2
[2] The plaintiff has three claims which it pleads in its particulars of claim and has
separated these claims into claim A, B and C.The first claim A relied upon by the
plaintiff relates to a term loan facility whereby the sum of R4 820 607.12 was due,
owing and payable as at 29 February 2024. The second claim B relates to an
overdraft facility whereby the sum of R10 372 856.20 was due, owing and
payable as at 4 March 2024. The third claim C relates to a commercial property
finance loan agreement whereby the sum of R5 807 411.83 was due, owing and
payable as at 7 February 2024.
[3] It is common cause that the defendant signed suretyship agreement s in favour
of the plaintiff for all debts due, owing and payable b y the principal debtor. The
first suretyship agreement contained a limitation in the sum of R16 420 000 and
the second a limitation in the sum of R39 160 000 for the debts owing by the
principal debtor to the plaintiff.
[4] The following is a chronological sequence of events agreed upon by the parties,
save poin ts 4.11, 4.12 and 4.14, where the plaintiff believes that they contain
legal argument, which will be addressed in the part dealing with the exception
arguments:
4.1 On 13 June 2016, the defendant signed the suretyship agreement in
favour of the plaintiff for the debts owing by the principal debtor.
4.2 On 24 June 2016, the plaintiff and the principal debtor concluded a loan
facility whereby the sum of R11 600 000 was advanced.
4.3 On 9 April 2019, the defendant concluded another suretyship agreement
in favour of the plaintiff for the debts owing by the principal debtor.
4.4 On 24 June 2019, the defendant signed another suretyship agreement
in favour of the plaintiff for the debts owing by the principal debtor.
4.5 On 4 August 2023, the plaintiff and the principal debtor concluded a term
loan commercial facility.
4.6 On 4 August 2023, the plaintiff and the principal debtor concluded an
overdraft facility for R10 000 000.
3
4.7 On 19 April 2024, the plaintiff delivered a demand upon the principal
debtor.
4.8 On 4 June 2024 summons was issued.
4.9 On the 11 June 2024, the summons was served on the defendant.
4.10 The defendant entered a notice of intention to defend dated 26 June
2024.
4.11 On 3 July 2024, th e plaintiff filed a new Annexur e E which constituted
seven pages. The defendant averred that his was in non -compliance
with rule 28 of the Uniform Court of Rules because the plaintiff’s
particulars of claim served on the defendant, Annexure E constituted one
page.
4.12 On 5 July 2024, the plaintiff filed and served a notice in terms of Rule
28(1) of the Uniform Court of Rules to address the defendant’s notice of
an irregular step.
4.13 On 8 July 2024, the plaintiff delivered summons upon the defendant.
4.14 On 11 July 2024, the plaintiff filed and served a second notice in terms
of Rule 28(1) of the Uniform Court of Rules to address the defendant’s
notice of an irregular step.
4.15 On 22 July 2024, the defendant filed a notice to oppose the plaintiff’s
amendment of the particulars of claim.
4.16 On 5 August 2024, the plaintiff filed and served a notice to withdraw the
Rule 28 of the Uniform Court of Rules amendment.
4.17 On the 22 August 2024, the plaintiff filed and served the amended
particulars of claim on the defendant.
4.18 On 3 September 2024, the defendant served it s Notice of Exception to
the particulars of claim on the plaintiff, and it was filed on Court On line
on 4 October 2024.
4
4.19 On 11 October 2024, the plaintiff filed and served a Notice of Bar on the
defendant.
4.20 On 18 October 2024, the defendant filed and served its plea and special
plea on the plaintiff.
4.21 On 8 November 2024, the plaintiff delivered an application for summary
judgment against the defendant.
4.22 On 31 January 2025, the defendant filed and served the opposing
affidavit to the summary judgment application.
Defendant’s defences and Plaintiff’s issues for consideration
[5] In summary the defences raised by the defendant within the body of its plea and
affidavit resisting summary judgment are as follows:
5.1 The plaintiff’s particulars of claim are excipiable.
5.2 The defendant was married in community of property at the time that he
signed the suretyship agreement s and therefore, it is averred by the
defendant that the absence of his wife’s consent renders the suretyship
agreements void.
5.3 The plaintiff’s institution of a liquidation application against the principal
debtor inhibits the plaintiff’s rights to institute proceedings ag ainst the
surety which is the defendant in this matter.
5.4 The failure to join the principal debtor to these proceedings is limiting to
the defendant’s rights in this action.
5.5 The plaintiff has various alleged claims against the defendant, however
the plaintiff’s claim B for an amount of R10 372 856 .20 exceeds the
overdraft facility agreement that was concluded between the plaintiff and
the principal debtor. Furthermore, the plaintiff has failed to address the
difference in the claim and the signed term facility agreement, and the
defendant averred why should the defendant be liab le for the R10 372
856.20.
