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REPUBLIC OF SOUTH AFRICA
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NR: 2024-071736
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES YES/NO
(3) REVISED:
DATE: 27/08/2025
SIGNATURE:
In the matter between:
INTELLO CAPITAL CC APPLICANT/PLAINTIFF
and
FBO TRADING PROPRIETARY LTD FIRST RESPONDENT/DEFENDANT
BHEKI SIZA N.O. SECOND RESPONDENT/DEFENDANT
S’BONELO DLAMINI N.O. THIRD RESPONDENT/DEFENDANT
Delivered: This judgment was prepared and authored by the Acting Judge whose
name is reflected 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 CaseLines. The date of the
judgment is deemed to be 27 August 2025.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MARUMOAGAE AJ
A INTRODUCTION
1. The Applicant brought two different applications at the same time against the First
to Third Respondents. The first application is for summary judgment. Generally, in
summary judgment applications, the parties are referred to as they are in the
main action proceedings. However, to avoid confusion, they will be referred
herein as the Applicant and Respondents respectively.
2. The second application is brought under Uniform Rule 46A to declare the
immovable property owned by B Buza Family Trust (hereafter ‘Trust’) to which the
Second and Third Respondents are trustees as specifically executable. These
applications follow the action proceedings instituted by the Applicant against the
First to Third Respondents. The Respondents defended the main a ction
proceedings by serving and fil ing their plea. They also opposed these two
applications.
3. The fate of the second application depends on the outcome of the first
application. In the first application, the issue is whether the Respondents have a
bona fide defence to the Applicant’s main action proceedings against them. In the
second application, the issue is whether the Applicant has made out a case for
the said immovable property to be declared specifically executable.
B FACTUAL MATRIX
4. On 11 March 2020, the Applicant concluded a loan agreement with the First
Respondent. The Second and Third Respondents , in their capacity as the
trustees of the Trust, signed an agreement with the Applicant where they bound
the Trust to stand surety for the obligations of the First Respondent in terms of
the 11 March 2020 loan agreement.
5. In terms of this agreement, the Applicant provided the First Respondent with a
credit facility of R 1 491 980.00. The parties agreed that the First Respondent
would repay this amount within eight months, with the payment of R 53 285 .00
monthly interest, a facility fee of R 60 000.00, a documentation fee of R 5 700.00,
and a bond registration fee of R 42 995.48. A security in the form of a bond was
registered over the property known as Erf 6[...] P[...] Ext 8, W[...] G[...] Estate,
Pretoria, in favour of the Applicant for R 4 800 000.00 . This is the immovable
property owned by the Trust.
6. The Second and Third Respondents also signed an acknowledgment of debt of
an amount of R 1 491 980.00. The Applicant signed a rollover agreement with the
Second Respondent, on behalf of the First Respondent. This agreement explicitly
outlined that the total facility amount granted to the First Respondent was R 2
993 287.73, repayable over eight months at a daily interest of 0.15%.
7. The Applicant further alleges that the monthly interest of R 50 340.92 was due on
28 January 2021, followed by separate monthly payments of R 100 781.83 over a
period of seven months. In addition, the First Respondent was obliged to pay a R
100.00 monthly service fee, R 25 000.00 facility fee, and R 5 700.00 document
fee. The Respondents allege that as of 28 January 2021, the First Respondent
had paid a total amount of R 1 228 404.17 to the Applicant. These are aggregate
amounts paid between 11 April 2020 and 13 January 2021.
8. The Applicant alleged that a second rollover agreement was signed on 29 March
2023. In this agreement, it was recorded that the total facility amount granted was
R 2 193 442.34, with the new facility amount cal culated at R 2 811 061.66, with a
three-month extension period at a daily interest rate of 0.133%. The First
Respondent had to pay R 233 201.33 and R 98 804.91 on 31 March 2023.
