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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, PIETERMARITZBURG
CASE NUMBER: 10085/2024P
In the matter between:
BAYAPHAMBILI PROPERTIES 55 (PTY) LTD PLAINTIFF
And
MOHD FARUK SILAT N.O. FIRST DEFENDANT
MEHRAJ BANU MOHAMED FARUK SILAT N.O. SECOND DEFENDANT
IMRAN ABDUL SATTAR SILAT N.O. THIRD DEFENDANT
MOHAMMES HANIF SALAT N.O. FOURTH DEFENDANT
SHABINA SALAT N.O. FIFTH DEFENDANT
SHERBANU MOHAMMED ARIF SILAT N.O. SIXTH DEFENDANT
JUDGMENT
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P C BEZUIDENHOUT J:
[1] Plaintiff by way of a provisional sentence summons claims against Defendants
an amount of R 2 395 000.00 together with interest at the rate of 11,25 per cent per
annum from 26 June 2023 and with costs to be on an attorney and client scale. The
action has been defended by all six Defendants.
[2] At the commencement Defendants brought an application for condonation due to
the late filing of their heads of argument. This was not opposed and condonation was
granted.
[3] The basis for Plaintiff’s claim is a covering mortgage bond. The mortgage bond
was registered on 21 April 2021 wherein Defendants admitted jointly and severally to be
liable to Plaintiff in the sum of R3 700 00.00 and had to pay monthly installments of
R100 000.00. Defendants are two Trust wh ose trustees appear from the summons.
The Trusts declared themselves to be indebted to the sum of R3 700 000.00 and a
further R925 000.00 to cover or secure costs which may be paid by the Trusts.
[4] It is contended by Plaintiff that Defendants paid an amount of R1 305 000.00 and
accordingly the balance of R2 395 000.00 has become due. A certificate signed by a
director of Plaintiff confirmed on 24 June 2024 that the Trusts bound themselves in the
sum of R3 700 000.00 and that the balance owing and payable was R2 395 000.00
together with costs.
[5] In terms of the mortgage bond the two Trusts were the MFS Trust and the Salat
Family Trust. The property over which the bond was registered was the remainder of erf
1[...] D[...] , registration division FU, Province of KwaZulu -Natal, in extent 605 square
metres. The bond provide s for a capital amount of R3 700 000.00 arising from goods
sold and delivered or monies lent and advanced or a valid cause of action recognised in
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law but without limitation any valid c ontract or transaction creating a debt, and including
existing or future debts in general which irrespective of cause thereof is owing by the
mortgagees to the mortgagor plus a further sum of R 945 000.00 to cover or secure
costs and all monies which may be paid by the mortgagees on behalf of the mortgagor
or expended in order to protect its security from time to time in terms of the special
condition of the bond.
[6] The power of attorney to pass the covering bond was signed by First Defendant
on behalf of the MFS Trust and by Fourth Defendant on behalf of the Salat Family Trust.
[7] In their answering affidavit opposing the action First Defendant in his capacity as
trustee of the MFS Trust attested to an affidavit. He contends that the affidavit is a
response on behalf of all Defendants. A point in limine is taken that the mortgage bond
is not a liquid document. It is registered as a continuing covering bond and makes
provision for future debts to be payable as well. It is contended that the property which
belonged to Plaintiff over which the mortgage bond is registered was purchased for
setting up headquarters for Copper Chimney a business throughout Durban. The
property is in a residential area . It was h owever, vacant land as Plaintiff had
demolished the house. The agreement was to purchase the property for the sum of
R4 500 000.00 of which R800 000.00 was paid immediately and the the bond of
R3 700 000.00 registered.
[8] It was marketed as being approximately 1 100 square metres but as can be seen
from the mortgage bond it is in actual fact only 605 square metres. There were
approved plans in respect of the said property by the municipality. Defendants
commenced construction on the said property and have spent R5 000 000.00 so far. It
was established that a portion of the property which was being utilised was in actual fact
owned by the Ethekw ini Municipality. The property was no longer registered as
owned by the Ethekw ini Municipality. The property was no longer registered as
commercial as the approval which was given therefore had to be renewed every 18
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months which was never done and had consequently lapsed. There are currently
penalties payable by Defendants to the Ethekw ini Municipality. New plans had to be
approved for the building to be constructed. Accordingly Defendants rely on the actio
quanti minoris alternatively the exceptio non adimpleti contractus. Defendants
accordingly have a good defence on the merits which Plaintiff was aware of and should
not have proceeded by way of provisional sentence.
[9] Plaintiff filed a replying affidavit where in limine it sets out that there is objectional
matter in the answering affidavit which has to be struck out. Further it disputes that the
defence of the action has been lawfully authorised by the two Trusts and that the
deponent to the answering affidavit is representative of the two Trusts. He does not
allege that he is authorised and is not a trustee of the Salat Family Trust. The opposing
affidavit should therefore be struck out.