5
5.6 The plaintiff has introduced new evidence in the application for summary
judgment and the plaintiff’s heads of argument.
5.7 In it s application for summary judgment, the plaintiff aver red that the
defendant has no bona fide defence to the action and has not rais ed a
triable issue for determination. This is vehemently denied by the
defendant.
[6] Arising from the defendant’s defences to the summary judgment application, the
plaintiff contends that the following issues lie for consideration:
6.1 Whether the allegations relating to the exception points are appropriate
now that the defendant has already pleaded to the claim?
6.2 Whether there is any merit on the marital regime of the defendant?
6.3 Whether the liquidation proceedings initiated against the principal debtor
prohibits the suit against the surety?
6.4 Whether there was an obligation to join the principal debtor to these
proceedings?
6.5 Whether the plaintiff has introduced new evidence in the summary
judgment application to address the marital d ispute of facts and should
the matter be referred to trial?
The exception: excipiable particulars of claim
[7] The point in limine to be determined is whether t he allegations relating to the
exception points are appropriate and valid now that the defendant has alre ady
pleaded to the claim.
[8] The defendant aver red that the plaintiff amended on court online Annexure “E”
which initially constituted one page when the summons was served on the
defendant, and the plaintiff then uploaded a seven-page Annexure “E” document
in non-compliance with the High Court Uniform Court Rule 28. The defendant
argued that it would have been prejudiced had the defendant pleaded on the
summons, as the plaintiff amended Annexure “E”.
6
[9] Counsel for the defendant pointed out to the court that the def endant filed and
served the exception within 10 days of receiving the amended particulars of claim
which it is argued is within the timeframes set out in the High Court Uniform Court
Rule 23. The plaintiff filed and ser ved the amended particulars of claim on the
defendant on 22 August 2024, and the defendant served its Notice of Exception
to the particulars of claim on the plaintiff on the 3 September 2024, while it was
filed on court online on 4 October 2024.
[10] The plaintiff averred that the defendant failed to deliver the exce ption timeously
and/or at all. The plaintiff notes that the defendant did not seek to impugn the
particulars of claim on the basis that it does not bear a cause of action, the
defendant’s complaints relate specifically to vagueness and embarrassment. In
terms of Uniform Court Rule 23, where an excipient seeks to raise the complaint
that the pleadings are vague and embarrassing; it is argued by the plaintiff that
the defendant was was required to deliver such pleading within a period of 10
days from the date the pleading was delivered upon them.
[11] In this regard, Uniform Court Rule 23(1) states as follows (my own emphasis):
“23(1) Where any pleading is vague and embarrassing or lacks averments which are
necessary to sustain a n action or defence as the case may be, the opposing
party may within the period allowed for filing any subsequent pleading, deliver
an exception that you may apply to the registrar to set it down for hearing within
15 days after delivery of such exception: provided that –
(a) where a party intends to take an exception that a pleading is vague
and embarrassing such party shall, by notice, within 10 days of
receipt of the pleading, afford the party delivering the pleading, an
opportunity to remove the cause of complaint within 15 days of such
notice, …”
[12] Thus, the plaintiff averred that it is not the date of delivery of the amended
[12] Thus, the plaintiff averred that it is not the date of delivery of the amended
particulars of claim that the 10 days are counted from, it is the date of rece ipt of
the pleading.
[13] Furthermore, it is also averred by counsel of the plain tiff, in which I am in
agreement, that in any event and a lthough not applicable in this case, a vague
7
and embarrassing type exception cannot be r aised if an excipient argues that a
pleading became vague and embarrassing by virtue of an amendment. This is
because if the causal effect of the amendment would be an excipiable pleading,
the excipient is at liberty to deliver an objection to the proposed amendment.
[14] The amendment of the particulars of claim in this matter, having looked at it,
deals with the full inclusion of the terms and conditions of the commercial term
loan agreement and the facility letter: commercial terms. The exceptio n
complaints raised by the defend ant are not limited to the amendments made in
the amended particulars of claim. I am th erefore of the view that the exception
should have been delivered at the onset of the receipt of the pleading within 10
days and not within 10 days from the date of the delivery of the amended
particulars of claim.
[15] Furthermore, the averment made by the defendant that the notice of exception
“remains hanging” and that there was nothing precluding the plaintiff from
enrolling the defendant’s exception , I agree with counsel for the plaintiff, is
unmeritorious. I am in agreement with the plaintiff that upon receipt of the Notice
of Bar and if the defendant believed that it was still within its rights to persist with
the exception, it was required to deliver a Rule 30 of the Uniform Court of Rules
notice wherein i t should have sought to impugn the Notice of Bar. Instead, the
defendant delivered a plea within the bar period and in this matter, it was the
defendant who in terms of Rule 23(1) of the Uniform Court of Rules was obligated
to “apply to the registrar to set down the exception ” after giving the plaintiff an
opportunity to remove the cause of the exception complaint(s). Counsel for the
plaintiff, correctly notes that this is because the rule makes a distinction between
the notice of exception an d the exception proper, in that the former is a notice
the notice of exception an d the exception proper, in that the former is a notice
giving an opportunity to remove the cause of c omplaint and the latter being a
pleading in that it constitutes the exception which the excipient must deliver .
