SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case number: 2022-1528
In the matter between:
FIRSTRAND BANK LIMITED T/A AS FIRST NATIONAL BANK Plaintiff
and
CRESTAR PRINTERS AND PUBLISHERS (PTY) LIMITED
(Registration no. 2008/011544/07) First Defendant
IKRAAM JAFFER
(ID number. 8[… ]) Second Defendant
HAWA JAFFER
(ID no. 6[… ]) Third Defendant
SALAHHUDDEEM JAFFER
(ID no. 8[… ]) Fourth Defendant
JUDGMENT
DALRYMPLE AJ:
[1] REPORTABLE: NO
[2] OF INTEREST TO OTHER JUDGES: NO
[3] REVISED: NO
SIGNATURE DATE: 18 FEBRUARY 2026
2
[1] The plaintiff seeks summary judgment against the second to fourth
defendants, jointly and severally, the one paying the other to be absolved for
payment of the amount of R477 431,60 together with interest thereon at the
rate of 9.25% per annum calculated and capitalised monthly from 1 June 2021
to date of final payment both days inclusive. The plaintiff also seeks an order
that the overdraft facility agreement is declared cancelled and that the second
to fourth defendants pay the costs on the scale as between attorney and client
inclusive of sheriff’s fees.
[2] The facts are briefly as follows . On 6 May 2020 the plaintiff and the first
defendant concluded an overdraft facility agreement (“the overdraft facility”) in
terms of which the first defendant was granted an overdraft facility by the
plaintiff in an amount of R600 000,00. Prior to that date, on 18 July 2018, the
second to fourth defendants had concluded written agreements of suretyship
in favour of the plaintiff in terms of which they bound themselves jointly and
severally in solidum with the first defendant for the repayment on demand of
any sum of money which the first defendant then owed to the plaintiff or might
owe in the future from whatever cause arising.
[3] The plaintiff cancelled the overdraft facility and claimed payment of the
outstanding balance in the amount of R477 431,62. The amount was not
repaid by the first defendant. The plaintiff instituted action against all four
defendants. The claim against the second to fourth defendants was made
against them as sureties with the first defendant.
[4] In their plea, the defendants raised a special plea that the first defendant was
in business rescue as contemplated in section 131 of the Companies Act 71
3
of 2008 (“the Companies Act”) and the business rescue practitioner was in the
process of completing a business rescue report. The defendants averred that
in terms of section 133(1) the plaintiff’s rights against [all] the defendants were
unenforceable by virtue of the moratorium placed on legal proceedings as
contemplated in section 133(1) of the Companies Act.
[5] In the defendants ’ plea over on the merits , the defendant s admitted
conclusion of the overdraft facility and all of its terms. The defendants
admitted that the plaintiff had complied with the terms of the overdraft facility
by lending and advancing money to the first defendant in the overdraft facility
account with number 6[ …] . They also averred that they were waiting for two
payments from the South African Revenue Service (SARS) which would
restore the overdraft to a positive balance.
[6] In relation to the plaintiff’s averments that the overdraft facility had been
cancelled, that there was a balance outstanding in the amount of
R477 431,62, that it was unpaid, that the second to fourth defendants ha d
bound themselves as sur eties, that the National Credit Act did not apply, that
demand had been made, the defendants’ plea constituted a bare denial of the
allegations and the plaintiff was put to the proof of each and every allegation.
The defendants sought a dismissal of the plaintiff’s claim. All four defendants
counterclaimed for a statement and debatement of the overdraft facility which
they contended was necessary before the plaintiff was entitled to make its
claim against them under the overdraft facility.
LEGAL PRINCIPLES
4
[7] Amended Rule 32(2)(b) requires a plaintiff who wishes to apply for summary
judgment to explain why the defence “as pleaded” does not raise any issue for
trial.
