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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: 26647/2018
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
26 August 2025
In the matters between:-
NEDBANK LIMITED Applicant
and
JOHN MWANZA First
Respondent
LORRAINE MWANZA Second Respondent
JUDGMENT
H F JACOBS, AJ
[1] This application in the opposed motion court originated, as stated in
paragraph 5.4 of Nedbank’s1 founding affidavit, as proceedings in action during April
2018. The record now comprise s more than 700 pages and is, as Nedbank’s
practice note records, “ an opposed foreclosure application coupled with a Rule 46
Application for executability of an immovable property.”
1 The plaintiff
2
[2] Nedbank applies for judgment against Mr and Mrs Mwanza 2. The order is
sought under the following circumstances. During or about April 2018 , Nedbank
issued a summons for the relief sought based on the default of payment by the
defendants of their obligations in terms of a credit agreement (a home loan) . The
debt under the credit agreement was secured by a mortgage bond over the
defendants’ property. The order sought is for payment of the outstanding debt,
interest and the declaration of the property executable for purposes of satisfying the
debt as at April 2018.
[3] The matter was set down for default judgment on 25 February 2020. On
the day Seleka AJ granted an order by consent between the parties , the body of
which reads as follows:
“AFTER HAVING HEARD COUNSEL for the Plaintiff, the following order is made
against the Defendant by consent :
1. Payment of the amount of R1,403,089 -45. Interest on the amount of
R1,403,089-45. the rate of 10.80%per annum calculated and capitalised
monthly in advance from 2 MARCH 2018 to date of payment;
2. An order declaring executable the following immovable property:
PORTION OF ERE 6[...] L[...] H[...] EXTENSION 12 TOWNSHIP,
REGISTRATION DIVISION ER; PROVINCE OF GAUTENG;
MEASURING 423(FOUR HUNDRED AND TWENTY THREE) SQUARE
METRES
LOCAL AUTHORITY: CITY OF JOHANNESBURG
SITUATED AT: 3[...] C[...] ESTATE, D […] CLOSE, L […] H[…], EXTENSION
12, SANDTON NORTH
HELD BY DEFENDANTS UNDER DEED OF TRANSFER T[...] hypothecated in
favour of the plaintiff/applicant in terms of the Mortgage Bond B[...]; is declared
specially executable;
3. That the Registrar of the above Honourable Court be authorised to issue a
Warrant of Attachment in respect of the immovable property as envisaged in
terms of Rule 46(1)(a) of the Uniform Rules of Court;
4. A reserve price contemplated in Rule 46A(9)(d)
2 The defendants
3
4.1 is set at R798 000.00
5 That in the event that a reserve price is not attained, and subject to Rule
46A(9)(d) and (e), the Applicant / Plaintiff may approach this Honourable Court,
on these papers, duly supplemented, to reconsider the reserve price in terms of
Rule 46A(9)(c);
6. That in the event that personal service is not attained, condonation in terms of
Rule 4BA(3)(d) is granted
7. Costs to be taxed on the scale as between attorney and own client;
8. Operation of the order is suspended for a period of 1 (one) month and the order
will have no force or effect in the event that the Respondents pay the amount of
R207 000 within this period.”3
[4] Of relevance in these proceedings is paragraph 8 . The defendants say
that they paid R100 000 towards the debt during January 2019 and also the
R207 000 mentioned in the order of 25 February 2020, by July 2021.
[5] In support of its application , Nedbank states that the valuers determine
the forced sale value of the hypothecated property report at R1,450,000.00, and the
local authority values the property at R2,924,000.00 . At the same time, the
outstanding arrears for rates and taxes were at the time of the default judgment
application R230,391.74, and the outstanding levies (due to its body corporate) in
respect of the property concerned were R85,827.44.
[6] The defendants oppose the application on the basis that, having regard to
the payments of R100,000 and R207,000 (the defendants in fact paid R210 ,000)
mentioned above, and the court order of Seleka AJ, the initial cause of action on
which the claim was made , had been extinguished during July 2021. They point out
that after payment of the latter sum , Nedbank (on 9 July 2021 ) withdrew a writ of
execution it had caused to be issued for the debt on 1 December 2020 (before the
order of Seleka AJ) . Notwithstanding this withdrawal , the defendants brought an
application which was heard by Ba qwa J on 3 November 2021 for the setting aside
application which was heard by Ba qwa J on 3 November 2021 for the setting aside
of the withdrawn writ of execution. On that day , Baqwa J granted a cost order
3 The underlining is mine
4
recording that the writ of execution (which had been withdrawn by Nedbank as
mentioned) would be of no force and effect. The order of that day is not relevant
here. It must be noted that this matter has been on the court rolls many times. It is ,
therefore, an opposed action proceeding, not opposed by the filing of pleadings or
claimed in a summary judgment application, but dis puted during default judgment
proceedings and enrolled on the opposed motion court roll.
[7] The defendants say they have cured their default and that Nedbank now
abuses the court process by bringing “the same application over and over again”.
They allege that the same order is sought as claimed during April 2018 , while the
record shows that they have cured their default and that the debt claimed had been
extinguished.