Accordingly, as a result of the delivery of the plea within the bar period, any
complaint that the defendant may have laboured in respect of the notice of bar
falls away because the defendant not only failed to deliver a Rule 30, irregular
step notice in terms of the Uniform Court of Rules, but the defendant also took a
further step in the proceedings by delivering it plea on the merits. In other words,
8
I am in agreement with the plaintiff that the particulars of claim could not have
been so vague and embarrassing that the defendant was incapable of pleading
to it.
[16] In the premises, I am of the view that the defendant cannot rely on the “exception”
in resisting the summary judgment application.
Validity of the suretyship agreements: marriage by the surety
[17] In the second special plea of the defendant, he contend ed that his suretyship
agreements incorrectly re flect him as unmarried. The defendant attached a
marriage certificate which reflects that the defendant was married on 12 May
2014 in Pakistan and the date of the issue of the Pakistani marriage certificate is
19 September 2019.
[18] The argument made by the plaintiff is that the defendant ca nnot rely on the
alleged marriage because the marriage was concluded in Pakistan and therefore
section 15 o f the Matrimonial Property Act 88 of 1984 (“the MPA”) read with
Marriages Act 25 of 1961 would not apply, thus disputing the validity and
recognition of the marriage in South Africa . The defendant correctly points out
that this is a new argument introduced by the plaintiff in its head of arguments,
however, this is due to the fact that the defendant in its founding affidavit
incorrectly cited the defendant’s marriage as taking place on 12 May 2024, which
would have made the validity of the suretyship agreement s moot, since the
suretyship agreements took place before 2024. The defendant argue d that the
the plaintiff intentionally misled this honourable court by stating that the
defendant entered into the marriage on 12 May 2024. While the defendant
argued that the plaintiff seeks to raise new facts in t heir heads of argument the
defendant does same, by informing this court that the defendant had applied for
more than five years ago to register th e marriage in South Africa and to obtain
citizenship for his wife , and the defendant cannot be held responsible for the
delay at Home Affairs.
delay at Home Affairs.
[19] Neither of the parties raised the issue of Lex Domicilli Matrimonia that in terms
of South African law when a South African marries a foreign national the marriage
will be governed by the matriomonial property law of the domicile of the husband
9
at the time of the marriage . This rule is still one of the gender specific rules in
family law in South Africa, where a couple’s matrimonial domicile is the place
where the husband is domiciled on the day of the wedding. I raised this issue
with both parties at the hearing, and it was agreed that following the Lex Domicilli
Matrimonia rule, the marriage of the defendant is recognised in South African
Law in terms of the South African Matrimonial Property Act. The marriage
certificate did not include a n antenuptial contract, therefore it can be concluded
that the defendant is married in community of property, which is the default
matrimonial property system in South Africa.
[20] In terms of s15(1) of the MPA both spouses have equal powers to deal with the
assets of the joint estate, without the consent of the other spouse; however, this
power is limited in terms of s15(2) and s15(3) of the MPA where it is a
requirement that the consent of the other spouse must be obtained before certain
transactions may be entered into. The legal position in terms of s15(2)(h) is such
that a spouse married in community of property in South Africa may not bind
himself as surety without the written c onsent of his or h er spouse. However, in
terms of s15(6) of the MPA, a spouse can enter into a deed of suretyship even
though he or she may be married in community of property provided that it is in
the ordinary course of his or her profession or business. Section 15(6) states as
follows:
”The provisions of paragraph s (b), (c), (f), (g) and (h) of Subsection 2 do not apply
where an act contemplated in those paragr aphs is performed by a spouse in the
ordinary course of his profession, trade or business.”
[21] Counsel for the plaintiff directed the court to the Supreme Court of Appeal case
of Almalgamated Banks of South Africa v De Go ede en Andere
(“Almalgamated”)1 where the court was faced with the same defence a s in this
(“Almalgamated”)1 where the court was faced with the same defence a s in this
matter whereby the defendants in an application for summary judgment sought
to escape the consequences of their deeds of suretyship by contending that they
were married in community of property and that the spousal consent was not
obtained as contemplated by section 15(2)(h) of the MPA. The relevant issue
before the Supreme Court of Appeal wa s whether or not non -compliance with
1 1997 (4) SA 66 (SCA).
10
s15(2)(h) meant that the deed of suretyship was invalid and specifically where
the provision of s15(6) applied because if it did, in that the defendant had signed
the suretyship within the ordinary course of his business, the deed of suretyship
would be valid irrespective of non-compliance with s15(2)(h) of the MPA.