[8] The “defence as pleaded” should comply with the provisions of Rules 18(4)
and 22(2), i.e. it should clearly and concisely state all the material facts relied
upon for the defence in order to put the plaintiff in a position to assess
whether or not “the defence as pleaded” raises any issue for trial. Thus, a plea
consisting of bare denials would, generally speaking, not raise any issue for
trial.
1
[9] Save for the special plea relying on business rescue, the defendants’ plea
constituted bald denials. It was thus not surprising that the plaintiff applied for
summary judgment against the second to fourth defendants. Summary
judgment was not applied for against the first defendant presumably because
it was in business rescue.
[10] A defendant is required, in an affidavit opposing summary judgment to
disclose fully the nature and grounds of the defence and the material facts
relied upon.
2 The Rule requires a defendant set out in the affidavit sufficient
facts which, if proven at trial, would constitute an answer to the plaintiff’s
claim. The court must be appraised of the facts upon which the defendant
relies with sufficient particularity and completeness so as to be able to hold
1 Erasmus, RS25, 2024, D1 Rule 32-53
2 Rule 32(3)(b); PCL Consulting (Pty) Limited t/a Philips Consulting SA v Tresso Trading 119
(Pty) Limited 2009 (4) SA 68 (SCA) at para [8]
5
that if such statements of fact are found at trial to be correct, judgment should
be given for the defendant.3
[11] In Breitenbach v Fiat SA (Edms) Bpk 4 the court held that bald, vague and
sketchy defences should not be countenanced. In Joob Joob Investments
(Pty) Limited v Stocks Mavundla Zek Joint Venture
5 the Supreme Court of
Appeal explained that summary judgment procedure is not intended to
deprive a defendant with a triable issue or a sustainable defence or of his or
her day in court. In considering whether a defendant does indeed have a
triable issue or sustainable defence, the court should first consider whether
there was a sufficient disclosure by the defendant of the defence sought to be
relied upon. Second, it should be considered whether the defence so
disclosed is bona fide and good in law.
6
[12] When considering a summary judgment application, the court’s role is not to
evaluate the merits of the defence raised by the defendant or the likelihood of
it succeeding. Instead, the court’s task is to determine whether the defence
presented is genuine and not simply a device intended to cause delay.
7 As to
the method by which a court should determine whether the defence disclosed
is bona fide, Binns-Ward J in Tumileng put it thus:
“The assessment of whether a defence is bona fide is made with
regard to the manner in which it has been substantiated in the
opposing affidavit; viz upon a consideration of the extent to which ‘the
3 Marsh and Another v Standard Bank of SA Limited 2000 (4) SA 947 (W) at 949A
4 1976 (2) SA 226 (T) at 229 F to H
5 2009 (5) SA 1 (SCA)
6 Joob Joob Investments (Pty) Limited supra, at paras [31] and [32]
7 Tumileng Trading CC v National Security and Fire (Pty) Limited supra at para [23]
6
nature and grounds of the defence and the material facts relied upon
therefore’ have been canvassed by the deponent.”8
[13] In NPGS Protection and Security Services CC and Another v FirstRand Bank
Limited9 the Supreme Court of Appeal confirmed again that summary
judgment applications require an opposing affidavit to disclose fully the nature
and grounds of the defence and the material facts relied upon therefore. To
stave off summary judgment, a defendant cannot content him or herself with
bald denials, for example, that it is not clear how the amount claimed was
made up. Something more is required. If a defendant disputes the amount
claimed, he or she should say so and set out a factual basis for such denial.
10
ANALYSIS
[14] It is thus necessary to assess whether the second to fourth defendants have
disclosed the nature and grounds of their defence as required and whether,
on the facts so disclosed, they appear to have a defence which is bona fide
and good in law, or whether the defence presented is not genuine and simply
a device to cause delay.
