SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Reportable
CASE NO: 15602/2022
In the matter between:
MERCHANT COMMERCIAL FINANCE 1 (PTY) LTD PLAINTIFF / APPLICANT
and
ALESSANDRO VALECIC 13TH DEFENDANT / 1st RESPONDENT
JENNA HAYLEY VALECIC 2ND RESPONDENT
Coram: MOOSA AJ
Heard: 4 September 2025
Delivered: 15 October 2025 (delivered electronically to the parties)
Summary: Civil procedure – Uniform Rule 46A – orders sought to declare
immovable property specially executable – National Credit Act
34 of 2005 – various legal issues determined – a credit provider
is not entitled to serve notice under s 129(1)(a) during litigation
without first obtaining court orders under s 130(4)(b) – failure to
comply with s 130(4)( b) before service cannot be judicially
condoned – a credit provider cannot enforce a credit guarantee
as cessionary or other transferee for value on credit, unless it
was independently registered as a credit provider under s 40(1)
when it entered into the underlying credit agreement to which
the credit guarantee s erves as security – if not, then s 40(4)
applies ex lege – just and equitable relief grant ed under s 89(5)
of the NCA.
___________________________________________________________________
ORDER
___________________________________________________________________
1. The rule 46A application against the First Respondent succeeds with costs on
an attorney-client scale (including costs of two counsel where so employed).
2. Pursuant to Uniform Rule 46A, Section 3 in the scheme known as St John’s 1
at Sea Point in the City of Cape Town , as shown on Sectional Plan No. SS
232/2018, held by sectional deed of transfer S […], together with the Exclusive
Use Area in the scheme known as St John’s 1 , described as Store on
Basement Level 2 number SS15, measur ing 6 (six) square metres in extent,
held by, and more fully described in, the Notarial Cession of Exclusive Use
Rights SK 5006/2019 (“the St John’s property”) , is declared specially
executable.
3. The Registrar of this Court is authorised to issue a writ for the attachment and
sale of the St John’s property to recover the debt ow ed to the Applicant by the
First Respondent in terms of a default judgment granted on 25 January 2024 in
case no. 15602/2022, including interest and attorney-client costs.
4. The Sheriff of this Court in whose jurisdiction the St John’s property is situate is
authorised and directed to execute any writ issued pursuant to 3 above , and to
take all such steps as may be necessary to sell the property by public auction.
5. The Sheriff envisaged in 4 above is authorised and directed to pay the full
proceeds of the sale in execution of the St John’s property into the trust
account of the Applicant’s attorneys of record at the time of the Sheriff’s public
auction.
6. The main application against the Second Respondent is dismissed with costs.
7. The Applicant shall pay the Second Respondent’s costs in relation to the main
application on an attorney and client scale, such costs to include the costs of
two counsel where so employed.
8. The Uniform R ule 28(4) application is dismissed with costs in favour of the
Second Respondent on a party-party scale, such costs to be on tariff scale B.
9. In accordance with s 40(4) read with s 89(5) of the National Credit Act 34 of
2005, the following orders are granted:
(a) the credit agreement between the Applicant and the First Respondent
relating to the Applicant’s loan for the benefit of the First Respondent to
settle the latter’s indebtedness t o Investec Bank is declared unlawful from
its inception;
(b) the Applicant has no enforceable claim vis -à-vis the Second Respondent
under the credit guarantee dated 31 May 2019, nor under the mortgage
bond registered over erf 2[...] Noordhoek in the City of Cape Town (B[...]);
(c) the Applicant shall at its expense, within 30 days, take all necessary steps to
cancel the mortgage bond over erf 2[...] Noordhoek (bond no. B[...]) and
restore its original title deed no. T[...] to the Second Respondent.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Moosa AJ
Introduction
[1] This judgment concerns two opposed applications in terms of Uniform Rule
46A against the respondents (“the main application”). This judgment also deals with
an amendment application in terms of Uniform Rule 28(4) (“the amendment
application”).
[2] The Applicant, in its Notice of Motion dated 15 November 2024, seeks orders
declaring specially executable immovable properties owned separately by the
respondents, coupled with the usual prayers for authorisations to the sheriff and
registrar of this Court, and for costs . In relation to the First Respondent, the property
sought to be sold in execution is Section 3, in the scheme known as St John’s 1 at
Sea Point in the City of Cape Town , and held under sectional deed of transfer S[...],
together with the Exclusive Use Area in the scheme known as St John’s 1 described
as Store on Basement Level 2 number SS15, measuring 6 (six) square metres, and
held under the Notarial Cession of Exclusive Use Rights SK 5006/2019 (“the St
John’s property”). In relation to the Second Respondent, the property sought to be
sold in execution is described as erf 2[...] Noordhoek in the City of Cape Town, and
held by deed of transfer number T[...] (“the Noordhoek property”). The respondents
oppose the petitions so far as it pertains to their respective property.
[3] The Applicant launched the amendment application on 29 July 2025 . It
exclusively affects the Second Respondent. The Applicant seeks an order
authorising an amendment to its aforementioned Notice of Motion by the insertion of
the following:
‘A1 That judgment be entered against the second respondent in favour of the
applicant for payment of the sum of R4, 550, 000 and the additional sum of
R910, 000 as provided for in the Guarantee and Indemnity dated 31 May
2019 and the continuing covering mortgage bond registered over the
immovable property described in paragraph 1.2 below on 1 July 2019.’
[4] At the hearing, the Applicant was represented by Mr A M Smalberger SC (with
Ms H Bevis-Challinor); while Ms F Syria and Mr I Veerasamy appeared for the First
and Second Resp ondent respectively. I am grateful to counsel for their insightful
submissions on various questions of law wh ich had considerable complexity, both in
their heads of argument and during our engagement at the hearing.
[5] The factual matrix pertaining to th e applications concerning the First and
Second Respondent have key differences. I will commence by narrating the fact s
germane to their adjudication. The facts highlighted below are distilled from the
pleadings viewed in their entirety. Unless indicated otherwise, the facts are common
cause (or, at the very least, not significantly disputed) in the papers before me.
Relevant background facts
[6] The Applicant carries on a business as a merchant factor and financier. On 17
May 2019, it concluded a written factoring agreement with Radsmec Enterprise (Pty)
Ltd (“Radsmec”). From 17 May 2019 to 6 July 2022, the Applicant advanced funds to
Radsmec, pursuant to the latter ceding its book debts to the Applicant as security.
[7] On 31 May 2019, the Applicant and Radsmec executed an excess facility
agreement. In accordance with its terms (read with the factoring a greement), the
Applicant advanced substantial sums to Radsmec as a current account facility on its
factoring ledger. As at 6 July 2022, Radsmec owed R23 157 991,71 to the Applicant,
being the aggregate of all monies advanced to Radsmec (with interest) as a facility.
[8] The Applicant executed two loan agreements with Radsmec in July 2018 and
May 2019, respectively. In accordance with their respective terms, the Applicant lent
and advanced to Radsmec s ubstantial sums. A s a t 6 July 2022, Radsmec owed
R19,867, 601 to the Applicant , being the aggregate of all loans received (plus
interest).
[9] The First Respondent signed a deed of cross-suretyship on 31 March 2021 in
which he bound himself as surety and co -principal debtor in solidum with Radsmec
in respect of all the latter’s indebtedness to the Applicant from whatsoever cause ,
including for interest, legal costs, collection fees, and tracing agent fees.
[10] The Applicant in stituted an action on 16 September 2022 as a result of
Radsmec's failure to fulfil its payment obligations to the Applicant under the factoring
agreement, coupled with the excess facility agreement, and the two loan
agreements.
[11] The Applicant, in her capacity as plaintiff, caused a combined summons to be
issued out of this Court under case no. 15602/2022. The Applicant sued Radsmec
and twelve others, including the First Respondent. The latter was sued on the basis
of his accessory liability as surety . The Secon d Respondent was not cited in the
summons.
[12] On 1 November 20 23, the summons was re-served on the First Respondent
by being delivered at his domicilium address in Sea Point. The summons was served
on a person identified as ‘Mr Sizwe’. On 20 November 2024, t he Uniform Rule 46A
papers was served on the First Respondent by being left at the same domicilium
address. None of the defendants filed a notice to defend the action in case no.
15602/2022. The Applicant, as the plaintiff, thereafter filed an application for default
judgment.
[13] On 25 January 2024, Acting Justice Joubert granted judgment by default
against the defendants, including the First Respondent. In terms of the order, the
judgment debtors are jointly and severally liable to the Applicant, the one paying the
other absolved, for the aggregate sum of R43 025 592,70, being arrear capital and
interest, as well as further interest at the agreed rate, and costs (“the judgment
debt”).
[14] Since the Applicant’s efforts to recover the judgment debt had limited success,
it launched the present application in November 2024 pursuant to Uniform Rule 46A .
In May/June 2025, the First respondent filed his a nswering affidavit. The main
ground of opposition is the contention that the default judgment falls to be set aside .
A rescission application was launched, belatedly so, at the hearing before me.
[15] The First Respondent asserts in his application that he is entitled to rescission
due to a defective service of the summons. He also avers that the default judgment
ought to be rescinded because it was allegedly fraudulently obtained. Ms Syria
applied for a postponement of the main application, pending the outcome of the
rescission. Mr Smalberger SC opposed this indulgence that was sought from the bar.
After hearing argument , I refused the postponement utilising the principles
enunciated in Myburgh Transport v Botha t/a S.A. Truck Bodies 1991 (3) SA 310
(NmS) at 314 - 315 and Shilubana and Others v Nwamitwa 2007 (5) SA 620 (CC)
paras 6 - 19.
