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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
CASE NO: 5090/2024
In the matter between:
FIRSTRAND BANK LIMITED Plaintiff
and
JAN ABRAHAM CHRISTOFFEL DRY Defendant
Coram: Reddy J
Judgment reserved: 27 February 2026
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be on 27 March 2026 at 16h00.
Summary: Civil Procedure — Summary Judgment — Application for payment
of mortgage debt and special executability of immovable property.
Deposition — Founding Affidavit — Validity of commissi oning —
Commissioner of Oaths serving as a panel attorney for the plaintiff bank —
Requirement of independence and impartiality under Regulation 7(1) of the
Justices of the Peace and Commissioners of Oaths Act 16 of 1963 — Direct or
indirect financial inte rest creating reasonable doubt as to objectivity and
compliance with peremptory regulations.
Locus Standi — Cession of Rights — Debt and mortgage bond originating with
a predecessor in title (Saambou Bank Limited) — Necessity of proving a
registered cession of the mortgage bond at the Deeds Office to enforce real
rights in rem — Procedural non-compliance with Uniform Rule 18(6) regarding
the annexing of written agreements establishing the "chain of entitlement".
Evidence — Admissibility — Personal knowledge of the deponent — Hearsay
concerns where claims pass through successive corporate entities —
Requirement for the deponent to establish the reliability of acquired accounting
records rather than merely regurgitating stored data.
Liquidated Claim — Calculation of Debt — Inclusion of unliquidated and
untaxed legal costs in the capital balance — Effect of such i nclusion on the
liquidity of the claim and the reliability of interest calculations — Contractual
provisions cannot override Rule 32 liquidity requirements.
National Credit Act 34 of 2005 — Section 129 Notice — Accuracy of reflected
arrears as a jurisdicti onal prerequisite — Inflated figures due to untaxed legal
costs rendering the notice defective and providing a bona fide defence.
Summary Judgment Refused — Identification of multiple triable issues
concerning standing, statutory compliance, and the nature of the claim —
Interests of justice requiring the matter to proceed to trial.
________________________________________________________________
JUDGMENT
________________________________________________________________
REDDY J:
Introduction
[1] The plaintiff, FirstRand Bank Limited (“FirstRand”), applies for
summary judgment against the defendant, Jan Abraham Christoffel Dry (“Dry”),
for payment of the amount of R 264 308.70, together with interest, and for an
order declaring Remaining Portion 2 of Erf 1 […], Lichtenburg Township,
specially executable. Dry has since made payments, and the monetary judgment
now sought makes for this adjustment.
[2] The application is opposed. Dry has raised several points in limine which
have the effect, conjunctively or disjunctively, of a substantive defence directed
at FirstRand’s standing, compliance with statutory prescripts, and the
correctness and liquidity of the amount claimed.
Factual background
[3] The claim is predicated on a mortgage bond originally registered by
Saambou Bank Limited over Dry’s immovable property situated at 1 […] D[…]
N[…] M[…] (M[…]) Drive, Lichtenburg. Following the curatorship of
Saambou Bank Limited, its assets and liabilities were transferred to BOE Bank
Limited and thereafter to FirstRand.
[4] FirstRand alleges that Dry defaulted on his contractual obligations. A
notice in terms of section 129 of the National Credit Act 34 of 2005 (“the
NCA”) was dispatched as a peremptory prelitigation step. As of 5 July 2025, the
outstanding balance was alleged to be R460 843.23, with arrears of R38 839.82.
[5] Dry entered an appearance to defend. What followed was the present
application for summary judgment.
Points in limine
Validity of the founding affidavit
[6] Dry contends that the founding affidavit is defective because it was
commissioned by a commissioner of oaths who is a panel attorney for
FirstRand. The affidavit in support of the summary judgment application was
deposed to by one Roy Gomes, employed by FirstRand as Manager Legal
Recoveries. The affidavit was commissioned at Fairlands on 6 February 2025 by
Mrs Rita Nel, a practising attorney and Head of the Legal Department of Glover
Kannieoppan Inc. Dry contends that Glover Kannieoppan Inc. forms part of the
panel of attorneys which FirstRand utilises for its recovery’s litigation, and that
this relationship renders both Roy Gomes and Rita Nel not completely
independent of FirstRand and each other. It is accordingly submitted by Dry
that the purported affidavit is invalid for non -compliance with Regulation 7(1)
of the Regulations governing the administering of an oath or affirmation
published under GN R1258 in GG3619 of 21 July 1972, as amended, read with
section 10 and section 7 of the Justi ces of the Peace and Commissioners of
Oaths Act 16 of 1963, and that in terms of section 7 of the Act, Mrs Rita Nel
was not permitted to commission the affidavit. FirstRand disputes this
contention and submits that the commissioner is not the attorney of r ecord in
these proceedings and that no disqualifying interest is established.
