IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
JUDGMENT
Case No. 2026-039481
REPORTABLE
In the matter between:
ABSA BANK LIMITED APPLICANT/PLAINTIFF
and
MOSES GE MTHETHWA RESPONDENT/DEFENDANT
CORAM: ADHIKARI AJ
Heard: 3 March 2026
Delivered: 5 March 2026
ORDER
1. The application is dismissed.
2. Each party shall pay their own costs.
JUDGMENT DELIVERED ELECTRONICALY ON 5 MARCH 2026
ADHIKARI, AJ
INTRODUCTION AND RELEVANT FACTUAL BACKGROUND
[1] This is an urgent application in which the defendant ('Mr Mthethwa’) seeks an
order staying the execution of the summary judgment granted by this Court on
23 February 2026.
[2] The plaintiff (‘ABSA)’ had instituted action proceedings for, inter alia, the return
of a motor vehicle sold to Mr Mthethwa, resulting from his failure to make
payments in terms of an instalment sale agreement concluded with ABSA in
2021. The action proceedings were defended by Mr Mthethwa who
represented himself. He delivered a plea , and subsequently ABSA instituted
proceedings seeking summary judgment against him. Mr Mthethwa delivered
an affidavit opposing summary judgment in which he set out his defence to
ABSA’s claim.
[3] The summary judgment application was set down for hearing on
23 February 2026 in the unopposed motion court of this Division as is
customary with such matters. It appears from the record that the summary
judgment application was served on Mr Mthethwa by email on
26 January 2026.
[4] On 19 February 2026 Mr Mthethwa delivered an affidavit seeking the
postponement of the summary judgment application. 1 It appears from the
record that Mr Mthethwa emailed the postponement application to ABSA’s
attorneys at 11h53 on 19 February 2026 and that he uploaded the
postponement application onto the Court Online system at 12h02 on the same
date. ABSA’s attorneys advised Mr Mthethwa via email on the same date that
the summary judgmen t application would proceed on 23 February 2026 and
that in the event that he could not attend the hearing , they would advise the
presiding judge of his position.
[5] The summary judgment application was heard on 23 February 2026. It
appears from ABSA’s answe ring affidavit filed in response to the stay
application, that ABSA’s counsel in the summary judgment proceedings drew
the presiding judge’s attention to the postponement application as well as to
various other email correspondences sent to the Registrar b y Mr Mthethwa in
regard to the postponement application. In addition, ABSA’s counsel handed
up a copy of the postponement application to the presiding judge . It further
appears from ABSA’s answering affidavit that the presiding judge had regard
to both Mr Mthethwa’s opposing affidavit and to the postponement application
and found that there was no merit in Mr Mthethwa’s contention that he would
suffer irreparable prejudice if a postponement was not granted as
Mr Mthethwa had delivered an opposing affidavit , and further that the
presiding judge found that the opposing affidavit failed to disclose a defence to
ABSA’s claim . The presiding judge thereafter granted summary judgment
having considered all of the affidavits filed by both ABSA and Mr Mthethwa.
1 In the remainder of this judgment, I refer to Mr Mthethwa’s affidavit of 19 February 2026 seeking a
postponement of the summary judgment application as ‘the postponement application’.
[6] ABSA’s legal representative s informed Mr Mthethwa at 11h18 on
23 February 2026 that summary judgment had been granted. At 13h03, on the
same day Mr Mthethwa deliver the current application seeking to stay the
execution of the judgment pending the institution and final determination of an
application for recission of the summary judgment.
THE APPLICABLE LEGAL PRINCIPLES
[7] In terms of Rule 45A of the Uniform Rules, a court may suspend the execution
of any order for such period as it may deem fit.
[8] The courts have established the following general principles for the granting of
a stay of execution: 2
[8.1] A court will grant a stay of execution where real and substantial
justice requires it or where injustice would otherwise result.
[8.2] The court will be guided by considering the factors usually applicable
to interim interdicts, except where the applicant is not asserting a
right, but attempting to avert injustice.
[8.3] The court must be satisfied that the applicant has a well -grounded
apprehension that the execution is taking place at the instance of the
respondent, and that irreparable harm will result if execution is not
stayed and the applicant ultimately succeeds in establishing a clear
right.