9. The First Respondent also had to pay R 88 987.69 on 2 and 30 May 2023 as well
as on 2 June 2023 respectively. This included the R 100.00 monthly fee service.
In this agreement, the indebtedness of R 111 766.56 in interest arrears and R 321
In this agreement, the indebtedness of R 111 766.56 in interest arrears and R 321
906.24 debit order arrears were acknowledged. The Respondents admitted these
allegations.
10. According to the Applicant, the Respondents are jointly and severally indebted to
it for R 2 717 128.67 , which they failed to pay despite having been requested to
do so. The Respondents deny this allegation. They allege that despite not having
adhered to the payment arrangements between the parties, several payments
were effected between 1 1 April 2020 and 29 February 2024 to the Applicant,
amounting to R 4 927 042.52.
11. The Respondents contend that they have a bona fide defence against the
Applicant’s cause of action. They argue that the essence of their plea is that the
Applicant advanced a loan of R 2 000 000.00 to the First Respondent , and as at
the time the Applicant instituted its action proceedings, the First Respondent had
paid a total amount of R 4 927 042.52 to the Applicant.
12. The Respondents argue that the First Respondent has already paid the amount
owed to the Applicant, including interest that exceeds the capital loan amount , in
violation of the in duplum rule. They argue further that they instituted a
counterclaim against the Applicant to recover monies more than what the First
Respondent ought to have paid to the Applicant.
13. The Applicant submits that the Respondents ’ construction of the in duplum rule,
the maximum payable over the life of the loan, deals with agreements to which
the National Credit Act 1 applies. According to the Applicant, this legislation does
not apply to the parties’ loan agreement. Further, the in duplum rule, as it is
understood under common law, does not apply when the outstanding amount is
reduced below the outstanding principal debt . Under those circumstances,
interest can start running until it reaches the ‘in duplum limit’ once again.
14. With respect to the application to declare the Trust’s immovable property
specifically executable, the Applicant argues that it is entitled to this order
because the Mortgage bond was registered as security for the First Respondent’s
because the Mortgage bond was registered as security for the First Respondent’s
indebtedness to the Applicant. The Trust purchased the immovable property for
1 34 of 2005.
residential purposes, and it is not used for commercial purposes. The property is
occupied by the beneficiaries of the Trust.
15. The Applicant submitted that the court should set the appropriate reserve price.
Should a purchase consideration equivalent to at least the reserve price not be
achieved at a sale in execution, the Applicant will be prejudiced because the
prospects of recovering the amounts owing to it within a reasonable time are
significantly reduced. Where the reserve price is not attained, the sale should be
cancelled, and a new sale date should be obtained without a reserve price.
16. The Second Respondent submitted that the property sought to be declared
specifically executable is his family home , where he lives with her four children,
three of whom are minor s. He alleged that the execution would violate their right
to housing . He further states that there is no legal basis for the Applicant’s
application for summary judgment to succeed.
17. The Applicant rejects that the Second Respondent will be rendered homeless . It
was argued on behalf of the Applicant that the Second Respondent owns multiple
immovable properties , which he disclosed to the Applicant when the First
Respondent was applying for a loan.
D LAW AND ANALYSIS
i) First Application: Summary Judgment
• Legal Principles
18. In terms of Uniform Rule 32(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 — (a)
on a liquid document;(b) for a liquidated amount in money; (c) for delivery of
specified movable property; or (d) for a liquidated amount in money’
19. In Amiss and Another v F E Industrial Supplies CC, it was held that:
‘[t]he summary judgment procedure is designed to enable plaintiffs with clear
cases to obtain prompt enforcement of their claims against defendants who lack
valid defences. This remedy is considered extraordinary and drastic, as it
effectively denies the defendant the opportunity to contest the claim. Courts
emphasise that it is granted based on the supposition that the plaintiff's case is
unimpeachable and the defendant's defence appears to be flawed and without
merit’.2
20. The Supreme Court of Appeal in Cohen N.O and Others v D, held that the:
‘[p]rospects of success are irrelevant and as long as the defence is legally
cognisable in the sense that it amounts to a valid defence if proven at trial,
then an application for summary judgment must fail’.3
21. In Cellsecure Monitoring and Response (Pty) Ltd and Others v South African
Securitisation Programme (RF) Limited , it was held that an application for
summary judgment:
‘… requires the plaintiff to deliver an affidavit verifying the cause of action
and alleging that the defendant has no bona fide defence and has entered
an appearance solely to delay proceedings. A defendant resisting summary
judgment must satisfy the Court that it has a bona fide defence by disclosing
fully the nature and grounds of the defence and the material facts relied
upon’.
