About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2026
>>
[2026] ZAGPJHC 100
|
|
Mwaba v Standard Bank Insurance Brokers, Liberty Group (2025/249710) [2026] ZAGPJHC 100 (10 February 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case Number: 2025-249710
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
In
the interpleader of:
EMMANUEL
CHOLA MWABA
Applicant
and
STANDARD
BANK INSURANCE BROKERS,
LIBERTY
GROUP
Respondent
JUDGMENT
WENTZEL-THOMPSON
J
Introduction
[1]
This matter was brought by way of urgency by the applicant who
appeared in person.
[2]
The basis for the application and the urgency arose from a
fundamental misunderstanding by the applicant of the nature of the
Personal Loan Protection Policy which he concluded with Standard Bank
Insurance Brokers to secure his indebtedness on his overdraft
to the
Standard Bank; it was not, as he had imagined, a wealth policy. This
is readily apparent from the terms of the policy.
[3]
What the applicant sought, by way of urgency, was that he be granted
an advance of the benefits under the policy pending
the outcome of
the action instituted by him against the respondent for return of all
his premiums from inception, payment of the
total value of the policy
in the amount of R300 000 and damages. Urgency was based on the
fact that the funds were urgently
required to settle the outstanding
school fees for his minor children who were due to commence the new
school year but could not
do so as a final notice had been
issued by the school indicating that the children could not attend
school unless the outstanding
fees were paid.
[4]
With little prospects of success in the main action, there is no
authority in law that I am aware of that would permit
the applicant
to the advance payment sought to pay the outstanding school fees.
There are a number of reasons for this, which will
be outlined
briefly below.
Background
[5]
This application was preceded by three urgent applications by the
applicant on substantially similar grounds. The first
was instituted
on 11 July 2025 and was heard by Malungana AJ on 22 July 2025 and
struck from the roll for lack of urgency.
[6]
One week later, on 29 July 2025 the applicant brought a second urgent
application under a different case number which
was heard by
Dippenaar J on 5 August 2025. On this occasion, the parties entered
into an agreement of settlement in terms of which
it was agreed that
the respondent would repay all the premiums paid by the applicant
under the policy in the total amount of R69 000
(rounded off).
There was some dispute as to whether this amount included interest.
Be that as it may, in signing the agreement
of settlement, the
applicant agreed that it was in full and final settlement of any and
all claims which he had against the respondent.
This included all
claims in the main action.
[7]
It was a term of the Order made by Dippenaar J that payment of the
agreed amount be paid by no later than 12h00 noon on
7 August 2025.
However, the respondent only issued a payment instruction at 12h35h00
and payment only reflected in the applicant’s
bank account, on
8 August 2025.
[8]
The applicant regarded this as a repudiation of the settlement
agreement which he accepted. However, instead of returning
the amount
of R69 000 received by him, he stated that he intended retaining
the amount on account, to be deducted from the
amount which he
believed would be paid to him on conclusion of the main action.
Instead of paying the amount towards the outstanding
school fees
which he had told Dippenaar J was his intention, the applicant
admittedly spent the money on other expenses.
[9]
When in December 2025 another termination notice was sent by the
school to the applicant, the applicant brought a third
urgent
application which was heard by Senyatsi J on 9 December 2025 and
struck from the roll for lack of urgency with costs. Senyatsi
J
stated that in awarding costs against the applicant, he was mindful
that the applicant was self-represented and in the exercise
of his
discretion did not find that the costs order should be punitive at
that stage. Implicit in his ruling was that should the
applicant
continue to abuse the court process and bring a further urgent
proceeding on the same facts, the cost order may be punitive.
[10]
In dealing with the abuse of process by the applicant, Senyatsi J
stated:
“
[18] The
pattern of litigation is concerning. This is the third urgent
application on substantially the same cause of action within
six
months. The first was struck for lack of urgency. The second was
settled on terms highly favourable to the Applicant, including
payment of a sum he had previously demanded. Having secured that
payment, he now seeks to set aside the settlement using a technical
argument on timing, while having failed to apply the funds as he told
the court he would.
[19] The courts must
protect their processes from abuse. The Applicant's conduct using his
children's schooling as a recurring pretext
for urgency while not
applying settled funds to that purpose amounts to an abuse. It
unfairly burdens both the Respondents and
the court.
”
[11]
Senyatsi J also found that there was no causal connection between the
respondent and the applicant’s inability
to pay his school
fees:
“
[11] The
Applicant's current financial predicament with the school is a result
of his personal financial management over many months.
The alleged
late payment of the R69,615.66 by one day did not cause the R320,000
debt. Even if the payment had been made on time,
on the Applicant's
own logic, it would only have reduced the debt by R69,615.66, leaving
a substantial balance. The core of the
current crisis is his
inability to settle the remaining, significantly larger balance, for
which the respondents bear no responsibility
.”
[12]
Neither of these findings deterred the applicant. On 29 December 2025
he brought another urgent application which he
set down for hearing
on 13 January 2026. This was the application that served before me.