[8.4] Irreparable harm will invariably result if there is a possibility that the
underlying causa may ultimately be removed, that is, where the
2 Gois t/a Shakespeare's Pub v Van Zyl and Others 2011 (1) SA 148 (LC), para 37.
underlying causa is the subject -matter of an ongoing dispute
between the parties.
[8.5] The court is not concerned with the merits of the underlying dispute
— the sole enquiry is simply whether the causa is in dispute.
[9] In BP Southern Africa (Pty) Ltd v Mega Burst Oils and Fuels (Pty) Ltd and
Another and a Similar Matter 3 an attempt to interdict the execution of a
judgment, pending the outcome of a petition for leave to appeal, failed on the
basis that no protectable interest had been established. The court in
BP Southern Africa nevertheless considered whether execution sh ould be
suspended in the interests of justice, either in terms of Rule 45A or based on
the inherent jurisdiction of the court. 4 The court held that in appropriate cases
the merits of the underlying dispute should be considered notwithstanding the
general guidelines delineated in Shakespeare's Pub.5
[10] The Constitutional Court in Provincial Government: North West Province and
Another v Tsoga Developers CC and Others6 has held that an applicant for the
stay of execution must demonstrate that the proposed claim has prospects of
success, quoting with approval the dictum of this Court in Cooper v Feinstein7
that an applicant seeking a stay must show a prima facie right to the relief
sought because if this were not the case, there would be no point in granting a
stay of execution.
3 BP Southern Africa (Pty) Ltd v Mega Burst Oils and Fuels (Pty) Ltd and Another and a Similar
Matter 2022 (1) SA 162 (GJ), para 14-15.
4 Id. para 15 and para 27.4.
5 Id. para 19.
6 Provincial Government: North West Province and Another v Tsoga Developers CC and Others
[2016] ZACC 9; 2016 (5) BCLR 687 (CC), para 54.
7 Cooper v Feinstein [2005] ZAWCHC, para 27.
THE STAY APPLICATION
[11] Mr Mthethwa contends that he will suffer irreparable prejudice if a stay of
execution is not granted in that he intends to bring an application for recission
of the summary judgment.
[12] It is well settled that in an application for summary judgment the court is not
entitled to ignore an affidavit submitted by a defendant in opposition , and that
as a consequence where summary judgment is granted in circumstances
where the defendant is not represented but where an opposing affidavit has
been delivered, it cannot be said that the defendant is in default.8 Thus, where
the court has granted summary judgment after considering the defendant’s
opposing affidavit it cannot be said that judgment w as granted by default or in
the absence of a defendant.9
[13] Further, it is well settled that in order for an applicant seeking rescission to
succeed in showing good cause, they must give a reasonable explanation of
their default (and show that the application is made bona fide), and they must
show that they have a bona fide defence to the plaintiff's claim which prima
facie has some prospect of success. 10 Both requirements must be me t - it is
not sufficient if only one of these two requirements is met.11
[14] Given that Mr Mthethwa delivered an opposing affidavit on the merits of the
summary judgment application which was considered by the presiding judge
who found that no bona fide defence to ABSA’s claim was disclosed, the
8 Morris v Autoquip (Pty) Ltd 1985 (4) SA 398 (W) at 400E-H.
9 De Beer v Absa Bank Ltd (25071/2012) [2016] ZAGPPHC 325 (6 May 2016), para 14.
10 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at 9C,
quoted with approval by the Constitutional Court in Zuma v Secretary of the Judicial Commission of
Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including
Organs of State and Others 2021 (11) BCLR 1263 (CC), para [71].
Organs of State and Others 2021 (11) BCLR 1263 (CC), para [71].
11 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 765B–C.
summary judgment granted against Mr Mthethwa is final and res judicata.12 It
is consequently not open to me to find that Mr Mthethwa nonetheless has a
bona fide defence to ABSA’s claim which has some prospect of success. On
the settled legal principles, it is clear that it is not open to Mr Mthethwa to
apply for recission of the summary judgment, and his remedy in these
circumstances is an appeal.
