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IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
CASE NO: 1360/2025
REPORTABLE: YES / NO
OF INTEREST TO OTHER JUDGES: YES/NO
REVISED: YES/NO
DATE 30/09/2025
SIGNATURE
In the matter between:
NEDBANK LIMITED APPLICANT
(Registration Number: 1951/000006/09)
and
AFRI CONSTRUCTION CC FIRST RESPONDENT
(Registration Number: [....])
NKOSINATHI IAN MNYAKA SECOND RESPONDENT
(Identity Number: [....])
NONMTHANDAZO CHRISTABEL MNYAKA N.O. THIRD RESPONDENT
(Identity Number: [….]
(In her capacity as Trustee of the Mnyaka Family)
NKOSINATHI IAN MNYAKA FOURT RESPONDENT
(identity Number:[…]
(In his capacity as Trustee of the Mnyaka Family
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date for hand -down is deemed to be the 30
September 2025 at 10h00.
JUDGMENT
Msibi AJ
Introduction
[1] This is an opposed application for summary judgment as well as an
application in terms of Rule 46A of the Uniform Rules of Court to declare the
immovable properties of the defendants to be specially executable.
[2] Despite these proceedings being in the form of an application , the parties will
be referred to in this judgment as the plaintiff and defendants, respectively.
[3] The plaintiff seeks summary judgment against the defendants for the payment
of monies owed, together with interest and costs on an attorney and client scale. The
claim arose from the defendant’s liability as a co-debtor and surety for the obligations
of Afri-Construction CC.
Background and common cause facts
The first claim
[4] On 30 January 2019 , the plaintiff, duly represented, concluded a written
commercial loan agreement with the first defendant. In terms of the agreement, the
plaintiff agreed to advance a sum of R2 240 000.00 to the first defendant.
[5] On 7 February 2019 , the second defendant and the Mnyaka Family Trust
bound themselves jointly and severally as surety and co -principal debtors with the
first defendant for the repayment, on demand, of all amounts that the first defendant
may then and in future owe to the plaintiff. In terms of the suretyship agreement, any
indebtedness to the plaintiff sh all be determined by a certificate signed by the
plaintiff’s manager. Such a certificate shall constitute prima facie proof of the amount
of indebtedness.
[6] The deed of suretyship was for a limited amount of R700 000.00, plus
interest, discount, commission, legal costs on an attorney and client scale and all
other necessary and usual charges and expenses.
[7] Pursuant to the loan agreement, the defendants caused a continuing covering
mortgage bond to be registered over the immovable property in favour of the plaintiff.
The immovable property is not the primary residence of the defendants.
[8] The certificate of balance signed by the plaintiff’s manager on 25 Febru ary
2025 reflects that the defendants are indebted to the plaintiff in the amount of
R1 279 403.50.
[9] On 12 February 2019, in Mpumalanga, as security for the facilities granted by
the plaintiff to the first defendant, the first defendant , duly represented, caused the
first covering mortgage bond, with number B[...], to be executed in favour of the
plaintiff over the following property:
ERF 1[...] S[...] TOWNSHIP, REGISTRATION DIVISION J. T. PROVINCE OF
MPUMALANGA, MEASURING 1006 (ONE THOUSAND AND SIX) SQUARE
METERS, HELD BY TITLE DEED OF TRANSFER NUMBER T[...].
Second claim
[10] On 5 November 2014, the plaintiff, who was duly represented, entered into a
written loan agreement with the first defendant, wherein the first defendant l ent and
advanced an amount of R3 370 000.00
[11] On 5 November 2014, the duly represented Mnyaka Family Trust bound itself
jointly and severally as surety and co-principal debtor in solidum for the repayment
on demand of all amounts which the first defendant then, now or at any time
thereafter owed to the plaintiff.
[12] The defendants failed to pay their monthly obligations as undertaken and
consequently fell into arrears.
[13] The certificate of balance signed by the plaintiff’s manager on 5 March 2025,
reflects that the defendants are indebted to the plaintiff in the amount of
R179 060.89.
[14] The suretyship was to remain in force as a continuing covering security until
such time as all obligations of the first defendant to the plaintiff have been duly and
properly executed and complied with.
