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2026
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[2026] ZAGPJHC 147
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SB Guarantee Company RF Proprietary Limited v Thango (2021/9698) [2026] ZAGPJHC 147 (23 February 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
2021-9698
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED:
In
the matter between:
SB
GUARANTEE COMPANY (RF) PROPIETORY LIMITED
Applicant
and
MUZOMUHLE
PROMISE
THANGO
Respondent
This
Judgment was handed down electronically and by circulation to the
parties’ legal representatives by way of email and
shall be
uploaded on caselines/courtonline. The date for hand down is deemed
to be on 23 February 2026.
JUDGMENT
MOGOTSI
AJ
Introduction
[1]
This
matter is an application for summary judgment brought by the
applicant against the respondent for payment of R506,701.89 plus
interest. The applicant sought to enforce the indemnity agreement and
execute against the respondent's immovable property.
Background
[2]
The respondent obtained a home loan
from Standard Bank in 2017, secured by a mortgage bond over
the property. The respondent
further signed an indemnity
agreement in favour of Standard Bank and the applicant, and she
is also the assignee under
the indemnity agreement. The respondent
defaulted on the loan, leading to the institution of action
proceedings against her.
The
law
[3]
To
resist summary judgment, in their opposing affidavit, the defendants
must merely depose to facts that, if proved at trial with
admissible
evidence, would constitute a defence to the plaintiff’s
action.
[1]
[4]
The
court must guard against the abuse of the summary judgment procedure.
The procedure is not intended to deprive a defendant of
their
constitutional right to a fair trial but rather to prevent frivolous
or vexatious defences that serve only to delay the resolution
of the
matter.
[5]
The
respondent is resisting the summary judgment on the following
grounds: The respondent contends that Standard Bank failed to
conduct
a proper affordability assessment, the clauses in the home loan and
indemnity agreements are unlawful as they circumvent
the National
Credit Act 34 of 2005
[2]
(the
NCA), the address written in the summons was wrong, and she did not
receive proper demand.
[6]
Conversely,
the applicant asserted that it is not a credit provider under
the NCA, and it is enforcing an indemnity agreement,
not the original
credit agreement with Standard Bank; the indemnity is not a
"credit agreement" as defined
by the NCA, therefore
reckless credit provisions is not applicable, Finally, the applicant
contends that raising these defences
after such a considerable time
is a delaying tactic.
Analysis
[7]
The
matter involves the enforcement of an indemnity agreement, not the
original credit agreement with Standard Bank. I am
persuaded by
the applicant’s counsel that section 90 of the NCA does not
apply to it.
[8]
While
the address in the particulars of claim was incorrectly captured,
the demand was validly sent to the address specified
in the
indemnity agreement and was personally served on the
respondent, which she admits.
[9]
The
rationale for summary judgment is to prevent recalcitrant debtors
from delaying payment where no genuine defence exists.
[3]
[10]
This
brings me to the respondent's
substantive
defences, viz, reckless credit, unlawful agreement. The fact that the
respondent raised these defences after the lapse
of a considerable
time, with regard to the date of the conclusion of
an
indemnity agreement
in
casu,
renders them
opportunistic
and do not meet the
bona
fide
threshold.
[11]
The applicant’s counsel generously
and selflessly abandoned the issue of executability.
Order
[12]
Consequently, I
therefore make the following order:
1.
The draft order
marked “X” is made the order of the court.
P
J M MOGOTSI
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel
for applicant: Adv. N. Khumalo
noxolokhumalon@gmail.com
Attorney
for applicant: Van Hulstyens
Attorneys
Respondent in person
Date
heard: 16 February 2026
Date
of Judgment: 23 February 2026
[1]
Standard
Bank of SA Ltd
v
Friedman
1999 (2) SA 456
(C) at 462G.
[2]
National
Credit Act 34 of 2005
[3]
Absa Bank Ltd v Peacock & Another
[2020] ZAWCHC 154.