[15] The first difficulty for the second to fourth defendants is that the defences
raised in the affidavit opposing summary judgment had not been raised in the
plea. In summary judgment proceedings, a defendant cannot for the first time
raise defences in its affidavit opposing summary judgment where no such
defences exist in its plea. When the defence raised in the affidavit resisting
8 Tumileng Trading CC v National Security and Fire (Pty) Limited supra at para [25]
9 2020 (1) SA 494 (SCA)
10 NPGS at para [11]
7
summary judgment is inconsistent with the plea, it cannot in the absence of an
explanation for the inconsistency be said to be bona fide. 11 There was no
such explanation in the affidavit. Moreover, it is insufficient for a defendant in
summary judgment proceedings to simply put the plaintiff to the proof of its
case. If it was, it would be far too easy to avoid summary judgment. 12 In order
for the denials to found a bona fide defence, the second to fourth defendants
were required to place adequate information before the court so as to satisfy it
that their defences were bona fide.
[16] Insofar as the affidavit opposing summary judgment is concerned, it is difficult
to discern the nature and grounds of the defence to the claim and identify the
material facts relied upon in support of such defence. The affidavit mainly
raised complaints about the documentation attached and pointed to different
balances being referred to in different documents. In addressing the matters
of substance, the deponent simply resorted to repeating the denials as to
liability, asser ting that the defence was bona fide, that there were triable
issues and that the matter was not being defended solely for delay.
[17] Presumably recognising this, a number of new defences not sourced in the
plea nor the affidavit opposing summary judgment were raised by the second
to fourth defendants’ counsel from the bar during oral argument and in
practice notes. One of these practice notes was uploaded on the morning of
the hearing and the other uploaded following the hearing. This was in
circumstances where inexplicably , no heads of argument had been filed on
11 AMHR Hospitality v Da Silva 2024 (3) SA 100 (WCC) at para [14]
12 Vetpac Animal Health CC v Tantus Trading 274 CC 2012 JDR 0190 (KZP) at para [10]
8
the defendants’ behalf at all. Nonetheless the various defences raised in the
affidavit and from the bar are dealt with below.
[18] The first complaint in the affidavit opposing summary judgment pertained to
documentation. It was suggested that certain documents were incomplete,
that one suretyship document was not attached to the particulars of claim and
that none of the suretyships were attached to the summary judgment papers.
Certain other documents the second to fourth defendants could not identify
were attached to the summary judgment as were irrelevant. These complaints
did not set out defences. Moreover, as plaintiff’s counsel pointed out, all of the
suretyship agreements were attached to the particulars of claim before the
court. The papers were complete. There was no need to reattach them to the
summary judgment papers either. The deponent had verified the facts set out
in the summons and it is unnecessary to repeat the particulars or reattach the
documents referred to.
13
[19] The second principal challenge advanced in the affidavit opposing summary
judgment was directed towards the quantum of the plaintiff’s claim. This was
however not done by way of setting out any facts that addressed the question
of liability . There was no substantiated allegation of the first defendant not
being indebted to the plaintiff or that it had not enjoyed the benefit of the
overdraft. On the contrary the challenges were raised as queries as to the
correctness of the amounts claimed. It was suggested that various letters of
demand sent by the plaintiff from time to time claimed different amounts. The
bank statements furnished ended with a balance that was higher than that
13 Saglo Auto (Pty) Limited v Blackshades Investments (Pty) Limited 2021 (2) SA 587 (GP) at
para [50]; Tumileng Trading CC v National Security and Fire (Pty) Limited, supra at para [20]
9
that was being claimed. T here was thus no certainty on the papers as to the
amounts actually due and payable. As a result, all liability was denied, and
this, so the argument went, entitled the defendants to a statement and
debatement of the overdraft facility , which would then enable them to know
what amount was actually due. As set out above, the defendant s counter
claimed for such an account and debatement thereof. It was stressed in the
belatedly filed practice note and also pressed in oral agreement, that claims
for statement and debatement were incapable of being the subject of an
application for summary judgment because such a claim is not for a liquidated
amount in money.
