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compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT
JUDGMENT
Case No.: 1134/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/NO
DATE 05/05/2026
SIGNATURE NSIBANDE AJ
In the matter between:
NEDBANK LIMITED APPLICANT
(Registration Number: 1951/000009/06)
And
MONTANA NURSERIES (PTY) LTD 1ST RESPONDENT
(Registration Number: 2017/298084/07)
ROSS FAMILY FARMING (PTY) LTD 2ND RESPONDENT
(Registration Number: 2017/298038/07)
ALAN ROBERT ROSS 3RD RESPONDENT
(ID NUMBER: 5[...])
In his capacity as surety and
Co-principal debtor for Montana
Nurseries (Pty) Ltd
ARNOLDINA CLAZINA ROSS 4TH RESPONDENT
(ID NUMBER: 5[...])
In her capacity as surety and
Co-principal debtor for Montana
Nurseries (Pty) Ltd
DANE ALAN ROSS 5TH RESPONDENT
(ID NUMBER: 8[...])
In his capacity as surety and
Co-principal debtor for Montana
Nurseries (Pty) Ltd
JUDGEMENT
NSIBANDE AJ
Introduction
[1] This is an application for Summary Judgment wherein the Applicant
Nedbank Limited, herein after referred to as the bank. The Applicant claims
payment of an amount of R419 398.89 (Four Hundred and Nineteen Thousand
Three Hundred and Ninety-Eight Rand Eighty-Nine Cents).
[2] The amount claimed emanates from an overdraft fascility granted to the
1st Respondent and the 2nd -5th Respondents signed as sureties.
[3] The Respondents are opposing the granting of the Summary Judgment,
and have raised, in particular a non compliance issue with the National Credit
Act 34 of 2005 as amended by the Plaintiff.
FACTS
[4] On the 12 th May 2021 in Mbombela the bank afforded the 1 st
Respondent an over draft facility with a maximum of R200 000.00 (Two
Hundred Thousand Rands).
[5] As security, the 2nd-5th Respondents executed deeds of suretyship.
[6] On the 16 th October 2023 the bank temporarily increased the overdraft
facility with an amount of R300 000.00 (Three Hundred Thousand Rands). The
Respondent utilized the increased overdraft facility and exhausted it.
[7] On the 04 th March 2025 the bank issued Summons against the
Respondents claiming payment of the amount of R419 389.89 (Four Hundred
and Nineteen Thousand Three Hundred and Ninety -Eight Rand Eighty -Nine
Cents) interest from 16th October 2023.
[8] The Respondents defended the claim and subsequently filed their plea
dated 25 th June 2025. On the 01 st July 2025 the bank filed the Summary
Judgement application which is before the Court.
ISSUES
[9] The bank avers that the First Respondent is in breach of the agreement
in that it has utilize d the facility but has failed to make full and punctual
payment of the amounts due in terms of the 1 st and 2 nd agreement. ( The
agreements)
[10] As a result of this breach, the bank is claiming for payment of amount of
claiming payment of the amount of R419 389.89 (Four Hundred and Nineteen
Thousand Three Hundred and Ninety -Eight Rand Eighty -Nine Cents), which
has become due and payable.
[11] In its Heads of Argument, the bank further argues that the provisions of
the National Credit Act 34 of 2005, as amended does not find application to
the agreements.
[12] The Plea filed on behalf of the Respondent, essentially raises issues of
non-compliance with the provisions of the National Credit Act 34 of 2005. The
Respondents raised the following defences;
1. That the bank did not comply with the provisions of the National
Credit Act.
2. The Deeds of suretyship executed in favour of the bank by the 2 nd to
5th Respondents are void ad origine , and the terms in it constitute
illegal provisions contrary to the National Credit Act.
3. That the bank in extending credit in the overdraught failed to
investigate the financial abilities of all the Respondents.
4. That the bank was a holder of a mortgage bond over the property
known as remaining extent of portion 36 (portion of portion 1) of the
farm Alkmaar 286 JT, and that the bond was cancelled on the 19 th
July 2024, Rand Merchant Bank issued a guarantee to the bank with
a settlement, which settlement required the Respondents to pay from
the guarantee an amount of R522 805.70 (Five Hundred and Twenty-
Two Thousand Eight Hundred and Five Rand Seventy Cents) to the
bank.
5. That the bank failed to properly account to the Respondent and failed
to send monthly statements that is reconciled.
6. That the bank failed to give notice to the Respondent that it was in
arrears before attempting to cancel the agreement.
7. That the bank had to furnish a letter to the Respondent to rectify the
indebtedness in the interest of justice.
8. That cancellation of the credit agreement occurred contra bonos
mores.
9. Since the suretyship is void ab initio , there is no enforceable claim
against the 2ndto5th Respondents.
10. The sureties did not receive the notices in terms of Section 129 of
the National Credit Act.
[13] The Court is called upon the decide on whether to grant the Summary
Judgement or to dismiss the Application.
LEGAL PRINCIPLES
[14] The legal principles governing summary judgement proceedings are well
established.