[10] It is contended that the amount of the debt is ascertained and that it is therefore a
liquid document. There is a certificate of balance from a director of Plaintiff . It is
contended that a town plan ner, during 2020, commence d with the rezoning of the said
property but his mandate was terminated by Defendants. Defendants were aware when
the property was purchased that it was not commercial property and now seeks not to
pay less therefore. Defendants were aware that a portion of the land belonged to the
municipality and they were also aware of the special con sent time periods as appears
from an email from Defendants attorney dated 8 December 2020 sent to the town
planner. It was denied that Defendants ever paid R800 000.00 and accordingly Plaintiff
has made out a case for the granting of provisional sentence. The original mortgage
bond was handed in.
[11] It was submitted on behalf of Plaintiff that the entire opposing affidavit and not
[11] It was submitted on behalf of Plaintiff that the entire opposing affidavit and not
only specific paragraphs had to be struck out due to lack of capacity. The trustee which
is one of the trustees of the first Trust did not indicate that he had the authority to attest
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to the affidavit on behalf of the second Trust. The bond on a proper construction thereof
together with the certificate of balance is a liquid document. There was no evidence
provided of a resolution authorising the deponent to the opposing affidavit to represent
the Trusts. It was submitted that although the Full Court of this division has held that a
challenge to authority must be raised by way of a Rule 7 notice, the judgment does not
apply to a challenge to capacity. It was submitted that the Full Court’s decision was
incorrect to the extent that it prevents challenges to authority in the papers and that it
has not been followed in the Western Cape decision.
[12] Plaintiff further submitted t he bond is a liquid document as there is
acknowledgement for a fixed amount of R3 700 000.00. Defendants unconditional
acknowledgment of indebtedness supported by a certificate of balance liquidates the
sum claimed. Defendants claiming a counter claim must show something more than a
mere prima facie counter claim to stay of provisional sentence . The onus is on
Defendants to establish such defence . Defendants failed to discharge the onus resting
on them to stay of provisional sentence being granted. The counter claim cannot be
decided on an affidavit and in those circumstances cannot prevent the granting of
provisional sentence.
[13] It was submitted on behalf of Defendants that there was no proper application to
strike out. There is also no description of which paragraphs are being challenged. The
suggestion that there was no valid opposition as the deponent to the answering affidavit
had not established the authority to oppose the action does not set out the distinction
between the admissibility of the evidence and authority. If it was contended that there
was no authority to oppose the action then it had to be raised in terms of Rule 7 of the
Rules of Court . It was further submitted that the mortgage bond was not linked to any
Rules of Court . It was further submitted that the mortgage bond was not linked to any
particular cause of action but covered goods sold and delivered, monies lent in
advance, further debts etc. It is therefore a bond to cover future debt and security for
debt that may become due. It is not a liquid document for the purposes of summary
judgment and provisional sentence and it must therefore be dismissed.
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[14] It was submitted in the provisional sentence summons Plaintiff does not allege
that it complied with its obligations under the agreement in terms of which the
indebtedness arose. Plaintiff also did not deal in its argument with the fact that no
approved building plans were provided, that parking facilities were misrepresented and
that Defendants had to spend R5 000 000.00 building in accordance with plans that
were not actually approved and then had to pay penalties of over R1 000 000.00. it is
not a counterclaim as Defendants can rely on it as a defence under the exceptio non
adimpleti contractus as they intend to do and that the actio quanti minoris is also an
available remedy. It is therefore submitted that the provisional sentence summons was
improper, that Defendants have established a defence and that the application for
provisional sentence should therefore be refused on scale (B).
[15] Both Plaintiff and Defendants referred me to the decision of Wollach v Barclays
National Bank Ltd 1983 (2) SA 543 (A) to support their respective submissions that it is
a liquid document and also that it is not a liquid document. On behalf of Plaintiff it was
submitted that the decision is support for the contention that there was an existing
indebtedness and that the liquidity of the bond was not depended whether at the time of
passing of the bond there was an existing indebtedness but rather upon an unqualified
acknowledgement of indebtedness in a specified amount. On behalf of Defendants it
was submitted that the bond does not expressly cover a particular debt but rather
security for debt that may become owing and therefore in terms of the dec ision in
Wollach did not qualify as a liquid document.
[16] On a reading of the Wollach decision it would appear to me that it referred to the
practice which had developed that a bond could be proved by a certificate and that the
covering bond would then become a liquid document. It however goes further by finding
covering bond would then become a liquid document. It however goes further by finding
that liquidity cannot be retrospectively conferred by the agreed issue of a certificate. In
that case it appeared that the deed of hypothecation did contain an unqualified
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admission of liability in a fixed sum but that it also contained a provision in connection
with facili ties for which it had applied at the respondents bank or in the future might
possibly apply for. Therefore the deed of hypothecation could not be regarded as a
liquid document.