[20] In my assessment, the second to fourth defendants’ attacks on quantum were
without merit.
[21] The first and most obvious problem for the second to fourth defendants is that
they expressly asserted in their plea that the first defendant had procured the
overdraft facility for the specific purpose of first defendant’s VAT payments to
the South African Revenue Service (SARS) . The first defendant was awaiting
two payments from SARS in the aggregate amount of R1 023 334,93 which
would place the overdraft in credit by R545 903,31. The same assertion was
made, under oath, in the affidavit opposing summary judgment. These
assertions were unqualified and constituted an unequivocal admission of the
indebtedness by the first defendant (and so too the second to fourth
defendants) to the plaintiff. These assertions put paid to any allegations as to
uncertainty as to the amount due which assertions in any event implicitly
conceded indebtedness. The assertions also put paid to the second to fourth
10
defendants’ counsel’s argument that there was no evidence that the amount
of the overdraft had actually been advanced as well as to the denial of
indebtedness.
[22] The plaintiff attached copies of the bank statements in relation to the overdraft
facility over the relevant period and also put up a certificate of balance to its
affidavit in support of the summary judgment.
[23] As plaintiff’s counsel correctly submitted, a plaintiff is entitled to attach a
certificate of balance to an affidavit in support of summary judgment and such
a certificate may even be handed up at the hearing of the matter. Such a
certificate is not hit by the provisions of Rule 32(4).
14
[24] Once the plaintiff furnished a certificate of balance, which constituted prima
facie proof of the amount owing by the second to fourth defendants, as it did,
the second to fourth defendants were required to provide evidence which, if
proven at trial, would be destructive of the prima facie proof and thus prevent
it from becoming conclusive proof. Merely to cast suspicion on the
correctness of the facts and mere theories and hypothetical suggestions will
not avail a defendant.
15
[25] In Jacobsen van den Berg SA (Pty) Limited v Triton Yachting Supplies 16 the
court referred to the fact that in Nichas and Son (Pty) Limited v Pappenfus 17
the court had held that a denial as to the correctness of the amount claimed
was not sufficient to comply with the requirements of Rule 32(3)(b). The court
14 Rossouw v FirstRand Bank Limited 2010 (6) SA 439 (SCA) at 454A to C
15 Trust Bank of Africa Limited v Senekal 1977 (2) SA 587 (W) at 593 and the cases cited there
16 1974 (2) SA 584 (O) at p587E to F
17 1969 (2) SA 494 (O) at p496
11
also referred to Traut v Du Toit 18 in which it had been held that the
defendant’s allegations in an opposing affidavit for an amount outstanding for
goods sold and delivered to the effect that he did not know how much he
owed the plaintiff because he had not yet received “volle beshonderhede” of
his account and that certain items in respect of the claim were not received by
him did not constitute sufficient compliance with the subrule either.
[26] The second to fourth defendants made no attempt to address the bank
statements nor to address the certificate of balance. In relation to the bank
statements, without even questioning a single entry, the second to fourth
defendants simply denied they were a correct reflection of the amounts due.
In relation to the certificate of balance, the second to fourth defendants said
nothing at all. In fact in their affidavit opposing summary judgment they once
again resorted to a bare denial and the putting the plaintiff to the proof of its
allegations. This was woefully insufficient.
[27] Another attack by the second to fourth defendants was that the account
number given to the first defendant ’s overdraft facility referred to in the
particulars of claim did not appear on the documents attached to the
particulars of claim . In addition, the suretyships relied upon were executed
before the overdraft facility agreement concluded in May 2020. The argument
was that one could not link the suretyships sued upon to the overdraft.