[7] In S v Munn1, the court held that the purpose of obtaining the deponent’s
signature to an affidavit is primarily to obtain irrefutable evidence that the
1 1973 (3) SA 734 (NC) at 737E–F.
relevant deposition was indeed sworn to . Non-compliance with the regulations
does not, per se, invalidate an affidavit if there was substantial compliance with
the formalities. The requirement of impartiality and the prohibition on a
commissioner attesting an affid avit in a matter in which they have an interest
derive from Regulation 7(1) of the Regulations promulgated under the Justices
of the Peace and Commissioners of Oaths Act 16 of 1963, which has been
consistently upheld in the case law.
[8] In LexisNexis South Africa (Pty) Ltd v Minister of Justice and
Constitutional Development 2 confirmed that strict compliance with the
Regulations is required. The Court held that the requirement that the deponent
sign the affidavit in the presence of the commissioner of oaths is peremptory,
and that remote commissioning does not comply with the Regulations. The SCA
stressed that the commissioner must be physically present and impartial, with no
interest in the matter.
[9] In Radue Weir Holdings Ltd t/a Wiers Cash and Carry v Galleus
Investments CC t/a Bargain Wholesalers 3the court emphasized that a
commissioner must be impartial. While a panel attorney's interest may be
indirect, where the validity of the very document initiating a drastic remedy like
summary judgment is questioned, the court must lean toward caution.
[10] Considered holistically, these authorities make clear that the impartiality
of the commissioner of oaths is not a mere formality but a substantive
safeguard. The enquiry, however, is not confined to any apprehension of bias,
but concerns compliance with Regulation 7(1) of the Regulations promulgated
2 2026 1 All SA 293 (SCA) paras [19 -41].
3 1998 (3) SA 677 at para 681 (F).
under the Justices of the Peace and Commissioners of Oaths Act 16 of 1963,
which prohibits a commissioner from attesting an affidavit in a matter in which
that commissioner has an interest.
[11] Given the drastic nature of summary judgment proceedings, trial courts
have consistently required strict compliance with procedural and evidential
requirements. A verifying affidavit which does not clearly comply with the
Regulations cannot readily be relied upon.
[12] Designating a commissioner as a panel attorney implies an ongoing
professional relationship with the litigant. Regulation 7(1) is mandatory. A panel
attorney has an indirect financial interest in the bank's litigation, which strongly
emphasizes the appearance -of-impartiality requirement under the Regulations.
Whether this constitutes a disqualifying interest is, at the very least, a ma tter
that raises reasonable doubt. In the context of summary judgment proceedings,
such doubt cannot be resolved in favour of FirstRand.
Locus standi and the chain of entitlement
[13] Dry further disputes FirstRand’s locus standi, pointing out that the debt
and mortgage bond originated with Saambou Bank Limited. The challenge
raises issues relating to both the enforceability of the security and the core
evidence of the claim. FirstRand asserts that it is the lawful holder of the rights
and that the mortgage bond and Certificate of Balance annexed to the papers
provide sufficient prima facie proof of its locus standi.
[14] While a personal right of action may be ceded, the real right of security
created by a mortgage bond is enforceable only by the party in whose favour it
is registered. A mortgage bond is accessory to the principal obligation. In our
law, a mortgage bond has a dual nature4.
[15] In the absence of proof of the registrat ion of any cession of the bond at
the Deeds Office, it remains a triable issue whether FirstRand is entitled to seek
relief in rem, including an order of special executability.
[16] This failure of FirstRand to properly clothe itself with locus standi is
compounded by a procedural lack of compliance with Rule 18(6) of the
Uniform Rules of Court. To this end, Dry claims that FirstRand failed to annex
a complete and legible copy of the contract. Rule 18(6) requires, amongst
others, that a party who relies upon a written agreement in their pleading, annex
a true copy thereof or of the part relied on in the pleading to that pleading. The
written agreement serves as a vital link in the chain of a party’s cause of action.5
Failure to attach it may result in the pleading being excepted to on the ground
that the pleading does not sustain a cause of action or does not disclose a cause
of action.
