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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2019-28951
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED: NO
DATE: 11/11/2025
SIGNATURE:
In the matter between:-
ABSA BANK LIMITED Plaintiff
and
FRANS LODEWYK MUNNIK BASSON First Defendant
THE BASSON FAMILY PROPERTY GROUP (PTY) LTD Second Defendant
JUDGMENT
Mfenyana J
[1] This is an application for absolution at the instance of the defendants after the
close of the plaintiff’s case. The plaintiff sued out a summons against the
defendants, claiming various amounts and an order declaring specially
executable, certain properties belonging to the second defendant, pledged as
security for the first respondent’s debts. In the alternative, the plaintiff seeks
an order declaring the loan agreement and the credit c ard facility agreement
void and the first defendant has been unduly enriched at the expense of the
plaintiff. The claims arise from written agreements concluded between the
parties in 2011 and 2012, essentially extending a loan and a credit facility to
the defendants. The plaintiff claims that it fulfilled all its obligations in terms of
the agreement and paid the funds to the first respondent.
[2] Both respondents have defended the action , citing various reasons, key to
which is that the loan agreement was s ubject to certain conditions, none of
which were fulfilled by the plaintiff.
[3] When the trial commenced, the plaintiff called four witnesses: Mr Wessel
Frederick Claassens (Mr Claassens), Mr Neville van Vuuren (Mr van Vuuren),
Ms Raafiqa Mahomed (Ms Mahomed) and Ms Amanda Jane Bekker (Ms
Bekker) to testify. The plaintiff thereafter closed its case.
[4] Mr Claassens testified that he was the banker responsible for the first
defendant’s portfolio with the plaintiff. During cross -examination, the issue
turned on whether the condition that required the First National Bank bond to
be settled and cancelled had been fulfilled. Mr Sullivan, counsel for the
defendants, challenged Mr Classens, stating that ABSA did not settle the FNB
bond, and highlighted that Mr Classens could not provide any document
proving otherwise. Mr Oliveira, for the plaintiff, confirmed th at no such
documents had been submitted. Mr Claassens, however, testified that the
bond would not have registered if the obligation with FNB had not been
cancelled.
[5] Mr van Vuuren testified that he was employed as a banker with ABSA Wealth .
He explained the process involved when migrating clients to Wealth. He
stated that the bank increases the limit, restructures the account and consults
the client if more information is required. He testified that he met with the first
defendant to discus s a request to increase facilities. He stated that although
he understood that the first defendant would be able to afford the increased
credit, he still had the responsibility to confirm this. He denied that the granting
of the loan by ABSA rendered the f irst defendant over -indebted, and stated
that, in those circumstances, he would not expect the first respondent to apply
for an additional loan.
[6] During cross-examination, Mr van Vuuren conceded that he was not involved
in the process leading to the agree ments and did not play a part in it. He
confirmed that it was a decision taken by ABSA to migrate the first defendant
to ABSA Wealth; however, discussions were held with both Mr Claassens and
the first defendant. When it was put to him by Mr Sullivan that there was no
application and thus the first defendant would testify that he did not apply for
the credit granted to him, Mr van Vuuren stated that there would not be an
application form, as the first respondent was referred to him by Mr Claassens.
He further testified that before a submission is sent to Credit, the banker, in
this case, Mr Claassens would obtain information from the client. When it was
put to Mr van Vuuren that the submission for credit assessment was not
completed by the first defendant, h e stated that the increase in the amount
comes from him, as the document is populated at the client’s request. He
vehemently refuted the suggestion that the first defendant did not apply for the
facility, stating that the instruction was from the first de fendant or the second
defendant.
[7] The plaintiff’s third witness, Ms Mahomed, a regional manager employed by
ABSA, testified about the process involved in credit applications and
assessments. She stated that for the loan in the present matter, there must
have been an assessment done. She added that once approved, an
application is valid for 6 months.
[8] Ms Bekker testified that she was employed by ABSA from 2013 to 2025,
responsible for debt recovery in the defendant’s case. She testified that in her
capacity as a recovery specialist, she met with the first defendant multiple
times, and he assured them that he had various sources to settle the debt. Ms
Bekker submitted financial records and certificates proving the debt, which the
defendants did not contest. She is the manager who signed the certificates of
balance. She, h owever, confirmed she had no involvement in granting the
original loan or credit card.
[9] At the close of the plaintiff’s case, t he defendant applied for absolution ,
contending that the plaintiff had failed to prove that the conditions were met
and consequently no agreement existed.