[15] Wherefore, the plaintiff prays for judgment against the first, second, third and
fourth defendants, jointly and severally, the one paying, absolving the other in the
following terms:
“Against the third and fourth defendant only:
1. Payment in the amount of R700 000, 00.
Against the first and second defendants only:
2. Payment in the amount of R1 279 403, 50.
3. Interest on the aforesaid amount calculated at the plaintiff's prime
lending rate applicable from time to time (currently 11.00%) compounded daily
and capitalized monthly from 26 February 2025 to date of payment both days
inclusive.
4. An order declaring the following movable property owned by the
defendant specially executable:
ERF 1[...] S[...] TOWNSHIP, REGISTRATION DIVISION J. T. PROVINCE OF
MPUMALANGA, MEASURING 1006 (ONE THOUSAND AND SIX) SQUARE
METERS, HELD BY TITLE DEED OF TRANSFER NUMBER T[...].
5. Costs of suit as between attorney and client.”
[16] On 7 February 2019, both the second defendant and the Mnyaka Family Trust
(third and fourth defendants) bound themselves as sureties and co-principal debtors
with the first defendant for the payment of the loan amount to the plaintiff. The deed
of suretyship was for a limited amount of R 4 805 000.00, plus interest, discount,
commission, legal costs on an attorney and client scale and all other ne cessary and
usual charges and expenses.
[17] On 20 February 2015, a s security for the payment of the facilities granted by
the plaintiff to the first defendant , the first defendant caused the first covering
mortgage bond, with registration number B[...], to be registered over its immovable
property, in favour of the plaintiff over the following property:
REMAINING EXTENT OF PRTION 3 OF THE FARM CIARN 3 […], REGISTRATION
DIVISION J.T. PROVINCE OF MPUMALANGA, MEASURING 6,1760 (SIX COMMA
ONE SEVEN SIX ZERO) HECTARES, HELD BY TITLE DEED OF TRANSFER
NUMBER: T[...].
[18] Wherefore the plaintiff prays for judgment against the first, the second, third
and fourth defendants jointly and severally, the one paying, the other to be absolved
in the following terms:
“1. Payment in the amount R179 060.89,
2. Interest on the aforesaid amount calculated at the plaintiff ’s prime lending
rate applicable from time to time , compounded daily and capitali sed monthly
from 26 February 2025, date of payment, both days inclusive.
3. An order declaring the immovable property owned by the first defendant,
specially executable:
REMAINING EXTENT OF PRTION 3 OF THE FARM CIARN 3[…],
REGISTRATION DIVISION J. T. PROVINCE OF MPUMALANGA,
MEASURING 6,1760 (SIX COMMA ONE SEVEN SIX ZERO) HECTARES,
HELD BY TITLE DEED OF TRANSFER NUMBER: T[...].
4. Costs of suit as between attorney and client.”
Litigation history
[19] On 13 March 2025, the plaintiff caused the combined summons to be issued
and served on the first to the fourth defendants. The defendant’s notice to defend
was served on 1 April 2025 , and their plea was served on the plaintiff on 19 May
2025.
[20] The application for summary judgment was served on 9 June 2025 , and the
matter was enrolled on 4 July 2025. On 4 July 2025 , the matter was remo ved from
the roll as the defendants endeavoured to settle the dispute. Based on this
undertaking, Roelofse AJ directed as follows:
“1. Matter is removed from the roll
2. Parties shall approach the registrar of this court by not later than 30
September 2025 for purposes of enrolling the matter on the unopposed roll if
not settled in its entirety.”
[21] According to the plaintiff, the defendants made no attempts to settle the
matter; it was therefore re-enrolled by the plaintiff for hearing on 15 August 2025.
[22] The certificate of balance dated 5 March 2025, deposed to and signed by the
Nedbank Recovery Manager, states as follows:
“Mnyaka Family trust is indebted to Nedbank Limited in the following amounts
as at 25 February 2025.
Limited to R700 000
1. COMMERCIAL LOAN AGREEMENT: 8[...] in the amount of
R1 279 403.50, together with interest thereon at Nedbank’s prime rate
applicable from time to time currently 11.00% plus 00.00%, thus 11.00% p.a.
from 26 February 2025 to date of final payment, both days inclusive.
2. NEDBOND LOAN AGREEMENT :2[...] in the amount of R179 060.89
together with interest thereon at Nedbank’s prime lending rate applicable from
time to time , currently 11.00% plus 00.00%, thus 11 ,00% p.a. from 26
February 2025 to date of final payment, both days inclusive.”
[23] The defendants did not enter a notice to defend nor file an affidavit resisting
the current application for summary judgment.
