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2026
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[2026] ZAGPJHC 132
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Sacco v Wolpe (2024/020087) [2026] ZAGPJHC 132 (4 February 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2024-020087
CASE
NO: 2024-0
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In
the matter between:
DESMOND
GIULIO SACCO
Applicant
and
JONATHAN
WOLPE
Respondent
Neutral
Citation
:
Delivered:
By transmission to the parties via email and
uploading onto Case Lines
the Judgment is
deemed to be delivered.
JUDGMENT
SENYATSI
Introduction
[1]
This is an opposed application for the repayment of a loan in the sum
of R5 500 000.00 together with interest and costs.
The Applicant, Mr
Desmond Sacco, claims that he lent the amount to the Respondent, Mr
Jonathan Wolpe, in his personal capacity.
The Respondent opposes the
application on the grounds that (a) the loan was advanced to his
company, United Charter Services (Pty)
Ltd (“UCS”), and
not to him personally; (b) the debt was compromised in a settlement
meeting; and (c) the loan is subject
to the National Credit Act 34 of
2005 (“NCA”) and is unenforceable due to non-compliance.
The Respondent also seeks
condonation for the late filing of his
answering affidavit.
Condonation
Application
[2]
The Respondent’s answering affidavit was filed approximately
five months late. The explanation provided is that,
after a meeting
on 29 November 2024, he believed the matter had been settled. Upon
receiving the notice of set down in January
2025, his attorney, whose
father had passed away on 12 January 2025 could only attend to
the matter after the memorial service
on 30 January 2025. The
affidavit was filed on 5 February 2025.
[3]
The principles governing condonation are well-established. The court
must consider the degree of lateness, the explanation
offered, the
prospects of success, and the prejudice to the parties. While the
delay is significant, the explanation, though not
exemplary, is not
indicative of recklessness or mala fides. The personal circumstances
of the attorney, while not absolving the
Respondent entirely, provide
some context for the delay. Moreover, the merits of the Respondent’s
defence are a crucial consideration.
However, for reasons set out
below, the Respondent’s defences lack merit. Nevertheless, in
the interests of justice and to
ensure that the matter is fully
ventilated, condonation is granted. The late filing of the answering
affidavit is accordingly condoned.
Merits
of the Application
[4]
The crisp issues are:
(a)
whether the
loan was extended to the Respondent personally or to UCS;
(b)
whether the
debt was compromised; and
(c)
whether the
NCA applies to render the loan unenforceable.
Identity
of the Debtor
[5]
The Respondent contends that he acted solely in his capacity as
director of UCS and that the loan was intended for the
company. He
relies on the fact that the funds were paid into UCS’s bank
account.
[6]
The Applicant’s version is supported by contemporaneous
documentary evidence. The loan agreement dated 13 October
2023
(“DGS.7”) is expressly between “Desmond Sacco”
and “Jonathan Wolpe”. It records the loan
amount,
identifies both parties by their personal identity numbers, and is
signed by both in their personal capacities. There is
no reference to
UCS, nor any indication that the Respondent signed as a
representative. Crucially, the Respondent’s SMS and
email
communications, annexed to the founding affidavit, repeatedly refer
to a personal obligation. In his email of 9 February
2024 (“DGS.9”),
the Respondent states: “
I acknowledge the amount owing to
your client and have never evaded or denied the debt.”
This
unequivocal admission is directed at the Applicant personally and
makes no mention of UCS as the obligor. Importantly,the
attorney’s
letter of demand dated 9 February 2024 (“DGS.8”) is
addressed to the Respondent personally, demanding
repayment from him.
His response (“DGS.9”) does not dispute this but
reaffirms his personal obligation.
[7]
The mere fact that funds were deposited into a company account does
not, in the face of the clear written agreement and
admissions,
displace the personal liability of the Respondent. The Respondent’s
belated attempt to introduce UCS as the true
debtor is opportunistic
and conflicts with his own prior written admissions. This defence is
not bona fide and is rejected. This
is so because the Respondent gave
instructions as to which account the money had to be paid.
Alleged
Compromise
[8]
The Respondent alleges that the debt was settled in a meeting on 29
November 2024, where it was agreed that the Applicant
would use UCS’s
charter services and that profits would be set off against the debt.
[9]
The Applicant denies that any binding compromise was reached. This
denial is supported by the chronology of events. The
Respondent filed
his notice of intention to oppose in August 2024 and was ordered to
file an answering affidavit. He did not do
so. The alleged settlement
meeting occurred in November 2024, yet he took no steps to withdraw
his opposition or inform the court
of the settlement. His attorney’s
email of 14 January 2025, claiming settlement, was promptly rebutted
by the Applicant’s
attorney on 15 January 2025. No confirmatory
correspondence or written record of the alleged settlement has been
produced by the
Respondent. In the context of his dilatory conduct
and the clear terms of the written loan agreement, the defence of
compromise
is spurious and devoid of merit.