[10] The test for absolution from the instance was formulated in Claude Neon
Lights SA Ltd v Daniel1 as follows:
“. . . when absolution from the instance is sought at the close of
plaintiff's case, the test to be applied is not whether the evidence led by
plaintiff establishes what would finally be required to be established, but
whether there is evidence upon which a Court, applying its mind
1 1976 (4) SA 403 (A).
reasonably to such evidence, could or might (not should, nor ought to)
find for the plaintiff. (Gascoyne v Paul and Hunter, 1917 T.P.D. 170 at
p. 173; Ruto Flour Mills (Pty.) Ltd. v Adelson (2), 1958 (4) SA
307 (T)).”2
[11] ‘This implies that a plaintiff has to make out a prima facie case - in the sense
that there is evidence relating to all the elements of the claim - to survive
absolution because without such evidence no court could find for the plaintiff’
(Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) 37G-
38A; Schmidt Bewysreg 4th ed 91-92). As far as inferences from the evidence
are concerned, the inference relied upon by the plaintiff must be a reasonable
one, not the only reasonable one…’
[12] The question is whether , at the close of the plaintiff’s case, there was such
evidence … assuming it were true, upon which a reasonable court might, not
should, give judgment against the defendant. In other words, “whether a court,
if no further evidence was led, after reasonable application of its mind, might
find in favour of the plaintiff”3.
[13] It follows from the above that the court, in such an application, does not
concern itself with the defendant’s plea, but rather with whether the plaintiff
has discharged its onus of showing the existence of a prima facie case.
2 At 409G – H.
3 De Klerk v ABSA Ltd and Others 2003 (4) SA 315 (SCA).
[14] The Court has a discretion to grant or refuse absolution and, in the exercise of
this discretion, the Court would normally not have regard to the credibility of
witnesses unless there was a serious issue regarding the credibility of such
witnesses to the e xtent that the Court was unable to place any reliance upon
them and the Court may also have regard to the possibility that the plaintiff’s
case may be strengthened by evidence emerging during the defendant’s
case4.
[15] In Ruto Flour Mills (Pty) Limited v Adolfson5, the court stated as follows with
reference to Gascoine v Paul and Hunter6:
“At the close of the case for the plaintiff therefore the question which arises for the
consideration of the Court is, is there evidence upon which a reasonable man might find
for the plaintiff. … If the defendant does not call any evidence but closes his case
immediately the question for the Court would then be: is there such evidence upon
which the Court ought to give judgment in favour of the plainti ff. If the evidence is not
only not convincing but actually found by the trial Court to be an utter fabrication (see:
Cats v Bloomfield 1914 TPD 397 ; Theron v Bear 1918 CPO 443, Hutchinson v
Fourie 1930 TPD 740) or if the pure fact is that it is too vague and contradictory to
serve as proof for the question in issue, then it would be evidence upon
which a reasonable man would not find and the Court would be perfectly justified in
granting absolution from the instance at the close of the case for the plaintiff.”
[16] In applying for absolution, Mr Sullivan stated on behalf of the defendants that
the evidence presented by the plaintiff is insufficient for a ruling to be made
4 Fedgas (Pty) Ltd v Rack-Rite Bop (Pty) Ltd 1997 3 All SA 68 (B).
5 1958 (4) SA SALR 307 (TPD).
6 Gascoine v Paul and Hunter - Transvaal Provincial Division Law Reports 1917, 170 at 173.
against the defendant. He submitted that the re is no evidence upon which a
court, acting reasona bly, might find for the plaintiff. He further submitted that
there is no prospect that the plaintiff’s claim might succeed . There is thus no
need for the defendants to go through the trouble and expense of mounting a
defence against the plaintiff’s claim , and the defendants should be absolved ,
he added . For this proposition, he relied on th e well -known case of Claude
Neon Lights7.
[17] He further relied on Gordon Lloyd8 that the court is required to find that there
is evidence relating to all the elements of the claim, and that at this stage of
the enquiry , the court is concerned with what its judgment might be if the
evidence w ere believed and not whether it believes the evidence. Thus,
credibility is not a concern for the court at th is stage. Mr Sullivan further
submitted that a critical look at the particulars of claim indicates that the first
cause of action is in respect of the loan account agreement , but makes no
mention of the specific condition that the First National Bank bond account
6[...] should be closed and the bond cancelled.