[22] The court in the Almalgamated case2 held importantly as follows:
“The respondents claim that they had been only paper members of the CC did not accord
with the underlying facts: when they had signed the deed of suretyship, they had been
aware of the underlying loan agreement between the bank and the CC and the fact that
they had signed the deed as members of the CC meant that they had also approved the
said loan agreement in that capacity. T he signing of the deed was a step the
respondents had deliberately taken in light of all relevant facts.”
[23] Counsel for the plaintiff, averred that similarly in this matter, directors of a
company (the principal debtor) who signed deeds of suretyship within the
spectrum of the ordinary course of b usiness constitutes an act contemplated in
terms of s15(6) of the MPA.
[24] The defendant in its Heads of Argument averred that the plaintiff failed to plead
in the particular of claims and/or summary judgment application that the
defendant was acting in the course of the scope of his business when the
defendant entered into the suretyship agreement. Likewise, the defendant in turn
in its Heads of Argument inform ed the court for the first time that the primary
debtor is a registered car dealership and had obtained a floor plan facility from
the plaintiff in the ordinary course of business, however, the subsequent term
loan, overdraft facility and the property finance loan had not been established in
the ordinary course of the primary debtor’s business nor the surety ship
agreement signed by the defendant. Therefore, the validity of the suretyship is
disputed by the defendant and on the facts on paper it has not been established
disputed by the defendant and on the facts on paper it has not been established
that the overdraft, term loan and property finance facility were in the ordinary
course of the defendant’s business , therefore the honourable court ought to
dismiss the application for summary judgment and refer the matter to trial.
2 Supra at paras 73H-74A.
11
[25] In Strydom v Engen Petroleum Ltd3 the Supreme Court of Appeal had another
opportunity to consider the nature of s15(2) and s15(6) of the MPA. Mr Strydom
who was married in community of property entered into a surety ship agreement
in favour of Engen. He stood suretyship for debts incurred by a private company
of which he was t he director. Mrs Strydom was aware of the suretyship
agreement, she was opposed to her husband, Mr Strydom signing the suretyship
agreement and did not provide her consent. In considering the nature of s15(2)
and s15(6) of the MPA the Supreme Court of Appeal held the following:4
“The argument before us on behalf of the appellant proceeded on the footing that, once
Mr Strydom said that he was married in community of property and that his wife has not
consented to his executing of the deed of suretyship, -an onus rested on Engen to prove
that he had nonetheless bound himself as surety in the ordinary course of his business.
Whilst in my view the evidence before the court demonstrated that this was indeed the
case the approach was in my view wrong. The reason is that it treated the provisions of
s15(2) as distinct from s15(6). However, that is not appropriate as a matter of
interpretation, which requires statutes to be construed in the light of their context not as
isolated fragments of words. The requirement that spousal consent be obtai ned before
concluding certain defined financial transactions as set out in ss15(2) and (3) of the Act
cannot be read in isolation. Section 15(6) sa ys expressly that in respect of certain of
those transactions, including binding ones elf as surety, section 15(2) does not apply if
the act in question is performed in the ordinary course of the spouse’s business, trade
or profession. What one knows there fore is that ss15(2) and (3) operate i n respect of
some, b ut not other, financial transactions depending on whether or not they are
performed in the ordinary course of the spouse’s business, trade or profession.
performed in the ordinary course of the spouse’s business, trade or profession.
Accordingly, it does not suffice for a person seeking to rely on s15(2)(h) to say that they
were married in community of property and that their spouse did not consent to the
transaction to bring themselve s within the ambit of the section. That is because the
section only operates in certain limited circumstances. If they wish to rely u pon it, they
must bring themselves within the full range of operation.
[26] Having regard to the Strydom case supra, it would be for the defendant to
demonstrate that he was entitled to the protection of s15(2), and that, in order to
do so, he was required to show that he did not bind himself as surety in the
3 2013 (2) SA 187 (SCA).
4 Supra at para 13.
12
ordinary course of his business, it is immediately apparent from the the evidence
that he has not discharged this onus. From the papers it can be gleaned that, the
defendant signed the term loan and the overdraft facility agreement in his
capacity as director, while the Business Client Agreement did not provide for the
designation of capacity to be recorded it can be inferred that the defendant
signed it in the course and scope of his business as the facility is called a
“Business Client agreement” and relates to a commercial property finance loan
agreement. It is therefore disingenuous for the defendant to raise the defence
that these three agreements were not established in the ordinary course of the
principal debtor's business. In my view, the defendant when he signed the deed
of suretyship, he had been aware of the underlying contractual agreements
between the plaintiff and the principal debtor; and he was aware of the fact that
he signed all three agreements in his capacity as a director. This means that the
said deed of surety agreements had also been signed in that capacity, that is, in
the course and scope of the defendant’s business, trade or profession.
