SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2023/031959
In the exception between:-
MERCY MMALEHLOHONOLO MOKGOLO
(Identity Number:8[…])
Applicant
and
NEDBANK LIMITED Respondent
This order is handed down electronically to the parties via email to the email
address indicated in the respective practice notes . The date of the order is
deemed to be 19 November 2025.
JUDGMENT
Reid J
Introduction
[1] The applicant applies on an urgent basis for an order to stay and
suspend the operation and execution of a summary judgment handed
down on 3 September 2025 under the above case number, pending the
finalisation of the applicant's rescission application. The summary
judgment orders the attachment and auction of a 2012 Nissan Juke 1.6
Acenta+, with Engine No: H[.. ], Chassis No: S[…] (the vehicle).
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[2] The applicant also requests that the Sheriff of the Court and/or any
other person be interdicted and restrained from attaching, removing,
selling or otherwise disposing of the a pplicant's assets, including the
vehicle that forms the subject of the instalment sale agreement,
pending the outcome of the rescission application.
[3] In oral argument, the applicant requested for the restoration of the
vehicle to her possession. This was not requested in the notice of
motion and the respondent consequently had not had an opportunity to
deal with this additional prayer. As such, the relief for restoration is not
before this Court and I do not deal with it.
[4] The applicant represented herself and the respondent was represented
by Adv Naudé.
Material background
[5] On 3 September 2025 a summary judgment was granted by D’Oliviera
AJ in favour of the respondent.
[6] The summary judgment reads as follows:
6.1. "Summary judgment is granted in favour of the plaintiff in the
following terms:
1. The written agreement concluded between the plaintiff and the
defendant dated 15 December 2017 is cancelled.
2. The sheriff is authorised and directed to attach, seize and
hand over the following vehicle to the plaintiff: 2012 Nissan
Juke 1.6 Acenta+, with Engine No: H[…], Chassis No: S[…].
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3. The defendant is ordered to pay the plaintiff's costs of suit.
4. The plaintiff is given leave to approach the court in due course
on the same papers, duly supplemented, to recover the
shortfall between what the plaintiff recovers on the vehicle and
the amount owed by the defendant to the plaintiff."
[7] After the summary judgment was granted, the vehicle was attached,
seized and handed over to the respondent. The respondent remains in
possession of the vehicle.
[8] The intention of the respondent to sell the vehicle on auction, came to
the attention of the applicant by virtue of being notified in terms of the
CaseLaw system. This was the instigating factor for the launching of
this application to stay the execution of the auction of the vehicle.
[9] The applicant filed a rescission application in terms of Rule 42(1)(a) to
set aside the judgment based on:
9.1. Defective and irregular service of the combined summons.
9.2. Non-compliance with the National Credit Act (sections 129 and
86(10).
9.3. Hearsay evidence and conflicting Certificates of Balance.
9.4. Misapplication of Rule 32 (court weighed merits instead of
assessing triable issues).
9.5. Updated Certificate of balance not uploaded on Case line nor
served on defendant or handed up in court.
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[10] The applicant has confirmed that the last payment made by herself to
the respondent, was on 1 November 2022 in the amount of
approximately R1,000. In the instalment agreement the parties agreed
to payment of approximately R14,000 per month. At this stage the
outstanding amount is approximately R185,000 and it is increasing
every month.
[11] The defence of the applicant to the main claim, is that she is under debt
counselling and has the intention to pay of the outstanding amount. In
relation to the outstanding arrears, the following was said by D’Oliviera
AJ in the summary judgment:
“32 The result of the defendant's election to persist in her
default is:
32.1 The agreement ran to completion on 25 December
2023, which was the date the defendant should
have paid the last instalment.
32.2 The credit agreement cannot be reinstated by
payment of arrears.
32.3 The amount owed by the defendant to the plaintiff
has increased from R141, 946.66, at the date of
service of combined summons, to R171, 278.361,
at the date of the hearing. The amount owed will
continue to increase with the aggregation of
interest at a compound rate of 14.3%.”
