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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
Case no: D11901/2024
In the matter between:
FIRSTRAND BANK LIMITED APPLICANT
and
RAJENDRA PILLAI RESPONDENT
Coram: MOSSOP J
Heard: 4 February 2026
Delivered: 4 February 2026
ORDER
The following order is granted:
1. The applicant’s application is dismissed.
2. The respondent’s counter application is granted, and the following is
ordered:
(a) The applicant is directed to render to the respondent within two
months of the date of this order a true and proper statement of account, with
substantiating documents, reflecting the admitted payment by the
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respondent of the amount of R114 000 into his home loan account held with
the applicant and proof of how and when the aforementioned sum was
depleted and applied by the applicant;
(b) The applicant is ordered to debate the home loan account with the
respondent within one month of the date upon which it was rendered to the
respondent in terms of sub-paragraph 2(a) above.
3. There shall be no order as to costs.
JUDGMENT
MOSSOP J:
Introduction
[1] This is an ex tempore judgment.
[2] The applicant seeks a money judgment against the respondent in the amount
of R108 000. The debt allegedly arises out of the breach by the respondent of his
repayment obligations to the applicant in respect of a loan that he received from the
applicant (the loan). The loan was negotiated by the respondent in order to purchase
an immovable property, which was , in turn, bonded to the applicant by the
respondent as security for the loan received. The applicant also seeks an order
declaring the bonded immovable property to be specially executable.
[3] The respondent resists that relief on the basis that he paid a n amount of
R114 000 into his bond account (the bond account) with the applicant that has not
been accounted for by the applicant, and that he is consequently not in breach, or
arrears, with his payment obligations to it.
The alleged indebtedness
[4] The applicant is a large national commercial bank that, inter alia, lends money
to its customers . It alleges that in July 2005 it agreed to advance a loan to the
respondent in the amount of R250 000. Five months later, in December 2005, it
agreed to lend a further sum of R112 000 to him.
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[5] As mentioned earlier, the monies loaned to the respondent were used by him
to acquire an immovable property (the property). The property has the formal
description of:
‘Portion 8 […] of Erf 1[...] C[...] , Registration Division F.T., Province of KwaZulu -Natal in
extent 232 square metres held by Deed of Transfer T05/41243’.
[6] The property is a residential property, and a first mortgage bond was passed
over it by the respondent in favour of the applicant on 17 August 2005 and a second
mortgage bond was similarly passed over the property on 13 January 2006.
[7] In breach of the loan agreement, the applicant alleges that the respondent
has not adhered to the repayment obligations that he agreed to and fell into arrears.
The consequence of that breach was that summons was issued against him, which
has led, inexorably, to this application for judgment.
The respondent’s defence to the applicant’s claim
[8] The respondent has throughout the life of the applicant’s legal proceedings
against him conducted his own defence without the assistance of a legal
representative. He has, however, delivered an answering affidavit that bears the
hallmark of having been created by someone with some knowledge of how such
affidavits should be drafted.
[9] The respondent suggest s in his answering affidavit that there are
unaccounted for funds in the amount of R114 000 that he has paid to the applicant .
The applicant came to refer to this alleged payment as a ‘pre -payment’. I am not
sure why it was given this moniker , but to ensure consistency, I shall also use it to
refer to this alleged payment.
[10] There was initially some uncertainty over th e quantum of the pre -payment
because of the following statement made by the respondent in his answering
affidavit:
‘The applicant failed to highlight the fact that the bond account was advanced by more than
R114 000 (one hundred and fifteen thousand rands) in April 2018, thereabouts, and have
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failed to submit to the respondent the reasons and whereabouts these funds are allocated to
and why this amount was not used to settle the account.’
[11] The respondent, however, went on to assert in his answering affidavit that the
applicant acknowledged in April 2018 that:
‘… as of April 2018, the bond had an additional excess of R114 000 (one hundred and
fourteen thousand)’.
[12] It would seem therefore that the pre-payment amount is R114 000 and not
R115 000, despite the wording of the extract first mentioned above. Expanding upon
this submission, the respondent assert ed that a representative of the applicant had
advised him that:
‘… the additional advanced (sic) will be used by the applicant to pay the instalments when
the bond holder fails to do so.’