[24] On the date of the hearing, 15 August 2025, Advocate Van Heerden appeared
for the defendants. He submitted that he was only briefed telephonically on the night
before, and he was requested to bring an application for a postponement of the
matter.
[25] Advocate Conrad Richard opposed the application, citing delaying tactics by
the defendants who had waited to brief Counsel only at the eleventh hour. The
matter was not opposed until that morning. The application for a postponement was
refused.
[26] Counsel for the defendants subsequently addressed the court , arguing that
the defendant s, in their plea to the first application for summary judgment , raised
three special pleas to which the plaintiff had to bring a replication. He further argued
that when special pleas are entered, a matter is to be heard in a trial court. Counsel
for the plaintiff argued that all special pleas raised did not disclose any triable issue.
Special Pleas raised by the Defendants
[27] Advocate van Heerden argued that the plaintiff’s statement of account reflects
unexplained debits, which raises bona fide disputes of fact unsuitable for summary
judgment, rendering the amount unliquidated. The second special plea is that the
plaintiff failed to serve the defendants with a letter of demand as prescribed in
section 129(1), read with section 130 of the National Credit Act 34 of 2005. Thirdly,
the plaintiff failed to comply with Rule 46 A(5), which prescribes the documents that
have to be filed in support of the application; inter alia , the value of the immovable
property, the local authority valuation thereof , rates and taxes, amounts owing to the
bond registered over the immovable property and a suggested reserve price.
[28] I now turn to summarise the legal principles, before evaluating the merits of
the application in light of the defences raised.
The legal principles
[29] The quest for a summary judgment is based on the trite 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 , a summary judgment must be refused as to that cause of
action. The purpose of the summary judgment procedure is to afford an innocent
plaintiff who has an unanswerable case against an elusive defendant a much
speedier remedy than waiting for the conclusion of an action. See Meek v Kruger 1;
and Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture.2
[30] Summary judgment cannot be granted where it is clear that some ventilation
of evidence is required in order for the court to come to a decision. Adopting this
approach, the successful defendant who demonstrates a triable defence is not
excised from further anticipated litigation. Thus, the defendant retains his
constitutional rights to access justice, as enshrined in section 34 of the Constitution.
[31] It was held in Breitenbach v Fiat SA (Edms) Bpk3 that in opposing a summary
judgment request, the defendant must present an affidavit disclosing fully the nature
and grounds of the defence. The defence must be a bona fide defence, that is legally
invisible and is factually supported. However, even if a defendant’s defence appears
weak or unsubstantial , the court retains a residual discretion to refuse summary
judgment. This discretion allows the court to consider whether granting summary
judgment might result in an injustice , particularly w here there is a reasonable
possibility that a fuller exploration of the issues at trial could reveal a valid defence.
[32] In Standard Bank of South Africa v Roestof4 it was held as follows:
“A reading of Rule 32 as a whole makes it plain that, once there is an affidavit
“A reading of Rule 32 as a whole makes it plain that, once there is an affidavit
by the plaintiff, or someone acting on its behalf, who can swear positively to
1 Meek v Kruger 1958 (3) SA 154 (T) at 156 and 158.
2 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA); [2009]
All SA 407 (SCA) at 11C-G.
3 Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T).
4 Standard Bank of South Africa v Roestof 2004 (2) SA 492 (W) at 496E-H.
the facts verifying the cause of action and the amount, if any, claimed, stating
that in his opinion there is no bona fide defence to the action and that
intention to defend was delivered solely for the purposes of delay, the plaintiff
is entitled to summary judgment unless the defendant has complied in some
way or other with the requirements of Rule 32(3). If the papers are not
technically correct due to some obvious and manifest error which causes no
prejudice to the defendant, it is difficult to justify an approach that refuses the
application, especially in a case such as the present one where a reading of
the defendant’s affidavit opposing summary judgment makes it clear beyond
doubt that he knows and appreciates the plaintiff’s case against him.”
[33] Relying on Roestof, I find that no prejudice has been caused to the
defendants by the technical flaw. The difference in the amount is clearly a
typographical error, as the correct amount is reflected in paragraphs 22.2, 23.1 and
33.2.4 of the plaintiff’s Particulars of Claim. The technical flaw is cured.
Analysis of the evidence
Liquid Document
[34] Rule 32(2)(c) provides that: “If the claim is founded on a liquid document a
copy of the document shall be annexed to such affidavit…”
[35] The plaintiff avers that it has complied with the requirements of a summary
judgment in terms of Rule 32. In support of this application , the plaintiff attached an
affidavit compiled by the Nedbank Recovery Manager, which has been referred to in
paragraph 26 of this judgment as prescribed in Rule 32(3).