[17] The mortgage bond although it states that it is for the capital sum of
R3 700 000.00 is in respect of on a wide variety of causes for such indebtedness . I n
paragraph VI on page 4 thereof it sets out:
“That all future advances, debts or demands (over and above the Capital and
interest thereon) which may lawfully be secured and recovered under this Bond
in respect of and including any costs, charges, and disbursements in having this
Bond prepared and registered, in having any part payment of capital registered
and in having this Bond cancelled eventually (all of which services the
Mortgagor/s hereby agrees shall be rendered by a Co nveyancer nominated by
the Mortgagee/s or other holder/s of this Bond), in issuing notices and demand
and in suing and taking further legal proceedings for the recovery of any sum of
money due under this Bond;”
[18] From this extract it appears that it contemplates future advances, as well as
costs charges and disbursements. In Ster Films Beherend (Pty) Ltd v Melana 1977 (3)
SA 123 (TPD) at 129 H it was held:
“I therefore hold that in cases of covering bonds for fluctuating balances
providing for a creditors certificate to establish the amount owing thereunder,
such certificate in respect of unliquidated d amages is insufficient to sustain a
claim for provisional sentence.”
The costs charges and disbursements are not quantified.
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[19] It is therefore on a reading of the bond and especially in light of what is set out in
the decision of Wollach that the mortgage bond in cludes future indebtedness as well
and in my view therefore does not qualify as a liquid document for the purpose of
provisional sentence even if a certificate of balance is provided.
[20] Having found that it is not a liquid document that is in actual fact the end of the
matter as provisional sentence can only be granted on a liquid document. However
having found that I will deal very briefly with the other issues raised.
[21] The submission that the affidavit is to be struck out has not been brought by way
of application and is merely mentioned in the affidavit and in my view there should have
been a substantive application in that regard if that was required. Further Defendants
have raised various defences which they can do as to the purchase price due the size
of the property which was incorrect, the parking area which was on the property of the
municipality, the plans etc. It therefore appears that there are various defences that can
be raised by Defendants.
[22] In the case of ANC Mvoti Council v Mvoti Municipality 2010 (3) SA 31 KZP a
decision of the Full Court of this division it was held that it was the attorney of the litigant
who by signing a notice of motion and issuing application papers signified that the
attorney had been authorised to initiate the application on behalf of the named litigant.
Whether the litigation had been properly authorised by the artificial person should not be
dealt with by means of evidence led in the application. If clarity w as required it should
be obtained by means of Rule 7(1) since this was a procedure which safeguarded the
interests of both parties. In this judgment it followed the decision in Ganes and Another
v Telekom Namibia Ltd 2004 (3) SA 615 (SCA). It was submitted that this was not
followed in the Western Cape in the decision of Minister of Water and Sanitation v
followed in the Western Cape in the decision of Minister of Water and Sanitation v
Klason Clackson Power (Pty) Ltd and Another 2024 (5) SA 280 (WCC) (a judgment of a
single judge). In paragraph 38 of the said judgment the court held that the judgment in
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the ANC Mvoti Council and Others case disregarded the principle that the Rules are not
an end to in themselves and that Rule 7(1) does not provide any specific procedure for
its implementation. It was held in paragraph 49 that it did not follow the decision in the
ANC Mvoti case.
[23] However on my interpretation of the stari decisis Rule I am bound by the decision
of a Full Court of this division. The Supreme Court of Appeal in the matter of Ganes
and Another v Telkom Namibia 2004 (3) SA 614 specifically held that:
“It is irrelevant whether Hunker had been authorised to depose to the founding
affidavit. The deponent in affidavit in motion court proceedings need not be
authorised by the party concerned and to depose to the affidavit. It is the
institution of the proceedings that the prosecution thereof which must be
authorised.”
I am also bound by this judgment.
The following order is accordingly made:
1. Plaintiff’s provisional sentence application is dismissed.
2. Defendants are directed to deliver a plea within twenty days.
3. The matter shall proceed to trial and the provisions of th e Uniform Rules as to
pleading and the further conduct of trial actions shall mutatis mutandis apply as
provided for in Rule 8(8).
4. The costs of the provisional sentence application are reserved for determination
by the trial court.
P C BEZUIDENHOUT J.
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JUDGMENT RESERVED ON: 20 AUGUST 2025
JUDGMENT HANDED DOWN ON: 4 SEPTEMBER 2025
COUNSEL FOR PLAINTIFF: T Q REDDY
Instructed by: J Leslie Smith & Company Inc
Pietermaritzburg
Tel: 033 845 9700
Ref: A GANAS/PRISHA/23JL0072
Email: prisha@jleslie.co.za
COUNSEL FOR DEFENDANTS: M C TUCKER
Instructed by: Omar Attorneys
Durban
Tel: 031 207 4789
Ref: B Prop/Silat - SK
` c/o: PGPS Attorneys
Pietermaritzburg
Tel: 033 815 1550
Ref: Hayley Pillay