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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2024-086870
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
In the matter between:
SOUTH AFRICAN SECURITISATION Applicant
PROGRAMME (RF) LIMITED
and
PRO PHIL STEEL SERVICES (PTY) LIMITED First Respondent
(Registration Number: 2016/069421/07)
CLINTON VAN DER MERWE Second Respondent
(Identity Number: 9[…])
JUDGMENT
SENYATSI J
Introduction
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[1] This is an application for summary judgment brought by the Plaintiff against
the First and Second Defendants, jointly and severally, for payment of the
capital sum of R156,190.28, together with interest and costs on the attorney
and client scale. The Defendants oppose the application and seek leave to
defend.
[2] The application is premised on a hire agreement entered into between the
First Defendant and Sunlyn (Pty) Ltd, which was subsequently ceded to
Sasfin Bank Limited and thereafter transferred to the Plaintiff. The Second
Defendant bound himself as guarantor and co-principal debtor.
[3] The Defendants, in their plea and opposing affidavit, raise several purported
defences, including challenges to the Plaintiff’s locus standi, the legibility of
the contract, alleged cancellation due to repossession, and bare denials of the
guarantee and breach.
[4] The application for summary judgment is brought in terms of Uniform Rule
of Court 32. The Plaintiff claims payment of arrears and accelerated future
rental due under a hire agreement, together with interest and costs. The
Defendants have filed an opposing affidavit and heads of argument.
The Respondents Defences
[5] The Respondents raise the following defence:
(a) Lack of locus standi;
(b) The alleged illegibity;
(c) Bold denial of breach by failure to pay;
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(d) Alleged repudiation of contract by the applicant and subsequent
possession;
(e) Bare Denial of Guarantee and Certificate of Balance and
(f) The alleged lack of the Applicant ‘s deponent’s authority.
[6] Before dealing with each defence , it is crucial that this Court deals with the
applicable legal principles pertaining to summary judgment,
Legal Principles
[7] The summary judgment application is regulated by Rule 32 of the Uniform
Rules which states thus:
“ Summary judgment
(1) The plaintiff may, after the defendant has delivered a plea,
apply to court for summary judgment on each of such claims in
the summons as is only—
(a) on a liquid document;
(b) for a liquidated amount in money;
(c) for delivery of specified movable property; or
(d) for ejectment.”
[8] The objective of the rule is to prevent a plaintiff’s claim, based upon certain
causes of action, from being delayed by what amounts to abuse of the
process of court.
1 The procedure is not designed to shut down a defendant
1 Meek v Kruger 1958(3) SA154(T)at 159 -160; Joob Joob Investments (Pty)Ltd v Stocks Mavundla Zek Joint
Venture 200(5) SA 1 (SCA)at 11C-G.
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who can show that there is a triable issue applicable to the claim from laying
his defence before the court.2
[9] It therefore clear that t he legal principles governing summary judgment are
settled. The purpose of the remedy is to allow the court to dispose
summarily of matters where the defendant has no bona fide defence. The
label of summary judgment as “drastic” should not be allowed to protect a
defendant who has no real defence.3
[10] A defendant opposing summary judgment must satisfy the court by
affidavit that he has a bona fide defence, which is stated with sufficient
clarity and completeness to enable the court to conclude that, if proved at
trial, it would constitute a valid defence.4
Analysis of Defences Raised
(a) Locus Standi
[11] The Defendants challenge the Plaintiff’s locus standi on the basis that they
were not privy to the cession and transfer agreements and that the
documentation presented does not clearly establish a valid cession from
Sunlyn to the Plaintiff.
[12] This contention is without merit. The Plaintiff’s particulars of claim clearly
set out the chain of cession: first from Sunlyn to Sasfin Bank Limited, and
then from Sasfin to the Plaintiff via a sale transfer agreement. The
Defendants are strangers to these agreements and cannot impugn them .5
2 Majola v Nitro Securitisation 1 (Pty)Ltd 2012 (1) SA 226(SCA) at 232F-G.
3 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Ventures 2009 (5) SA 1 (SCA) at para 33.
4See Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426 C.
5Letseng Diamonds Ltd v JCI Ltd and Others 2009 (4) SA 58 (SCA)
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Moreover, the court in South African Securitisation Programme (RF) Ltd
and Others v 7 SIRS Group (Pty) Ltd and Others 6rejected an identical
defence as not constituting a triable issue.
