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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2024-033404
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
Date 8 August 2025
Signature
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA LIMITED
(Registration Number: 1962/000738/06) Plaintiff
and
SPECIALISED PVC SHEETING PRODUCTS CC First Defendant
(Registration Number: 2003/02896/23)
SIVIRAM RATTY Second Defendant
(Identity Number: 6[...])
JUDGMENT – 8 AUGUST 2025
WILLIAMS, AJ
[1] This is an application for summary judgment. In the amended Particulars of
Claim the Plaintiff contends (in Claim A) that the Business Overdraft
Agreement was concluded with the First Defendant , a close corporation, for
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some R1,000,000.00 which was to be used for financing working capital.
Interest will be payable at 13.4% per annum above the Plaintiff’s prevailing
interest rate which, at the time, was 10.5% per annum.
[2] The monies were duly advanced, it being contended that the First Defendant
breached the terms of the Agreement and the Plaintiff terminated the facility
after becoming aware of a “material deterioration in the financial position of the
First Defendant”.
[3] It is alleged that as at 16 March 2023, the balance due was some
R553,977.22, plus interest at 24.15%, to be calculated daily and compounded
monthly in arrears from 16 March 2023 to date of payment. The Certificate of
Balance, as provided for in the Agreement, was attached in confirmation of this
averment.
[4] It is also alleged (in Claim B) that a further “Covid -19 Emergency Term Loan
Agreement” was concluded with the First Defendant on 12 June 2020, for
R1,005,000.00, repayable in 66 monthly instalments of R20,609.23 per month,
to commence six months after the first drawdown. Interest was agreed at
7.25% per annum, to run from date of signature of the Agreement. It is here
alleged that the First Defendant failed to pay monthly instalments due, is in
default, and that as at 16 March 2023 the amount due is R728,995.06, plus
interest thereon calculated at 10.75% per annum, calculated daily and
compounded monthly in arrears from 16 March 2023. Here too a Certificate of
Balance (as provided for in the Agreement) is attached to confirm same.
[5] The joint and several liability pleaded as against the Second Defendant , is
based on (in respect of Claim A) a Deed of Suretyship concluded on
11 September 2015 (prior to the conclusion of the Business Overdraft
Agreement) in which the Second Defendant bound himself jointly and
severally, as surety and co -principal debtor in solidum, for the First Defendant
in favour of the Plaintiff for the limited amount of R500,000.00, renouncing the
in favour of the Plaintiff for the limited amount of R500,000.00, renouncing the
well-known legal exceptions, and assuming liability for costs on the scale as
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between attorney and client in respect of any action that may have to be
instituted against him. It was also agreed in the Certificate to be signed by any
manager of the Plaintiff, would constitute prima facie proof of what he owes
under the Suretyship.
[6] On 13 June 2016 the Second Defendant (also in respect of Claim A) executed
a further Deed of Suretyship in respect of the limited amount of R1,200,000.00,
with similar renunciation of benefits, assumption for costs on the scale as
between attorney and client in respect of any action, and agreement that a
Certificate signed by any manager (or accountant in this instance) would
establish prima facie proof of his indebtedness under the Suretyship.
[7] The Second Defendant’s further indebtedness (under Claim B) is based on a
written Guarantee, in terms whereof the Second Defendant undertook as
principal, an independent obligation the due, punctual and full payment of the
First Defendant monies due under the Covid -19 Emergency Term Loan
Agreement (Claim B). The Second Defendant renounced the usual benefits
and exceptions, assumed liability for “ … all legal costs in respect of any action
instituted by the Plaintiff …” for repayment under the Covid -19 Emergency
Term Loan Agreement. It also agreed the Certificate signed by any Manager
of the Plaintiff which serves as prima facie proof of the Second Defendant ’s
indebtedness.
[8] 8.1. Plaintiff pleaded specifically that the provisions of the National Credit
Act, 34 of 2005, do not apply to Claim A, nor to Claim B, because the
First Defendant is a juristic person and that the respective Agreements
on which Claim A and B are based, are “ large agreements” as
envisaged in section 9(4)(b) of the National Credit Act , The amounts
are higher than the thresholds established under section 7(1)(b) of the
Act.
