SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 22751/18
In the matter between:
WILLEM LODEWICUS ROOS Plaintiff / Respondent
And
LEON BERGH Defendant / Applicant
Coram: YAKE AJ
Argument: 19 February 2026
Delivered: Electronically on 10 March 2026
Summary: Civil procedure - absolution from the instance – rule 39 (6) of the Uniform
Rules.
JUDGMENT
YAKE AJ
Introduction
[1] This is an application for absolution from the instance brought by the
defendant at the close of the plaintiff’s case, in terms of Rule 39(6) of the Uniform
Rules of Court.
[2] The plaintiff’s claim arises from an alleged breach of a partly written and partly
oral loan agreement concluded between the parties on 23 September 2015. The
written terms of the agreement appear on page 1 of the trial bundle, while the oral
component related to repayment of the loan directly into the plaintiff’s personal bank
account. The plaintiff alleges that the defendant breached the loan agreement by
making only four payments before refusing to make any further repayments. Two
witnesses, Mr. Roos , th e plaintiff and Ms. Williams of Standard Bank , testified in
support of the plaintiff’s case, after which the plaintiff closed his case. The defendant
then applied for absolution from the instance which the plaintiff opposed.
Summary of evidence
[3] The Plaintiff testified that he was previously married to the defendant’s
mother, Mrs Roos. During the marriage , the plaintiff sold his property at […] A[...]
Street to her. On 28 March 2003, Mrs Roos obtained a mortgage loan of R550 000
from Standard Bank, followed by a further loan of R483 200 on 12 August 2010 to
fund improvements to the property , resulting in a total outstanding bond amount of
approximately R1 028 655. It is common cause that, although the property was
registered in Mrs Roos ’s name, the plaintiff was solely responsible for all monthly
bond repayments. In March 2015 , the plaintiff transferred R1 million from his
company, Alwic Construction (Pty) Ltd to Mrs. Roos’s bond account. At the time of
transfer, the outstanding balance on the bond was R1 019 741 . According to the
plaintiff, the payment was made for the purpose of accruing interest.
[4] On 23 September 2015 , the plaintiff and the d efendant concluded a written
loan agreement as depicted on page 1 of the plaintiff’s trial bundle. The terms of the
loan agreement as depicted on page 1 of the plaintiff’s trial bundle. The terms of the
loan agreement are as follows:
“It is herewith acknowledged that Leon Bergh (the defendant) ID 8[...] loans the sum
of R550 000 from Willem Lodewicus Roos (the plaintiff) ID 4[...], which amount to be
drawn against the home loan of Lorraine Roos, the total repayment is respect of the
loan of R550 000 currently with Standard Bank to be repaid with the connected
interest rate in accordance with the ban contract by Leon Bergh.
Leon Bergh shall also nominate MR WL Roos as the beneficiary under the personal
policy with Discovery policy no 5[...] for the sum of R550 000 in case of death of any
of the aforementioned in order to settle the loan amount. As the amount being repaid,
the amount to be paid under the policy will be reduced.”
[5] The agreement was duly signed by both parties , with Mrs Roos and Adele
Van Staden acting as witnesses. Following the defendant’s request for a loan of
R550 000, the plaintiff transferred the funds from Mrs. Roos’s bond account to Alwic,
which then paid the amount to the defendant on his behalf. According to the plaintiff,
this method was used to maintain clear and accurate financial record-keeping.
[6] Pursuant to the defendant receiving the loan funds, he ma de four payments
into the plaintiff’s personal account, and thereafter ceased payment. As a result of
this breach, the plaintiff instituted action proceedings claiming the recovery of the
outstanding balance. The defendant denies liability and argues that the plaintiff failed
to establish a prima facie case justifying him to institute these proceedings.
Submissions by Defendant
[7] In support of the application for absolution, the defendant submitted that the
plaintiff’s evidence is insufficien t to sustain a finding in his favour. If granted, the
application would result in the dismissal of the plaintiff’s claim, albeit without barring
the plaintiff from reinstituting the action afresh, as absolution does not give rise to res
judicata.
[8] The defendant submits that the plaintiff has no locus standi to institute these
judicata.
[8] The defendant submits that the plaintiff has no locus standi to institute these
proceedings, arguing that the proper plaintiff is either Mrs. Roos, as a bond account
holder or Alwic, which effected payments. In support of this argument, the defendant
relies on Hlumisa Investment Holdings (RF) Ltd and Another v Kirkinis and Others1.
[9] The defendant contends that the plaintiff a cknowledged making transactions
from Mrs. Roos’s bond account, including withdrawals for construction projects and
improvements at [...] A[...] Street, Boksburg, Gauteng. He further contended that the
funds used were bank funds rather than the plaintiff’s personal money. On this basis,
the defendant contended that the outstanding balance of R1 019 741 on Mrs. Roos’s
bond account resulted from the plaintiff’s own use of the facility, and the payment of
R1 million he made merely reduced the existing debt owed to the bank.