22. In terms of Uniform Rule 32(2)(b):
‘[t]he plaintiff shall, in the affidavit referred to in subrule (2)(a) verify the
cause of action and the amount, if any, claimed, and identify any point of law
relied upon and the facts upon which the plaintiff’s claim is based, and
explain briefly why the defence as pleaded does not raise any issue for trial’.
2 (002313/2024) [2025] ZAGPJHC 730 (21 July 2025) para 8.
3 (368/2022) [2023] ZASCA 56 (20 April 2023) para 29.
23. In terms of Uniform Rule 32(3)(b):
‘[t]he defendant may satisfy the court by affidavit … or with the leave of the
court by oral evidence of such defendant or of any other person who can
swear positively to the fact that the defendant has a bona fide defence to the
action; such affidavit or evidence shall disclose fully the nature and grounds
of the defence and the material facts relied upon therefor’.
24. Siyali correctly argues that
‘[a] bona fide defence is one that raises a genuine dispute of fact or law, and the
court will only grant summary judgment if the defence is clearly without
substance’.4
• Evaluation
25. There is no need to provide the historical development of the rule that regulates
summary judgments and the amendments that were effected in South Africa in
this judgment. The different divisions of the High Court have extensively done
this.5 However, i t is worth notin g that summary judgment is a necessary
procedure that not only has the potential to prevent unnecessary trials and the
adducing of evidence, but also enables the parties to save legal costs by bringing
legal proceedings to a speedy conclusion.
26. The Applicant’s cause of action is based on breach of contract, and in particular,
the First Respondent's failure to pay a specific amount. To succeed with the
application for summary judgment, the Applicant must have assessed the
Respondent's plea and formulated a view that it does not take the litigation
anywhere. There is no bona fide defence raised in the plea that justifies
4 ‘Verifying affidavits in summary judgment applications’ De Rebus in 2024 (December) De Rebus 46
5 In Pareto (Pty) Ltd and Another v Theron and Anothe r (9804/2023) [2024] ZAWCHC 249 (6
September 2024) para 10, the court held that ‘ [a]lthough, the recent amendments to the summary
judgment procedure have initially caused a furore, the fundamental considerations a court should
have regard to when faced with a summary judgement remain consistent’. See also Cellsecure
Monitoring and Response (Pty) Ltd and Others v South African Securitisation Programme (RF)
Limited (A201/2023; 21647/2021) [2025] ZAGPPHC 98 (31 January 2025) paras 23 – 26.
proceeding with the trial. Most importantly, the Applicant is obliged to
demonstrate that by defending the main action and submitting their plea, the
Respondents’ conduct is merely dilatory, and their defence is not genuine . The
defence raised should not stand a chance of defeating the Applicant’s cause of
action.
27. According to the Applicant , the Respondents do not have a bona fide defence,
and their plea was served and filed to delay. Further, the First Respondent is in
breach of the parties’ agreement by failing to pay amounts that were due to the
Applicant. However, it is surprising that the Applicant does not deal with the
Respondents’ allegations that between 1 April 2020 and 29 February 2024 , the
First Respondent paid the aggregate amount of R 4 927 042.52 to the Applicant.
