IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
CASE NO: 4440/2024
In the matter between:
FINNOVATION CAPITAL (PTY) LTD PLAINTIFF
and
THULANI EUSSY NKOSI FIRST DEFENDANT
FORTUNATE BONISIWE NKOSI SECOND DEFENDANT
JUDGMENT
1. REPORTABLE: YES/ NO
2. OF INTEREST TO OTHER JUDGES: YES/NO
3. REVISED.
27 August 2025 [SIGNED]
DATE SIGNATURE
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Msibi AJ
[1] In t his application , the plaintiff applies for a summary judgment against the
defendants as follows:
“(a) Payment of the sum of R10 036 783.88.
(b) Interest at 18% per annum from date of default being 19 February 2020 up to the
date of final payment.
(c) Costs on attorney and own client scale; jointly and severally, one paying the other
to be absolved.”
[2] The plaintiff is a private company that entered into a loan agreement with Khosithi
Artisan and Skills Training Institute (Pty) Ltd (which has since been liquidated) . I will
hereafter refer to it as the liquidated company. The liquidated company was represented
by the first defendant. The first and second defendants, who are married in community of
property, signed a deed of suretyship in favour of the loaned amount.
[3] The application is resisted by both defendants. It is trite that a summary judgment
is based on an argument that there are no triable issues of fact, and the motion is initiated
by a plaintiff who contends that all the necessary factual issues are settled and therefore
need not be tried. If there are triable issues of fact in any cause of action or if it is unclear
whether there are such triable issues, summary judgment must be refused as to that
cause of action. The purpose of a summary judgment procedure is, therefore, to afford
an innocent plaintiff who has an unanswerable case against an elusive defendant a much
speedier remedy than that of waiting for the conclusion of the action.
Background facts
[4] The plaintiff entered into a written loan agreement with the liquidated company
before its liquidation on 12 November 2019. In terms of the agreement, the plaintiff loaned
the liquidated company an amount of R6 500 000.00. A monthly repayment amount of
R158 067.00 was payable from January 2020. In terms of clauses 8 and 10 of the
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agreement, the full balance of the loan, inclusive of the capital and interest, immediately
becomes payable upon liquidation of the company’s estate, be it provisional or final
liquidation.
[5] As security for the indebtedness of the liquidated company , in terms of the loan
agreement, the first and second defendants bound themselves as sureties in solidum and
co-debtors for the full and proper fulfilment by the liquidated company on 13 November
2019. The liquidated company fell into arrears from February 2020. Despite demand, the
liquidated company failed to pay its monthly instalments as undertaken, which resulted in
the total amount paid by the liquidated company on 11 November 2023 being
R3 054 201.00.
[6] In July 2024, a final winding-up order was issued against the liquidated company.
According to the loan schedule, the company owes the plaintiff R10 036 783.88 with
interest.
[7] On 2 September 2024, the plaintiff issued summons against the liquidated
company for the payment of R10 036 783.88, with interest at 18% per annum from the
date of default, being 19 February 2019, up to the date of final payment, with costs. The
action was defended by the defendants.
[8] Having been served with an appear ance to defend , the plaintiff launched the
application at hand. The application is premised on the fact that the defendant s do not
have a bona fide defence to the plaintiff’s claim and that the notice to defend ha d been
filed solely for the purpose of delay.
[9] The application for Summary Judgment is also opposed by the defendants, who
filed an opposing affidavit, together with confirmatory affidavits. The main facts are not in
dispute. The defendants admit to signing as sureties and acknowledge default on most
of the payments under the loan agreement, as alleged by the plaintiff, providing reasons
for the arrears.
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[10] In response to the application, the defendants raised a special plea of prescription
as follows:
“5. The plaintiff ought to have known that prescription against the Defendants will start to
run on 19 February 2020 for a period of 3 (three) years as the company first fell into arrears
on this date and did therefore become due on this date.
6. The Summons was only served on the Defendants on 3 September 2024 and after any
alleged debt prescribed on 18 February 2023.
WHEREFORE THE DEFENDANT PRAY THAT THE SPECIAL PLEA BE UPHELD AND
THE ACTION BE DISMISSED WITH COSTS.”