[8] Nedbank disputes the challenge made by the defendants. It does so in its
replying affidavit of 19 December 2023.
[9] It is not in dispute that Nedbank and the defendants entered into a credit
agreement and that the defendants defaulted on their payment obligations. The ir
defence turns on the application of section 129(3) and (4) of the National Credit Act,
34 of 2005 , as interpreted by the Constitutional Court in Nkata 4 and later amended .
Attached to the plaintiff ’s replying affidavit as annexure “RA2” is an account
statement of the defendant’s account. The document records the payments,
balance, arrears and ancillary aspects of the account. The statement records (and
the entries tally with the defendants’ papers) that they made three payments
(R100 000, R60 000 and R50 000) totalling R210 000 between 24 March 2020 and
26 March 2020. Opposite the last payment on 26 March 2020 , there remained a
balance of R32 022.39 as the arrear amount , after which the arrear amount
increased to R622 533.44 as at 27 October 2023.
[10] The defendants submit that their challenge of the amount and the
[10] The defendants submit that their challenge of the amount and the
interpretation of the order of 25 February 2020 constitute s a dispute of fact that calls
4 Nkata v FirstRand Bank 2016 (4) SA 257 (CC)
5
for referral of the application for trial or the hearing of oral evidence to resolve the
dispute.
[11] Motion proceedings, unless concerned with interim relief, are designed for
the resolution of legal disputes based on common cause facts. Unless the
circumstances are exceptional, they cannot be utilised to resolve disputes of fact
because they are not designed to determine probabilities. 5 Long before the
formulation of the Plascon -Evans rule 6 , our courts recognised that respondents
frequently attempt to create disputes of fact when none exist. Our courts adopted
the attitude that it should apply a “robust approach” to disputes of fact in such
instances.7 It is expected from a court in such circumstances to undertake a careful
perusal of the affidavits filed o n record to determine whether the disputes can be
decided on the affidavits.8
[12] The starting point is always the Plascon -Evans-rule that provides that
“(W)here in proceedings on notice of motion disputes of fact have arisen on the
affidavits, a final order, whether it be an interdict or some other form of relief, may be
granted if those facts averred in the applicant's affidavits which have been admitted
by the respondent, together with the facts alleged by the respondent, justify such an
order.”9
[13] The Plascon -Evans rule must be applied mindful of the law stated by
Zondo CJ in his minority judgment in Botha10. The Plascon -Evans rule has been
refined and extended to encompass untenable evidence challenges in motion
proceedings. In Fakie11, the Supreme Court of Appeal held:
“That conflicting affidavits are not a suitable means for determining disputes of fact
has been doctrine in this court for more than 80 years. Yet motion proceedings are
5 See National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at [26]
6 See below
7 See Soffiantini v Mould 1956 (4) SA 150 (E) at 154E -H; Room Hire Co (Pty) Ltd v Jeppe
7 See Soffiantini v Mould 1956 (4) SA 150 (E) at 154E -H; Room Hire Co (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1165; BR Southwood, Essential Judicial
Reasoning, Lexis Nexis, 2015, pages 22-30
8 See Trust Bank van Afrika Bpk v Western Bank Bpk en Andere NNO 1978 (4) SA 281 (A) at
293H.
9 Mamadi v Premier, Limpopo and Others 2024 (1) SA 1 (CC) at [22]
10 Botha v Smuts 2025 (1) SA 581 (CC) at [271] – [280]
11 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at 55
6
quicker and cheaper than trial proceedings and, in the interests of justice, courts
have been at pains not to permit unvirtuous respondents to shelter behind patently
implausible affidavit versions or bald denials. More than 60 years ago, this Court
determined that a Judge should not allow a respondent to raise 'fictitious' disputes of
fact to delay the hearing of the matter or to deny the applicant its order. There had to
be 'a bona fide dispute of fact on a material matter'. This means that an
uncreditworthy denial, or a palpably implausible version, can be rejected out of hand,
without recourse to oral evidence. In Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd, this Court extended the ambit of uncreditworthy denials. They now
encompassed not merely those that fail to raise a real, genuine or bona fide dispute
of fact but also allegations or denials that are so far -fetched or clearly untenable that
the Court is justified in rejecting them merely on the papers.”
[14] The Plascon -Evans-rule is applied always conscious of the further rule
that an applicant will not be permitted to introduce new matter in its replying affidavit.
When evidence is presented in reply, the rule against new matter in reply is not
absolute and should be applied with a fair measure of common sense 12. Practical
application of the principled approach recorded above, appears from judgments such
as Wightman,13 Lombaard,14 Buffalo,15 Mokala16 and National Scrap Metal 17 where
our Courts held that a genuine and bona fide dispute of fact can only exist where the
Court is satisfied that the party who purports to raise the dispute has in its affidavits
seriously and unambiguously addressed the facts said to be disputed. There will be
instances where a bare denial meets the requirement , but only if there is no other
way open to a litigant to raise the dispute , and nothing more than a bare denial can
be expected. But even a bare denial would not always be sufficient if the fact lies
be expected. But even a bare denial would not always be sufficient if the fact lies
purely within the knowledge of the averring party and no basis is set out in the
opposing affidavit for disputing the veracity or accuracy of the disputed averment.