[13] The respondent accordingly denies that he failed to comply with his
repayment obligations to the applicant. He admits that he entered into the
transactions with the applicant . In a portion of his answering affidavit, under the
heading ‘Counter Claim’, he brings a counter application against the applicant. In it,
he claims a debatement of his bond account with the applicant that includes an
explanation of what became of the pre-payment.
The applicant’s reply
[14] The applicant replied to the answering affidavit and took the point initially that
what the applicant claimed was unsupported by any documentary proof of what he
alleged had occurred, the inference being that the respondent should not be believed
in the absence of such documentation . This would appear to include sowing doubt
over the correctness of the allegations regarding the pre-payment.
[15] The applicant, in reply, put up a statement of the respondent’s bond account
with it covering the period 2018 until 2025 1 (the account extract), which purported to
demonstrate that the respondent was, and remains , in arrears with his repayment
1 It will be remembered that the initial transaction was concluded in 2005 and so the documents put
up merely cover a short period in the total history of the respondent’s banking relationship with the
applicant.
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obligations to the applicant. I am not sure why this was only put up in reply and to my
thinking it should have formed part of the founding papers.
[16] Having considered the account extract, I am not sure that it established the
point that the applicant set out to make, as I now explain.
Analysis
[17] I have difficulties with both versions in this matter , but principally with the
applicant’s version.
[18] Commencing with the applicant’s version, the princip al difficulty is that it has
not satisfactorily dealt with the pre-payment by the respondent.
[19] The existence of the pre -payment is critical to the respondent’s defence and
to the just resolution of this matter. In the event that its existence is not established, it
appears to me that judgment must inevitably be entered against the respondent. The
criticism by the applicant of the fact that the respondent did not put up any
documentary proof establishing the pre -payment is a valid criticism . It has been
settled law for nearly eighty years in this country that where a payment is alleged to
have been made, the party alleging such payment must establish it. 2 The
respondent, without putting up proof of this pre-payment, has simply and baldly
alleged that he made it. A simple say so, without any form of objective proof, would
ordinarily be insufficient to establish the alleged payment relied upon.
[20] But this issue turns out to be no issue at all, because despite huffing and
puffing about the lack of documentation, the applicant, surp risingly, admits the pre -
payment was, indeed, made by the respondent . The applicant states in its replying
affidavit that:
‘… during April 2018, the Respondent pre -paid an amount of R114 000.00 into the home
loan account, where after (sic), the respondent had stopped making payments towards the
account. The monthly instalments and administration costs were set off against the aforesaid
pre-payment until the said amount had been depleted.
pre-payment until the said amount had been depleted.
2 Pillay v Krishna 1946 (AD) 946 at 960.
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[21] However, t he account extract put up by the applicant does not reveal the
presence of the pre-payment, which was admittedly made during April 2018. There is
no suggestion that it was paid into another account held by the respondent with the
applicant: the applicant states that it was made into the bond account. The account
extract also does not seem to reflect the periodic drawdowns apparently made
against the pre -payment. I confess that I have some difficulty with the idea that
drawdowns were made from the pre -payment because the account extract reveals a
balance owing of R81,345.49 as at 2 5 December 2017 and payment of R114 000
into the bond account would have settled the balance immediately. There would
logically be no further instalments due after the pre -payment and no need for any
drawdowns.
[22] The applicant, after acknowledging that the pre-payment was made in April
2018, further submitted in the final sentence of the extract mentioned in which that
concession was made that:
‘The Respondent failed to make any further payments towards the home loan account which
resulted in the accumulation of the arrears.’
[23] The account extract needs to be considered in a little more detail. It does not
cover the entire history of the loan but commences on 25 December 2017, before
the admitted pre -payment was made. It indicates that the re was no payment made
by the respondent to the applicant in the month of January 2018, but in February,
March, April and June 2018, payments in the amount of R4 000 each were made.
These payments, and the payment in July 2018 referred to immediately hereafter, all
have the reference ‘asst -cash’ applied to them. I do not know precisely what this
means, but it appears at the most elementary level of understanding that these were
cash payments made into the applicant’s bond account. In July, August, and
November 2018, there were further payments made into the bond account. These
November 2018, there were further payments made into the bond account. These
payments were in the reducing amounts of R3 000, R2 000 and R1 000 respectively.