[16] The Applicant’s case against the Second Respondent stands on a completely
different footing. Her opposition to it is also based on substantive grounds entirely
distinct from those advanced by the First Respondent. I deal with these aspects now.
[17] On 31 May 2019, Investec Bank (“Investec”) and the First Respondent
concluded an agreement of loan (“the Investec loan agreement”). In accordance with
its terms, Investec lent and advanced to the First Respondent the sum of
R4 553 450, subject to a bond being registered over the Noordhoek property as
security.
[18] The following ar e common cause facts in the pleadings : (i) the Investec loan
agreement is a secured loan regulated by the National Credit Act 34 of 2005 (“the
NCA”); and (ii) when the Investec loan agreement was concluded, Investec, as
lender, was registered as a credit p rovider under the NCA with registration number
NCRCP9.
[19] The Investec credit is secured by : (i) a mortgage bond over the Noordhoek
property with the Second Respondent’s consent (“the mortgage bond”) ; (ii) o n 31
May 2019, the Second Respondent signed a Guarantee and Indemnity agreement in
which she stood guarantor for payment to Investec (“the Guarantee agreement”).
[20] In terms of the Guarantee agreement, the Second Respondent guarantees ,
as a principal (not accessory), the timely payment of all m onies that the First
Respondent may owe to Investec (or its assigns) in connection with the Investec
loan agreement. The guarantee is limited to a maximum of R4 550 000,00, a further
sum of R910 000,00, as well as interest and attorney-client costs).
[21] It is common cause that t he Guarantee agreement is a ‘credit guarantee’ (as
defined in s 8(5) of the NCA) and that the mortgage bond held by Investec over the
Noordhoek property is a ‘credit transaction’ (as defined in s 8(4) of the NCA).
[22] The Second Respondent renounced the benefits of excussion and division in
the Guarantee agreement. She also agreed that if Investec cedes, delegates, or
transfers all or any of its rights against the First Respondent arising out of the
Investec loan agreement, then Investec will have the right to also cede, delegate, or
transfer any of its rights against the Sec ond Respondent under the Guarantee
agreement.
[23] The First Respondent default ed on his obligations to Investec in the sum of
R14 563 639,50. On 8 September 2021, in case no. 15432/2021, Investec applied
for the First Respondent’s sequestration. This Cou rt issued a provisional
sequestration order on 17 September 2021. On 29 March 2022, the sequestration
proceeding was settled in terms of a tri -partite agreement concluded by the
Applicant, Investec, and the First Respondent (“the tripartite agreement”) . It was
made an order of this Court.
[24] The tripartite agreement provided that the First Respondent’s debt to Investec
of R14 563 639,50 would be extinguished as follows: (i) the First Respondent’s
provisional trustees would pay a provisional dividend to Investec from the R10m
yielded on the sale and transfer of the First Respondent ’s property, being G[…], The
Estate, 5 […] S[…] Road, Sea Point; and (ii) the Applicant would settle the full
balance owing to Investec as a purchase price after the agreed provisional dividend
was paid . The Applicant agreed to purchase the full balance of Investec’s claim .
Against receipt of the purchase price, Investec agreed that it would out-and-out cede
to the Applicant all the security which it (Investec) held for the First Respondent’s
debt to it . This tripartite agreement culminated in the Applicant and Investec, on 14
September 2022, concluding a sale and cession agreement (“the sale and cession
agreement”).
[25] In a ccordance with the terms and conditions of the sale and cession
agreement, the Applicant paid the full balance of Investec’s claim as recorded in a
Certificate of Balance . As a result of Investec’s claim being extinguished (as was
agreed), the final sequestration of the First Respondent ’s estate was successfully
averted.
[26] The sale and cession agreement incorporated an out-an-out cession. In terms
thereof, Investec ceded to the Applicant all its rights, title, and interest in the security
held by it in connection with the First Respondent’s indebtedness to Investec. This
comprised both the Second Respondent’s Guarantee and Indemnity, as well as the
mortgage bond registered over the Noordhoek property. The cession of rights under
the mortgage bond was registered at the Deeds Office on 1 December 2022. All the
security ceded by Investec now serve as the Applicant’s security for its claim against
the First Respondent arising from the Applicant settling the balance of Investec’s
claim.
[27] It is common cause that the Applicant is not registered as a credit provider at
any time material to the applications before me, and has never been so registered.
[28] The Applicant’s case against both the respondents in terms of Uniform Rule
46A is predicated on the following core averments appearing in its founding papers:
‘45. Summons was served on the first respondent on 20 January 2023. Due to the
delay in pursuing its application for default judgment, the applicant caused the
summons to be re-served on the first respondent on 1 November 2023. …
46. … the applicant secured default judgment against the first respondent … in
the sums set out in paragraphs 34.1 to 34.3 above (refer to FA4).
47. On the same day, the applicant also secured two further default judgments
against the first respondent under case numbers 15601/2022 and
15616/2022 in the amounts of R54, 886, 831.55 (with interest and costs) and
R5, 994, 856.24 (with interest and costs) respectively. …
48. The first respondent’s indebtedness to the applicant therefore totals
R103, 907, 280.49 (R43, 025, 592.70 + R54, 886, 831.55 + R5, 994, 856.24 =
R103 907 280.49). This application, however, only pertains to the judgement
debt under case no. 15602/2022.
49. On 26 February 2024, this Court issue d a writ of execution against the first
respondent’s movable property. …
52. Despite the applicant’s best efforts , it has not been able to locate the first
respondent and/or his current residential address at which it could attempt to
execute the writ of execution.
53. Consequently, the first respondent remains indebted to the applicant for the
sum of R43 , 025, 592.70 (excluding the sum of R54 , 886, 831.55 and
R5, 994, 856.24), together with interest and costs. By virtue of the terms of
the Guarantee and Indemnity the second respondent concluded with Investec
Bank and the cession thereof to the applicant as set out more fully
hereinabove, the second respondent is also indebted to the applicant, though
only to the extent of R5, 460, 000.00 (and not as surety but as primary debtor
with principal obligations, and not as accessory obligations) … .
with principal obligations, and not as accessory obligations) … .
54. The applicant is therefore necessitated to attach and sell the immovable
properties owned by the respondents.
55. I confirm that no payments have been made towards settling the judgment
debt by any party.
56. In addition to the aforesaid, I confirm that the Mortgage Bond registered over
the Noordhoek-Property secured the obligations of th e first respondent under
the loan agreement (attached as FA8.1) as well as any other agreement
concluded with the applicant (by virtue of the fact that Investec ceded,
assigned and transferred to the applicant all of its rights, title and interest in
and to the guarantee claims). Accordingly, no monthly instalments in terms of
the Mortgage Bon d are or were payable to the applicant by the second
respondent with the result that the full sum of R5 , 460, 000 remains secured
in terms of the Mortgage Bond (the sum of R5, 460, 000 being the total extent
of the second respondent’s capital liability towards the applicant by virtue of
the limitation recorded in clause 5 of the Guarantee and Indemnity – refer to
FA8.2).’
[29] In her affidavit opposing the petition under Uniform Rule 46A , which affidavit
was delivered early in June 2025, the Second Respondent adopted a three-pronged
attack. First, she pointed to the common cause fact that the default judgment granted
on 25 January 2024 , and on which the Applicant relies for relief in casu , does not
operate against her. She aver red that the main application is unsustainable against
her in law because she is not a ‘judgment debtor’ as envisaged by Uniform Rule
46A.
[30] Secondly, the Second Respondent aver red that the Applicant was obliged to
serve a pre -litigation notice under s 129 (1)(a) of the NCA due to the fact that the
Guarantee agreement fell under the NCA ’s umbrella . This is common cause. The
notice under s 129(1) was not d elivered before the main application was launched.
The Second Respondent contends that this omission is fatal to the Applicant’s case.
[31] A third string in the Second Respondent’s bow is he r defence that the
Guarantee agreement only applies to the debt incurred when the First Respondent
purchased the Noordhoek property with funds loaned from Investec. She avers that
to the extent that the Guarantee agreement does not re flect that intention, its
provisions stand to be rectified owing to an alleged material error common to the
parties thereto.
[32] The Applicant admits that its case suffers from the deficiencies constituting
the grounds of opposition outlined in paragraphs [29] and [30] above . Consequently,
on 2 July 2025, the Appl icant took certain steps that were aimed at remedying the
problems which it faced.
[33] The following steps were taken by the Applicant:
(a) First, as regards the legal hurdle in paragraph [29], the Applicant gave notice
under Uniform Rule 28 (1) of an intention to amend its Notice of Motio n by
inserting a prayer that seeks judgment against the Second Respondent. The
contents of the intended amendment appear in paragraph [3] above; and
(b) Secondly, as regards the legal hurdle mentioned in paragr aph [30], the
Applicant ca used a notice contemplated by s 129 (1)(a) of the NCA to be
served on the Second Respondent and her attorney of record.
[34] On 11 July 2025, the Applicant delivered its replying affidavit . In it, Mr G
Connor traversed the answering affidavits delivered by the First and the Second
Respondent. For present purposes, I deem it necessary to mention some contents in
Mr Connor’s seriatim reply , but also only so far as it concerns the Second
Respondent.