8.2. As for the alleged liability of the Second Defendant , it is alleged that
since the Act does not apply to the Agreements concluded with the First
since the Act does not apply to the Agreements concluded with the First
Defendant (on which Claims A and B are based ) – that the Second
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Defendant in turn cannot rely on the provisions of the National Credit
Act, because section 4(2)(c), read with section 8(5) of the Act, prevail.
[9] The Defendants’ defence is that the agreements are invalid (not having been
executed properly). Also , that the National Credit Act was thwarted. Further
that the deponent to the affidavit in support of summary judgment does not
have the requisite knowledge.
[10] The Sheriff’s Return of Service reveals that upon service of the Combined
Summons, he also served on both the first and Second Defendants a Notice in
which the Plaintiff stated that it “ … opposes the referral of this matter to
mediation …” with reason therein that “ … Plaintiff has, prior to this action,
afforded the first and Second Defendants an opportunity to pay the amounts
due and owing to the Plaintiff. The first and Second Defendants have failed in
this respect.”
[11] In their Plea the first and Second Defendant s plead that the terms of the
National Credit Act apply, and that the Plaintiff has failed to comply with its
provisions. It is also contended in the Plea that the Plaintiff subjectively
dismissed the prospect of mediation, without basis – that consequently the
Plaintiff is in “ contravention of the basis of Rule 41A of the Uniform Rules of
Court”. Reference was made to Koetsioe and Others v Minister of Defence
and Military Veterans and Others. 1 In that matter the Applicants admitted
that they did not consider mediation, and their counsel persisted therein. The
Court was nonetheless bound to deal with the matter, but deprived the
Applicant of costs. Defendants contend that it must be implied that the Plaintiff
in the instant matter has not considered mediation earnestly, and by
implication the Plaintiff has a “dismissive approach” to mediation (and thus that
judgment should not be granted).
1 [2021] ZAGPHC 203.
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[12] In the Heads of Argument filed for the Defendants, it is postulated that one of
the questions for determination is whether the Plaintiff can unilaterally dismiss
the requirements of Rule 41A and “ assume first and Second Defendant s’
response …”. The suggestion seems to be that if the Plaintiff’s attitude can be
held to be unilaterally dismissive of the requirements of Rule 41A, that, at
least, summary judgment cannot be granted.
[13] Uniform Rule 41A defines mediation as, inter alia, being a “ voluntary process
entered into by agreement … ”. Rule 41A(2)(a) requires that a Plaintiff must
serve on each Defendant (a notice indicating whether such Plaintiff “… agrees
to or opposes referral of the dispute to mediation”.
[14] The requirement for the filing of a notice under Rule 41A is clearly meant to
prod a Plaintiff to at least consider mediation, before proceeding with the Court
litigation. I cannot conclude here that the Plaintiff did not consider it.
[15] A Defendant is also invited by the Rules to respond. Rule 41A(2)(b) requires
that before filing a Plea or later, but not after filing a Plea, a Defendant must
file a Notice whether the Defendant “ … agrees to or opposes refusal of the
dispute to mediation” . That is in response to the Plaintiff’s election.
A Defendant clearly cannot force a Plaintiff to mediate . But a Defendant’s
reply whether or not it would agree to mediation, gives the Plaintiff a second
opportunity to consider mediation. Here the Defendant never filed a response.
[16] In its Heads of Argument the Plaintiff makes the telling point that the
Defendants’ argument is disingenuous in this regard, since the Defendant has
raised in its Plea and its Affidavit Opposing Summary Judgment, contentions
that the very agreement s on which the alleged indebtedness is based, are
invalid and unenforceable. There would be nothing to mediate then.
[17] Irrespective of this, the Plaintiff’s Notice contends that it does not wish to
[17] Irrespective of this, the Plaintiff’s Notice contends that it does not wish to
mediate because, despite affording the Defendants an opportunity to pay, the
Defendants have failed in this respect. There is no allegation by the
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Defendants that after receipt of the Letter of Demand attached as annexures
“R” and “X” to the Particulars of Claim, they attempted to refute, or negotiate,
the alleged indebtedness. I hold that there is no impediment, based on
Uniform Rule 41A, which precludes the Plaintiff from pursuing this litigation.