National
Credit Act
[10
]
The Respondent contends that if the loan is found to be personal, it
is subject to the NCA and unenforceable because the
Applicant is not
a registered credit provider.
[11]
Section 4
of the NCA provides that the Act does not apply to, among
others, “a credit agreement between two persons who are in a
relationship
of association as described in subsection (2), other
than an agreement contemplated in subsection (1)(b)”.
Subsection (2)
refers to a relationship where the credit provider is
a natural person and the consumer is a “related person”
as defined,
or where the transaction is “incidental” to
their relationship.
[12]
The loan in question was a once-off, urgent financial assistance
between individuals who had a longstanding business
relationship of
approximately seven years. The loan was interest-free, repayable
within a short period, and was not part of the
Applicant’s
ordinary business. This was not an arm’s length credit
transaction in the ordinary course of business.
The purpose of the
NCA is to regulate the credit industry and protect consumers in
formal credit relationships, not to invalidate
informal, one-off
loans between acquaintances. The NCA is therefore not applicable. In
the instant case, the applicant did not
intend to derive a maximum
advantage from the Respondent and this is so because the loan was as
stated, interest-free.
[13]
In
Forsyth
v Heydenrych
,
[1]
where
a loan agreement originated from a familial relationship, and the
plaintiff did not strive to maximise the return on
the loan, it was
found that the NCA was not applicable. This was confirmed on
appeal
[2]
.
[14]
This view found support in
Allied
Steelrode (Pty) Ltd v Dreyer and Another
[3]
where Masipa AJA said the following:
“
In
Paulsen
and Another v Slip Knot Investments 777 (Pty) Ltd,
[4]
the
Constitutional Court found it illogical and unnecessary to require
registration by a person who provides loans solely to her
friends
which stated that in order to determine the validity of the
agreement, section 40(4) must be read with s 89(2)
(d)
.
Section 89 of the NCA
[5]
can only
be understood to refer to those credit agreements which are subject
to the NCA
[6]
.
The
AOD, despite not falling under the ambit of the NCA, remains a credit
agreement. The finding by the trial court that the agreement
is
unlawful and void as provided for in s 89 constitutes a misdirection.
Based on the evidence, the loan originated from an oral
agreement,
with no interest charged between parties who had a familial
relationship, which was conducted outside the scope of arm’s
length dealings. On the facts of this case, it is evident that
neither
the
loan nor the AOD were subject to the NCA. The trial court was
therefore in error and its order must be set aside”
[15]
This defence is without substance.
Material
Disputes of Fact
[16]
The Respondent argues that his defences raise material disputes of
fact warranting dismissal of the application or referral
to trial
under Rule 6(5)(g). The test is whether the disputes raised are
genuine and bona fide.
[17]
For the reasons already given, the Respondent’s defences are
not bona fide. They are contradicted by his own prior
written
admissions and the unambiguous loan agreement. A dispute of fact is
not “material” if it is contrived and unsupported
by
credible evidence. The Respondent’s version is so far-fetched
and untenable considering the documentary evidence that
it can be
rejected on the papers.
[7]
Conclusion
[18]
The Applicant has established a clear and undisputed entitlement to
repayment of the loan. The Respondent’s defences
are
opportunistic and lack any merit. His conduct throughout these
proceedings has been dilatory and aimed at frustrating the
Applicant’s claim.
Order
[19]
In the result, the following order is made:
(a)
The
Respondent’s application for condonation for the late filing of
his answering affidavit is granted.
(b)
The Respondent
is ordered to pay the Applicant the sum of R5 500 000.00.
(c)
The Respondent
is ordered to pay interest on the said amount at the rate of 6.5% per
annum from the date of service of this application
(26 February 2024)
to the date of final payment.
(d)
The Respondent
is ordered to pay the costs of the application, including the costs
of the condonation application.
ML
SENYATSI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBUR
G
DATE
APPLICATION HEARD
: 2 FEBRUARY 2026
DATE
JUDGMENT HANDED DOWN
: 04 FEBRUARY 2026
APPEARANCES
Counsel
for the Applicant: ADV K. MEYER
Instructed
by: THOMPSONS ATTORNEYS
Attorney
for the Respondents: ADV J BHIMA
Instructed
by: TRACY LOMAX ATTORNEYS
[1]
(2018)
JDR 1937 (GJ) at para 19.
[2]
Heydenrych
v Forsyth
2022
JDR 1655 (GJ) at paras 19 and 23.
[3]
2023
JDR 4927 (SCA) at para 35.
[4]
[2015]
ZACC 5
;
2015
(3) SA 479
(CC);
2015
(5) BCLR 509
(CC)
para 38
[5]
The
section deals with unlawful credits
[6]
Paulsen
and Another v Slip Knot Investments 777 (Pty) Ltd
[2014]
ZASCA 16;
2014
(4) SA 253
(SCA);
[2014]
2 All SA 527
paras
9-13.
[7]
See:
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634 G-I and 635A-C.