[12] The applicant admits that she remains in arrears and has failed to
honour the debt.
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Legal principles
[13] '(T)he basic principles for a grant of a stay in execution' were
expressed in the judgment of Waglay J in Gois t/a Shakespeare's Pub
v Van Zyl and Others 2011 (1) SA 148 (LC) at para 37, where the
learned judge held:
“The general principles for the granting of a stay in execution may
therefore be summarised as follows:
(a) A court will grant a stay of execution where real and substantial
justice requires it or where injustice would otherwise result.
(b) The court will be guided by considering the factors usually
applicable to interim interdicts, except where the applicant is not
asserting a right, but attempting to avert in justice.
(c) The court must be satisfied that:
(i) the applicant has a well -grounded apprehension that
the execution is taking place at the instance of the
respondent(s); and
(ii) irreparable harm will result if execution is not stayed and
the applicant ultimately succeeds in establishing a
clear right.
(d) Irreparable harm will invariably result if there is a possibility that
the underlying causa may ultimately be removed, ie where the
underlying causa is the subject -matter of an ongoing dispute
between the parties.
(e) The court is not concerned with the merits of the underlying
dispute - the sole enquiry is simply whether the causa is in
dispute.”
(own emphasis)
[14] In casu, the applicant does not have a clear right to possess, or prevent
execution of a summary judgment, where the clear right of ownership of
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the vehicle lies with the respondent in terms of the agreement. Only
after the debt has been paid in full, the vehicle will become the property
of the applicant. In terms of the agreement this was supposed to have
happened in 2023.
[15] The instalment agreement has been terminated by the failure of the
applicant to pay the monthly payment, and the termination of the
agreement has been accepted by the respondent.
[16] The applicant has no clear right to possession of the vehicle in the
absence of ownershi p. The balance of convenience favours the
respondent: should the execution be stayed, the arrears amount will
increase. This would be to the prejudice of not only the respondent,
but also the applicant.
[17] As such, I find that the application cannot succeed.
[18] The respondent has requested that the application be dismissed on the
merits, for it to be finalised. If the matter is struck, the applicant can
proceed with the application on the normal roll.
[19] In the circumstances of this matter, I agree with the respondent that a
postponement will delay the inevitable. In addition, the arrear amount
will increase to the prejudice of both parties. This would not be in the
interest of justice.
[20] As such, I deem it appropriate that the application be dismissed rather
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than being struck from the roll.
Cost
[21] The general principle is that the successful party is entitled to its costs.
[22] The issue of costs is in the discretion of the court, to be executed
judicially.
[23] I find no reason to deviate from the general principle in costs and the
respondent is entitled to its costs.
[24] I find no reason to deviate from the normal scale of costs, which is
party and party. In terms of Rule 68A of the Uniform Rules of Court,
costs other than that of Scale A should only be imposed where there is
a reason for granting a higher scale of costs. This matter does not
justify the granting of a higher scale. The applicant should thus be
ordered to pay the cost of the respondent on Scale A, party and party.
Order
In the premise, the following order is granted:
(i) The application is dismissed.
(ii) The applicant is to pay the costs of the respondent on Scale A,
party and party.
________________________________
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FMM REID
JUDGE OF THE HIGH COURT
GAUTENG DIVISION JOHANNESBURG
DATE OF ARGUMENT: 16 OCTOBER 2025
DATE OF JUDGMENT: 19 NOVEMBER 2025
APPEARANCES
FOR THE APPLICANT: IN PERSON
MERCY MMALEHLOHONOLO MOKGOLO
Email: mercy.mokgolo@gmail.com
FOR THE RESPONDENT: ADV NAUDĒ
INSTRUCTED BY: HAMMOND POLE MAJOLA INC
C/O VERMAAK & PARTNERS INC
Email: domw@hammondpole.co.za
Ref: MAT453933/JJVV/dw