg
S.A. (Pty) Ltd v Triton Yachting Suppliers 1974 (2) SA584 (0).
10
The plaintiff argued that the court when exercising its discretion to refuse summary
judgment is limited to where there may be doubt as to the defendant's liability. It was
further argued that where the defendant's liability is undisputed, the discretion should not
be exercised against a plaintiff to deprive it of the relief to which it is entitled. The issue
before this court is whether the defence raised by the defendants that the debt has
become extinguished because of the payments made constitute a bona fide defence,
good in law and whether this is a triable issue to be ventilated at trial
The defendants referred to the decision of Breitenbach v Fiat (Edms) Bpk, 11 where the
court stated that:
'The discretion under sub-rule (5) should not be exercised against a plaintiff on the basis of mere
conjecture or speculation. It should be exercised on the basis of material before Court.'
Courts do not easily grant summary judgment as opposed to granting a defendant leave
to defend itself on trial unless a clear case has been established that there is no bona fide
defence raised from the defendant's plea and affidavit opposing summary judgment. In
ZTE Corporation South Africa v Arbiwizn (Pty) and Others,12 the court stated that:
'It was reaffirmed in Absa Bank Ltd v Mphah/ele that our courts have warned to guard against
injustice to a defendant who is called upon, at short notice and without the benefit of further
particulars, discovery or cross-examination, to satisfy a court that such a defendant has a bona
fide defence. On the one hand the remedy of summary judgment should be available to a plaintiff
whose right to relief is being frustrated by the defendant who does not have a defence. However,
on the other hand, our courts have always been reluctant to deprive a defendant of his right to
defend an action and proceed to trial, except where there is a clear case.
In the matter of Edwards v Menezes Van den Heever J expressed a preference for the approach
In the matter of Edwards v Menezes Van den Heever J expressed a preference for the approach
that it is only where the court has no reasonable doubt that the plaintiff is entitled to judgment as
prayed and that the plaintiff has an unanswerable case, that summary judgment will be granted.
The fact that there exists a dispute whether the equipment in question is the old, dismantled
equipment or whether it is the new equipment that was meant to be installed but was not installed
in terms of the agreemen t, gives rise to a triable issue.'
11 Breitenbach v Fiat (Edms) Bpk 1976 (2) SA 226 (T) at 229E-F.
12 ZTE Corporation South Africa v Arbiwizn (Ply} and Others (2024] ZAGPPHC 896 paras 33-35. See also
Absa Bank Ltd v Mphah/e/e [2020] ZAGPPHC 257. Also see Edwards v Menezes 1973 (1) SA 299 (NC).
11
There is a dispute between the parties on whether defendants owe the monies claimed
by the plaintiff. The defendants raised a defence that the primary debt has become
extinguished. I have considered the plaintiffs submission that there is no defence raised
by the defendants because plaintiff was not party to the agreements. This includes the
plaintiffs submission that payment of the sum of R5 Million was made before the
certificate of balance was issued and this was before the summons were issued. I have
also considered the plaintiffs subm ission that defendants owed R10.3 million and that
they still owe R7 Million. The other issue raised by the plaintiff is a clause in the agreement
which provides that the rights of the plaintiff will not be affected by the agreement. The
difficulty with this submission lies on the fact that the plaintiffs cause of action has been
crafted in a manner that links it with the settlement agreement signed with the liquidator.
There is a clear factual dispute on whether defendants owe the monies claimed by the
plaintiff or whether the debt is distinguished as submitted by the defendants. The defence
raised by the defendants, in my view, raises a bona fide defence and gives rise to a triable
issue which must be ventilated at trial. It will not be just and equitable to deny the
defendants opportunity to defend this action on trial. The defendants have disclosed fully
the nature, grounds and material facts upon wh ich their defence is relied upon. I am
satisfied that the defendants have raised triable issues which should be resolved at trial.
I am not inclined to deprive the defendants who have raised a triable defence an
opportunity to ventilate their defence in the trial proceedings. The plaintiff will not be
without remedy as it will have full opportunity to prove its case on trial. On the contrary,
the defendants will have no other opportunity except an appeal should summary judgment
be granted.
be granted.
Having considered submission by the parties and relevant case law, the plaintiffs
application for summary judgment should, in the discretion of this court, be refused and
the defendants be given leave to defend the action.
Costs
The general rule is that the successful party should be granted costs. However , having
granted defendants leave to defend, the trial court will be in a better position to determine
the issue of costs including summary judgment application.
Order
In the circumstances, I make the following order:
1 The application for summary judgment is dismissed;
2 The defendants are granted leave to defend; and
3 Costs of this summary judgment application to be costs in the course.
12
r
TL
I NTANGAAJ
13
Appearances
For the applicant: S Tsangarakis
Instructed by: Symington & De Kok Attorneys, Bloemfontein
For the respondents: E G Lubbe
Instructed by: Green Attorneys, Bloemfontein.