Considering the context and all the relevant facts the signing of the deed of
suretyships was another step in the course and scope of the defendant’s
business.
[27] Furthermore, the defendant signed all the documents describing his marital
status in bold as “unmarried.” In each of the deeds of suretyship which he signed
voluntarily between 2016 and 2019, the de fendant’s status is recorded as
unmarried. Throughout this period the defendant did not disclose to the plaintiff
that in fact he was married to a Pakistani woman, that the marriage took place in
Pakistan and that he was firstly uncertain whether his marriage is legal in South
African and secondly, that he was in the process of getting his marriage
registered by Home Affairs. Instead, he remained silent and now wants to raise
registered by Home Affairs. Instead, he remained silent and now wants to raise
the issue of his marriage as a defence not to be bound to the suretyship
agreements by contending that the suretyship agreements, incorrectly reflects
his marital status as unmarried and that the plaintiff incorrectly captured his
details.
[28] In the premises, I am of the view that the defendant cannot rely on his marriage
as a triable defence/issue to resist summary judgment.
13
Pending Liquidation and Non-joinder
[29] The defendant contend ed that the claim instituted against it in this action is
premature because the plaintiff must first excuss the principal debtor before
looking to the defendant as surety. He suggests in his affidavit resisting summary
judgment that, “ the plaintiff is double counting by attempting to enforce the
security against the defendant and to gain from the proceeds of the winding -up
of the principal debtor.”
[30] The plaintiff averred that this argument is flawed because there is nothing in our
law that prohibits the plaintiff from exploring all forms of debt collection
mechanisms in order to recover the outstanding indebtedness owed to it. Where
it receives proceeds through the insolvency process relating to the principal
debtor, the plaintiff would be at liberty to simply reduce it s claim in this action.
The plaintiff further averred that in Neon and Cold Cathode Illuminations (Pty) v
Ephron5 the court said that the impact of signing a deed of suretyship and co -
principal debtor is that the surety renounces the benefit of inter alia excussion.
The plaintiff contended that in fact, our courts have sanctioned the method of
collection whereby a creditor is at liberty to institute liquidation proceedings
against the principal debtor and simultaneously continue with action proceedings
or application against the sureties. Considering that this is permissible, the
submission of claims in an insolvent estate is similarly permissible and the
plaintiff averred that the suggestion made in the affidavit by the defendant
resisting summary judgment that the applicant is attempting to claim twice for the
same thing is unfounded.
[31] The plaintiff dire cted the court to the case Firstrand Bank Ltd v Keliana Group
(Pty) Ltd6 where the court had the following to say to a very similar defence, and
in fact, concluded that the cause of action in a liquidations differs from the causa
in fact, concluded that the cause of action in a liquidations differs from the causa
in alternative mechanisms used to recover the debt through the proceedings
against sureties:
5 1978 (1) SA 463 (A).
6 [2023] ZAGPJHC 711 (13 June 2023) at para 15.
14
“Prima facie, it is vexatious to bring two actions in respect of the same subject matter.
In this instance however, as the applicant correctly pointed out, the action instituted
against the surety is premised upon a different cause of action to that of liquidation which
is to collect the outstanding debt against the surety which debt the surety is liable for in
solidum with the Respondent. The application before this court is statutory for the
purposes of liquidating the Respondent pursuant to the section 3 45 letter, and the
Respondent’s failure to act thereupon. Moreover, the action instituted is not between the
same parties as that of the application before this court. In this instance, the Respondent
is a legal entity with obligations separate from those of the director in her personal
capacity. Accordingly, the lis pendens defence is without merit.”
[32] In the circumstances, I am in agreement with the plaintiff that the course of action
in a liquidation differs from the cause of action in these proceedings, where the
plaintiff seeks to collect the outstanding debt against the suret y. Furthermore,
from the papers, in terms of clause 10.1 of the surety agreement, the defendant
renounced his right to demand that the plaintiff explores its debt collection
procedure against other debtors or co-sureties before seeking full payment from
the defendant. Accordingly, the plaintiff correctly points out that there is no basis
in both fact and law to prevent the plaint iff from relying upon the strategy
employed by the plaintiff to recover the outstanding indebtedness both through
the insolvency process and simultaneously this action.
[33] Regarding joinder of the principal debtor to these proceedings, the defendant
contended that there was an obligation imposed upon the plaintiff to join the
principal debtor as an interested party. To not do this is to prejudice both the
defendant and the principal debtor. The plaintiff averred that the reliance on the
defendant and the principal debtor. The plaintiff averred that the reliance on the
non-joinder argument by the defendant is flawed because the action that was
instituted under case number 52086/2024 relates to a different agreement,
namely the floor plan agreement, which was to be used for purposes of assisting
the princip al debtor during the course and scope of its business as a motor
vehicle dealer. It is in that application that the defendant has raised a
counterclaim wherein it seeks the su m of approximately R18 000 000 due to
alleged losses that were suffered as a result of the alleged breach of the
negotiations which were being conducted between the representatives of the
principal debtor and that of the plaintiff. The defendant conte nded that, but for
15
the conduct of the plaintiff the pri ncipal debtor would not have defaulted on the
loans and the plaintiff making a claim against the surety. Thus, th e defendant
pointed out that this court therefore ought to cons ider all facts and the various
pending litigations in order to come to the correct order.