[35] With regards to the absence of any judgment recorded in the Applicant’s
favour against the Second Respondent, Mr Connor averred in reply as follows:
‘131. At the time of preparing the notice of motion, the applicant’s legal
representatives omitted to include a prayer seeking a money judgment against the
second respondent. The prayer for a money judgment against the second
respondent should have been prayer 1 and the remaining prayers in the notice of
motion should have followed thereon. That is evident from a proper consideration of
the founding affidavit, which contains the necessary averments to sustain a money
judgment against the second respondent.’ (my underlining for emphasis)
[36] As regards the purpose for joining the Second Respondent and seeking relief
against her, Mr Connor said in reply as follows:
‘140. The second respondent is joined in these proceedings because the first
respondent has failed to satisfy the judgment debt under the aforesaid case number.
At the time when the main action was issued, it was not necessary for the applicant
to have joined th e second respondent as a party to the proceedings because the
applicant did not, at the time, intend to call up the security it enjoys over the
Noordhoek property. It has now become necessary to do so because the first
respondent does not have sufficient a ssets to satisfy the judgment debt. The
applicant is entitled to do this.’
(my underlining for emphasis)
[37] In replying to the allegation that the Guarantee agreement does not apply to
the First Respondent’s indebtedness to the Applicant arising from its cross -
suretyship which forms the basis of the judgment debt, Mr Connor averred in reply
as follows:
‘143. The Guarantee was not intended by the parties to apply only to the purchase
of the Noordhoek property.
144. In signing the Guarantee, the second respondent affirmed that she
understood that:
144.1 the Guarantee would secure “ not only one transaction but al so any
and all future transactions entered into between [the first respondent]
and Investec as provided for in [the] Guarantee and Indemnity, unless
clause 3 indicates that the Guarantee expressly applies only in
respect of the obligations of [the first re spondent] under or in
connection with a specific Loan Agreement” …
144.2 her liability, in terms of the Guarantee, “ will be continuous until all [the
first respondent’s] existing and future obligations under the Loan
Agreement have been met as provided for in [the] Guarantee” …
Agreement have been met as provided for in [the] Guarantee” …
145. Clause 3 of the Guarantee … provides as follows:
“3. … The [second respondent] hereby unconditionally and
irrevocably guarantees, as a principal obligation …
3.1 the due and punctual payment of all and any monies which the
[first respondent] … may now or from time to time in future owe
to Investec from whatsoever cause and howsoever arising,
including any judgment debt against the [first respondent];
3.2 the due and punctual performance and discharge by the [first
respondent] of each of the [first respondent’s] obligations to
Investec under or arising from or in connection with the Loan
Agreement.”’
146. Clause 6 of the Guarantee … provides as follows:
“The [second respondent] hereby unconditionally and irrevocably
undertakes that should it receive a written demand from Investec for
payment of any amount contemplated in clause 3.1 or 3.2 …, the
[second respondent] shall immediately pay such amounts deman ded
to Investec in cash without deduction or set off counterclaim or any
other deduction whatsoever …”
147. A demand in terms of section 129 of the National Credit Act was delivered to
the second respondent on 2 July 2025, calling on the second responden t to
settle the judgment debt owing by the first respondent …
148. It is also apparent from annexure FA8.3 (being the Mortgage Bond registered
over the Noordhoek property), FA8.4 (being the settlement agreement
concluded between applicant and Investec) an d FA8.5 (being the sale and
cession agreement concluded between the applicant and Investec) to the
founding affidavit that the Guarantee was to serve as security for the first
respondent’s future liabilities arising after the conclusion of the Guarantee
and registration of the Mortgage Bond.
149. Clause 3.1 of the Guarantee clearly was not included in error.’
(my underlining for emphasis)
[38] As regards the defence concerning the s 129 (1) notice, Mr Connor said in
reply:
‘168. The applicant omitted to deliver to the second respondent a notice in terms of
reply:
‘168. The applicant omitted to deliver to the second respondent a notice in terms of
Section 129 of the National Credit Act. As I have explained, the applicant has
rectified this omission by delivering a notice to the second respondent. …
170. The second respondent is a primary debtor of the applicant with principal
obligations as appears from the Guarantee and Mortgage Bond.
171. Judgement was granted against the first respondent, with the result that, in
terms of clauses 3.1, 5 and 6 of the Gu arantee, the second respondent is
required to pay to the applicant the sum of R4, 550, 000 (and the additional
sum), in cash without setoff, counterclaim or any deduction whatsoever.
172. A demand was made to the second respondent to pay the applicant the sum
of R4, 550, 000 (and the additional sum) when the Section -129 letter was
delivered to her. …
173. The applicant is therefore entitled to judgment against the second respondent
for payment of the sum of R4, 550, 000 and the additional sum as provided
for in the Guarantee and Indemnity dated 31 May 2019 and to an order
declaring the Noordhoek Property specially executable. ’ (my underlining for
emphasis)
[39] On 16 July 2025, the Seco nd Respondent’s attorneys served a notice under
Uniform Rule 28(3). It outlined the grounds of objection to the proposed amendment
(see paragraph [33]). By reason of the common cause fact that the Applicant is not a
credit provider registered pursuant to s 40(1) of the NCA, the Second Respondent
objected to the proposed amendment on the basis, inter alia, that the founding
papers in the Uniform Rule 46A application do not disclose a cause of action which
can sustain the relief sought in the proposed amendme nt. Apart from seeking to
amend its Notice of Motion, the Applicant did not amend, nor seek to amend, its
founding affidavit.
[40] As a result of the objection , t he Applicant launched the amendment
application on 29 July 2025 in terms of Uniform Rule 28(4) . On 29 August 2025, the
Second Respondent delivered her Notice of Opposition and answering affidavit.
[41] In the founding affidavit deposed by Attorney R B Gootkin, the Second
Respondent’s grounds of objec tion are traversed. The undermentioned salient
Respondent’s grounds of objec tion are traversed. The undermentioned salient
extracts appearing in Mr Gootkin’s affidavit highlight a critical dispute on a point of
law which impacts the issue whether a proper case is made on the papers for a
money judgment against the Second Respondent . Although the founding affidavit in
the Uniform Rule 28(4) petition for an amendment cannot bolster the Applicant’s
case for relief sought in the main application , the extracts below are , to my mind,
useful when examining the factual and legal basis for the relief sought in the main
application.
‘The objection is bad in law
11. I respectfully say that the second respondent’s interpretation of sections 40
and 89 of the National Credit Act is wrong, and the objection is bad in law.
12. The credit agreement upon which the applicant relies to invoke the provisions
of the guarantee and indemnity, and to call up the security it enjoys under the
continuing covering mortgage bond, is an agreement of loan concluded
between Investec Bank and the first respondent.
13. The agreement of loan was concluded on 31 May 2019 (a copy is attached as
annexure FA8.1 to the founding affidavit in the main application). It appears
ex facie the agreement of loan that Investec Bank wa s registered as a credit
provider under registration number NCRCP9 at the time when the agreement
of loan was concluded …
14. On 31 May 2019, pursuant to the agreement of loan having been concluded,
the second respondent executed a guarantee and indemnity (a copy is
attached as annexure FA8.2 to the founding affidavit in the main application).
It appears ex facie the guarantee and indemnity that Investec Bank was
registered as a credit provider under registration number NCRCP at the time
when the agreement of loan was concluded … The continuing covering
mortgage bond was registered over the property owned by the second
respondent on 7 July 2019 pursuant to the execution of the guarantee and
indemnity (a copy is attached as annexure FA8.3 to the founding affidavit in
the main application.
15. Therefore, “at the time ” when the credit agreements were “ made”, Investec
15. Therefore, “at the time ” when the credit agreements were “ made”, Investec
Bank was registered as required in terms of section 40 of the National Credit
Act read with section 89(2)(d). This appears ex facie the documents attached
to the founding affidavit in the main application as FA8.1 and FA8.2.
16. On 14 September 2022, the applicant and Investec Bank entered into a sale
and cession agreement. The applicant took cession of Investec Bank’s claims
against the first and second respondents arising out of the credit agreement
referred to above (a copy is attached as annexure FA8.5 to the founding
affidavit in the main application). The cession did not alter any of the terms of
the agreement of loan or the guarantee and indemnity.
17. Although the cession agreement relates to the agreement of loan or the
guarantee and indemnity, it is not a credit agreement as contemplated in
section 8 of the National Credit Act.
18. Because the cession agreement was concluded:
18.1 between the applicant and Investec Bank which the respondents are
not privy to;
18.2 approximately three years after the credit agreements were “made”,
the applicant was not required to be registered as a credit provider at the time
it took cession of the credit agreements. Nor was the applicant required to
have alleged in its af fidavits in this application that it was registered as a
credit provider at the time it took cession of the credit agreements. A claimant
is only required to make such allegations if it is the claimant who concluded
the credit agreements who seek to enforc e same. That this is so is evident
from a proper interpretation of section 40 and 89 of the National Credit Act
which require the claimant to have been registered as a credit provider “at the
time the agreement was made”.
19. The material contained in the founding affidavit and its annexures clearly
disclose that the credit provider (i.e. Investec Bank) with whom the
respondents “made” the credit agreements was registered as a credit provider
“at the time ” when the agreements were “ made”. The applicant’s st atus as
registered credit provider at the time when it took cession of the claims arising
from the credit agreements is therefore irrelevant for purposes of constituting
a cause of action to secure a money judgment, and an order in terms of Rule
46A, against the second respondent.”
Issues for adjudication
46A, against the second respondent.”
Issues for adjudication
[42] With regards to the First Respondent, the application raises a crisp factual
issue, namely, whether the Applicant is entitled to an order declaring the St John’ s
property specially executable. If yes, then the terms of the order are to be
determined.