[15] In Maharaj v Barclays National Bank Ltd 1976 (I) SA 418 A, Corbertt JA
stated the principles and the requirements expected from a respondent in
order to successfully defend a claim for Summary Judgment as follows;
“One of the ways in which a defendant may successfully oppose a claim
for Summary Judgment is by satisfying the Court by affidavit that he has
a bona fide defence to the claim. Where the defence is based upon
facts, in the sense that material facts alleged by the Plaintiff in his
summons or combined summons are disputed or new facts are alleged
constituting a defence, the Court does not attempt to decide these
issues or be determine whether or not there is a balance of probabilities
in favour of one party or the other. All that the Court enquires into is: (a)
whether the defendant had “fully” disclosed the nature and grounds of
his defence and the material facts upon which it is founded, and (b)
whether or not the facts so disclosed the defendant appears to have, as
to either the whole or part of the claim, a defence which is both bona
fide and good in law. If satisfied on these matters the Court must refuse
summary judgment either wholly or in part as the case may be. The
word “fully” as used in the context of the Rule (and its predecessors) has
been the cause of some judicial controversy in the past. It connotes in
my view, that while the defendant need not deal exhaustively with the
facts and the evidence relied upon to substantiate them, he must at
least disclose his defence and the material facts upon which it is based
with sufficient particularity and completeness to enable the Court to
decide whether the Affidavit discloses a bona fide defence.
[16] Another relevant judgment on Summary Judgment proceedings has
been provided by Navsa JA in Joob Joob Investments (Pty) Ltd V Stocks
Mavundla Zek Joint Venture 2009 (5) SA 1 SCA who held
“The Summary Judgment procedure was not intended to shut a
defendant out from defending”, unless it was very clear indeed
that he had no case in the action. It was intended to prevent sham
defences from defeating the rights of parties by delay, and at the
same time causing great loss to Plaintiff who were endeavouring
to enforce their rights.
The rationale for summary judgment proceedings is impeccable.
The procedure is not intended to deprive a defendant with a
triable issue or sustainable defence of her or his day in Court.
After a century of successful applications in our courts, summary
judgment proceedings can hardly continue to be described as
extraordinary”
[17] Another case where the requirements and what is required of a
respondent in summary judgment was a full court judgment in the matter of
Raumix Aggregates (Pty) Ltd V Ritchter Sand CC 2020 (1) SA 532 (GJ) when
it was held as follows;
“The purpose of summary judgment application is to allow the
court to summarily dispense with actions that ought not to
proceed to trial because they do not raise a genuine triable issue
thereby conserving scarce judicial resources and improving
access to justice.
Once an application for summary judgment is brought, the
applicant obtains in substantiative right for that application to be
heard, and bearing in mind the purpose of summary judgment,
that hearing should be as soon as possible. That right is protected
under section 34 of the Constitution.”
[18] The Court has also taken reference to the decision held in Nedbank V
Maredi and Another 2014 ZAGPPHC 25, which held as follows;
“a” a bona fide defence, which means a defence set up bona fide or
honestly which proved at trial, would constitute a defence to the
Plaintiff’s claim”
ANALYSIS
[19] Having regard to the above applicable legal principles to summary
judgment proceedings and applying same to the issues before Court, the
following observation is made:
1. In the papers before the court, the applicant relies on the provisions of
the NCA to ascertain and to enforce its rights against the Respondent.
2. That the Applicant in its Heads of Argument, as well as in the arguments
in court states that the provisions of the NCA finds no application in the
agreements entered into by the parties.
3. The Respondent on the other side insist that the provisions of the NCA
are applicable to the agreements, and relies on the non -compliance
thereof in its defence and in resisting the summary judgement.
It is common cause between the parties that the dispute between them revolves
around a credit agreement.
What the parties do not agree upon is whether or not the provisions of the NCA
are applicable to the agreements entered between them. This is not the dispute
that is before this court. The dispute before this court is whether or not the
summary judgement can or cannot be granted.
As indicated above, both parties relied upon the terms of the NCR in their
arguments and submissions.
It is of paramount importance that the court makes reference to the preamble to
the NCR, which states the one of the purposes of the Act as follows ;
“to promote responsible credit granting and use and for that purpose to
prohibit reckless credit granting”
The court is referring to this purpose of the Act, not because the court has found
that the credit facility by the Applicant to the Respondent was reckless, but
because this is one of the defences raised by the Respondent. This defence is good
in law and has been raised bona fide, it must be tested at a trial.
Remedy
Taking into consideration all the factors mentioned above the court finds that the
Respondent has been successful in raising a bona fide defence which is good in
law which defence needs to be tested at a trial.
The court is not making a ruling that the NCR is applicable to the agreements
entered into by the parties, but merely stating that should it be found that the
NCR is applicable and the agreements are not compliant with the terms thereof,
then the defence is good in law.
In this regard, the court will not shut out the Respondent to raise the defence at
trial, as a result the Respondent is granted the opportunity to prove its defence at
the trial.
Order
It is the courts considered decision that the Respondent has successfully resisted
the granting of the summary judgement by providing a defence that is bona fide
and good in law, as a result the Court makes the following order
1. The Application for summary judgement is dismissed.
2. The Applicant to pay the costs on a party and party scale B.
__________________________________
NSIBANDE AJ
ACTING JUDGE OF THE HIGH COURT,
MPUMALANGA DIVISION, MBOMBELA
Date of hearing: 31 October 2025
Date of judgment: 05 May 2026
Counsel for the Plaintiff: Adv J Lindhout
Instructed by: Hack, Stupel and Ross Attorneys
Email Address: Thea5@hsr.co.za / adv.jtl@gmail.com
Counsel for the Defendant: Adv HF Fourie
Instructed by: Doman Weitsz Attorneys
Email Address: anke@dwatt.co.za / hermann@advfourie.co.za