It also cannot be said that the Plaintiff proceeding, having elected not to
mediate, is in this instance an abuse of process (see paragraphs 26 to 32 of
the applicant’s heads, which I agree with).
[18] The Defendants contend that the deponent to the affidavit in support of the
application for summary judgment is not authorised, or does not have the
requisite knowledge of the facts. Lerato Mathibe, the deponent, states under
oath that she is a Manager, Business Support and Recoveries, Business &
Commercial Banking Credit, a division of the Plaintiff. She attaches a Letter of
Authority and states that she personally dealt with the matter (which is borne
out by the fact that she signed two of the Certificates of Balance). She
explains that she holds all the files, documents and records, has verified same
and has verified the correctness of the records. She also significantly states
that much of the knowledge is required by her in the ordinary course of the
execution of her duties during which she obtained personal knowledge of the
facts.
[19] The suggestion that documents that she relies on, are not attached to her own
affidavit, are not bona fide. The deponent, Lerato Mathibe, states that she has
read the Summons and annexures thereto and that the averments in the
Summons are mutatis mutandis incorporated into her affidavit. Her references
to the annexures to the Plaintiff’s Particulars of Claim, are thus legitimate and
admissible references/incorporation of those annexures as part of her affidavit.
[20] The contention that the National Credit Act is not applicable, is raised by the
Defendants as a purported “ Special Plea” . That also has no merit. Both
Defendants as a purported “ Special Plea” . That also has no merit. Both
agreements (i.e. in respect of Claim A and Claim B) each are “ large
agreements” – since they are concluded for amounts in excess of the then
threshold of R250,000.00 determined by the Minister under section 7(1)(b) of
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the Act. The First Defendant is a juristic person and the Act does not apply to
a large Agreement (refer sections 4(1)(b), read with section 9(4) of the
National Credit Act). 2 The suretyships and guarantee signed by the Second
Defendant, albeit “ credit guarantees” under the Act, do similarly not fall under
the provisions of the National Credit Act (refer section 4(1) of the National
Credit Act).3
[21] In paragraph 11 of their Plea, the defendants contend that there was a failure
by Plaintiff “… to assess the first and Second Defendant s’ ability to afford
credit, prior to granting of overdraft facility, it is put forward that Plaintiff has
failed in its obligations as a credit -provider, and engage in reckless lending in
favour of the First Defendant, to its determent (sic)”. It is not stated in the Plea
what the First or Second Defendants’ financial position would have been at the
time – this paragraph of the Plea merely complains that it was incumbent upon
Plaintiff to show that it did not indulge in reckless lending. In my view it is not
for Plaintiff to consent same, but would be incumbent upon a Defendant to put
up facts from which one could determine that to give monies to the first and/or
Second Defendant at the time, could be regarded as reckless lending. The
averments pleaded in paragraph 20 of the Plea do not take the matter any
further for the Defendants in this regard. The Defendants abided in bald
allegations that Plaintiff failed to assess their ability to afford credit.
[22] In the affidavit resisting summary judgment, the Defendants did not take the
matter further than bald allegations of reckless lending (see paragraph 44.1 of
the affidavit). The argument is that it was incumbent upon the Plaintiff to prove