[36] As it was held in Tredoux v Kellerman,5 a liquidated amount for purposes of a
summary judgment is an amount that is either agreed upon or capable of prompt
ascertainment. In deciding whether an amount is liquidated , the courts have
traditionally referred to whether the quantum is calculatable with precision, either
through a simple calculation or by reference to agreed facts . A claim is regarded as
through a simple calculation or by reference to agreed facts . A claim is regarded as
5 Tredoux v Kellerman 2010 (1) SA 160 (C) para 18.
liquid if it stems from a liquid document (such as a contract where the amount is
specified) or if the amount can be ascertained through simple calculation based on
the terms of the agreement.
[37] The defendants admit the terms of the respective loan agreements , which
also stipulate that a statement of balance will be prima facie proof of the content
thereof. From the Certificate of Balance compiled by the Nedbank Recovery
Manager annexed to the plaintiff’s particulars of claim , the amount due has already
been ascertained through calculations based on the terms of the loan agreements. It
was one of the terms of both loan agreements that a balance determined by the
Manager shall be prima facie proof of the defendant’s indebtedness. Liquidity of the
amounts claimed has been established. The defendant’s first special plea does not
raise a triable issue.
Non-compliance with the National Credit Act 34 of 2005
[38] In respect of non-compliance with sections 129 and 130 of the National Credit
Act, mortgage bond agreements are regarded as large credit agreement s, wherein
the debtor is a juristic person. Therefore, the provisions of section s 129 and 130 of
the National Credit Act find no application.
[39] The provisions of sections 129 and 130 of the National Credit Act do not find
application as far as commercial loan agreement s are concerned because these
agreements constitute large credit agreements as contemplated in section 9(4)(b),
read with section 7 (1)(b) of the National Credit Act, because they exceed the
statutory threshold . S ince section s 129 and 130 of the National Credit Act do not
apply to the principal credit agreements, the suretyship agreements also fall beyond
the scope of the National Credit Act. As a result, compliance with sections 129 and
130 is not a requirement.
[40] With regard to non-compliance with Rule 46A(5) regarding the two immovable
properties, Counsel for the plaintiff argued that the immovable properties are owned
properties, Counsel for the plaintiff argued that the immovable properties are owned
by the first defendant, who is a juristic person. The property is not the primary
residence of the second and fourth defendant. It was never argued on behalf of the
defendants that either of the properties was a primary residence attracting
constitutional implications. Only then is a court called upon to exercise judicial
oversight.
[41] On the contrary , the plaintiff obtained the following information about the
Sonheuwel property: that it is rated for business purposes , that the municipal rates
payable are R1 589.91, that the market value of the property is R969 000.00, that
the electricity charges are categorised for business purposes , and that it is situated
in a decentralised business district.
[42] In respect of Farm Ciarn no 3[...], at the time of its registration in favour of the
plaintiff as security, it operated and was used as a resort facility, comprising a
caravan park and a conference and wedding venue. In a matter that is opposed and
defended, allegations of a residential property would have been on record if they
existed.
[43] From the Deeds Office property search reports that were annexed to the
plaintiff’s particulars of claim , the plaintiff is the only party holding registered bonds
over the two properties.
[44] Therefore, the defendants have not persuaded this court that they have a
triable issue, which would warrant full ventilation in a trial court in respect of the third
special plea.
Conclusion
[45] In light of the foregoing , the plaintiff has shown that the defendants do not
have a bona fide defence to the claim, and that the appearance to defend has been
entered solely for the purposes of delay.
Costs
[46] The issue of whether to award costs is primarily based on two basic rules,
namely, that the award of costs is a matter of judicial discretion by the court, and that
the successful party should, as a general rule, be awarded costs.
Order
[47] In the circumstances, I make the following order:
1 The application for summary judgment is granted in favour of the plaintiff and
against the defendants as prayed
2 The draft order marked X is made an order of court.
S M MSIBI
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
Appearances
Counsel for the Plaintiff: Adv Conrad Richard
Plaintiff’s Attorney: Weavind & Weavind Inc
Pretoria
Counsel for the Defendant: Adv Van Heerden
Defendant’s Attorneys: Crafford Attorneys
Johannesburg
Date of Hearing: 15 August 2025
Date of Judgment: 30 September 2025