(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
10/04/2026 SHAI AJ________
DATE SIGNATURE
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT
JUDGMENT
CASE NUMBER 5117/2024
STANDARD BANK OF SOUTH AFRICA LIMITED APPLICANT/PLAINTIFF
And
C JENNINGS EXECUTIVE DEVELOPMENT CC 1ST RESPONDENT/DEFENDANT
COLLIN PETER JENNINGS 2ND RESPONDENT/DEFENDANT
JENNIFER DORIS JENNINGS 3RD RESPONDENT/DEFENDANT
JUDGMENT
SHAI AJ
Introduction
[1] This is an application for summary judgment.
[2] The applicant had issued summons against the respondents.
[3] On 21 February 2020 the applicant and the first respondent entered into a written
overdraft facility agreement, in terms whereof an overdraft facility amounting to
R470 000 was made available to the First respondent.
[4] On 19 November 2018 the second and third respondents signed a guarantee
which was supposed to be used as a collateral over the overdraft facility. The
second and third respondents unconditionally guaranteed and undertook as
principals to and in favour of the applicant the due, punctual and full payment of all
of the debts which t he first respondent owed and may in the future owe to the
applicant in terms of or arising in connection with agreements concluded or be
concluded between the first respondent and the applicant and to pay to the
applicant any and all amounts which are or may become due and payable in
respect of the debts.
[5] The first respondent defaulted on payment.
[6] It is worth mentioning at the outset that the first respondent has since been
liquidated and the second respondent is deceased1.
[7] The agreement is governed by the provisions of the National Credit Act 34 of 2005
(“the NCA”)
Plea
[8] In its plea the third respondent raises several points in limine. For purposes of this
judgment, it suffices to deal with the following-
8.1 No notice in terms of the provisions of section 129(1) of the NCA was given;
8.2 The Particulars of Claim are not signed by an advocate.
[9] Furthermore, the third respondent raises reckless credit as its defence.
Facts
[10] All the facts stated above are common cause or not in dispute between the parties.
Issue
[11] The issue for determination is whether the raised points in limine and the defence
of reckless lending /credit raised by the respondent suffice in this application for
purposes of qualifying as triable issues. That is, whether the defence could be held
to be a bona fide defence in this application.
The law
1 Paragraph 3 of respondent’s Plea
[12] Rule 32(3) provides that the Respondent in a summary judgment application
should show that he has a bona fide defence.
[13] The test is whether on the set of facts before it, the court is able to conclude that
the defence raised by the Defendant is bogus or is bad in law.2
[14] The defence should, if advanced at trial, have the potential to dislodge the
applicant/plaintiff in its claim.
[15] In Maharaj v Barclays Bank Ltd3 it was held that the grant of the remedy is based
on the supposition that the Plaintiff’s claim is unimpeachable and that the
Defendant’s defence is bogus and bad in law.4
[16] The court has a discretion to grant or refuse summary judgment, even if the
requirements resisting summary judgment have not been met.5
Section 129 notice
[17] A section 129 notice is intended to give an option to a respondent to refer a credit
agreement to a debt counsellor, alternative dispute resolution agent, consumer
court or ombud, with the intent to resolve the dispute and possibly agree on a plan
to bring the repayments under the credit agreement up to date.
2 Afri-Coast Engineers SA (Pty) Ltd v The Amatola Water Board, Case number 546/18, delivered 8 May 2018
3 1976 (1) SA 418 (A)
4 Ibid, at 423 G
5 Mahomed Essop (Pty) Ltd v Sekhukhulu sons 1967 (3) SA 728 D
[18] The applicant failed to give such notice to enable the re spondents to avail
themselves for either of these options.
[19] The applicant proceeded to issue summons before the aforesaid notice was given.
POC not signed by Counsel
[20] Rule 18(1) provides:
“A combined summons … shall be signed by both an advocate and an attorney
….”
This provision is peremptory and non -compliance therewith renders the POC
defective.
[21] Applicant’s POC is not signed by an advocate.
Reckless credit/lending
[22] Pleaded with particularity, reckless credit can successfully be raised by a
defendant in a claim of this nature, where the NCA is applicable , as shown in the
Mbatha6 case and Nedbank Limited v Tshoga7.
Evaluation
[23] The respondent in its plea which is, by the way, not withdrawn, made admissions
to all allegations made by the applicant in its Particulars of Claim.
6 SA Taxi Securitisation (Pty) Ltd v Mbhata and two Similar case 2011(1) SA 310 (GSJ)
7 [2022] ZAGPPHC 196
FOR THE APPLICANT: MCROBERT ATTORNEYS
C/O SWANEPOEL AND PARTNERS INC
NELSPRUIT
EMAIL: tphahla@mcrobert.co.za
FOR THE RESPONDENT: RANSLEY-MELVIN ATTORNEYS
C/O GREYLING BOTHA VAN RENSBURG ATTORNEYS
WHITE RIVER
EMAIL: office@gbvr.co.za