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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 2024/028230
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
In the matter between:-
SB GUARANTEE COMPANY (RF) PROPRIETARY
LIMITED
(Registration Number: 2006/021576/07)
Applicant
and
60 WATERFORD ESTATE PROPRIETARY LIMITED
(Registration Number: 2017/065839/07)
1st Respondent
MARK MORRIS FARBER
(Identity Number: 6[...])
2nd Respondent
In re
SB GUARANTEE COMPANY (RF)
PROPRIETARY LIMITED
Plaintiff
(Registration Number: 2006/021576/07)
and
60 WATERFORD ESTATE PROPRIETARY LIMITED
(Registration Number: 2017/065839/07)
1st Defendant
MARK MORRIS FARBER
(Identity Number: 6[...])
2nd Defendant
This judgment is handed down electronically to the parties’ email address’
indicated in the respective practice notes. The date of the hand down of the
judgment is deemed to be 5 November 2025.
JUDGMENT
Reid J
Introduction
[1] This is an a pplication for a summary judgment against the defendants,
coupled with an application to declare an immovable property1 specially
executable in terms of Uniform Rule 46A of the Uniform Rules of Court.
I will refer to the parties as they are referred to in the main action.
1 (a) Section Number 19 as shown and more fully described on Sectional Plan Number
SS123/2018 in the scheme known as WATERFORD in respect of the land and building or
buildings situated at Portion 9 (of 4) of the Farm Luciana 214, District Parys, Province Free
State of which section the floor area, according to the said sectional plan, is 585 in extent;
and an undivided share in the common property in the scheme apportioned to the said
section in accordance with the participation quota as endorsed on the said sectional plan.
[2] The 1st defendant concluded a home loan agreement with The
Standard Bank of South Africa Limited ("the Bank"). The 2nd defendant
stood as surety for the 1st defendant's obligations, limited to an amount
of R3,600,000.00. The 1st defendant further executed an indemnity in
favour of the plaintiff and a mortgage bond was registered over the 1st
defendant's property in favour of the plaintiff.
[3] The defendants have delivered their plea to the main action, which
triggered th is a pplication for a s ummary judgment. The defendants
have also delivered an affidavit resisting the summary judgment.
[4] The following are the disputes between the parties:
4.1. The certificate of balance.
4.2. The communication of notices and statements from the plaintiff.
4.3. The defendants' indebtedness as contained in the certificate of
balance.
4.4. The defendants' knowledge of their indebtedness as
communicated by the plaintiff in the default notices.
4.5. Whether the defendants have raised a triable issue which staves
off summary judgment.
[5] This Court essentially has to decide whether there is a triable issue
raised as defence by the defendants. See: Absa Bank Ltd v
Meiring 2022 (3) SA 449 (WCC) at paragraph [8].
Material background facts
[6] On 1 March 2015 the plaintiff and the Bank concluded an agreement
(“the CTA ”) which regulated the relationship between the Bank
("defined as the Creditor") and the plaintiff (“defined as the Guarantor").
In terms of the CTA the plaintiff would, as the need arose, guarantee
the obligations of the individual debtors under individual home loan
agreements.
[7] On 28 May 2018 and at Sandton, a duly authorised representative of
the Bank and the 1 st defendant concluded a written home loan
agreement ("the loan agreement"). Also on 28 May 2018, the 1 st
defendant, (duly represented by the 2 nd defendant) executed a written
indemnity agreement in favour of the plaintiff and its successors in title
or assigns (hereinafter referred to as "the indemnity").
[8] Pursuant to the conclusion of the loan agreement, the 1st defendant
caused to be registered over the property in favour of the plaintiff a first
covering continuing mortgage bond, registered under bond number
B[...] ("the mortgage bond").
[9] The plaintiff pleads that t he material terms of the loan agreement are
inter alia, the following:
9.1. On 28 M ay 2018 the Bank agreed to advance the sum of
R3,600,000.00 to the 1st defendant as a home loan ("the loan
amount").
9.2. The principal debt incurred by the 1st defendant to the Bank (in
respect of the loan agreement), was recorded as R3 ,612,900.00
("the principal debt").
9.3. The principal debt is the amount on which interest is calculated.
9.4. The principal debt incurred by the 1st defendant to the Bank in
respect of the loan agreement included the loan amount paid to
the 1st defendant or on its behalf and an initiation fee.
9.5. All amounts owing to the Bank in terms of the loan agreement
would bear interest (which would be calculated daily) from the
date advanced or any other payments being made by the Bank, at
the interest rate/s, and calculated in the manner determined in the
loan agreement.
9.6. The loan agreement was to endure for 240 months.
9.7. The principal debt was to be repaid by the 1st defendant to the
Bank in monthly instalments of initially R35,147.23 per month;
[10] The defendants pleaded that the correspondence of the plaintiff had to
be identified as correspondence of importance to not resonate with
spam communications received by e-mail, and requires conformity. The
1st defendant pleads that it , at all times, it was under the impression
that it was on par with its payments and without a proper accounting or
system to communicate the same, there was no reasonable ground to
doubt that the payments were up to date.