[17] In the present matter, the absence of th e necessary transfer certificates
between Saambou, BOE, and FirstRand leaves the paper trail incomplete and
FirstRand’s entitlement in question.
[18] Aside from the contract being a vital chain in FirstRand’s cause of action,
there is the question of t he deponent’s personal knowledge as set out in the
verifying affidavit in support of summary judgment. When a claim has passed
through successive corporate entities, a deponent must explain how they
4 Lief NO v Dettmann 1964 (2) SA 252 (A) p261.
5 South African Railways and Harbours v Deal Enterprises (Pty) Ltd 1975 (3) SA 944 (W) at
953A-H.
acquired knowledge of the original records. This necessi tates establishing the
reliability of the collated accounting records passed through the various entities.
An affidavit that merely regurgitates stored data, without establishing a basis for
its admissibility, raises serious concerns of hearsay and is lega lly insufficient to
meet the evidential threshold required for summary judgment. This point,
viewed collectively with the accompanying collateral legal nuances, raises a
triable issue.
Liquidity and the interest calculation
[19] Dry points out that the a mount claimed includes capitalized legal costs,
which have not been taxed. FirstRand relies on contractual provisions that
permit the capitalization of such costs.
[20] For purposes of summary judgment, however, the claim must be liquid,
in the sense of being capable of prompt and exact computation. The inclusion of
unliquidated legal costs in the capital balance undermines that requirement.
Contractual provisions cannot override Rule 32's liquidity requirements.
[21] The proposition that untaxed or unagreed legal fees folded into a capital
claim render that claim unliquidated, and therefore incapable of summary
judgment, finds direct support in Sasfin Bank Limited and Another v Makatsang
Cleaning Services (Pty) Ltd and Others 6, where the Free State High Court
refused summary judgment after plaintiff’s counsel conceded that the amount
claimed for legal costs could not be sustained, yet those amounts formed part of
6 (5691/2019) [2021] ZAFSHC 6 (28 January 2021). See also Senekal v Trust Bank of Africa
Ltd 1978 (3) SA 375 (A) at 383A–C (certificate of balance constitutes prima facie
proof only and may be rebutted by specific factual discrepancies); Changing Tides 17
(Pty) Ltd N.O. v Congwane (2015/94919) [2016] ZAGPJHC 128 (30 May 2016) at
paras 46–47 (veracity of certificate of indebtedness declined where deponent lacked
sufficient knowledge of underlying records).
the total capital sum certified in the certificate of balance. Th e certificate
contradicted the underlying statements of account and could not reliably
establish the debt. Furthermore, a certificate of balance constitutes no more than
prima facie proof of indebtedness and may be rebutted where specific
accounting discre pancies are identified: Senekal v Trust Bank of Africa Ltd ;
Changing Tides 17 (Pty) Ltd N.O. v Congwane . Dry has identified specific
accounting discrepancies in FirstRand’s own documentation , which go to the
face of the Certificate of Balance and rebut its conclusive proof clause. Where
those discrepancies raise a genuine dispute as to the accuracy of the certified
figure, the certificate cannot be accepted as reliable proof of the debt for
purposes of summary judgment.
[22] Moreover, when interest is calculated on a balance that includes disputed
or unliquidated components, the calculation becomes unreliable. In such
circumstances, the claim as a whole cannot properly be classed as a liquidated
amount in money and is deficient of summary judgment.
[23] It is further observed that the underlying contractual documents,
originating from the era of Saambou, contain numerous references to the Usury
Act 73 of 1968, particularly in relation to the calculation of finance charges and
bond cancellation costs. As t he regulatory landscape has shifted significantly
since the inception of this debt, the plaintiff’s transition from these older
statutory frameworks to the current NCA , and its standing to do so as a
successor in title, constitute a technical legal nexus b est ventilated through trial
testimony rather than summary judgment proceedings.
Rule 46A
[24] Dry submitted that the application for an order of executability is
premature until a money judgment has been secured. FirstRand places store on
ABSA Bank Limited v Mokebe 7which mandates that the money claim and the
executability claim must be heard together.
[25] The Mokebe decision was intended to protect debtors by ensuring a court
considers all circumstances, including the right to housing, at the same time the
debt is adjudicated.
[26] The money judgment and the relief sought under Rule 46A are
interconnected. That being so, rule 46A presupposes a valid and competent
monetary claim. Where summary judgment on the debt is refused, the court's
executionary relief becomes moot. This submission does not assist Dry.
Accordingly, it must be dismissed.
