IN THE H IGH COU R T O F SOU TH A FR ICA
GAU TE NG DIVIS ION , PR ET OR IA
( l) RE PO RTA BLE: ¥-€£/N O
(2) O F IN TE REST TO OTH ER JUDG ES: ~ /NO
(3) REVISED .
21/10/2025
SIG NATURE DATE
In the matter between:
SHACKLETON CREDIT MANAGEMENT (PTY) LTD
and
STANDARD BANK
SIFISO JACOB MASINA
LABUSC HAGN E J
JUDGMENT
CAS E NO: 64306/15
Applicant
First Responden t
Second Responden t
Page 2
[1] The applicant is the cessionary of a claim of Standard Bank against Mr SJ
Masina for payment of the shortfall after the sale of a repossessed motor
vehicle.
[2] It is common cause that:
2.1 On 18 September 2014, Standard Bank of South Africa Ltd and
second respondent concluded an instalment sale agreement , in terms
of which Standard Bank sold a motor vehicle to second respondent.
2.2 On 13 October 2015, Standard Bank instituted action under the above
case number against second respondent .
2.3 On 26 October 2015, the Honourable Court granted a court order in
favour of Standard Bank against second respondent in the action (“the
attachment order), in terms of which, inter alia:
2.3.1 The instalment sale agreement was confirmed to be
cancelled.
2.3.2 Second respondent was ordered to return the vehicle to
Standard Bank.
2.3.3 Standard Bank’s claim for damages arising out of second
respondent’s breach of the instalment sale agreement,
together with interest thereon was postponed sine die.
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[3] Despite being valued at that time for R250 000.00, the vehicle was attached
and sold at auction for R684 000.00.
[4] The outstanding balance after deduction of the proceeds of the sale and other
reasonable deductions, as prescribed by the National Credit Act left a balance
which, due to the lapsing of time reached in duplum. The amount claimed was
reduced by interim payments from R907 459 to R 896 542.61
[5] The applicant took cession of the claim from Standard Bank in terms of a
written cession agreement after litis contestatio and seeks an order
substituting it as the plaintiff in the action in the place of Standard Bank.
[6] The proceedings were opposed by the second respondent (hereafter “Mr
Masina”) who also represented himself at the hearing.
[7] Mr Masina contends that he had called Standard Bank’s call centre and had
entered into an agreed repayment arrangement in terms of which he would
repay an amount of R1 000.00 per month until his financial position improved.
[8] While he commenced paying the R1 000.00 per month, he didn’t persist and
has made sporadic payments in the past 10 years. He then offered R500.00
per month but did not comply with that arrangement either. He has repaid an
amount of approximately R54 600.00 in the past 10 years.
[9] In email correspondence from Standard Bank’s collecting agent, there is
confirmation of an arrangement as contended for by Mr Masina. However,
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there is also confirmation that he has been acting in breach of it. That rendered
the balance due.
[10] Standard Bank’s contract with Mr Masina required any amendment to be
confirmed and signed by the bank in writing and to be signed by the parties.
This did not take place. The payment arrangement is no defence in light of the
aforesaid.
[11] Mr Masina also contends that the debt had been written off by Standard Bank
and that he should have the benefit of th at write-off. When a creditor writes
off a debt, it is an internal bookkeeping arrangement that has certain tax
implications. It does not amount to Standard Bank forgiving the debt owed by
Mr Masina. In fact the debtor is not a party to the write off process. The creditor
is fully entitled to further recover the debt as the write -off is no t an act of
largesse on the part of the creditor. Reliance on the write off by Mr Masina is
no more than opportunism.
[12] During argument Mr Masina also queried certain VAT deductions in the
calculation of the outstanding amount. However, these are permissible
deductions when regard is had to the provisions of the National Credit Act,
which has specific sections dealing with how the proceeds and expenses
incurred in respect thereof are to be dealt with. The deductions made are
consistent with the National Credit Act.
[13] The applicant took cession of a debtor’s book of Standard Bank which includes
the claim against the second respondent. As the cession took place after litis
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contestatio, the cessionary’s right vests in the proceeds of the proceedings
and when substituted as the judgment creditor
[14] Where a cession of a claim takes place after litis contestatio, the cedent cedes
not his/her interest in the claim, but in the result of the litigation, and as the
subject-matter of the cession is res litigiosa, the cession itself does not transfer
the right to prosecute the action to the cessionary. That right only accrues
when the court substitutes the cessionary as plaintiff. The requirement that the
substitution be approved by the court is designed to ensure that the debtor is
not prejudiced (see Fisher v Natal Rubber Compounders (Pty)(Ltd) 2016
(5) SA 477 (SCA) at p.489 par [9]). I am satisfied that the claim for substitution
has been established.
[15] In the absence of any defence, I grant the following order:
1. The applicant is substituted for Standard Bank as plaintiff in the action
by virtue of the cession agreement.
2. The second respondent is directed to pay the applicant the amount of
R896 542.61.
3. The aforesaid amount shall bear interest at the rate of 11.75% per
annum from date of judgment to date of final payment.
4. Costs of suit on a party and party scale , including counsel’s fees on
Scale B.
LABUSCHAGNE J
JUDG E OF TH E H IGH COUR T
APPLICANT 'S COUNSEL
APPLICANT 'S ATTORNEYS
APPLICANT 'S COUNSEL
APPLICANT 'S ATTORNEYS
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: ADV C GORDON
:LYNN AND MAIN INCORPORATED
: MASINA SIFISO
: UNKNOWN