[43] As regards the Second Respondent, the application is more complex. It raises
for determination factual and substantive questions of law. These are:
(a) Whether the Applicant complied with s 129(1) read with s 130(4) of the NCA;
(b) Whether the Applicant’s claim secured by the Guarantee agreement and
mortgage bond registered over the Noordhoek property is unlawful and void
as contemplated by s 40(4) of the NCA (read with s 89 thereof);
(c) If the answer to ( b) is ‘yes’, then the question arises as to the nature of the
just and equitable relief to be granted under s 89(5) of the NCA;
(d) Whether the Applicant has made out a proper case for a money judgment to
be granted against the Second Respondent for the sum of R4 550 000 on the
basis of the cause of action pleaded in its papers filed of record;
(e) If the answer to (d) is ‘yes’, then w hether the amendment of the Notice of
Motion ought to be authorised and, if so, then on what terms? and
(f) If the answers to the issues raised in ( a) to (e) favour the Applicant, then the
question arises whether it has made out a proper case for relief under Uniform
Rule 46A. If ‘yes, then on what terms?
Rule 46A application against the First Respondent
[44] Short shrift can be made of the First Respondent ’s opposition to the main
application against him under Uniform Rule 46A. As recorded earlier, I refused a
postponement of the main application, pending the outcome of the rescission sought
in relation to the default judgment granted on 25 January 2024. As recorded in my ex
tempore judgment, the First Respondent can pursue the rescission application and
he may, if necessary, seek a stay of the auction as regards the St John’s property.
[45] The First Respondent’ s opposition to the main application is unmeritorious.
The grounds of opposition pleaded over and above those pertaining to the rescission
application are meritless, even possibly spurious. Indeed, at the hearing, Ms Syria
elected not to make any submissions in relation to the case pleaded by her client. As
such, Mr Smalberger SC’s submissions at the hearing are, essentially, uncontested.
[46] I am satisfied that the Applicant has made out a proper case for relief it seeks
under Uniform Rule 46A against the First Respondent . The judgment debt owed to
the Applicant arising from the default judgment granted on 25 January 2024 by
Acting Justice Joubert in case no. 15602/2022 remains unpaid. The St John’s
property is not occupied by the First Respondent as his primary home. Its sale will
not render him homeless . Therefore, the St John’s property may be declared
specially executable, and without a reserve price. An order to this effect is justified on
the facts in this case.
[47] I am satisfied that, in addition to this relief sought by the Applicant against the
First Respondent in prayer 1.1 of its Notice of Motion , the Applicant is entitled to the
consequential and/or ancillary relief sought in prayers 2, 3, and 4 of its Notice of
Motion against the First Respondent, as well as an order awarding it costs of the
application on an attorney-client scale. Orders to these effects will be granted.
[48] At this juncture, it bears recording that during the preparation of this judgment,
I called on the Applicant and the First Respondent’s counsel to file a note on a legal
issue that was not addressed at the hearing, nor in the papers before me, but which I
considered may have a bearing on the outcome of the main application.
[49] It is common cause that (i) a pre -litigation notice under s 129 (1) of the NCA
was required to be served for purposes of the Applicant prosecuting its claim a gainst
the Second Respondent; and (ii) a notice under s 129 (1) of the NCA was served on
her, albeit after the launch of the main application. It is further common cause that a
notice under s 129 (1) was not d elivered at any time on the First Respondent.
Consequently, I called on counsel to make submissions on whether, as a matter of
law, the failure to deliver a notice under s 129(1) on the First Respondent serves as
a bar to the relief sought against him in the main application. I am satisfied that it
does not.
[50] The relief sought in the main application is based on the default judgment
against the First Respondent as co-surety for Radsmec’s debt to the Applicant. In his
post-hearing heads, Mr Smalberger SC argued (at paras 8 - 10), correctly, that,
under s 4(2)( c) of the NCA, the accessory liability of the First Respondent falls
outside the NCA’s remit because the principa l debt underlying the suretyship is not
regulated by the NCA. Also, see Ribeiro v Slip Knot Investments 777 (Pty) Ltd 2011
(1) SA 575 (SCA) para 8 and 12; Shaw v Mackintosh 2019 (1) SA 398 (SCA) para 8
and 12.
Rule 46A and Rule 28(4) applications against the Second Respondent
[51] Under this rubric, I deal with the issues as formulated in paragraph [43] (a) to
(f) above. The answer to each issue will become evident from this part of my
judgment.
(a) Have the procedural prescripts of s 129 (1) and s 130(4) of the NCA been
met?
[52] At the hearing, Mr Smalberger SC advanced the Applicant’s position
contained in its reply as seen in paragraph [38] above. He conceded that the claim
sought to be enforced against the Second Respondent stems from a credit
agreement regulated by the NC A and that the pre -litigation debt enforcement
procedures in s 129(1) (a) needed to be met before the main application was
launched.1 He admitted that it was not.
[53] However, citing Sebola v Standard Bank of South Africa Ltd 2012 (5) SA 142
(CC) para 53 and Kubyana v Standard Bank of South Africa Ltd 2014 (3) SA 56
(CC), Mr Smalberger SC hypothesised that non-compliance with s 129(1) (a) before
the main application commenced is not fat al because s 129(1)(b) only imposes a
dilatory bar to proceedings. Thus, so he reasoned, the Applicant cannot be non -
suited. He contended that the Applicant was entitled to cure the procedural defect by
serving the relevant notice on 2 July 2025 , which notice performed its warning
function and afforded the Second Respondent the statutory period to consider her
options. He argued further that the Applicant was entitled to deal with the procedural
defects in its reply.
[54] Mr Veerasamy for the Second Respondent relied on s 130(4)(b) of the NCA .
Citing Wesbank v Ralushe 2022 (2) SA 626 (ECG) paras 15 - 30, he argued that the
Applicant’s non-compliance with s 129(1) prior to the launch of the main application
was not cured in a wa y valid in law. Citing First National Bank Ltd t/a First National
Bank v Moonsammy t/a Synka Liquors 2021 (1) SA 225 (GJ) para 47, h e submitted
that the Applicant was required first to approach this Court for the issuance of orders
1 Section 129(1) of the NCA reads:
‘Required procedures before debt enforcement. —(1) If the consumer is in default under a
credit agreement, the credit provider—
(a) may draw the default to the notice of the consumer in writing and propose that the
consumer refer the credit agreement to a debt counsellor, alternative dispute
resolution agent, consumer court or ombud with jurisdiction, with the intent that the
parties resolve any dispute under the agreement or develop and agree on a plan to
bring the payments under the agreement up to date; and
(b) subject to section 130 (2), may not commence any legal proceedings to enforce the
(b) subject to section 130 (2), may not commence any legal proceedings to enforce the
agreement before—
(i) first providing notice to the consumer, as contemplated in paragraph ( a), or
in section 86 (10), as the case may be; and
(ii) meeting any further requirements set out in section 130.’ (underlining for emphasis)
under s 130(4)(b) which orders, if granted, would regulate the further conduct of th e
litigation.2 I agree. Ralushe supra and Synka Liquors supra are directly on point.
[55] Section 129(1)(a) spells out mandatory, rather than elective, duties that
creditors must fulfil before enforcing a credit agreement. See Amardien and Others v
Registrar of Deeds and Others 2019 (3) SA 341 (CC) para s 43, 56, 58 . Although s
129(1)(b) is framed in wide and prohibitive terms (‘may not commence any legal
proceedings’), failure to comply with the procedure prescribed in s 129(1)( a), which
serves as a gateway for access to court, does not render the proceedings void. They
remain extant, but irregular. The taint of such irregularity must be cured. But how?
[56] For the reasons advanced below, I align myself with the conclusions reached
in Ralushe supra paras 29 - 30 (per Lowe J) and Synka Liquors supra para 47 (per
De Villiers AJ) that Benson and Another v Standard Bank of South Africa Ltd and
Others 2019 (5) SA 152 (GJ) (and any case aligning with it s reasoning) was wrongly
decided. Non-compliance with s 129(1) can only be re medied via the procedure in s
130(4)(b).
[57] Sections 129 and 130 establish jurisdictional pre-requisites for litigation. When
a creditor contravenes s 129(1)( b) (i.e., by commencing litigation without giving prior
notice under s 129(1)( a)), then the mechanism in s 130(4)( b) must be invoked to
remedy the irregularity. A court ‘must’ adjourn the case in terms of s 130(4)(b)(i). A
2 Section 130(4)(b) of the NCA reads:
‘In any proceedings contemplated in this section, if the court determines that— …
(b) the credit provider has not complied with the relevant provisions of this Act, as
contemplated in subsection (3) (a), or has approached the court in circumstances
contemplated in subsection (3) (c) the court must—
(i) adjourn the matter before it; and
(ii) make an appropriate order setting out the steps the credit provider must
(ii) make an appropriate order setting out the steps the credit provider must
complete before the matter may be resumed; …’ (underlining my emphasis)
creditor can resume the case only after complying with the steps determined by the
court in terms of s 130(4)(b)(ii). This position aligns with Sebola supra para 53.
[58] The adjournment of a proceeding under s 130(4) (b)(i) pending compliance
with s 129(1) accords with the legal position that s 129 and s 130 are intertwined.