28. The fundamental question is whether these amounts were paid. If they were paid,
were they paid towards the reduction of the actual capital debt amount, or were
they merely servicing the interest on the capital amount ? The Respondents are
entitled to have a proper trial where these issues can be adequately determined.
29. Even in the heads of argument submitted on behalf of the Applicant, the
Respondents’ allegation that they paid over four million rands to the Applicant is
repeated without being denie d or seriously challenged . In other words, the
Applicant has not denied that the First Respondent paid various amounts to it that
add up to more than four million. The Respondents allege that they are not
indebted to the Applicant.
30. It is not clear how this can be regarded as not constituting a bona fide defence to
the Applicant’s cause of action . The Respondents state that they settled their
debt, and there is no outstanding amount owed to the Applicant. It was argued on
behalf of the Respondent that the Applicant failed to provide a breakdown of how
the current debt and interest were calculated. On behalf of the Applicant, it was
the current debt and interest were calculated. On behalf of the Applicant, it was
stated that the debt amount arose from the rollover agreements. This is a matter
that must be established and proved in a trial.
31. The Applicant appears to be taking issue with the Respondents’ reliance on the in
duplum rule. During oral argument, extensive arguments were made in this
regard. According to the Applicant, the Respondents crafted their case in line with
agreements that attract the application of the National Credit Act.6 It was further
argued that this legislation does not apply to the parties' agreement and that the
common law formulation of this rule is applicable.
32. As the argument went, if payment is made and the amount is reduced below the
outstanding principal debt, the common law in duplum rule will no longer apply,
and interest can start running until it reaches the in duplum limit again.7 During
oral arguments, it was submitted on behalf of the Applicant that the Respondents
ought to have made payment s towards the capital amount to benefit from the
application of this rule. However, there is nothing in the papers that suggests that
the payments made by the Respondents were only used to service the interest.
This is an important dispute of fact that ought to be ventilated at the trial.
33. It is wo rth noting that the majority of the Constitutional Court in Paulsen and
Another v Slip Knot Investments 777 (Pty) Limited, without making any distinction
between statutory and common law in duplum rule, held that:
‘… the overarching purpose of the rule is to protect debtors from being
crushed by the never -ending accumulation of interest on an outstanding
debt’.8
34. The Respondents claim to have paid the money towards settling the capital debt
plus interest that exceeds the principal debt in this matter. This requires an
6 34 of 2005.
7 Counsel for the Applicant relied on the case of Standard Bank of South Africa Ltd. v Oneanate
Investments (Pty) Ltd (in liquidation) 1998 (1) SA 811 (SCA) 827H, where it was stated that ‘ … it is
convenient to refer first to the in duplum rule which is undoubtedly part of our law. It provides that
interest stops running when the unpaid interest equals the outstanding capital. When due to payment
interest drops below the outstanding capital, interest again begins to run until it once again equals that
amount’. It was argued that this part of the judgment was not overturned by the Constitutional Court
in Paulsen and Another v Slip Knot Investments 777 (Pty) Limited 2015 (3) SA 479 (CC); 2015 (5)
BCLR 509 (CC) and remains part of our law. See also ABSA Bank Ltd v Leech and Others [2001] 4
All SA 55 (A); 2001 (4) SA 132 (SCA).
8 2015 (3) SA 479 (CC); 2015 (5) BCLR 509 (CC) (24 March 2015) para 44.
assessment of whether they should be protected through the application of the in
duplum rule, which can be done during the trial between the parties.
35. The main challenge in these summary judgment proceedings is that it is not
particularly clear where and when the Respondents’ payments were reduced
below the outstanding principal debt for the in duplum rule to cease to apply , as
alleged. This makes it difficult to assess how the mischief identified by the
Constitutional Court can be prevented.