[18] He further contended that the plaintiff had neither provided evidence nor
7 Claude Neon Lights (SA) Ltd v Daniel 1976(4) SA 403 (A).
8 Gordon Lloyd Page & Associates v Rivera and Another (384/98) [2000] ZASCA 33; 2001 (1) SA 88
(SCA); [2000] 4 All SA 241 (A) (31 August 2000)
proven that the condition was fulfilled, nor demonstrated their own compliance
with the condition. He stated that only after doing so should the plaintiff be
required to prove the de fendants’ breach. He also noted that Mr Claassens
admitted that, if the condition was not met, the loan amount should not have
been disbursed, and that proof of compliance would be a guarantee issued by
ABSA to FNB. Under these circumstances, the plaintiff cannot succeed with
its claim against the defendants.
[19] According to Mr Sullivan, the payment and cancellation of the FNB bond was
a condition precedent, and therefore , the plaintiff cannot enforce any rights
arising from the agreement until that condition has been satisfied. He
referenced various decisions of the SCA , indicating that the non -fulfilment of
suspensive conditions affects the agreement, emphasising that the burden of
proving the fulfilment of these conditions rests on the plaintiff. He noted that
Mr Claassens’s evidence was that the condition should have been met.
[20] Additionally, he noted that the terms of the credit facility were not included in
the pl eadings. He further argued that of the plaintiff's witnesses, only Mr
Classens provided testimony relevant to the credit card and loan agreement,
as the other three witnesses were not involved at the relevant time and did not
address these issues. The defe ndants argued that since the conditions of the
agreements were not fulfilled, no credit agreement came into existence and,
therefore, there is nothing to enforce.
[21] On the issue of the first defendant’s marriage, Mr Sullivan submitted that the
plaintiff has failed to prove that the first defendant is married out of community
of property.
[22] On these grounds, Mr Sullivan submitted that absolution should be granted
with costs.
[23] In response, Mr De Oliveira characterised the defendants’ application for
absolution as a storm in a teacup. He argued that the court should determine
whether the plaintiff has made out a prima facie case, and ‘in case of doubt as
to what a reasonable court might do, the cou rt should lean on the side of
allowing the case to proceed’. He added that “the plaintiff should not lightly be
deprived of his remedy without the evidence of the defendant being heard. A
defendant who might be afraid to go into the witness box should not be
permitted to shelter behind the procedure of absolution from the instance.” 9 If
certain facts in issue are within the knowledge of the defendant, the court
should refuse absolution - if the burden of proof was on the defendant in
proving some of the issues.
9 Supreme Service Station (1969)(Pty) v Fox and Goodridge (Pty) Ltd 1971 (4) SA 90 (RA) at 93.
[24] He argued that Mr Sullivan incorrectly takes for granted that clause 3.1. of the
loan agreement is a condition precedent or a resolutive condition, which it is
not. He stated that the court would have to interpret whether this is a condition
(precedent or resolutive) or just a term. In the replication, the plaintiff denied
that the conditions amount to conditions precedent. With reference to
Firstrand Bank Limited v Nel10 and Vega Holdings11 Mr De Oliveira submitted
that the interpretation of the condition must be determined from the proper
interpretation of the language used by the parties. Do the y suspend the
operation of all or some of the terms of the contract until the occurrence of an
uncertain future event , or are they just terms of the agreement ? He further
submitted that in ordinary parlance, terms are loosely referred to as
conditions, but they are not. True suspensive conditions render the operation
of the entire contract dependent upon an uncertain event , he said, and t here
is no magic in the use of the term ‘condition’.
[25] Citing Wallis JA in Comwezi Security Services (Pty) Ltd v Cape
Empowerment Trust Ltd 12, Mr De Oliveira argued that reliance on the
subsequent conduct of the parties where there is ambiguity in a contract could
be taken into account in preferring one interpretation over the other. The
conduct of the parties in implementing the contract in this matter is that funds
10 2022 JDR 2393 (GJ).
11 Firstrand Bank Limited v Vega Holdings Proprietary Limited 2021 JDR 2673 (GJ).
12 (759/11) [2012] ZASCA 126 (21 September 2012).
were disbursed, a deed of suretyship was executed by the second
respondent, two properties of the second respondent were mortgaged to the
plaintiff, and the first defendant pa id the instalments for 6 years. Therefore, it
is probable that the first respondent wants to shelter behind the process to
avoid giving evidence.