Proof of compliance with both sections is obligatory before a court can permit a
credit agreement to be enforced. This was expressed in Amardien supra para 59 as
follows:
‘When a credit provider seeks to enforce the agreement by means of litigation, it
must first show compliance with section 130, which, by extension, refers back to
section 129. The application of these sections is triggered by the consumer’s failure
to repay the loan. These sections suspend the credit provider’s rights under the credit
agreement until certain steps have been taken. The credit provider is not entitled to
exercise its rights immediately under the agreement. It is first required to notify the
consumer of the specific default and demand that the arrears be paid. If the
consumer pays up the arrears, then the dispute is settled. ’ ( my underlining for
emphasis)
[59] When the Applicant conceded (see paragraphs [30], [32], [33] above) that it
breached s 1 29(1)(a), it was imperative that it immediately halt the litigation and
bring its non-compliance to this Court ’s attention to procure relief envisaged by s
130(4)(b). It did not do so. T he Applicant caused the s 129(1) notice to be delivered
to the Second Respondent, both personally via the sheriff and by service on her
attorney. The Applicant now contends that this cured its non -compliance with the
NCA. I disagree.
[60] The notice requirement in s 129(1)( a) is design ed to protect consumers of
credit. See Amardien supra paras 42, 56. Credit providers are obliged to take steps
which purposefully slows down the debt recovery process. Litigation is delayed until
the consumer has been afforded an opportunity to consider alternatives to litigation.
In cases of non -compliance with s 129(1)(a), as in casu, s 130(4)( b) applies. It aims
to regularise proceedings that are otherwise irregular. This must occur consistently
with both the letter and the spirit of the NCA. Therefore, Parliament d irected that
courts ‘must’ postpone (‘adjourn’) pending proceedings while steps are taken to
remove the taint of irregularity. Adjournment, therefore, is a categorical imperative.
[61] Section 130(4)( b) is part of a network of provisions in the NCA catering for
judicial oversight. This sub-section establishes a framework for the regularisation of
a legal proceeding which a court , whether mero motu or on application, finds to be
irregular for want of proper compliance with the NCA. Section 130(4)(b)(i) envisages
a mandatory freezing of a proceeding while the steps imposed under s 130(4)(b)(ii)
are being completed. Statutorily, the steps are set as judicial preconditions. Only
when they are fulfilled is the suspension (i.e., the adjournment ) lifted, then ‘the
matter may be resumed’. The reference to a resumption of the litigation is a clear
indication that a complete pause is intended while the taint is being removed and the
consumer is afforded an opportunity to manage the debt by rectifying the default and
avert litigation.
[62] Section 130(4)(b) does not permit two parallel processes running
concurrently, namely, court proceedings and compliance with the NCA. See Synka
Liquors supra para 47.4. Litigation is barred at a time when non-compliance is being
remedied. This shows that although the legislature does not invalidate a proceeding
for want of compliance with s 129(1), it also does not view the continuation of
proceedings in the face of non-compliance to be permissible. This is logical because
continuing legal proceedings undermines achievement of the goals set for the benefit
of debtors.
[63] There has not been proper compliance with the NCA in casu. Section
130(4)(b) envisages that while the Applicant took steps to remedy its non -
compliance, there should have been a hiatus through a formal suspension by court
order. Service of the s 129(1) notice did not bring about the pause contemplated by s
130(4)(b)(i). The Applicant pressed ahead with its case. See paragraphs [32], [33],
[34] and [40] above.
[64] The Applicant’s conduct in this regard underscores the significance of the
legislature requiring judicial oversight when non -compliance with the NCA is being
remedied by a creditor who breach ed the NCA. Self-correction by a litigant without
judicial regulation and oversight is improper. Such a process is inconsistent with the
import and effect of s 130(4)(b) (and the network of related provisions in the NCA).
[65] Courts are dutybound to uphold and apply the law. See CUSA v Tao Ying
Metal Industries and Others 2009 (2) SA 204 (CC) para 68. Courts must ensure
proper compliance with s 129(1 )(a). Doing so is not a mechanical exercise. It
involves more than a court merely verifying a track and trace report; more than
confirming that the warning notice envisaged by s 129(1)( a) has been dispatched in
accordance with the method agreed upon by the consumer; and more than
determining whether the consumer had actual or probable knowledge of the relevant
notice.
[66] What more is required? When compliance with s 129(1) occurs during
litigation itself, then a court is required to establish as a fact (at least): first, that
service of the s 129(1)( a) notice occurred in accordance with a n order issued under
the aegis of s 130(4)( b)(ii); secondly, that the litigation was stayed while service was
effected; and, thirdly, that the stay remained in place throughout the period afforded
to the debtor (consumer) to consider the options open to him/her under s 129(1)( a).
This is the kind of judicial supervision which, in my view, underpins s 130(4)( b) of the
NCA.
[67] Mr Smalberger SC invited me to adopt what he termed a ‘robust approach’.
He posited that courts have discretion to condone service of notice under s 129(1)(a)
ex post facto without compliance with s 130(4)( b). I disagree. First, a consideration
militating against the so-called robust approach is that the remedy in s 130(4)( b)
benefits creditors who fail to comply with the prescripts of, for e.g., s 129 (1). The
remedy permits an interpretation that non -compliance with s 129(1)(b) does not lead
to a proceeding being void owing to non -compliance with a vital procedural
stipulation.
[68] Secondly, to the extent that Benson supra recognises judicial discretion in the
present context, I hold that it was wrongly decided. To this end, I align myself with
Ralushe supra para 29 and Synka Liquors supra para 47.1 that no discretion exists.
This is clear from the strict introductory words used in s 130(3), a s well as from the
peremptory texture and tone of s 130(4)( b). Also, when the legislature intends to
confer judicial discretion, it says so expressly. Compare , for e.g., ss 130(4)( c) and
(d).
[69] Section 130(3)(a)3 makes it clear that when a credit provider seeks to enforce
a credit agreement to which the NCA applies, then ‘ the court may determine the
3 Section 130(3)(a) of the NCA reads:
‘Despite any provision of law or contract to the contrary , in any proceedings commenced in a
court in respect of a credit agreement to which this Act applies, the court may determine the
matter only if the court is satisfied that—
matter only if the court is satisfied that’ the gateway for access to court is met. The
word ‘only’ in the introductory words to s 130(3) indicate s that strict adherence by
courts to th is provision is required. Put differently, courts have no discretion to
adjudicate cases in the face of non-compliance with the prescripts of the NCA. This
point is reinf orced by s 130(4)( b) (discussed earlier) being couched in peremptory
terms. Judicial discretion in this setting would have to be impermissibly winkled out
of contextual crevices.
[70] The robust approach contended for by counsel is, in my view, incongruous
with the aims sought to be achieved by the edifice of s 130(3)( a) read with s
130(4)(b). It allows non-compliance with the NCA; it circumvents judicial oversight at
a crucial point in the debt recovery process; and it weakens the protections accorded
to consumers. For all these reasons, I reject the approach contended for by the
Applicant’s counsel.
[71] There was considerable debate before me on whether the Applicant’s use of
its replying affidavit to deal with its ex post facto compliance with s 129(1) is valid (as
was contended by Mr Smalberger SC), or whether the Applicant ought to have
addressed this issue in a supplementary founding affidavit (as was contended by Mr
Veerasamy). This is a matter of law requiring an answer for the purposes of the case
with which I am seized . A similar legal issue arose, but was left open, in Synka
Liquors supra para 47.8 and in Ralushe supra para 29. I cannot do so in this case. I
must resolve it.
[72] It is a foundational principle of our law of credit t hat a credit provider must, as
part of its cause of action, allege compliance with s 129 (1) of the NCA. See Synka
(a) in the case of proceedings to which sections 127, 129 or 131 apply, the procedures
required by those sections have been complied with; …’ (underlining for emphasis)
Liquors supra para 47.8. It is equally trite that, in our law of civil procedure , the
affidavits filed in motion proceedings stand as both the pleadings and the evidence.
See Minister of Land Affairs and Agriculture v D & F Wevell Trust and Others 2008
(2) SA 184 (SCA) para 43. Petitioners stand or fall by the case made out in the
founding papers. All essential averments upon which a case is built must be made in
a founding affidavit. As a general rule, new matter or essential allegations should not
be made in a petitioner’s reply. See Swissborough Diamond Mines (Pty) Ltd and
Others v Government of the Republic of South Africa and Others 1999 (2) SA 279 (T)
at 338.
[73] Applying these first principles, a litigant who seeks to recover a debt through
the enforcement of a credit agreement regulated by the NCA must, in the founding
papers, allege and prove compliance with s 129(1). This is an essential part of a
cause of action which must be pleaded upfront and not as an afterthought in a reply.
However, where compliance with s 129(1) occurs after the commencement of a
proceeding, then a different legal position ensues. Failure to deal with s 129(1) in the
founding papers will not be fatal, provided s 130(4)( b) is invoked and its provisions
are complied with.
[74] In my view, the filing of a supplementary founding affidavit is an unnecessary
step to cure the defect in the founding papers of a petitioner who delivered a notice
envisaged by s 129(1) after the commencement of a legal proceeding. The cure lies
squarely in the mechanism discretely crafted by the legislature in s 130(4)(b) itself.
[75] When a litigant obtains court orders under s 130(4)( b) and completes the
steps determined judicially, then that process brings regularity to an otherwise
irregular proceeding. All that would then be required of a petitioner is a compliance
affidavit which explains how the court ’s orders were carried out . The necessary
proofs must be enclosed . A supplementary founding affidavit dealing with s 129(1)
seems superfluous.
[76] Even if, in law, a discretion does exist to approve service under s 129(1)(a) ex
post facto , I would not have been inclined to exercise it in the Applicant’s favour.
Doing so in the present circumstances would be injudicious. First, the Applicant kept
the Second Respondent ‘under the pump’ (so to speak) , even after delivering the
notice contemplated by s 129(1) (a). The litigation continued unabated; p leadings
were filed; and at no point was there a pause that might have afforded the Second
Respondent a fair opportunity to consider her alternatives to litigation. She had no
other option but to litigate. This approach is contrary to the NCA’s spirit (and its black
letter law).