The payments in respect of August and November simply have the reference
‘paymnt’.3
3 It appears that the respondent was required to , at least initially , pay to the applicant the sum of
R2 371,29 and R1 062,34 per month, which totals R3 433,63.
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[24] There were still further payments made into the bond account. Admittedly, the
further payments received by the applicant after that date ultimately became pitifully
small, but they were received by the applicant, nonetheless, and must be brought
into the reckoning. Fourteen further payments made by the respondent, ranging from
R200 to R1 000 were made over the period December 2018 to April 2023. It is
tempting to view the sparsity of the payments made post April 2018 as establishing a
default on the part of the respondent , but I am not sure that I am able to conclude
therefrom that the respondent was in arrears because the now admitted pre-payment
remains unaccounted for.
[25] It appears that the applicant, while attaching the account extract, has not itself
paid any attention to its contents. It is astonishing that it has not taken the time to do
so. It is further astonishing that it has asserted that no further payments were made
by the respondent post April 2018 when the account extract references 18 such
payments in total. While the payments may not have been made in a regular and
fixed amount, they were nonetheless made, and it is entirely unacceptable for the
applicant to state that they were never made. That reflects severely on the credibility
of its allegations.
[26] As regards the respondent’s version, t he first difficulty that I ha d is that he
asserted that the pre-payment was to be applied to the bond account ‘when the bond
holder fails to do so ’. Of course, the bond holder, being the applicant, was not
required to make any payments and accordingly it could not fail to make payments :
all the payments were to be made by the respondent. But that error can perhaps be
overlooked as being the incorrect use of a term by a person who ordinarily would not
be drawing legal papers.
[27] The second difficulty I initially had with the respondent’s version has, in truth,
turned out not to be an issue at all. It related to the documentary proof of the pe -
turned out not to be an issue at all. It related to the documentary proof of the pe -
payment. The applicant’s problem in this regard has vanished with the admission in
reply that the pre -payment was made. The account extract has been put up , but as
already mentioned, there is no trace of the pre-payment in it. Nonetheless, the
applicant has admitted the pre-payment, and I must therefore accept that it was
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made. Its effect on the respondent’s bond account accordingly remains unexplained
and unexplored on the papers.
[28] This leaves the applicant in a difficult position. Its version is that the pre-
payment was made in April 2018 and that it was then drawn against each month
when the respondent did not make his required monthly payment to it in the
stipulated amount . Ultimately, according to the applicant, the pre-payment was
depleted in its entirety. The account extract relied upon, however, reveals none of
this.
[29] The account extract states that as of December 2017 the amount owing on
the respondent’s bond account was approximately R81 000. The admitted receipt by
the applicant of the pre-payment in the amount of R114 000 in April 2018 would have
settled the outstanding balance completely. In the circumstances, I cannot safely
conclude that the respondent was, indeed, in arrears as claimed by the applicant and
that he remains in arrears.
Conclusion
[30] In my view, t he applicant has not made out its case on a balance of
probabilities and judgment must consequently be refused . In the light of the fact that
I am not able to grant judgment against the respondent as claimed by the applicant,
there is no need to consider whether the property should be declared specially
executable.
[31] As regards the respondent’s counter application, it appears to me to be
sound, and it should be granted.
Costs
[32] The respondent has conducted his own defence throughout. In the
circumstances, it would be just to order that there be no order as to costs.
Order
[33] I accordingly make the following order:
1. The applicant’s application is dismissed.
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2. The respondent’s counter application is granted, and the following is
ordered:
(a) The applicant is directed to render to the respondent within two
months of the date of this order a true and proper statement of account with
substantiating documents reflecting the admitted payment by the respondent
of the amount of R114 000 into his home loan account held with the
applicant and shall further render to the respondent proof of how and when
the aforementioned sum was depleted and applied by the applicant;
(b) The applicant is ordered to debate the home loan account with the
respondent within one month of the date upon which it was rendered to the
respondent in terms of sub-paragraph 2(a) above.
3. There shall be no order as to costs.
_____________________________
MOSSOP J
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APPEARANCES
Counsel for the applicant: Ms H Singh
Instructed by: Woodhead Bigby Incorporated
92 Armstrong Avenue
La Lucia
Counsel for the respondent: In person