[11] The defendants plead further that plaintiff has failed to furnish proof
thereof that the 1st defendant is in breach of the loan agreement
through a statement of account. The defendants further plea that the
plaintiff has throughout the duration of the agreement fa iled to properly
communicate with the defendants and provide statements reflecting the
debits and credits in terms of the account. Such amounts have not
been proven to be prevalent in terms of the claim.
[12] The defendants further plea that t he default notice was not delivered to
either of the defendants. The tracking system of the notice does not
equate to proper service of the letter and the letter did not come to the
attention of the defendants.
[13] The defendants also plea that t he history and amount outstanding in
terms of the loan agreement is in dispute , and the plaintiff has failed to
show proof by means of a recon ciliation of the account of the amount
claimed. The defendants plea that it was not obligated to make
immediate payments and has the y had to have reasonable time to
make payments to the plaintiff as the defendant's was in financial
difficulty and unable to fulfil their obligations as a result of the
supervening impossibility caused by the COVID -pandemic a nd the
subsequent lockdown periods.
[14] The plaintiff states that t he plea filed on behalf of the defendants does
not disclose any valid legal defense and, as such, any issue fit for trial
and has been delivered by the defendants solely for the purpose of
delay.
[15] The plaintiff claims that the 1st defendant has breached the terms and
conditions of the loan agreement, as read with the mortgage bond
granted in favour of the plaintiff. Also, the 2nd defendant has not settled
the 1 st defendant's indebtedness. The plaintiff further claims to be
entitled to an order to have the property declared specially executable
in terms of Rule 46A.
Legal position
[16] The defendants seek an order that the summary judgment application
be postponed sine die. This request is made on the basis of the finding
of Southwood AJ in Nedbank Limited v Pitt and Others (2023- 116827;
2024-067596; 2024 -082442; 2024 -124432; 2024 -130896; 2024 -
134542; 2024 -141685; 2025 -028322; 2025 -028323; 2025 -028874;
2025- 036086; 2025 -047757; 2025 -047763) [2025] ZAGPJHC 581 (9
July 2025) in which she found the effect of the plaintiff’s non -
compliance with the requirements of Chapter 10.17. of the Pr actice
Manual of this Division in foreclosure matters.
[17] The court may, should a case be made out to dismiss the application
for summary judgment, grant such an order. This Court is not bound to
the relief requested by the applicant. This Court must see to justice
being done, which includes a speedy resolution to the litigation
process.
[18] In Hennie Ehlers Boerdery CC v APL Cartons (Pty) Ltd 2024 (1) SA
149 (ECGq) Ronaasen AJ, in the context of Rule 32 stated:
“[4] Rule 32, as amended, is intended to be a refinement made
in a continued effort to achieve the goal set out in the above -
mentioned quotation namely, to establish whether a defendant
has disclosed a bona fide defence to a plaintiff’s claim in
the form of a triable issue.”
(own emphasis)
[19] It is trite that the defendant need not set out in the opposing affidavit to
the summary judgment application, its opposition with the precision that
would be required for a plea. See Maharaj v Barclays National Bank
Ltd 1976 (1) SA 418 (A) at 426. The defendant has to file an opposing
affidavit that sets out:
19.1. with a sufficient degree of clarity to enable the court to ascertain
whether he has deposed to a defence which, if proved at the trial,
would constitute a good defence to the action; and
19.2. with reference to the plea that was delivered.
See: District Bank Ltd v Hoosain 1984 (4) SA 544 (C)
[20] The defences raised by the defendants are, inter alia, that the amount
is disputed and certain re-calculations should be made.
[21] Furthermore, the defendants claim that they were not informed, or was
not aware of the default notices. They claim that the correspondence
was not clearly distinguishable from other correspondence.
[22] Both of these issues are, in my view, issues that are triable issues and
not issues raised in an attempt to purely delay the matter.
[23] In the premises, the defendants should be allowed an opportunity to
defend the claim and the summary judgment should not be successful.
Costs
[24] The general principle in summary judgment proceedings is that the
costs of the application forms cost in the cause. I find no reason to
deviate from this principle.
[25] The costs of the summary judgment application should therefore be
cost in the action between the parties.
Order
[26] The following order is made:
(i) The application for summary judgment is dismissed.
(ii) The costs is to be cost in the cause.
FMM REID
JUDGE OF THE HIGH COURT
GAUGENG DIVISION PRETORIA
DATE OF ARGUMENT: 5 AUGUST 2025
DATE OF JUDGMENT: 5 NOVEMBER 2025
APPEARANCES:
FOR APPLICANT: Adv M Rakgoale
ATTORNEYS: Vezi & De Beer Inc Attorneys:
Lizette Coetzee (Attorney)
Tel: (012) 361 5640
Email: lizette@vezidebeer.co.za
FOR RESPONDENT: Adv Hannah Le Roux
ATTORNEYS: Patel Incorporated Attorneys
Tel: (011) 486 4877
Email: ziyaad@patelinc.co.za