12 Juta & Co Ltd and Others v De Koker and Others 1994 (3) SA 499 (T) at 511F; Smith v
Kwanonqubela Town Council 1999 (4) SA 947 (SCA) at [15]
13 Wightman t/a JW Construction v Headfour (Pty) Ltd & Another 2008 (3) SA 371 (SCA) at par
[13]; MV New Endeavor and Others v Indian Oil Corp Ltd 2024 (6) SA 64 (SCA) at [44]
14 Lombaard v Droprop CC & Others 2010 (5) SA 1 (SCA) at [26].
15 Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd & Another 2011 (1) SA (8)
SCA at [19]-[21].
16 Mokala Beleggings & Another v Minister of Rural Development and Land Reform & Others
2012 (4) SA 22 (SCA) at [11].
17 National Scrap Metal (Cape Town) (Pty) Ltd & Another v Murray & Roberts Ltd & Others 2012
(5) SA 300 (SCA) at [17]
7
Suppose a litigant possesses knowledge of the facts and can provide an answer (or
countervailing evidence), but instead of doing so , rests their case on an ambiguous
denial. In that case , a Court will generally have difficulty finding that the test for the
existence of a genuine and bona fide dispute of fact is satisfied. 18 The starting point
is always to list the facts that are common cause.
[15] In paragraph 9 above , I list most of the common cause facts relevant to
the dispute. Payment of a debt in terms of an agreement where commerce allows for
the availability of bank statements, publication of interest rates, easy and ready
determination of monthly instalments and the right of a litigant and a consumer to
request such information during legal proceedings of this nature dictate that the
litigants in position of the defendants were able to and could present evidence in
their affidavits in detail how they made payments to remedy their default that would
allow them to exercise their right in terms of section 129(3) of the National Credit Act.
Their challenge in this regard is vague , and the disputes of fact they attempt to raise
in their papers are not material and real. Moreover, the defendants chose not to
meet the plaintiff’s case on pleadings but resorted to opposition to the default
judgment proceedings.
[16] As stated above, the outstanding debt is substantially more than what was
initially claimed by Nedbank. The values for determination as presented by Nedbank
are not out of kilter with the evidence it supplied, and I exercise my discretion in that
regard to determine the values as suggested by counsel for the plaintiff in the draft
order proposed.
[17] I am mindful of the provisions of Rule 46A and that the property
concerned might constitute the primary residence of the defendants.
Under the circumstances , I grant the following judgment against the defendants
jointly and severally, the one paying the other to be absolved:
jointly and severally, the one paying the other to be absolved:
1. Payment of the amount of R1,403,089.45.
18 Wightman (supra) at [13]
8
2. Interest on the amount of R1,403,089.45 at the rate of 10.80% per annum,
calculated and capitalised monthly in advance from 2 March 2018 to the
date of payment.
3. An order declaring executable the following immovable property:
PORTION 4 OF ERF 5[...] L[...] H[...] EXTENSION 12 TOWNSHIP,
REGISTRATION DIVISION I.R.., PROVINCE OF GAUTENG
MEASURING 423 (FOUR HUNDRED AND TWENTY -THREE) SQUARE
METRES
LOCAL AUTHORITY: CITY OF JOHANNESBURG
SITUATED AT: 3[...] C[...] ESTATE, DULSIE CLOE, LONE HILL,
EXTENSION 12, SANDTON NORTH
HELD BY DEED OF TRANSFER: T[...] hypothecated in favour of the
Applicant in terms of the Mortgage Bond B[...], is declared specially
executable.
4. That the Registrar of th is Court be authorised to issue a Warrant of
Attachment in respect of the immovable property as envisaged in terms of
Rule 46(1)(a) of the Uniform Rules of Court.
5. That a reserve price as contemplated in Rule 46A(9)(d) be set in the
amount of R798,000.00.
6. That in the event that a reserve price is not attained, and subject to Rule
46A(9)(d) and (e), the Applicant may approach this court on these papers,
duly supplemented, to reconsider the reserve price in terms of Rule
46A(9)(c).
7. That in the event that personal service is not attained on the defendants ,
condonation in terms of Rule 46A(3)(d) is granted.
8. Costs to be taxed on the scale as between attorney and own client.
H F JACOBS
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
9
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by e -mail. The date and time for the hand-down is on
the 26th of August 2025 at 10h00.
DATE OF HEARING: 29 JANUARY 2025
DATE OF JUDGMENT: 26 AUGUST 2025
APPERANCES
Attorneys for applicant: VHI ATTORNEYS
Email: laws@vhilaw.co.za
Counsel for applicant: Adv W J Roos
Email: wroos@rsabar.com
Attorneys for respondents: Nyachowe Attorneys
Email: pnyachowe@ppn-attorneys.co.za
Counsel for respondents: Adv G Mashigo
Email: Gordon.mashigo@gmail.com