[11] In its replication to the special plea, the plaintiff stated that there was an interruption
in the completion or running of prescription in favour of the principal debtor , which came
into effect during the liquidation proceedings. The second defence by the defendants is
that the plaintiff has failed to illustrate how the outstanding amount, together with interest
and penalty interest , was calculated , since the liquidated company had already paid
R3 054 201.00 towards the loan.
[12] Based on the above, the only issues for de termination by this court are the
prescription and liquidity of the document
Special plea of prescription
[13] The special plea of prescriptio n in a summary judgment was addressed by the
Supreme Court of Appeal in Jans v Nedcor Bank Limited.1 The Supreme Court of Appeal
considered circumstances that constitute a delay or interr uption in the running or
completion of prescription. The court further had to determine whether an interruption or
delay in the running of prescription in favour of the principal debtor also constituted an
interruption or delay in the running of prescription in favour of a surety.
1 Jans v Nedcor Bank Limited 2003 (6) SA 646 (SCA).
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[14] The Supreme Court of Appeal also considered the provisions of section 13(1) of
the Prescription Act 68 of 1969, which reads as follows:
“If –
(a) ……
(b) the debtor is outside the Republic; or
(c) the creditor and debtor are married to each other; or
(d) the creditor and the debtor are partners and the debt is a debt which arose out of
the partnership relationship; or
(e) the creditor is a juristic person and the debtor is a member of the governing body
of such juristic person; or
(f) the debt is the object of a dispute subjected to arbitration; or
(g) the debt is the object of a claim filed against the estate of a debtor who is deceased
or against the insolvent state of the debtor or against a company in liquidation or against
an applicant under the Agricultural Credit Act, 1966 (Act No. 28 of 1966); or
(h) the creditor or the debtor is deceased and an executor of the estate in question
has not yet been appointed; and
(i) the relevant period of prescription would, but for the provisions of this subsection,
be completed before or on , or within one year after , the day on which the relevant
impediment referred to in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) has ceased to exist,
the period of prescription shall not be completed before a year has elapsed after the day
referred to in paragraph (i).”
[15] In the Jans case (supra), the appellant , who had signed a deed of suretyship ,
contended that prescription began to run in her favour when the final order of liquidation
was granted against the principal debtor. The respondent opposed the application. In the
court a quo, Goldstein J in the Witwatersrand Local Division considered himself bound by
the full bench decision of Cronin v Meerholz2 and found that the delay in the running of
prescription in favour of the principal debtor served to delay the running of prescription in
favour of the surety and that the appellant had failed to disclose a defence. On appeal
2 Cronin v Meerholz 1920 TPD 403.
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before a full bench, the court found that the impediment contemplated in section 13(1)(g)
commences when the creditor’s claim for provisional liquidation is filed. It ceases to exist
once the Master confirms the final liquidation and distribution accounts. The appeal was
therefore dismissed with costs.
[16] The special plea raised by the defendants in the matter before me is based on
similar facts. On page 2, paragraph 5 of their amended plea, the defendants state the
special plea as quoted in paragraph 10 above.
[17] The last payment of R500 000.00 by the principal debtor was on 11 November
2023. A provisional liquidation order was granted against the liquidated company. On 23
July 2024, a final winding-up order was granted against the liquidated company .
According to prevailing case law, the liquidation application became an impediment to the
running of prescription in terms of section 13(1)(g) of the Prescription Act of 1969, up to
one year after i ts final liquidation order . Consequently, the interruption and delay in
prescription in favour of the principal debtor also interrupted and delayed the running of
prescription in favour of the surety. Accordingly, the defendant’s special plea stands to be
dismissed.
Liquid document
[18] For the plaintiff to succeed in its application, it must satisfy the requirements set
out in Rule 32(1) of the Uniform Rules of Court, which provides as follows:
“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 –
(a) on a liquid document;
(b) for a liquidated amount in money;
(c) for delivery of specified movable property; or
(d) for ejectment,
together with any claim for interest and costs.”