[77] Paragraphs [32], [34] and [40] above record, in chronological order, the step s
taken by the Applicant after the Second Respondent served her answering affidavit
in the main application. In sum: on 2 July 2025, the Applicant served notices under s
129(1)(a) of the NCA and Uniform Rule 28(1); on 11 July 2025, the Applicant
delivered a replying affidavit; on 29 July 2025, it launched the amendment
application.
[78] The Applicant took steps to advance its litigation against the Second
Respondent even during the period afforded to her in the s 129(1)( a) notice to
consider how she intend s to deal with the debt allegedly owed to the Applicant.
Section 129(1) read with s 130(4)( b) envisages a moratorium on litigation during the
statutorily ordained period granted unto a consumer to weigh his/her options. This
did not occur.
---
[79] If the Applicant had approached this Court for relief under s 130(4)( b), as it
was obliged to do, then this Court would have adjourned the litigation. Doing so
would have precluded the Applicant from taking the steps it did in terms of Uniform
Rule 28 at the time those steps were taken . Thus, I hold that the steps taken were
improper.
[80] The steps taken pursuant to Uniform Rule 28 are designed to enforce a credit
agreement that is regulated by the NCA . On 2 July 2025, the Applicant served a
notice of its intention to i nsert a prayer in its Notice of Motion which would allow for
the issuance of a money judgment against the Second Respondent. The intended
amendment is vital . Without it , the Applicant would not be entitled to obtain a
judgment in the main application . The domino effect of this is that the Applicant
would not be entitled to the relief sought under Uniform Rule 46A as regards the
attachment and sale of the Noordhoek property. In the amendment application, the
Applicant avers that it would suffer greater prejudice if the amendment were not
granted than would be suffered by the Second Respondent if the amendment were
to be granted.
[81] All this underscores the significance of the amendment in the context of this
case. The amendment is a catalyst for the Applicant to seek and obtain , first, a
money judgment in terms of its ceded rights under the Guarantee agreement. If
granted, the Applicant can then seek , and possibly obtain , an order under Uniform
Rule 46A.
[82] A second reason why I would not have exercised my discretion , if it existed in
law, in the Applicant’s favour is that the notice it delivered to the Second Respondent
failed, for the reasons adduced below, to satisfy the legal requirements for validity .
Therefore, the notice is itself improper and cannot be u tilised for litigation purposes.
In these circumstances , s 130(3)( a) precludes me from enforcing the credit
agreement.
[83] Section 129(1)( a) requires that notice of ‘the default’ must be drawn to the
attention of ‘the consumer’ who is in default under a credit agreement. For a notice to
be valid, it must satisfy various requirements. These include reference in the notice
to, inter alia, (i) identification of the relevant credit agreement; (ii) the nature of the
consumer’s default; (iii) the amount of the default; and (iv) the options available to a
consumer in financial distress , and who is unable to purge the debt , to manage it
going forward (such as, to possibly refer the credit agreement to a debt counsellor, or
to a dispute resolution agent, or to the ombudsman). See Amardien supra paras 56 -
65. The Applicant’s notice under s 129(1) failed to comply with at least (i) , (ii), and
(iii).
[84] In the Applicant’s amendment application ( see paragraph [40] above), its
attorney stated that the credit agreement sought to be enforced against the Second
Respondent is the loan agreement concluded on 31 May 2019 between Investec and
the First Respondent (see paragraphs [17] to [19] above) . It is common cause that
the Investec loan was secured by the Guarantee agreement and a mortgage bond
registered over the Noordhoek property (see paragraphs [20] to [22] above).
[85] However, the balance of the debt ar ising from the Investec loan which was
settled by the Applicant and acquired by it (see paragraphs [23] to [26] above), is not
the debt mentioned in the s 129(1) notice as being that which the Second
Respondent is ‘in default’. The debt claimed in the noti ce is that arising from certain
default judgments granted against the First Respondent during January 2024.
[86] The salient paragraphs distilled from the Applicant’s s 129(1) notice are:
‘INDEBTEDNESS & DEMAND
15. On 25 January 2024, judgment was granted against inter alia Mr Valecic in
the Western Cape Division of the High Court, Cape Town under case
numbers 15601/2022, 15602/2022 and 15616/2022 in our client’s favour in
the sum of R54 886 831.55; R43 025 592.70 and R5 994 856.24 respectively.
…
16. The judgment debt owing as aforesaid remains due, owing and payable. Our
client is therefore entitled to call up the security it enjoys in terms of the
Guarantee and Indemnity and the Mortgage Bond as aforesaid.
17. In the circumstances, our client hereby calls up the security it enjoys in terms
of the Guarantee and Indemnity and the Mortgage Bond.
18. We are instructed to demand from you, as we hereby do, payment to our
client of the sum of R4 550 000.00 and the addi tional sum of R910 000.00
(being the maximum amount you are liable for in terms of the Guarantee and
Indemnity and the Mortgage Bond). …
21. In terms of Section 129(1) of the NCA , you may refer this Guarantee and
Indemnity and the Mortgage Bond to a debt c ounsellor alternatively a dispute
resolution agent, consumer court or ambud with jurisdiction …’ (my
emphasis)
[87] This notice records that the Second Respondent is indebted to the Applicant
for judgment debts which are due, owing, and payable by the Fi rst Respondent.
None of those judgments stem from the First Respondent’s indebtedness to the
Applicant pursuant to the latter’s payment to Investec in accordance with the terms
and conditions of the sale and cession agreement with Investec (see paragraphs [24]
to [26] above), which payment is secured by the Guarantee agreem ent and the
mortgage bond over the Noordhoek property. The Applicant’s pleaded position is that
the Second Respondent is only liable for the default judgment granted in case no.
15602/2022.
[88] As discussed in paragraphs [6] to [ 9] above, the Applicant’s cause of action
against the First Respondent in case no. 15602/2022 is a cross -suretyship which the
latter signed for the benefit of Radsmec, a company which was indebted to the
Applicant for monies advanced in terms of a factoring agreement. That judgment
debt is secured neither by the Second Respondent’s Guarantee agreement, nor by
the bond registered over her immovable property, being the Noordhoek property.
[89] The judgment debt against the First Respondent in case no. 15602/2022 does
not fall in the ambit of cla use 3.1 of the Guarantee agreement as quoted in
paragraph [37] above. Clause 3.1 extend s only to a judgment obtained by Investec
(or its assigns) against the First Respondent aris ing from the loan agreement
between the latter and Investec. Properly interpreted, t he Guarantee agreement
does not secure any debt arising from the cross -suretyship signed by the First
Respondent for Radsmec ’s benefit in the Applicant’s favour . For these reasons, the
main application must fail on its merits . These reasons are in addition to any other
grounds supporting the same conclusion as discussed elsewhere in this judgment.
[90] For the reasons discussed in paragraphs [83] to [89], I hold that the s 129(1)
warning notification served on the Second Respondent is defective. It failed to give
proper notice of a debt which was in arrears by the First Respondent to the Applicant
arising from the credit agreement concluded between the latter and the former.
[91] Consequently, the Applicant failed to give notice of the actual sum that the
First Respondent owed it under the credit (loan) agreement concluded between
them, which debt was secured by the Guarantee agreement and the registered
mortgage bond. Owing to the Applicant failed to give proper notice to the Second
Respondent of both (i) ‘the default’ and (ii) the reasons why she was ‘in default’ for
purposes of s 129(1) of the NCA , I reached my conclusions delineated in paragraph
[82] above.
(b) Is the Applicant, as a credit provider, obliged to register as such for purposes of
any credit agreement concluded with the First and/or the Second Respondent?
[92] Under s 40(1) of the NCA, a person ‘must apply ’ to register as a credit
provider if the total principal debt owed to that person under all outstanding credit
agreements, except incidental credit agreements, exceeds the legal threshold in s
42(1). Anyone who is obliged to register but fails to do so ‘ must not offer, make
available or extend credit, enter into a credit agreement or agree to do any of those
things’ (s 40(3)). Section 40(6)( b) provides that when determining if a person is
obliged to register under s 40(1), ‘any credit guarantee to which a credit provider is a
party is to be disregarded’.
[93] Mr Smalberger SC argued that the Applicant was not at any time germane to
this application obligated to register as a credit provider. Consequently, so he
posited, the credit agreement s on which the Applicant rel ies for its claim against the
Second Respondent is/are valid and, as such, enforceable in a court of law.
[94] Mr Veerasamy pointed out that the Applicant is a credit provider under credit
agreements with the respondents respectively. These are regulated by the NCA . He
argued that s ince the Applicant seeks to enforce its credit agreements against the
Second Respondent , logic d ictates that it must be independently registered as a
credit provider, which it is not. This, he hypothesised, should be fatal to the main
application.
[95] This dispute involves a novel legal issue, namely, whether a transferee of
rights under a credit agreement , who gave value for the transfer to a consumer on
credit, can rely on the registration status of the transferor for purposes of s 40 (1). I
hold that, when the NCA is properly interpreted (see below), this question must be
answered in the negative. In cases of non-compliance, the consequences in s 40(4)
must ensue.
[96] There are three credit agreements at stake in casu . First, there is the loan
agreement between the Applicant and the First Respondent ; second, there is the
Guarantee agreement; and third, there is the mortgage agreement. Since the second
and third agreements serve as security for the first, they are all wedded together.