[34] The pending litigation under case number 52 086/2024 deals with a breach of a
floor plan agreement, that agreement and the aforesaid counterclaim is not
before this court; I am in agreement with the plaintiff that it has nothing to do with
the cause of action in casu and therefore, there is no basis to conclude that the
principal debtor h ad to be joined in these proceedings. Furthermore, I am in
agreement with the plaintiff, that in so far as the defendant contended that the
principal debtor’s joinder was necessary, nothing precluded the defendant from
joining the principal debtor to these proceedings and providing evidence to this
court that such principal debtor has a legal interest in the outcome of this action
against the surety. Accordingly, this defence by the defendant, falls.
New Evidence
[35] The defendant accused the plaintiff of introducing new evidence in the summary
judgment application. It is contended that the plaintiff introd uced new evidence
by attaching Annexure “LG1”, “LG2” and “LG 3” to the application for summary
judgment. Annexure “LG1” is a document setting out an ABSA Resolution, it
documents the signing au thorities within the relationship banking risk office.
Annexure “LG2” is an extract of minutes which records a decision made to
provide authority to the defendant to enter into the overdraft facility of R10
000000 in his capacity as director and Annexure “LG3” is a document setting out
the overdraft history equity.
[36] The defendant directed the court to ABSA Bank Limited v Mpha hlele NO and
Others7 where the court held the following:
”[A]s a general proposition, a plaintiff should not be entitled to introduce evidence of
”[A]s a general proposition, a plaintiff should not be entitled to introduce evidence of
facts which do not appear in a plaintiff’s particulars of claim or declaration.
7 [2020] ZAGPPHC 257 (26 March 2020) paras 32, 33 and 37.
16
As to the “brief explanation as to why the defence as pleaded does not raise any issue
for trial”, this must be confined solely thereto. This brief explanation does not open the
door to entitle a plaintiff to introduce new evidence as to why, at summary judgment
stage, a defendant should not be given leave to defend an action and to attempt to show
that a plaintiff has an unanswerable case.
In the premises, the identification of points of law and facts by a plaintiff must be confined
to those as set out in a plaintiff's particulars of claim or declaration: be set out succinctly
without the introduction of any further documentary evidence and the explanation
pertaining to why the defence as plead ed by a defendant does not raise any issue for
trial should, as specifically required by the subru le be brief. Certainly, the explanation,
like the identification of po ints of law and facts, cannot be supported by a plaintiff
attaching further documents to the affidavit in support of summary judgment.”
[37] Furthermore, the court in Nissan Finance, a product of Wesbank, of FirstRand
Bank Limited v Gusha Holdings and Enterprises (Pty) Ltd and Another8, relying
on Mphahlele supra, held that:
”Rule 32(4) expressly precludes the applicant in summary judgment proceedings from
adducing evidence otherwise than by the affidavit referred to in subrule 2. No annexures
to a plaintiffs verifying affidavit are allowed except if the claim is founded on a liquid
document, in which instance a copy of the document must be annexed to the affidavit ,
although the inclusion of evidence in the affidavit, or the annexing of documentary
evidence, will not invalidate the application, but will simply be ignored by the court.”
[38] I am of the view that the attachment of Annexures “LG1”, “LG2” and LG3” by the
plaintiff constituted new documentary evidence, while it may be an elaboration of
the plaintiff’s averments, I am in agreement with the defendant that it does
the plaintiff’s averments, I am in agreement with the defendant that it does
introduce new evidence in the application for summary judgement. Having regard
to the case law authorities discussed above, the inclusion of the Annexures does
not invalidate the plaintiff’s application for summary judgement, however, I will
simply ignore the Annexures.
[39] It is also contended by the defendant that the plaintiff introduced new evidence
in regard to its arguments in relation to the defendant’s marriage. In response
the plaintiff pointed out that the defendant ignored the provision of Rule 32 of the
8 [2023] ZAGPJHC 303 (5 April 2023) at para 29.
17
Uniform Court of Rules as amended and specifically subparagrap h 32(2)(b)
which states as follows:
”(b) The plaintiff shall in the affidavit referred to in Subrule 2(a), verify the cause of
action and the amount if any claimed and identify any point of law relied upon
and the facts upon which the plainti ff’s claim is based and explain briefly the
defence as pleaded does not raise any issue for trial.”