[10] The defendant further submitted that the divorce agreement provides that
each party is responsible for their own debt. On this basis, he argued that the plaintiff
had relinquished any claim for repayment of amounts connected to the property at
[...] A[...] Street. The defendant contend ed that, because the plaintiff did not make
payments from his personal account, he suffer ed no financial loss and therefore has
no valid claim. He accordingly sought an order granting absolution from the instance,
together with costs, including costs of counsel on scale B.
Submissions by Plaintiff
[11] In opposing the application , the plaintiff submitted that the issues before this
Court are confined to whether any contract exist s between the parti es and, if so ,
whether the defendant breached it, thereby causing the plaintiff to suffer damages.
The plaintiff contended that a valid and b inding loan agreement exists between the
parties, which the defendant breached by making only four repayments and then
failing to perform further. The plaintiff further contended that he suffered financial
loss as he transferred R1 million into Mrs Roos’s bond account, which was debited
against his loan account with Alwic.
against his loan account with Alwic.
[12] The plaintiff further submitted that the defendant ’s reliance on divorce
settlement is misplaced, as he was not party to those divorce proceedings. The
plaintiff sought dismissal of the application with costs.
1 [2020] ZASCA 83; [2020] 3 All SA 650 (SCA); 2020 (5) SA 419 (SCA).
Legal principles
[13] It is trite that absolution from the instance is regulated by Rule 39(6) of the
Uniform Rules of Court. The rule provides as follows:
"At the close of the case for the Plaintiff, the defendant may apply for absolution from
the instance , in which event the defendant or one advocate on his behalf may
address the court and the plaintiff or one advocate on his behalf may reply. The
defendant or his advocate may thereupon reply on any matter arising out of the
address of the plaintiff or his advocate."
[14] The test for absolution from the instance at the end of the plaintiff’s case has
long been established. It was articulated in Gascoyne v Paul and Hunter2, where De
Villiers JP formulated it as follows:
“the test to be applied is not whether the evidence established what would finally be
required to be established, but whether there is evidence upon which a court ,
applying its mind reasonably to such evidenc e, could or might (not should or ought
to) find for the plaintiff.”
[15] The test has been consistently applied in various decision s over several
decades. In Gordon Lloyd Page and Associates v Rivera and Another 3, the Supreme
Court of Appeal reaffirmed the test as follows:
“The test for absolution to be applied by a trial court at the end of a plaintiff’s case
was formulated in Claude Neone Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at
409G-H in these terms:
“. . . when absolution from the instance is sought at the close of plaintiff's case,
the test to be applied is not whether the evidence led by plaintiff establishes what
would finally be required to be established, but whether there is evidence upon
which a Court, applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff. (Gascoyne v Paul; Ruto Flour Mills (Pty) Ltd
v Adelson (2) 1958 (4) SA 307 (T.)”.
2 1917 TPD 170 at 173.
3 2001 (1) SA 88 (SCA) at 92E-93A.
------------ -------- -
[16] Harms JA in Gordon Lloyd Page supra warned that absolution at the end of a
plaintiff’s case, in the ordinary course of events, will nevertheless be granted
sparingly but when the occasion arises a court should order it in the interests of
justice.” (Emphasis added.)
[17] The test was later confirmed by the Constitutional Court in Carmichele v
Minister of Safety and Security4, where Ackermann and Goldstone JJ held:
“An order for absolution from the instance is an appropriate order to make at the end
of the plaintiff’s case where a court, applying its mind reasonably to the evidence,
could not or might not find for the plaintiff. The underlying reason is that it is ordinarily
in the interests of justice to bring the litigation to an end in such circumstances . A
determination of what is in the interests of justice necessarily involves the exercise of
a discretion.”
Analysis
[18] In deciding whether absolution from the instance should be granted at the
close of the plaintiff’s case , the Court is not required at this stage to decide whether
the plaintiff has proved its case on a balance of probab ilities. Furthermore, the
question of credibility should not normally be investigated at this stage of the
proceedings, except “where the witness as have palpably broken down, and where it
is clear that what they stated is not true. 5” It suffices to enquire whether the plaintiff
has presented evidence establishing a prima facie case that calls for an answer from
the defendant . If a prima facie case has been made out , then the application for
absolution from the instance must fail. If not, the application must succeed. I n doing
so, this Court is guided by the test set out in Claude Neon Lights (SA) Ltd v Daniel
supra.
[19] Significant emphasis was placed by the defendant on the plaintiff’s alleged
lack of locus standi. The defendant argued that the plaintiff is not the proper p arty to
institute these proceedings, suggesting that the proper plaintiff is either Mrs Roos as
institute these proceedings, suggesting that the proper plaintiff is either Mrs Roos as
4 [2001] ZACC 22; 2001 (4) SA 938 (CC) para 79.