[26] He submitted that the courts will adopt an interpretation which gives business
efficacy to the contract rather than destroying the contract , particularly where
the parties have conducted themselves in a manner which suggests that they
hold the contract as valid. Where a contract is unconditional on the face of it,
the onus is on the party who alleges such a condition to prove it. Where there
is doubt, the court should lean in favour of keeping the contract alive. With
reference to Vega Holdings, a judgment of this Division which was upheld by
the Full Court, where Keightley J held that if on the face of it the provision is
enforceable, it is a term, but if it depends on an uncertain future event, it is a
condition precedent in the strict sense. Mr De Oliveira argued that it was not
put to the plaintiff’s witnesses that the first defendant would raise that there
was a condition precedent, consequent to which the contract did not take
effect. The closing of the undefined FNB account that must be clos ed
appears to be within the control of the first defendant.
[27] It was further argued on behalf of the plaintiff that the terms of the loan
agreement and the credit card are what they are. There is no dispute about
them. It is also common cause that the credit card facility was made available
to the first respondent. It is also common cause that the first respondent
accepted the credit card facility and expended the funds.
[28] The plaintiff argued that the importance of Mr van Vuuren’s evidence is that, in
November 2023, the first defendant applied for a further loan and, in doing so,
acquiesced and affirmed the existence of the 2012 loan, and the first
defendant was the controlling mind of this process. It also relates to the issue
of s15(4) of the Matrimonial Property Act , which states that if the non -
consenting spouse ratifies the contract within a reasonable time, the contract
becomes valid and enforceable , with retrospective effect. The onus is on the
first defendant to prove that the contract was not entered into in the ordinary
course of business.13
[29] Regarding the dispute about the NCA, the burden of proof that an agreement
is reckless, results in over -indebtedness, and should be set aside, rests with
the consumer. The plaintiff submitted that the application should be dismissed
with costs, and that the determination of the scale of costs should be reserved
13 Strydom v Engen Petroleum Ltd 2013 (2) SA 187 (SCA).
until it is finally decided whether the agreement was conditional.
[30] In reply, Mr Sullivan submitted that the test requires this court to consider the
evidence and not arguments on interpretation. He stated the evidence is that
the condition must be fulfilled by ABSA and not the first defendant, before the
funds could be paid. He s tated that this amounts to a suspensive condition . I
must immediately state that Clause 3.1.3.3 makes no mention of when and by
whom it should be met. He stated that this accords with the wording of the
agreement(subject to), which renders it a suspensive condition. Mr Sullivan
further submitted that the court should only consider itself with the particulars
of claim, which states that all suspensive con ditions were met. He argued that
Vega Holdings is distinguishable on the facts
[31] It seems to me that the determination of whether or not the plaintiff has made
out a case sufficient for this court to require the defendants to respond thereto
lies in whether there is sufficient evidence presented by the plaintiff upon
which this court, acting reasonably, might find in their favour. The question is
not whether the plaintiff has proven their entire case, but whether they have
established a prima facie case. Having regard to the surrounding
circumstances in light of Endumeni14 and Comwezi15, there can be no doubt
14 Natal Joint Municipal Pension Fund v Endumeni Municipality (920/2010) [2012] ZASCA 13; [2012] 2
All SA 262 (SCA); 2012 (4) SA 593 (SCA) (16 March 2012).
15 Ibid, note12.
that both the plaintiff and the defendants implemented the contract in a
manner which suggests that they both considered the contract to be in
existence, and more importantly, that they considered themselves bound by
the terms thereof and acted in accorda nce with that belief. That, in my view ,
should dispose of any suggestion that the agreement did not come into
existence. Both parties kept their respective sides of the bargain. The
defendants have failed to meet the requirements for absolution.
[31] In the result, I make the following order:
a. The application for absolution from the instance is dismissed.
b. The defendants shall pay the costs of the application , the scale of which
costs shall be determined in the final hearing of the matter.
_____________________________
S MFENYANA
Judge of the High Court
Johannesburg
Appearances
For the plaintiff/respondent : Adv M De Oliveira instructed by Lowndes
Dlamini incorporated
marco@maisels3.co.za
alex@lowndes.co.za
utara@lowndes.co.za
For the defendant/ applicant : Adv J H Sullivan instructed by TF Kruger
Incorporated
john@clubadvocates.co.za
kruger@tfkrugerattorney.co.za
odette@tfkrugerinc.co.za
Date of hearing : 16 April 2025
Date of judgment : 11 November 2025