[40] In Tumileng Trading CC v National Security and Fire (Pty) Ltd 9 it was held that
the words “brief explanation as to why the defence as pleaded does not raise
any issue for trial” cannot be taken literally, for a plea that does not raise any
issue for trial would be excipiable. The court accordingly adopted a “reading -in”
approach as follows to give meaning to the words (emphasis my own):10
“I consider that the amended rule 32(2)(b) makes sense only if the word “genuinely” is
read before the word “raise” so that the pertinent phrase reads “explain briefly why the
defence as pleaded does not genuinely raise any issue for trial.” In other words, the
plaintiff is not required to explain that the plea is excipiable. It is required to explain why
it is contended that the pleaded defence is a sham. That such is implicit in what the Task
Team said in para. 8.3 of its memorandum. The position would have been made clearer
had the words ‘does not make out a bona fide defence” been used. That would have
made for a more clearly discernible connection between the respective requirements of
subrules (2)(b) and (3)(b). That there be such a connection is necessary if the amended
rule as a whole is to be workable.
What the amended rule does seem to do is to require the plaintiff to consider very
carefully its ability to allege a belief that the defendant does not have a bona fide
defence. This is because the plaintiff ’s supporting affidavit now falls to be made in the
context of the deponent’s knowledge of the context of a delivered plea. That provides a
context of the deponent’s knowledge of the context of a delivered plea. That provides a
plausible reason for the requirement of something more that a ‘formulaic’ supporting
affidavit from the plaintiff. The plaintiff is now required to engage with the content of the
plea in order to substantiate its averments that the defence is not bona fide and has
been raised merely for the purposes of delay.
9 2020 (6) SA 624 (WCC).
10 Supra at paras 21, 22, and 40.
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However, does the fact that the bones of a triable defence have been made out in the
plea mean that summary judgment must be refused? The answer is clearly “no”! The
reason for the negative answer is that the enquiry is not whether the plea discloses “an
issue for trial” in the literal sense of those words, it is whether the ostensible defence
that has been pleaded is bona fide or not. As discussed earlier, that is the relevant
enquiry in a summary application follows from the rule-maker’s decision to leave subrule
32(3) substantively unamended.”
[41] The plaintiff therefore contended that it was fully within its rights to deal with the
defences raised by the defendant. I am in agreement with the plaintiff that insofar
as the plaintiff has provided its responses to allegations made in the affidavit
resisting summary judgment read together with the defendant’s plea, such
responses fall within the category of briefly discussing the defences raised as
contemplated by Rule 32(2)(b) of the Uniform Court of Rules.
[42] The defendant also accused the plaintiff of failing to explain the basis on which
the “conditions precedent ” was suspended and the fact that the plaintiff was
reckless in over extending credit to the primary debtor. Furthermore, the
defendant contended that the the plaintiff has not addressed the fact that the
defendant was not informed in writing of the variations to the agreements. In
response the plaintiff stated that between paragraphs 42 and 51 of its founding
affidavit, the plaintiff deals with the defendant’s speci al plea wherein the
defendant suggests that the agreement is subject to suspensive conditions that
were not fulfilled. The plaintiff averred that this is a sham defence. The plaintiff
further averred that it has explicitly demonstrated that insofar as there were
conditions contained in the agreement, they were certainly not suspensive
conditions considering that the plaintiff was always at liberty to advance the credit
conditions considering that the plaintiff was always at liberty to advance the credit
before the fulfilment of conditions as contemplated by the agreement.
Notwithstanding, th at I will not take the LG Annexures into account , in the
premises, I am of the view that the defence raised by the defendant is not bona
fide, as the papers indicate that the defendant signed in his capacity as director
and was aware that the credit had been advanced. The defendant, furthermore,
accused the plaintiff that it failed and refused to aver when and how the R7 500
000 reduction was made in terms of the special conditions? This is in regard to
the overdraft facility agreement special condition which is set out in clause 8 of
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the agreement . The plaintiff submitted that it has complied with the special
condition. Having regard to the papers, in my view clause 8 sets out clearly when
the reduction should have taken place, it states “once -off reduction of R7 500
000 on 30/10/2023 or on payout of MMBL whichever occurs first.”
[43] In addition, the defendant accused the plaintiff of not including the board
resolution and the constitutional documents supporting that the defendant was
duly authorised to enter into the agreements. I am of the view, that if the
defendant wanted to contend that he did not have authorisation to to enter into
the agreements, the onus is on him to raise the defence and provide proof
thereof.