[97] In Attorney Gootkin’s affidavit (see paragraph [41] above), he explained why
the Applicant need not register as a credit provider. Mr Smalberger SC embraced the
same grounds. The following is a synopsis thereof (with reference to the affidavit):
(i) the credit agreement which forms the basis for the Applicant calling up the
security ceded by Investec is an agreement of loan concluded between
Investec and the First respondent (para 12 of the affidavit);
(ii) the Applicant took cession of Investec’s claims against both respondents arising
out of the credit agreements concerned (para 16 of the affidavit);
(iii) the cession did not alter the terms of the loan (para 16 of the affidavit);
(iv) the cession relates to the agreement of loan and the agreements serving as
security for the underlying principal debt (para 17 of the affidavit); and
(v) the cession is not a credit agreement and, therefore, the Applicant was not
required to register as a credit provider under the NCA when it took cession of
both the loan claim against the First Respondent and the security against the
Second Respondent (para 18 of the affidavit).
[98] For the reasons given below , this latter submission is incorrect, both in fact
and in law. Moreover, it is contradicted by the arguments advanced on the
Applicant’s behalf (paragraph [50] above) as to why the NCA does not apply to the
First Respondent’s liability arising from his cross-suretyship in the Applicant’s favour.
[99] The contradiction is evident when considerat ion is given to the fact that the
Applicant admits that the NCA applie s to the Guarantee agreement and the
mortgage agreement pertaining to the Noordhoek property . See paragraph [86]
above. Logic dictate s that the Applicant must , therefore, be taken to admit that the
underlying principal claim is itself regulated by the NCA. If not, then on what legal
basis is the security held by the Applicant against the Second Respondent regulated
by the NCA?
[100] The debt which arose from the Investec loan agreement is regulated by the
NCA. It is in the form of a secured loan. See paragraphs [17] to [21] above. The loan
qualifies as a ‘credit transaction’ co ntemplated by s 8(4)( d) of the NCA. It is illogical
for the Applicant to contend, as it appears to do, that the secured loan cease d to be
regulated by the NCA when the balance of that debt was ceded to the Applicant who,
in turn, gave value for it in the form of credit extended to the First Respondent.
[101] The Applicant paid monies to Investec for the benefit of the First Respondent.
In so doing, the Applicant acquired certain rights f rom Investec. As explained in
paragraphs [108] to [119] below, th e underlying causa for that acquisition is a ‘credit
agreement’ under s 8 of the NCA between the Applicant and the First Respondent .
As such , the Applicant was required to be independently registered as a credit
provider (i) when it offered credit, and made credit available, to the First Respondent;
(ii) when it extended the credit to him ; and (iii) when it entered into a credit
agreement with him. The Applicant cannot ‘piggyback’ off Investec’ s registration
status under s 40(1).
[102] The ensuing reasons support my conclusion on this vital question of law. First,
the Applicant is a ‘credit provider’ as defined . The NCA (s 1) defines this term to
mean:
‘“credit provider”, in respect of a credit agreement to which this Act applies, means —
…
(e) the lender under a secured loan; …
(h) the party who advances money or credit to another under any other credit
agreement; or
(i) any other person who acquires the rights of a credit provider under a credit
agreement after it has been entered into’.
The Applicant is a credit provider in one or more of the se categories vis-à-vis the
First Respondent who is, thus, a ‘consumer’ as defined in s 1. For purposes of s
40(1), the Guarantee agreement with the Second Respondent is not considered. See
s 40(6)(b).
[103] Secondly, the Applicant settled the First Respondent’s debt to Investec as a
form of credit provided at arm’s length within the contempl ation of s 4(1) of the NCA.
That credit enabled the First Respondent to exit his debt with Investec and parachute
out of the sequestration proceedings in case no. 15432/2021. The credit advanced to
the First Respondent is part of the Applicant’s daily business as a merchant factor
and financier. As is apparent from the pleadings in, and the extensive annexures to,
the main application, the Applicant is heavily engaged in the market of consumer
credit.
[104] Thirdly, s 40(1) of the NCA must be interpreted purposively. See National
Credit Regulator v Lewis Stores (Pty) Ltd and Another 2020 (2) SA 390 (SCA) para
32. R egistration as a credit provider facilitates control and regulation of the credit
industry, and protects consumers of credit . Among the aims listed in s 3 is the
promotion of responsible access to credit; and the fostering of protection to credit
consumers. These aims sought to be achieved by the NCA would be undermined if
persons provid ing credit, especially those operating as a business in the credit
market space (such as, the Applicant) , are absolved of the duty to register as credit
providers.
[105] Fourthly, s 40(1) is couched in peremptory language. The SCA, in De Bruyn
NO and Others v Karsten 2019 (1) SA 403 (SCA), affirmed that , under s 40 (1), the
number of credit agreements concluded by a credit provider is no longer considered
when determining if a duty exists to register as a credit provider ; nor is it considered
whether a person operates regularly in the credit market . While these factors are no
longer determinative of whether a duty to register exists (contra Friend v Sendal
2015 (1) SA 395 (GP)), I view the Applicant’s business activities in the credit industry,
and its continual provision of credit, as reinforcing my view that it was, under s 40(3),
barred from offering credit, making credit available, and extending credit to the First
Respondent. It was obliged to be registered as a credit provider when it concluded a
credit agreement with him . Alternatively, under s 89(4), it should, within 30 days of
entering into the credit agreement, have applied for registration. The Applicant failed
to do so. I find that this omission is fatal to the twin petitions in casu and to its claims.
[106] Fifthly, i n De Bruyn NO v Karsten supra para 21, the SCA held that the
amount of credit advanced is presently the sole determinant as to whether a provider
of credit is obliged to r egister under s 40(1). The SCA held that ‘the requirement to
register as a credit provider is applicable to all credit agreements once the
prescribed threshold is reached’ (para 28). For present purposes, that threshold, as
determined in accordance with s 42(1) of the NCA by the Cabinet Minister
responsible for consumer credit matters, is nil rand (R 0,00) . See GN 513 in GG
39981 dated 11 May 2016.
[107] The exact sum owed by the First Respondent to the Applicant arising from
their credit agreement is not disclosed in the pleadings . Whatever its capital value,
clause 1.2.13 of the sale and cession agreement records that it include d
R700 000,00 plus 15% VAT. Accordingly, the Applicant was obliged to comply with s
40(1) of the NCA.
[108] Before dealing with the cons equences of the Applicant’s failure to register as
a credit provider, it is necessary that I clarify the basis for my rejection of the
assertion that the debtor -creditor relationship between the Applicant and the First
Respondent is regulated exclusively by the sale and cession agreement and not by a
credit agreement under the NCA entered into by the Applicant with the First
Respondent.
[109] When determining if the NCA applies to any agreement, its underlying causa
must be considered. See Absa Bank Ltd v Serfontein and Another 2025 (3) SA 345
(SCA) para 24. The sale and cession agreement was not concluded in a vacuum. It
has its genesis in the tripartite agreement which, in turn, has its origins in the First
Respondent’s financial woes that culminated in his estate being placed under
provisional sequestration pursuant to an application by Investec. In terms of c lause
3.4.1 of the tripartite agreement, the Applicant agreed to purchase the remaining nett
balance of Investec’s claim against the First Respondent (after certain deductions).
[110] The terms and conditions of that purchase are in the sale and cession
agreement. Clause 2.6 thereof records that the Applicant agreed to purchase
Investec’s ‘Remaining Claim’ (defined in clause 1.2.24) and to take cession of the
‘Guarantee Claims’ (defined in clause 1.2.10) and the ‘Mortgage Bond (Noordhoek
property)’ so that ‘the Purchaser is to be placed in the same secured position as that
of the Lender [Investec] prior to the conclusion of this Agreement’ . Clause 2.6 and
2.7 records the intention that the sale and cession will occur ‘on the te rms and
conditions set out in this Agreement’. Whereas c lause 3 records the asset s sold,
clause 5 record s the assets ceded. Nowhere in the agreement does it record the
terms of the credit given to the First Respondent through settlement of his Investec
debt (for e.g., loan period, repayment instalments, interest rate , and so on ). Where
are they recorded?
[111] In his affidavit, Attorney Gootkin stated that the terms of the cession did not
alter the terms of the loan agreement with Investec. The sale and cession agreement
is silent on the terms and condition s of the Investec loan agreement. It also does not
record that the ir provisions will apply to the credit extended to the First Respondent
when the Applicant bailed him out of the Investec debt and averted final
sequestration.
[112] Even if the sale and cession agreement foreshadowed that the terms and
conditions of the Investec loan agre ement would regulate the debtor -creditor
relationship between the Applicant and the First Respondent, the y would still, under
the NCA, have to conclude a credit agreement which incorporates the ir agreed
terms.
[113] To avoid reckless credit, s 92 is to the effect that credit providers are obligated
to provide prospective consumers of credit with pre -agreement disclosure
information. Under s 93, credit provider s must furnish consumers with a copy of the
credit agreement incorporating the agreed terms and condition s for the extension of
credit.
[114] As a fair, responsible credit provider, the Applicant would have concluded a
credit agreement with the First Respondent in a form determined by it . Without such
an agreement in place, it would also make no commercial sense for the Applicant to
execute the sale and ce ssion agreement, nor pay the purchase price to Investec for
the First Respondent ’s benefit at a time when h e was under provisional
sequestration.
[115] By virtue of s 3( c) read with s 80(1) and s 81 of the NCA , the provision of
credit responsibly obliged the Applicant to approve credit for the First Respondent
only once it was satisfied that he qualified for a loan of several million rand in casu,
and that he had the ability to repay the loan on terms agreed between them. Investec
and the Applicant agreed that the latter would vet the First Respondent on his
creditworthiness.
