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[1] This is an opposed application for summary judgment in which the plaintiff seeks
judgment for specific performance arising from an indemnity executed by the
defendants in favour of the plaintiff, together with an order declaring certain
immovable property specially executable in terms of Uniform Rule 46A.
[2] The plaintiff is the South African Home Loans Guarantee Trust, duly represented
nomine officio by its sole trustee. The defendants are natural persons who are
joint owners of the immovable property situated at 1536 Miradelle, 170 Bellairs
Drive, Northriding, Randburg (the property).
[3] On 28 May 2019 the defendants concluded a home loan agreement with Blue
Banner Securitisation Vehicle RC1 (Pty) Ltd in the principal amount of R1 270
000.00 for the purchase of the property. Pursuant to that loan agreement, and at
the defendants’ instance, the plaintiff issued a guarantee in favour of the lender
securing the defendants’ performance of their obligations under the loan
agreement.
[4] On the same date, the defendants executed a written indemnity in favour of the
plaintiff in terms of which they irrevocably and unconditionally indemnified the
plaintiff against any loss or liability incurred under the guarantee. As security for
their obligations under the indemnity, the defendants authorised the registration
of an indemnity bond over the property, which bond was duly registered on 29
July 2019.
[5] The defendants fell into arrears under the loan agreement. As at 1 September
2024, arrears amounted to R146 735.77; and 11 March 2025, arrears amounted
to R256 164.73, representing approximately 12.32 months’ arrears. The lender
made demand under the guara ntee. The plaintiff, in turn, demanded payment
from the defendants under the indemnity, relying on certificates of balance issued
in accordance with the express terms of the indemnity. It instituted the present
action, which the defendants oppose. It then applied for summary judgment
which the defendants also oppose.
which the defendants also oppose.
[6] The plaintiff contends that the defendants’ plea and opposing affidavit disclose
no bona fide defence and that summary judgment should accordingly be granted.
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The defendants oppose the application on essentially three grounds: alleged
non-compliance with section 129 of the National Credit Act 34 of 2005 (the NCA);
a dispute regarding the quantification of the debt and the evidentiary value of the
certificates of balance; and opposition to the declaration of the property as
specially executable under Rule 46A.
Applicable legal principles
[7] The principles applicable to summary judgment are well established. A defendant
must fully disclose the nature and grounds of the defence and the material facts
upon which it is founded, such that the court is satisfied that the defence is bona
fide and good in law. Summary judgment is not intended to shut out a defendant
who has a triable issue, but it is designed to prevent sham defences raised
merely for purposes of delay.1
Defences
The National Credit Act
[8] The defendants’ principal defence is that the plaintiff failed to comply with section
129 of the NCA, in that the statutory notices allegedly did not come to their
attention. The documentary evidence placed before court demonstrates that four
section 129 notices were dispatched by registered mail: two to the defendants’
chosen domicilium citandi et executandi; and two to the property address. Proof
of delivery to the relevant post offices, as required by section 129(7) of the NCA,
was furnished.
[9] The defendants’ reliance on Kubyana v Standard Bank of South Africa Ltd 2 is
misplaced. Subsequent to the 2015 amendment of section 129, compliance is
achieved once delivery by registered mail to the correct post office is established.
1 Maharaj v Barclays National Bank Ltd 1976 1 SA 418 (A), Joob Joob Investments v Stocks Mavundla Zek
JV [2009] All SA 407 (SCA) paragraph 32, p 415; 2009 (5) SA at 12A-D.
2 2014 (3) SA 56 (CC).
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Actual receipt is no longer determinative. The defendants’ attempt to rebut
delivery by way of affidavits from security personnel does not undermine
statutory compliance as currently prescribed. At best, the complaint amounts to
an allegation of non-receipt, which does not constitute a defence to enforcement
proceedings. I accordingly find that the NCA defence is without merit and does
not raise a triable issue.
The certificate of balance and quantification of the debt
[10] The defendants admit execution of the indemnity. Its express terms provide that
a certificate of balance signed by a manager, trustee or accountant of the plaintiff
constitutes prima facie proof of indebtedness. Certificates of balance reflecting
the defendants’ indebtedness as at 1 September 2024 and 11 March 2025 were
duly issued and attached to the pleadings and affidavits. The defendants’ denial
of the quantum is entirely bald. No factu al basis or alternative computation is
advanced, nor is any particular error identified.
[11] A general allegation that an accounting expert may be engaged at trial does not
constitute full disclosure of a defence as required in summary judgment
proceedings. This defence is accordingly neither bona fide nor good in law.
Rule 46A and executability of the property
[12] It is common cause that the property is the defendants’ primary residence. The
court is therefore required to exercise judicial oversight as contemplated in Rule
46A. The relevant circumstances include: substantial and increasing arrears
exceeding one year , the defendants’ continued failure to make full monthly
payments, unsuccessful attempts to rehabilitate the loan, the absence of any
concrete payment plan and the commercial nature of the transaction.
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[13] Although the defendants assert an improved financial position, this is not borne
out by their payment history. Partial payments made after the institution of
proceedings demonstrate an inability to service the debt adequately. I am
satisfied that there is no other satisfactory means of satisfying the debt and that
execution is proportionate in the circumstances. I am also not persuaded that the
sale of the property in execution will render the defendants homeless. On the
papers, it is apparent that they do have sources of income and should therefore
be able to secure alternative accommodation. It is not their case that they cannot
secure alternative accommodate.
Reserve Price
[14] The plaintiff proposed a reserve price calculated on the forced sale value less a
contingency and known municipal and homeowners’ association arrears. Having
regard to the valuations and outstanding charges placed before court, I am
satisfied that the prop osed reserve price is reasonable and accords with Rule
46A(8).
In conclusion
[15] The defendants have failed to disclose a defence that is bona fide or legally
sustainable. The plaintiff has established its entitlement to summary judgment
and to an order declaring the property specially executable. The following order
is made:
Order
1. Summary judgment is granted against the first and second defendants, jointly
and severally, the one paying the other to be absolved.
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Appearances
For the Plaintiff: Adv Nieuwoudt
Instructed by: Moodie & Robertson Attorneys
For the 1st Defendant: Self-representing
For the 2nd Defendant: Self-representing
Date of hearing: 26 February 2026
Date of judgment: 14 April 2026
This Judgment is handed down electronically by circulation to the parties’ legal
representatives by email and publication on Case Lines and SAFLII. The date for the
handing down is deemed 10am on 14 April 2026.