[44] The defendant contended that the plaintiff failed to take th e court into its
confidence as to why the defendant should be liable to pay R10 372 856, 20
when the second term facility, advanced to the primary debtor for an overdraft of
R10 000 000 was approved and the amount claimed by the defendant has since
increased to R10 372 856. 20 , as per claim B . It is further contended by the
defendant that it is unclear from the papers before the court whether the plaintiff
increased the overdraft facility and/or the amount is incorrect. The plaintiff
correctly pointed out to the defendant that the outstanding debt amount regarding
the overdraft facility has interest running which would lead to an increase in the
amount and exceeding a facility limit is not a defence. Having regard to the
overdraft facility agreement it does make provision in clause 16.1 “overdr aft
facility terms” for the extension of the credit limit. In my view, the defendant does
not take the court into his confidence by disclosing or producing any evidence to
show that the overdraft facility limit was not exceeded and/or that payments were
made which would render the amount reflected in the certificate of balance as
incorrect. The defendant simply makes a bare and blanket denial that the amount
incorrect. The defendant simply makes a bare and blanket denial that the amount
is disputed. In the premises, I am of the view that the defence raised by the
defendant in regard to claim B is not a bona fide defence and does not establish
a triable issue.
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[45] The plaintiff directed the court to the case of Blakes Maphanga Inc v Outsurance
Insurance Co mpany Ltd11 where the Supreme Court of Appeal cited with
approval the concept of “liquidated amount in mone y” as set out in Tredoux v
Kellerman12 case:
”A liquidated amount of money is an amount which is either agreed upon or which is
capable of ‘speedy and prompt ascertainment’ or put differently, where ascertainment
of the amount in issue is a ‘mere matter of calculation.”
[46] In regard to claims A, B and C the defendant submitted that the amounts claimed
by the plaintiff are disputed by the pri ncipal debtor; it has been disputed by the
principal debtor in the pending winding up application brought by the plaintiff.
However, the defendant in this matter does not provide any information regarding
the grounds on which the amounts are disputed. There is no defence provided
by the defendant as to why and how the amounts reflected in the certificate s of
balance are incorrect, except for the blanket statement that the amounts are
disputed by the principal debtor. I am of the view that the defendant therefore
has not challenged the plaintiff’s evidence (certificates of balance) with facts and
evidence to the contrary that establishes a bona fide defence. The defendant has
submitted that for the purposes of a summary judgment application, the
defendant’s affidavit opposing summary judgment is not required to deal
exhaustively with the facts and evidence relied upon to substantiate them. What
is required is that the defendant must disclose his defence and material facts
upon which it is based, with sufficient particular ity and completeness to enable
the court to decide whether the affidavit discloses a bona fide defence. It is further
submitted by the def endant, correctly, that he is not required to formulate his
defence with the same level of precision as a plea and the court will not examine
the affidavit with the same level of pleadings. However, in the premises, I am of
the affidavit with the same level of pleadings. However, in the premises, I am of
the view that the defendant has not disclosed the material facts upon which his
defence is based on with sufficient particularity and completeness to establish a
bona fide defence.
11 2010 (4) SA 232 (SCA) at para 17.
12 2010 (1) SA 160 (C) paras 18-23.
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Business Client Agreement
[47] The defendant contended that the business client agreement is not applicable to
the term loan facility because the business client agreement was signed on 10
May 2016 and the term loan facility was concluded in February 2023. In other
words, the business client agreement precedes the term loan facility. It is pointed
out by the plaintiff that when the defendant signed the business client agreement
on behalf of the principal debtor on 10 May 2016, he confirmed that the business
client agreement “ covers all b usiness banking products and services…” Thus,
properly construed, I am in agreement with the plaintiff that the provisions of the
business client agreement make it clear that they apply to all productise signed
either at the time that the business client agreement was signed, or all products
thereafter. In the circumstances, there is no grounds for the defendant to attempt
jettisoning the business client agreement.
The National Credit Act
[48] The defendant contended that the National Credit Act 34 of 2005 applies in this
matter. The plaintiff averred that the defendant failed to provide any basis to
countervail the allegations already made in the particulars of claim that the
agreements constitute large agreements concluded with a juris tic person and
therefore, such credit agreements are expressly excluded from the applicability
of the National Credit Act . I am in agreement that the National Credit Act does
not find application in this matter.
Conclusion
[49] In the circumstances, I am of the view that the plaintiff has demonstrated and
established a clear and enforceable claim in respect of claims A, B and C. The
ostensible defence pleaded by the defendant taken in its totality does not proffer
any triable defence or discloses a bona fide defence. It therefore follows that the
plaintiff is entitled to summary judgment.
Order
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Delivered: This judgment was prepared and authored by the Judge whose name
is reflected and is handed down electronically by circulation to the parties’ legal
representatives by email and by uploading it to the electronic file of this matter
on CaseLines. This matter was heard in open court on the 12 August 2025. The
date for hand down is deemed to be 11 November 2025.
APPEARANCES:
For the Plaintiff/Applicant: MR N ALLI instructed by JAY MOTHOBI
INCORPORATED
For the Defendant/Respondent: MS A CHOWAN instructed by SHABEER
JOOSAB ATTORNEYS
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