Urgency
[13]
Although Senyatsi J had already found on the facts that the matter
was not urgent, the applicant argued that there was
a further event
which warranted a reconsideration of the matter, namely that he had
applied for a bursary for the children’s
schooling and this had
been denied. The applicant argued this was the last remaining avenue
that he had open to enable him to pay
his children’s school
fees and allow them to enrol in school when the schools were due to
start in January 2025.
[14]
However the applicant had applied for this bursary at the time he
brought the application before Senyatsi, but had not
divulged that
such an application was pending. In any event, I did not regard the
fact that the bursary that the applicant had
applied for was not
granted, leaving him with no other avenue to pay his children’s
school fees, was not of his own making.
He had not sought assistance
or placed the children in a school he could afford to alleviate his
financial burdens early in 2025
when his financial circumstances and
his inability to pay for his children’s school fees was
patently obvious.
[15]
Senyatsi J found that the applicant had not made any payments to the
school for the entire 2025 school year and even
on receipt of the
payment of R69 000 following the agreement of settlement
concluded by him with the respondent, had not used
this payment to
reduce the outstanding school fees.
[16]
In my view, the fact that the bursary had been refused in no way
detracted from the finding already made by Senyatsi
J that the matter
was not urgent.
[17]
As such, the matter fell to be struck off the roll by me for lack of
urgency with costs. I nevertheless entertained the
applicant’s
case and allowed him a full hearing, only because he was an
unrepresented litigant. I had my misgivings about
this which I
expressed during the hearing as the applicant’s papers appeared
on the face of them to have been drafted with
some degree of legal
knowledge or assistance
Res
judicate/issue estoppel
[18]
The respondent argued that the current application had on essentially
the same facts already been decided by Senyatsi
J and was thus
res
judicata
.
[19]
A distinguishing feature the applicant argued between the current
application and that which was before Senyatsi J was
that in the
current proceedings, the relief sought was different and he no longer
sought payment to himself personally, but rather
that the amount of
the outstanding school fees (in excess of the maximum capital sum on
the policy) be paid directly to the school
concerned.
[20]
The relief sought, however, was in reality no different as it was
predicated both before me and before Senyatsi J and
Dippenaar J on
the basis that an advance payment of the monetary judgment sought by
him in the main claim was urgently required
to settle his children’s
school fees and prevent them being excluded from school.
[21]
A further difficulty experienced by the applicant was that, albeit
obiter, Senyatsi had found that the late payment of
the agreed amount
of R69 000 pursuant to the settlement agreement did not
constitute a material breach of the settlement agreement
entitling
the applicant to resile from it. He stated:
“
[14] Even if I
were wrong on urgency, the Applicant faces an insultuntable hurdle in
the Consent Order. His case depends on establishing
tag""
Respondents' late payment was a material breach that entitled him to
cancel the settlement and revive all claims.
[14] (sic) The Consent
Order stated that the Respondents would "pay out" the
amount by 12h00. The Respondents provided
proof that a payment
instruction was issued before the deadline, albeit the funds only
cleared the next day due to inter-bank processing
times. The
Applicant demanded, but the Respondents did not provide, a
bank-generated timestamped proof of the exact debit time
from their
account.
[15] I am not
persuaded that a delay in clearance of one day, where a payment
instruction was issued, constitutes a repudiation
or material breach
of a settlement agreement that was expressly in "full and final
settlement" of all claims. The obligation
was to "pay out".
In modern banking, initiating a payment instruction to the
beneficiary's nominated account is the act
of payment; the time of
reflection is subject to systemic processes beyond the payer's
absolute control. The Respondents took reasonable
steps to comply
.”
[22]
Although this was obiter, it remains persuasive authority. I accept
that the payment instruction itself was 25 minutes
late, but I am in
agreement with my brother that the minimal delay in payment was not
material and did not entitle the applicant
to resile from the
settlement agreement; all the more so when he retained the R69 000
paid to him pursuant to that agreement.
[23]
This has as an inevitable consequence that the applicant had settled
his main action and it fell to be dismissed on this
basis. In these
circumstances there could be no basis for granting the applicant an
advance payment against the amount claimed
by him in the action.
Misconception
of the terms of the policy and the basis for the main action
[24]
In any event, the applicant has fundamentally misconceived the
fundamental basis upon which the main action is founded.
In truth and
in fact, the applicant was not in law entitled to return of all of
the premiums under the policy, at least not those
prior to the
alleged cancellation of his policy (which had been conveyed to the
applicant when he sought to submit a claim under
the policy for
retrenchment- which was rather belatedly disputed by the respondent
who alleged that the reflection of the policy
as cancelled was a
system error).
[25]
As I have said, and explained to the applicant during the course of
the hearing, the policy was not a wealth policy or
“
nest
egg
” as he said he believed it was. Indeed he submitted a
claim under the policy on the grounds of his retrenchment which was
repudiated on the basis that he was self-employed and thus not
entitled to claim for retrenchment. This is what sparked the current
litigation.
[26]
The policy provided for payment of amounts owing to the bank in the
event of the applicant’s death, dreaded disease
and permanent
disability. During 2019 the policy holders were informed that the
cover under the policy had been extended
to include retrenchment.