[28] The plaintiff’s counsel pointed to the numerous clauses in the overdraft facility
and in suretyships that demonstrated the fallacy of the second to fourth
defendants’ argument. I need only refer to one. A ll three suretyship
18 1966 (1) SA 69 (O) at p71
12
agreements expressly provides that each of the second to fourth defendants
had a continuous and ongoing obligation with the first defendant for the due
payment of all and any monies due to the plaintiff owing either at the time of
conclusion of the suretyship or from time to time thereafter and from
whatsoever cause and howsoever arising.
[29] The first defendant’s indebtedness to the plaintiff arising out of the overdraft
facility was thus expressly covered by the suretyship. There was no need to
refer to the specific account number. All debts of the first defendant were
covered by the suretyships. The second to fourth defendants also overlooked
that they had expressly admitted in their plea that the first defendant held the
overdraft facility with the account number referred to. Moreover, the second to
fourth defendants had, in seeking to explain that the overdraft facility would
soon have a credit balance, unequivocally admitted their indebtedness to the
plaintiff.
[30] It is so that a claim for statement and debatement is not suited to summary
judgment. However, the plaintiff was not seeking summary judgment in a
claim for statement and debatement. The plaintiff’s claim was for summary
judgment for an amount sounding in money and that is the claim I am asked
to adjudicate. The argument that presumably was sought to be made, but
which was not set out in any of the papers nor articulated in argument, was
that the counter claim itself constituted a defence to the claim and so
summary judgment should be refused. Whilst a counter claim in an
unliquidated amount might provide a defence to a plaintiff’s application for
summary judgment, a defendant has to set out grounds of the defence with
13
sufficient particularity to satisfy the court that the defence is bona fide 19 and
that the defence is good in law. The existing authority allows a counter claim
to be considered in the same way as a plea so that the court should consider
whether the counter claim is frivolous, unsubstantial and intended only to
delay.20
[31] The second to fourth defendants claim ed a right to a statement and
debatement premised on an alleged fiduciary relationship between the plaintiff
and the defendants and/or as a result of a material implied alternatively tacit
term of the “loan agreement” to that effect. However, as was held in Habib
Overseas Bank Limited v Crestar Printers and Publishers and Others,21 which
is a case which involved many of the same parties and in which the second to
fourth defendants’ counsel appeared, but which case he failed to refer to me
in argument, the court rejected the defences premised on statement and
debatement. The court held that a banker’s relationship with his client is one
of debtor and creditor. There is no fiduciary relationship entitling a debatement
of an account arising out of contract or a statutory provision. 22 In this matter ,
the second to fourth defendants were not the plaintiff’s customer and did not
have any relationship of debtor and creditor with the plaintiff, let alone a
fiduciary one. They were sureties for the first defendant’s indebtedness to the
plaintiff, if the bank’s customer is not entitled to a debatement of the overdraft,
19 AE Motors (Pty) Limited v Levitt 1972 (3) SA 658 (T)
20 HI Lockhat (Pty) Limited v Domingo 1979 (3) SA 696 (T) at 698; Muller and Others v
Botswana Development Corporation Limited 2003 (1) SA 651 (SCA) at para [12]
21 2024 JDR 4660 (GJ)
22 Habib Overseas Bank Limited v Crestar Printers and Publishers and Others , supra at para
[167]; Absa Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA) at paras [15] to [16]; see
[167]; Absa Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA) at paras [15] to [16]; see
also BMW Financial Services SA (Pty) Limited v Sela Molel a Incorporated 2025 (JDR) 4773
(JG) at paras [25] to [27]
14
then the sureties certainly are not either . Reliance on the counter claim was
not bona fide and was bad in law.
[32] Insofar as reliance on the moratorium on legal proceedings as provided for in
section 133(4) of the Companies Act is concerned, this defence was
overtaken by events. The deponent explained that the first defendant was
placed in voluntarily liquidation on 5 May 2022. It was not suggested that this
event prevented any claim against the sureties which indeed it did not.