[13] The Defendants’ reliance on the fact that Venga Tel is named as vendor in
the sale transfer schedule is misplaced. Venga Tel was the supplier
responsible for delivery and installation, a fact admitted by the Defendants
in their plea. This does not detract from the validity of the cession chain.
(b) Illegibility of Contract
[14] The Defendants allege that the hire agreement annexed to the particulars of
claim is illegible and therefore not the contract they signed. However, they
have not availed themselves of the Uniform Rules to request a better copy,
nor have they explained why they do not have their own copy. Critically,
they admit the material terms of the agreement in their plea, including the
rental amount, escalation clause, and the acceleration clause entitling the
Plaintiff to claim future rentals upon default.
[15] In similar circumstances, this division has held that such a complaint does
not constitute a bona fide defence.7
(c) Breach and Non-Payment
[16] The Defendants deny being in breach but provide no factual basis for this
denial. In their opposing affidavit, the Second Defendant admits that the
First Defendant was in arrears as early as September/October 2023 due to
cash flow problems. They also admit the acceleration clause which entitles
6 2024 JDR 1230 (WCC) at para 31.
7 South African Securitisation Programme RF Ltd v Initiative for Specialized Resources Management (Pty) Ltd and
Others 2024 JDR 2364 (GJ) at para 15.
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the Plaintiff to claim all future rentals upon default. Despite this, they have
not provided any evidence of payments made thereafter.
[17] Bare denials, unsupported by facts, are insufficient to resist summary
judgment.8
(d) Cancellation Due to Repossession
[18] The Defendants contend that the Plaintiff repudiated the agreement by
repossessing the equipment without consent or a court order, thereby
cancelling the agreement. This argument fails for several reasons.
[19] First, on the Defendants’ own version, the Plaintiff’s right to claim the full
outstanding amount had already accrued in late 2023 due to their admitted
default. The alleged repossession in early 2024 is therefore irrelevant to the
Plaintiff’s accrued claim.
[20] Second, the Defendants admit in their plea that the hire agreement entitles
the Plaintiff to repossess the equipment upon default. Their belated
suggestion that consent or a court order was required is unconvincing and
unsupported by any evidence.
(e) Bare Denial of Guarantee and Certificate of Balance
[21] The Defendants baldly deny the guarantee and the certificate of balance
clause. The guarantee is legible and bears the Second Defendant’s
identifiable signature. No factual basis is advanced to contest its validity.
Similarly, the certificate of balance is legible and unchallenged on the facts.
[22] A bare denial, without more, does not constitute a defence.9
8 NPGS Protection and Security Services CC and Another v Firstrand Bank Limited 2020 at para 14.
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(f) Deponent’s Authority
[23] The Defendants challenge the authority of the Plaintiff’s deponent without
invoking Uniform Rule 7 or providing any factual basis for the challenge.
This court has consistently held that such a challenge, made in the absence
of a Rule 7 application, is not a valid defence. 10 It will therefore be remiss of
this Court in its duty not to apply the legal principles based on the facts of
this case by refusing to grant the summary judgment.
Conclusion on Defences
[24] None of the defences raised by the Defendants, whether considered
individually or collectively, disclose a bona fide defence that is stated with
sufficient particularity. The defences are vague, sketchy, contradictory, and
in some instances, contradicted by the Defendants’ own admissions. They do
not meet the standard required to resist summary judgment as set out in
Breitenbach v Fiat SA (Edms) Bpk . and reaffirmed in Joob Joob.
Costs
[25] The agreement provides for costs on an attorney and client scale, a term
admitted by the Defendants. There is no reason to deviate from this agreed
term.
9 Maharaj v Barclays National Bank Ltd, supra at footnote 4.
10 Firstrand Auto Receivables (RF) Ltd v Makgobatlou 2021 JDR 2131 (GJ).
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Order
[26] Summary judgment is granted in favour of the Plaintiff against the First and
Second Defendants, jointly and severally, the one paying the other to be
absolved,for:
(a) Payment of the sum of R 156,190.28;
(b) Interest on the aforesaid amount at the applicable mora rate from
date of demand to date of final payment;
(c) Costs of suit on the scale as between attorney and client.
ML SENYATSI
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
DATE APPLICATION HEARD: 25 JANUARY 2026
DATE JUDGMENT HANDED DOWN: 02 FEBRUARY 2026
APPEARANCES
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Counsel for the Applicant: ADV N LOMBARD
Instructed by: WRIGHT ROSE INNES INC
Attorney for the Respondents: ORA DIPPENAAR
Instructed by: DIPPENAAR ATTORNEYS