This prompted the applicant to make a claim under the policy based
upon retrenchment to be told that he
did not qualify for this as he
was self-employed. This caused the applicant to object to his being
charged premiums for a policy
for which he was not covered. What he
did not understand was that the extension for retrenchment was added
at no additional premium
as a result of the large amounts of
retrenchment following the COVID-19 pandemic. This was not a benefit
for which he had paid
premiums from inception and he at all times
retained the benefits in the event of his death or permanent
disability for which he
had paid premiums from inception.
[27]
The respondent maintained that the applicant’s policy had not
been cancelled, and thus it ought not properly to
have agreed to
return his premiums from inception to the date of the alleged
cancellation. However, the fact remained is that the
applicant had
been informed that his policy was cancelled and had relied on this to
his detriment and the respondent were estopped
from denying the
policies cancellation. This would have entitled the applicant to
return of all his premiums debited from his account
from the date of
the alleged cancellation. However, this would not have entitled him
to repayment of all his premiums from inception
prior to the date of
cancellation. The fact of the matter is that no premiums were
deducted from his policy for a retrenchment
benefit as not benefit
existed from inception and when it was added, it was added at no
extra charge to him.
[28]
This was the basis of the applicant’s fundamental
misunderstanding of the alleged wrong done to him which he believed
entitled him not only to a claim for all of his premiums plus
interest, but also to substantial damages. This, the applicant
believed
he was entitled to on the basis that had he known that he
had paid premiums for retrenchment benefits to which he was not
entitled,
he would have invested the monies in a wealth creation
policy and by now would have accumulated substantial savings. But as
I have
said, this was premised on a premise which was in fact not
correct; he was charged for and paid premiums for a debt protection
policy for which he continued to receive the death, permanent
disability and dreaded disease benefits.
[29]
This fundamental premise being flawed puts paid to the applicant’s
main action for damages and, in my view, indicates
that he has no
prospects of success in the main action. That being the case there is
no basis upon which the court could provide
the applicant with any
advance payments against the strength of his main action; there would
appear not to even be prospects that
the applicant could recover his
premiums, let alone establish damages. There would thus be no
guarantee that should the court grant
the applicant an advance
payment, he would recover that amount in the main action which he
proposed be set off against the money
judgment he hoped to receive in
his favour in the main action. The applicant’s precarious
financial circumstances meant that
the respondents would have no
prospect of recovering any advance payment made to the applicant in
the event that he failed to establish
his claims in the main action.
[30]
I explained this fully to the applicant, who finally accepted that
there was no basis upon which I could grant him any
advance payment
towards his children’s school fees.
Costs
[31]
The respondent insisted that the matter was an abuse of process of
the court and stressed that Senyati J had warned him
that should the
abuse persist, this may ground a punitive order of costs against him.
The respondent was clearly an educated man
who was able to formulate
his various applications without the assistance of an attorney and
was thus not the sort of layman who
warranted the court’s
indulgence.
[32]
The applicant pleaded with me to consider that his application had
been motivated by the interests of his children, their
Constitutional
right to education and his Constitutional right to access to the
courts. These rights did not entitle the applicant
to continue to
abuse the court process and seek persistent re-hearings on the same
facts in the urgent court. His actions in this
regard certainly
entitles the respondent to a cost award in their favour.
[33]
However, I am prepared to be lenient to the respondent and not award
punitive costs against him as I accept that he
bona fide
and
genuinely misunderstood the nature of the policy for which he had
been paying premiums and believed that the policy he had
been sold
from inception was solely for retrenchment benefits to which he was
not entitled. This caused him to believe he had a
good claim against
the respondent for repayment of his premiums plus interest as well as
to damages. He also believed that his
claim was so good in law that
he should be entitled to advance payments to cover his children’s
school fees which could ultimately
be deducted from the monetary
award which he was sure would be made in his favour in the main
action.
[34]
The applicant accepted that his claim for advance payments was not a
good one and undertook not to burden the urgent
court on the same
basis ever again. He accepted that his children would not be able to
be enrolled at their school due to non-payment
of their school fees
and he would have to make alternative schooling arrangements for
them. On this basis, I have decided not to
make a punitive cost award
against the applicant.
Order
[35]
It has already been found by Senyatsi J that this matter on the same
facts is not urgent.
[36]
Even if I had been prepared to find that the matter was, on the face
of it, urgent as the re-opening of the applicant’s
children’s
schools was imminent, I find that the applicant’s application
for an advance payment falls to be dismissed
with costs.
[37]
I thus make an order as follows:
a. The application
is dismissed.
b. The applicant is
directed to pay the respondent’s costs of the application.
WENTZEL-THOMPSON
J
JUDGE
OF THE HIGH COURT
JOHANNESBURG
Date
of the hearing:
13
January 2026
For
the Applicant:
For
the Respondent:
In
person Mr Emmanuel C Mwaba
mwabae@pensions-africa.com
Moddie
& Robertson Ary
German<aryg@moodierobertson.co.za>;
Melissa
Chapman <melissa@moodierobertson.co.za>