36. The fact that the Applicant does not dispute the Respondents' allegation that
various amounts totalling R 4 927 042.52 were paid to the Applicant between 1
April 2020 and 29 February 2024 by the First Respondent makes it necessary for
a trial court to hear the evidence and then decide whether the in duplum rule is
applicable. If it is, then establish which version of this rule relates to the parties'
agreement, if at all.
37. This is not an exercise that should be undertaken by a court asked to consider
whether the Respondent has a bona fide defence against the Applicant’s cause
of action. In my view, the Respondent’s defence has substance and is legally
cognisable in the sense that it amounts to a valid defence . There is no need to
deny the Respondents an opportunity to defend the action brought against them
by the Applicant.
38. I am not convinced that the Applicant has managed to illustrate that the
Respondents do not have a bona fide defence. To the contrary, I am convinced
that the Respondents demonstrated that they have a bona fide defence and they
have fully disclosed the nature and grounds of the ir defence and the material
facts relied upon . The Applicant’s application for summary judgment cannot
succeed.
ii) Second Application: Declaring Immovable Property Speci fically
Executable
• Legal Principles
39. Uniform Rule 46(1)(a)(ii) provides that:
‘[s]ubject to the provisions of rule 46A, no writ of execution against the
immovable property of any judgment debtor shall be issued unless such
immovable property has been declared to be specially executable by the
court or where judgment is granted by the registrar under rule 31(5)’.
40. In terms of Uniform Rule 46A (2)(a), a court considering an application to execute
against the residential immovable property must establish whether the immovable
property sought to be executed against is the primary residence of the creditor’s
debtor. The court is enjoined to ‘… consider alternative means by the judgment
debtor of satisfying the judgment debt, other than execution against the judgment
debtor’s primary residence’.9
41. When immovable properties subject to preferent claims are sought to be
specifically executed, there is a need to set a reasonable reserve price. In Actom
Electrical Products v Matlala,
‘Rule 46A seeks to protect homeowners by ensuring that their homes are not
sold in execution for prices which are not market related. Courts are called
upon to take account of the market value of the property, making a fair
determination of what a fair reserved price would be’.10
42. In Nedbank Limited v Malaka, it was held that
‘Rule 46(A) deals with the procedural rules for executing a judgment debt against
residential immovable property. The rule focuses on two main aspects:
determining if it is justified to sell the debtor’s home in execution and, if a sale is
ordered, setting a reserve price at which the property is to be auctioned’.11
9 Uniform Rule 46A(2)(b).
10 (42355/2020) [2024] ZAGPPHC 75 (29 January 2024) para 26.
11 (38015/2021) [2023] ZAGPJHC 195 (1 March 2023) para 19.
• Evaluation
43. It cannot be denied that for the court to consider an application to declare
immovable property subject to security to be specifically executable, the re must
be a judgment creditor who obtained a judgment debt against the judgment
debtor. Such an application cannot be brought, let alone considered, if there is no
judgment debt.
44. However, the Applicant cannot be harshly criticised for bringing this application
because it was dependent on the Applicant’s application for summary judgment.
Had the latter application succeeded, there would have been a judgment debt
upon which this application could have been brought.
45. Since there is no judgment debt, there is no point in considering the Applicant’s
application to declare the immovable property belonging to the Trust specifically
executable. This application must fail.
E CONCLUSION
46. I am satisfied that t he Respondents raised a bona fide defence and should be
allowed to defend the main action brought against them by the Applicant.
ORDER
47. In the premises, I make the following order:
47.1. The Applicant’s application for summary judgment is dismissed with costs,
including costs of counsel on scale B;
47.2. The Applicant’s application to declare immovable property specifically
executable is dismissed with costs, including costs of counsel on scale B.
C MARUMOAGAE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
Counsel for the Applicant : Adv CRD Thomas
Instructed By : Faber Goertz Austen Incorporated
Counsel for the Respondents : Adv S Kunene
Instructed By : Thinane Mabusa Incorporated Attorneys
Date of Hearing : 26 May 2025
Date of Judgment : 27 August 2025