[33] The second to fourth defendants ’ counsel argued that the plaintiff was not
entitled to summary judgment because in paragraph 8 of its particulars of
claim the plaintiff had not alleged that the terms relied upon were “material or
tacit or implied terms”. But where a party relies on a contract its pleading is
not rendered defective because use of the words “express alternatively tacit
alternatively implied terms ” was not used. A pleader is required to set out a
clear and concise statement of the material facts upon which the pleader
relies upon with sufficient particularity to enable the opposite party to reply
thereto. The plaintiff set out the terms relied upon and described them as
being “the most salient terms ”. This was certainly good enough. The second
to fourth defendants’ counsel’s submission in this regard has no merit.
[34] In oral argument, and in the practice note, the second to fourth defendants ’
counsel raised the point that the plaintiff had not attached its N ational Credit
Regulator (NCR) certificate to its founding affidavit in support of its summary
judgment application. He argued that this was a legal point, that could be
taken from the bar . Two arguments were advanced premised on the fact that
no NCR certificate was attached. The first was that the summary judgment
15
was fatally defective and the second was that the overdraft facility agreement
might be unlawful and void ab initio . The latter argument was ostensibly
inspired by a finding in the SCA 23 that credit agreements entered into with
unregistered credit providers who were required to be registered are null and
void.
[35] Leaving aside the issue of whether it was a legal point or not, the defendant s
had expressly admitted that the plaintiff was a registered credit provider in
terms of the National Credit Act 34 of 2005 so there can be no suggestion of
the overdraft facility being null and void for w ant of registration as a credit
provider.
[36] In Nedbank Limited v Wiid Group of Companies (Pty) Limited and Others
24
the Free State Division of the High Court addressed the question of whether a
credit provider must attach its NCR registration certificate to pleadings or to
the affidavit in support of summary judgment. The court held that it is not
necessary to attach a certificate to the pleadings and explained that in the
context of a summary judgment application, the deponent’s confirmation of
the plaintiff’s registration as a credit provider is sufficient and the annexing of
the certificate merely serves to verify what has already been pleaded. The
absence of an NCR certificate does not render the summary judgment
application defective and so this defence failed too.
CONCLUSION
23 Loan Company (Pty) Limited v National Credit Regulator and Another 2025 (4) SA 501 (SCA)
at para [47]
24 2025 JDR 1425 (FB)
16
[37] In the circumstances, I am not satisfied that the second to fourth defendants
have bona fide defences in respect of the plaintiff’s claim. The defences
raised, both in the plea and in the affidavit resisting su mmary judgment were
in the form of denials, are bald, vague and sketchy. No bona fide defences
that are good in law have been demonstrated and in my view were simply
devices to delay.
[38] The plaintiff sought costs on an attorney and client scale. The scale was
provided for in the suretyship agreements.
[39] I accordingly grant an order in the following terms:
[1] Summary judgment is granted against the second to fourth defendants jointly
and severally, the one paying the other to be absolved for payment of:
[1.1] the amount of R477 431,62;
[1.2] interest on the afore mentioned amount at a rate of prime plus 2% per
annum calculated and capitalised monthly from 1 June 2021 to date of
final payment both days inclusive.
[2] The second to fourth defendants are to pay the costs of the application jointly
and severally, the one paying the other to be absolved, on the s cale as
between attorney and client.
17
_____________________________
T DALRYMPLE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
This judgment was handed down electronically by circulation to the parties’ and/or
parties’ representatives by email and by being uploaded to CaseLines. The date for
hand-down is deemed to be 18 February 2026
DATE OF HEARING: 16 October 2025
DATE OF JUDGMENT: 18 February 2026
APPEARANCES:
COUNSEL FOR THE PLAINTIFF: V Mabasa
COUNSEL INSTRUCTED BY: Jay Mothibi Inc
COUNSEL FOR THE 2
nd TO 4th DEFENDANTS: MD Kohn
COUNSEL INSTRUCTED BY: Jaffer Inc Attorneys