Section 129 of the NCA
[27] Dry further challenges the delivery and accuracy of the s129 notice.
FirstRand claims that the notice was sent to the domicilium address and that
Dry’s default has been continuous. Strict compliance with s129 is a
jurisdictional prerequisite to enforcemen t proceedings under the NCA. In my
view, it falls into the category of an inflexible precursor to litigation in cases
where the NCA applies.
[28] Given the importance and significance of s129, the notice must accurately
reflect the arrears to fulfil its statutory purpose of affording the consumer a
meaningful opportunity to remedy the default. If the inclusion of untaxed legal
costs inflates the arrears figure, the notice is not accurate, and the right to
7 2018 (6) SA 492 (GJ)
remedy the default is rendered nugatory. As I se e it, the notice does not meet
that requirement and provides a bona fide defence to enforcement.
[29] While s130(4)(b) of the NCA permits a court to adjourn a matter where a
notice is defective, such a postponement is inappropriate here. The challenges
regarding the validity of the commissioning and the registered standing of
FirstRand go to the heart of the application's foundation. They cannot be cured
by a mere adjournment for the re-service of a notice.
[30] Dry’s challenge to the claim's liquidity is supported by apparent
discrepancies in FirstRand’s own documentation. A Section 129 notice issued in
November 2021 reflected arrears of R38,839.82. By the time the Certificate of
Balance was presented in February 2026, this figure had escalated to
R224,443.31.
[31] Furthermore, FirstRand’s Certificate of Balance explicitly states that
interest is calculated and compounded monthly in accordance with Regulation
40 of the N CA. Given Dry’s specific denial of the cor rectness of the balance,
the application of this statutory formula to the historical debt constitutes a
material dispute. The mathematical accuracy of these calculations, especially
given the fluctuating interest rates cited in the papers, cannot be determined
without the benefit of cross-examination.
The law
[32] To resist summary judgment, a defendant must show a bona fide defence
under rule 32(3)(b). In Breitenbach v Fiat SA (Edms) Bpk 8 We were reminded
that the defence must not be “set out .. baldly vaguely or laconically”.
[33] In Maharaj v Barclays National Bank Ltd 9 “the plaintiff’s claim is
unimpeachable and that the defendant’s defence is bogus or bad in law” and
Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture .10 “no
bona fide defence to an action.” The courts have consistently held that summary
judgment should only be granted if the plaintiff has an "unanswerable case."
(own emphasis).
[34] Summary judgment is a procedural mechanism designed to prevent sham
defences. It is not intended to shut a defendant out of court where triable issues
are discl osed. The defendant is required only to set out facts which, if
established at trial, would constitute a defence good in law. The court does not
weigh probabilities at this stage.
[35] Where material disputes arise concerning standing, statutory complia nce,
admissibility of evidence, or the liquidity of the claim, summary judgment is not
appropriate.
Discussion
8 1976 (2) SA 226 (T) p228H – 229.
9 1976 (1) SA 418 (A) at p423G.
10 2009 (5) SA 1 (SCA) at para 29B.
[36] The issues raised regarding the validity of the founding affidavit, the
plaintiff’s right to enforce the bond, the deponent’s personal knowledge, the
significant variations in the arrear figures, and the statutory interest calculations
under Regulation 40 of the NCA are neither contrived nor peripheral.
[37] Furthermore, insofar as the ancillary relief sought by FirstRand for a n
order for special executability, as alluded to a finding that Dry has disclosed
bona fide defences which warrant a trial, the ancillary relief sought by
FirstRand, namely the declaration of the immovable property as specially
executable under Rule 46, is rendered moot for this application. It falls to be
refused alongside the main claim.
[38] Dry has disclosed facts which, if proven, would defeat or materially
affect FirstRand’s claim. In sum, FirstRand’s case cannot be described as
unanswerable. In the se circumstances, the interests of justice require that the
matter proceed to trial.
Order
[39] Resultantly, the following order is made:
1. The application for summary judgment is refused.
2. The defendant is granted leave to defend the action.
3. The costs of the application are costs in the cause.
4. The action when certified trial ready is to be enrolled before Reddy J on a
date arranged with the Offices of the Registrar and the Judge President.
__________________________________
A REDDY
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the Plaintiff: Advocate C Wessels
Instructed by: Van Hulsteyns Attorneys
C/O Maree and Maree Attorneys Inc
For the Defendant : Advocate H P Van Nieuwenhuizen
Instructed by: Bosman & Bosman Attorneys
C/O Labuschagne Attorneys