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[19] In Botha v W Swanson and Co (Pty) Ltd ,3 Corbett J, as he then was , held that a
claim would not be regarded as one for a liquidated amount in money unless it is based
on an obligation to pay an agreed sum of money , or is so expressed that the
ascertainment of the money claimed is a matter of a mere calculation.
[20] In determining the nature of the document as envisaged in Rule 32 , the
Constitutional Court in Twee Jonge Gezellen (Pty) Ltd v Land and Agricultural
Development Bank of South Africa4 held that:
“In principle, however, a document is liquid if it demonstrates, by its terms, an unconditional
acknowledgement of indebtedness in a fixed or ascertainable amount of money due to the
plaintiff. Many different sorts of documents have been found to qualify as ‘liquid’ in terms of
this definition and therefore sufficient to found provisional sentence. They include
acknowledgments of debt, mortgage bonds, covering bonds, negotiable instruments,
foreign court orders and architects’ progress certificates.”
[21] It is common cause that the plaintiff and the liquidated company entered into a loan
agreement for a liquid amount, on 12 November 2019. The plaintiff fulfilled its part of the
agreement by making a fixed payment to the liquidated company. The liquidated company
failed to honour its monthly obligations of R158 067.00. According to the plaintiff’s letter
of demand dated 17 February 2023, the liquidated company was in default in the amount
of R5 645 925.45. The last payment made by the liquidated company was on
11 November 2023. At the time of issue of the summons, the liquidated company was in
arrears of R 10 036 783.88. The plaintiff also attached a loan schedule, which is self-
explanatory, reflecting the monthly status of the account up to 19 July 2024. Also attached
is a certificate of balance that was issued by the plaintiff.
[22] The defendants’ defence in this regard is a bare denial with no figures or
[22] The defendants’ defence in this regard is a bare denial with no figures or
calculations of their own to challenge those of the plaintiff. The fact that the defend ants
3 Botha v W Swanson and Co (Pty) Ltd 1968 (2) PH F85 (CPD).
4 Twee Jonge Gezellen (Pty) Ltd v Land and Agricultural Development Bank of South Africa 2011 (5)
BCLR 505 (CC); 2011 (3) SA 1 (CC) para 15.
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do not understand how the plaintiff reached the balance claimed does not mean that the
balance due should cease to be a liquid amount. Th e required explanation and figures
are easily ascertainable by speedy calculations to the advantage and understanding of
the defendants.
[23] The question which arises from these facts is whether the defendants have raised
a triable defence. Secondly, whether the disputes raised by the defendants are real and
bona fide, and whether they are not subjecting this court to speculation. In Maharaj v
Barclays National Bank Ltd5 Corbett stated as follows: “The grant of the remedy is based
upon the supposition that the plaintiff’s claim is unimpeachable and that the defendant’s
defence is bogus and bad in law.” However, even if a defendant’s defence appears weak
or insubstantial, the court retains a residual discretion to refuse summary judgment. See
Tesven CC v SA Bank of Athens.6
Costs
[24] During the hearing of this application, Counsel argued for costs as provided in the
deed of suretyship, which reads as follows:
“For the purpose of any legal action against us:-
(a) ...
(b) A Certificate. Purported to be signed by the creditor shall be prima facie proof of
our indebtedness at the time of the institution of legal proceedings and we agree that such
certificate shall be prima facie proof of our indebtedness to the creditor for purposes of
Summary Judgment against us, unless it is proved that such certificate was issued
fraudulently.
(c) The cost of such action shall be borne by ourselves on a scale as between Attorney
and Client, inclusive of collection charges, and all other charges incidental to the action,
including tracing costs.”
5 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 423F-G.
6 Tesven CC and Another v SA Bank of Athens [1999] 4 All SA 396 (A); 2000 (1) SA 268 (SCA) para 26.
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Appearances
For The Plaintiff: Adv J Matthee
Instructed by: Serfontein Viljoen & Swart Attorneys
Nelspruit
For the defendants: Adv K W Van Heerden
Instructed by: JJR AND Associates Incorporated Attorneys
Nelspruit
Application heard on: 25 July 2025
Judgment delivered on: 27 August 2025