[15] Further, t he events preceding the hearing of the summary judgment on
23 February 2026 as set out in the record of the summary judgment
proceedings and in the postponement application, bear all the hallmarks of a
deliberate attempt to delay the proceedings. Mr Mthethwa alleges that he was
unable to attend the hearing due to a medical condition. However, on the very
day of the hearing, approximately two hours after being informed of the
summary judgment order, he drafted the present urgent application, procured
its commissioning, and transmitted it by email to ABSA’s att orneys. This
conduct is inconsistent with that of a person who was medically unfit to attend
the hearing, whether in person or virtually. In the circumstances I am not
persuaded that the explanation advanced by Mr Mthethwa is bona fide.
[16] For these reasons Mr Mthethwa has failed to establish any right , even on a
prima facie basis, to seek recission and for this reason alone the application
for a stay of execution must fail. I will nonetheless consider whether the
interests of justice nonetheless require that a stay be granted.
[17] It is common cause on the papers before me that ABSA had engaged with
Mr Mthethwa over an extended period of time in an effort to av oid taking
judgment, and that repayment arrangements were made with Mr Mthethwa
which he repeatedly failed to comply with. It is common cause that he has
12 See De Beer (above) para 14.
failed to make any payments at all since October 2024. It is further evident
from the papers that Mr Mthethwa has a history of making promises to pay
which he fails to fulfil. In any e vent, the instalment sale agreement has now
been cancelled as is made clear in the particulars of claim in the action
proceedings, contrary to Mr Mthethwa’s suggestion in his founding affidavit
and in the postponement application.
[18] As set out in ABSA’s answering affidavit, the vehicle constitutes ABSA’s only
security for recovery of the debt owed by Mr Mthethwa and his continued use of
the vehicle exposes it to the risk of accident or theft. In addition, the vehicle is by
its nature a depreciating asset, the value of which diminishes daily through use.
Consequently, it is in fact ABSA and not Mr Mthethwa that will suffer irreparable
harm if the stay application is granted to enable Mr Mthethwa to pursue a
rescission application that is doomed to failure.
[19] For these reasons, Mr Mthethwa has failed to demonstrate that real and
substantial justice requires that the execution the summary judgment be
stayed or that he will suffer injustice if the stay is not granted.
[20] For all these reasons the stay application must fail.
COSTS
[21] The instalment sale agreement provides that Mr Mthethwa is liable for the
costs of legal proceedings on an attorney client scale . However, costs remain
within the discretion of the court.
[22] ABSA and Mr Mthethwa have both delivered further affidavits on the issue of
costs at the invitation of the court. In ABSA’s affidavit it points out the various
procedural deficiencies in the manner in which Mr Mthethwa has conducted
these proceedings, and it contends that it has been prejudiced by having to
respond to this application on unreasonably truncated timeframes. ABSA
seeks a punitive costs order against Mr Mthethwa. Mr Mthethwa in argument
and in his further affidavit indicated that he had been placed on unpaid
suspension at work due to family issues , and that intended to use his
retirement savings to pay the arrears owed to ABSA.
[23] While it is so that Mr Mthethwa’s conduct in these proceedings leaves much to
be desired, it is also clear to me from the correspondence annexed to ABSA’s
further affidavit that Mr Mthethwa who resides in Oudtshoorn sought the
assistance of the Registrar on various occasions in order to determine how
best to bring the a pplication to the attention of the court and how to set the
matter down. In these circumstances Mr Mthethwa’s conduct does not rise to
the level that warrants a punitive costs order. I am mindful of the fact that
Mr Mthethwa is a lay litigant and that he has sought to exercise his right of
access to the courts. In addition, he has been ordered to pay the costs of the
summary judgment application and it is clear that he is in dire financial
distress. In these circumstances I am not persuaded that it would be just and
equitable to award costs against him albeit that the application was clearly ill -
fated.
In the result I make the following order:
3. The application is dismissed.
4. Each party shall pay their own costs.
___________________________
M. ADHIKARI
ACTING JUDGE OF THE HIGH COURT
Appearances
For the applicant/plaintiff: W Jonker
Instructed by: Sandenbergh Nel Haggard, E Loubser
The defendant/respondent: In person