[116] The following clauses in the sale and cession agreement are instructive here:
(a) clause 10.1.3 : it provides that Investec makes no representation or warranty
about the First Respondent’s financial condition or creditworthiness;
(b) clause 10.2.1: it affirms that the Applicant ‘has made (and shall continue to make)
its own independent investigation and assessment of the financial condition and
affairs of the Borrower [the First Respondent] and has not relied on any information
provided to it by the Lender in connection with the Settlement Agreement and other
agreements in relation thereto’;
(c) clause 10.2.2: it stipulates that the Applicant ‘will continue to make its own
independent appraisal of the creditworthiness of the Borrower and its related parties’;
(d) clause 10.3.3 : it records that Investec is under no obligation to ‘provide the
Purchaser wit h any credit or other information concerning the affairs, financial
condition or business of the Borrower, its related parties or any other party’.
[117] Clause 8.1 of the sale and cession agreement is an important indicator of the
existence of a credit agreement concluded between the Applicant and the First
Respondent (i.e., separate to the Investec loan agreement). This clause reads:
‘The Parties record that the sale of the Remaining Claim pursuant to this Agreement
is the transfer of a “ debt security” (as defined in Section 2(2)(iii) of the VAT Act) and
is accordingly the supply of a financial service and exempt from VAT under Section
12(a) of the VAT Act.’
Section 2 (1) of the Value -Added Tax Act 89 of 1991 (“the VAT Act”) , to which s
2(2)(iii) relat es, states that the supply of a financial service includes the following
activity:
‘(f) the provision by any person of credit under an agreement by which money or
money’s worth is provided by that person to another person who agrees to
pay in the future a sum or sums exceeding in the aggregate the amount of
such money or money’s worth’.
[118] The ineluctable conclusion from the foregoing facts is that the Applicant
provided a financial service to the First Respondent of the kind envisaged by s 2(1)(f)
of the VAT Act. The supply of an agreed financial service involving the provision of
money on credit constitutes a credit agreement contemplated by s 8 of the NCA.
[119] Accordingly, although the capital sum owed to the Applicant by the First
Respondent is determinable with reference to the sale and cession agreement, the
terms of that credit is regulated by a separate credit agreement between the
Applicant, as secured lender, and the First Respondent, as borrower. This factual
position is consistent with the provisions of the sale and cession agreement.
[120] As there is nothing in the pleadings to the main application indica ting that the
First Respondent is in breach of his obligations arising under the loan agreement
with the Applicant, the latter failed to discharge the onus resting on it to prove that it
is entitled to call up the security held by it (i.e., the Guarantee a nd the mortgage
bond). Thus, the main application and the amendment application were doomed ab
initio.
Consequences for non-compliance with s 40(1) of the NCA
[121] The Applicant was obliged to register as a credit provider under s 40(1) of the
NCA for purposes of the credit agreement with the First Respondent. Failing to do so
triggers s 40(4) of the NCA (read with s 89(2)(d) and s 89(5)). Section 40(4) reads:
‘A credit agreement entered into by a credit provider who is required to be registered
in terms of subsection (1) but who is not so registered is an unlawful agreement and
void to the extent provided for in section 89.’
[122] In the circumstances, under s 89(2)( d), the principal credit agreement
between the Applicant and the First Respondent which gave rise to the latter’s
ostensible duty to repay the credit extended to him is unlawful and void from its
inception during 2022.
[123] Whenever a credit agreement is found to be unlawful for purposes of the
NCA, s 89(5) stipulates that ‘a court must make a just and equitable order’. This
confers a wide, equitable discretion to be exercised judiciously on the facts of each
case.
[124] The credit agreement with the First Respondent is wedded to the security held
by the Applicant in the form of the Guarantee agreement and mortgage bond over
the Noordhoek property. As a matter of juridical logic, the invalidity of the principal
credit agreement renders the security given for it to be unlawful and entirely void .
Consequently, the ostensible rights transferred to the Applicant under the Guarantee
agreement is void from the date of the sale and cession agreement, being 14
September 2022. Orders to this effect are warranted under s 40(4) read with s 89(5).
[125] Finally, owing to the unlawfulness of the security held by the Applicant, I deem
it just and equitable to direct that the mortgage bond registered at the Deeds Office,
Cape Town over the Noordhoek property (no. B[...]) be cancelled forthwith at the
Applicant’s expense. It will be ordered to take all necessary steps in this regard and
to surrender the original title deed (no. T[...]) to the Second Respondent.
Costs
[126] Concerning costs, the parties’ respective counsel argued that costs must
follow the result. I agree with them . There is no basis for deviating here from this
established practice, and none was advanced by any of the protagonists.
Accordingly, as regards the case against the First Respo ndent, I will award costs ,
and on a scale as between attorney -client. This accords with the parties’ agreement
and the circumstances of this case. Also, t he First Respondent’s opposition was
entirely meritless and his attempt to postpone the hearing was di singenuous. He
sought to derail the hearing. This conduct warrants a punitive sanction as a means of
demonstrating the Court’s displeasure.
[127] As for the Second Respondent, she is entitled to her costs in the main
application and the amendment application. However, in the judicious exercise of my
discretion, I will not award costs on the same scale for both petitions. Whereas the
main application had considerable complexity to it, as appears from this judgment,
the amendment application , on the other hand, was largely routine. Accordingly, it
would be unfair to burden the Applicant with costs in the amendment application at
the same scale as that applied to the main application.
[128] The Applicant sought costs in the main application ag ainst the Second
Respondent on an attorney -client scale. It failed in its application. I have found that
the main application was doomed from the beginning. This ought to have become
clear to the Applicant after the answering affidavit was filed. Instead, it pressed
ahead which resulted in considerable prejudice to the Second Respondent. She was
put to unnecessary expense. In the circumstances, I am satisfied that an attorney -
client scale of costs is warranted, including cost of two counsel where employed. The
Applicant likewise employed two counsel. This is an indication that it too was
satisfied that the matter at hand was sufficiently complex to justify two counsel. I
agree.
[129] As for the amendment application, the Applicant accepted that it wou ld be
liable for the costs occasioned by the amendment application. That petition failed.
However, it was not overly complex and was set down for hearing simultaneously
with the main application. In the circumstances, I am satisfied that a party and party
scale of costs is merited, with counsel’s fees to be allowed on tariff scale B.
Order
[130] In the result, the following orders are made:
(a) The rule 46A application against the First Respondent succeeds with costs on
an attorney-client scale (including costs of two counsel where so employed);
(b) Pursuant to Uniform Rule 46A, the immovable property owned by the First
Respondent, being Section 3 in the scheme known as St John’s 1 in respect
of the land and building or buildings at Sea Point in the City of Cape Town, as
shown and more fully described on Sectional Plan No. SS 232/2018, Western
Cape Province, of which section the floor area, accor ding to the said sectional
plan, measures 121 (one hundred and twenty one) square metres, held by,
and more fully described in, sectional deed of transfer No. S[...], together with
the Exclusive Use Area in the scheme known as St John’s 1, described as
Store on Basement Level 2 number SS15, measuring 6 (six) square metres in
extent, held by, and more fully described in, the Notarial Cession of Exclusive
Use Rights SK 5006/2019 (“the St John’s property”), is declared specially
executable;
(c) The Registrar of this Court is authorised and directed to issue a writ for the
attachment of the St John’s property and its sale by public auction to recover
the debt owed to the Applicant by the First Respondent in terms of a default
judgment granted by this Court on 2 5 January 2024 in case no. 15602/2022,
including interest and costs on an attorney-client scale;
(d) The Sheriff of this Court in whose jurisdiction the St John’s property is situate
is authorised and directed to execute any writ issued pursuant to [130](c)
above, and to take all such steps as may be necessary to sell the property by
public auction;
(e) The Sheriff envisaged in [130](d) above is authorised and directed to pay the
full proceeds of the sale in execution of the St John’s property into the trust
account of the Applicant’s attorneys of record at the time of the Sheriff’s public
auction;
(f) The main application against the Second Respondent is dismissed with costs;
(g) The Applicant is liable to pay the Second Respondent’s costs in relation to the
main application on an attorney and client scale, such costs to include the
costs of two counsel where so employed;
(h) The Uniform Rule 28(4) application is dismissed with costs in favour of the
Second Respondent on a party-party scale, such costs to be on tariff scale B;
(i) In terms of s 40(4) read with s 89(5) of the NCA, the following is declared:
(aa) the credit agreement between the Applicant and the First Respondent
relating to the Applicant’s loan for the benefit of the First Respondent to
settle the latter’s indebtedness to Investec Bank is declared unlawful from
its inception;
(bb) the Applicant has no enforceable claim vis -à-vis the Second Respondent
under the credit guarantee dated 31 May 2019, nor under the registered
mortgage bond over erf 2[...] Noordhoek in the City of Cape Town;
(cc) the Applicant shall at its expense, within 30 days, take all necessary
steps to cancel the mortgage bond over erf 2[...] Noordhoek (bond no. B[...])
and restore its original title deed no. T[...] to the Second Respondent.
_____________________
F. MOOSA
ACTING JUDGE OF THE HIGH COURT
Appearances
For Applicant: A M Smalberger SC (with H Bevis-Challinor)
Instructed by: Werksmans Attorneys (Mr R Gootkin)
For First Respondent: F Syria
Instructed by: Manoj Haripersad Attorneys (B R Singh)
For Second Respondent: Mr I Veerasamy
(heads of argument by I L Topping SC and I Veerasamy)
Instructed by: Thorpe & Hands Inc (R Topping)