5 Erasmus: Superior Court Practice, 2nd Edition; Van Loggerenberg D1-531.
the bond account holder or Alwic which effected payments. In determining whether
the plaintiff has locus standi , the starting point will be to identify the source of the
dispute, namely, the loan agreement. It is therefore necessary to establish the actual
parties to that agreement, which forms the foundation of the present action.
[20] The evidence established is that the plaintiff and the defendant concluded a
loan agreement in terms of which t he plaintiff advanced R550 000 to the defendant.
Notably, the agreement was signed by both parties, and the defendant does not
dispute its existence. Neither Alwic nor Mrs Roos is identified as a contracting party
in the agreement, nor is there any indication that either played a role beyond
witnessing the document by Mrs Roos.
[21] The defendant, despite being invited by th e Court to address the question of
the identity of parties on the loan agreement, failed to do so. T his indicates that the
defendant was at all material times aware that he concluded an agreement directly
with the plaintiff. This is supported by the fact that Mrs Roos , now alleged to be the
proper plaintiff, signed the agreement merely as a witness, demonstrating that there
was no unce rtainty regarding who advanced the loan. Further, the defendant’s
nomination of the plaintiff as the beneficiary in his policy strengthens the idea that he
understood the plaintiff to be the lender. Had he believed otherwise, there would
have been no reaso n to nominat e plaintiff as a beneficiary of his policy upon his
death.
[22] The defendant’s assertion that either Mrs Roos or Alwic is the proper plaintiff
is unfounded , in my view . No loan a greement was ever concluded between the
defendant and either of them. Had any agreement existed , it would have been
between Alwic Construction and the plaintiff, who was the person engaging with it.
Likewise, if an agree ment had been concluded with Mrs Roos, she would not have
Likewise, if an agree ment had been concluded with Mrs Roos, she would not have
signed the loan agreement as a w itness. The suggestion that either Mrs Roos or
Alwic is the proper plaintiff is therefore without merit.
[23] The defendant’s reliance on the Hlumisa case supra is misplaced. In Hlumisa,
the applicants instituted the proceedings in their capacity as shareholders of ABIL ,
effectively asserting a claim on behalf of ABIL without legal authority to do so. Th e
Supreme Court of Appeal held that they were not proper plaintiffs for that reason. In
the present matter, plaintiff d oes not act in any representative capacity, whether on
behalf of Alwic or Mrs Roos. He instituted these proceedings in his personal capacity
as the contracting party to the loan agreement. Accordingly, I find that neither Mrs
Roos nor Alwic has locus standi to bring this action.
[24] I now turn to the issue of loss suffered. The defendant argued that the plaintiff
suffered no loss and that loss was borne either by Mrs Roos or Alwic. As previously
established, neither Mrs Roos nor Alwic w as party to the loan agreement. The
evidence shows that Alwic made payment to the defendant on the plaintiff’s
instruction, and that was never disputed. As the terms governing Alwic’s
advancement of funds to the defendant on his behalf are unknown, a nd Alwic is not
before this Court, there is no basis on which to conclude that Alwic suffered any loss
as a result of making payment on plaintiff’s behalf.
[25] Turning to Mrs Roos , the defendant contends that she suffered a loss
because the loan funds were paid from her bond account . However, the evidence
shows that although the property was registered in her name , she made no
contributions towards bond repayment; the plaintiff alone serviced the bond at all
relevant times. While t he tw o mortgage loans, totalling approximately R1 million,
were taken in her name , there is no evidence that she repaid any portion of them.
The defendant’s contention that the outstanding balance of R1 019 741 resulted from
the plaintiff’s use of access facility is un supported. Given that the plaintiff transferred
R1 million into the bond account using his own funds, the payment did not constitute
a loss for her. It follows that she coul d not have suffered a loss in respect of funds
that were not hers.
that were not hers.
[26] The divorce is a matter exclusively between the plaintiff and Mrs Roos, and
not before this court. It has no bearing on the present dispute . Both parties
voluntarily signed that settlement agreement; any challenge to its terms must be
pursued in the appropriate forum, not in this application.
[27] Having considered the evidence, I am satisfied that defendant has a case to
answer. The plaintiff has established a prima facie case requiring a response. This
finding does not amount to a conclusion that the plaintiff has proved its case.
[28] In the results, I make the following order:
1. The application is dismissed.
2. The defendant is ordered to pay costs, including costs of counsel
on scale B.
_____________________________
S. YAKE
ACTING JUDGE OF THE HIGH
COURT
APPEARANCES
For the Plaintiff: Adv L. O’ Connor
Instructed by: Werkmans Attorneys
For the Defendant: Adv N. Strydom
Instructed by: Andre Kirsten Attorneys