that it did not indulge in reckless lending (per paragraph 48.1 of the affidavit
resisting summary judgment). As indicated, one would have expected the
2 Firstrand Bank Ltd v Carl Beck Estates (Pty) Ltd and another 2009 (3) SA 384 (T).
2 Firstrand Bank Ltd v Carl Beck Estates (Pty) Ltd and another 2009 (3) SA 384 (T).
3 Shaw & Another v Mackintosh & Another 2019 (1) SA 398 (SCA).
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Defendants to assert why monies in the amounts stipulated in the respective
agreements, should not have been made available to them.4
[23] An analysis of the points raised by the Defendants reveal that none of the
Agreements relied upon by the Defendants is admitted. This goes to the issue
of bona fides or lack thereof. The Agreements of Claims A and B are pleaded
in paragraphs 5 and 14 of the Particulars of Claim. The two suretyships and
the guarantee on which the Second Defendant’s liability is based, are pleaded
in paragraphs 23, 25 and 32 of the Particulars of Claim. The Defendants have
abided in a bald denial that these Agreements were ever concluded. The best
they can do about the document on which Claim A is based, is to contend that
it was not concluded at Southdale (as an “alternative”). As for the Covid -19
Agreement, it is pleaded that it was not valid (after the bald denial of its
existence) – because it was not properly done electronically and, furthermore
(without any reason) it is contended that Plaintiff’s representative in this case
was not authorised.
[24] In the case of the two suretyships and the guarantee, the Defendants abide in
a bald denial. But curiously plead “in amplification” a denial “that a valid …
agreement was concluded electronically” . No further detail is given. These
bald denials of the very existence (or in the alternative/amplification that the
agreements are not valid – without specifying reasons) are a negative factor
since a bona fide defendant would acknowledge some or other legal basis
upon which monies loaned by a bank, would have been advanced on.
[25] The same goes for the denial that the certificates relied upon constitute prima
facie proof (and in the absence of contrary proof, become conclusive proof).
Bald denials do not suffice. One would expect from a bona fide Defendant to
at least say too that nothing is owed, or that a lesser amount is owed. The
at least say too that nothing is owed, or that a lesser amount is owed. The
4 SA Taxi Securitisation (Pty) Ltd v Mbatha and Two Similar Cases 2011 (1) SA 310 (GSJ, 26
& 29.
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Defendants say nothing in that regard. The bald denials cannot overturn what
the deponent in the affidavit in support of summary judgment says expressly,
or clearly implies, that the persons who signed the certificates are indeed
managers of the Plaintiff at the time that they signed their respective
Certificates of Balance.
[26] Finally, I need to deal with the contention that summary judgment should not
be granted, so it is argued, because the amounts claimed are not capable of
prompt and speedy ascertainment (i.e. are not liquidated amounts). There is
no merit in this contention. To uphold that argument would mean that no bank
or money lender would ever be able to obtain summary judgment . The
amounts here are liquid and established on a balance of probability.
[27] The Plaintiff is entitled to summary judgment in respect of both Claims A and
B, together with the interest on each claim as prayed for. The Defendants
have not denied that the amounts were advanced and have abided in bald
averments that do not sufficiently dispute their proven failure to repay. I hold,
for reasons above, that they have not raised a bona fide defence to either
Claim A, nor to Claim B. Also, the Second Defendant has not raised a defence
to his liability, which is joint and several with the liability of the First Defendant.
I note that costs are not sought on attorney and client scale per the draft orders
submitted.
[28] The defendants are longtime customers of the plaintiff. Due to their
circumstances, I exercise the discretion I have under Rule 45A (and the
common law). My judgment is not executable for 60 days. Perhaps a solution
can be found. But plaintiff must have its judgments.
[29] I thus grant judgment against the First and Second Defendant s, jointly and
severally, the one paying, the other to be absolved for :
23.1. Payment of the sum of R553,977.22 in respect of Claim A;
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23.2. Interest on the amount at the rate of 24.150% per annum , calculated
daily and compounded monthly in arears, from 16 March 2023 to date
of final payment;
23.3. Payment in the sum of R728,995.06 in respect of Claim B;
23.4. Interest on the amount at the rate of 10.750% per annum, calculated
daily and compounded monthly in arrears, from 16 March 2023, to date
of final payment;
23.5. Costs of suit on scale B, to include the opposed costs of the application
for summary judgment;
23.6. Under Rule 45A the execution of this judgment is stayed to 31 October
2025.
J O WILLIAMS AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date heard : 4 August 2025
Date of judgment : 8 August 2025
Representation for the applicant : Adv Y Coertzen
Instructed by Newtons Attorneys
Representation for the respondent : Mr A L Buckus
Instructed by Buckus Attorneys,
Johannesburg