SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HGH COURT OF SOUTH AFRICA
HELD AT PRETORIA
CASE NO: A266/2024
DOH: 18 February 2026
1) REPORTABLE: NO
2) OF INTEREST TO OTHER JUDGES: NO
3) REVISED.
DATE 16 APRIL 2026
SIGNATURE
In the matter between:
S[...] Z[...] M[...] First Appellant
D[...] C[...] Y[...] M[...] Second Appellant
And
STANDARD BANK OF SOUTH AFRICA
LIMITED
Respondent
This judgment has been handed down remotely and shall be circulated to the parties by
way of email / uploading on Caselines. The date of hand down shall be deemed to be
16 April 2026.
________________________________________________________________
ORDER
________________________________________________________________
The following order is granted:
1. Prayer 1 of the order granted on 4 August 2021 is hereby amended as
follows:
‘Payment of the amount of R 1 452 793. 23 (One million Four Hundred
and Fifty-Two Thousand, Seven Hundred and Ninety-Three Rand, and
Twenty-Three cents)’
Otherwise, the appeal is dismissed.
2. The appeal against paragraph 3 of the order of 7 March 2024 is
dismissed.
3. Respondent’s application to lead further evidence succeeds with costs.
4. Appellants must pay Respondent’s costs of appeal.
________________________________________________________________
JUDGMENT
________________________________________________________________
Bam J, (Swanepoel et Van Niekerk JJs concurring)
Introduction
1. This is an appeal against the judgment and order granted by the court a quo
on 4 August 2021, and paragraph 3 of the order of 7 March 2024. Both
orders were granted by Vuma AJ. The appeal is with leave of the Supreme
Court of Appeal, granted on 12 June 2024; the court below refused leave to
appeal. Appellants’ grounds may be summarised thus:
(i) The respondent, (Standard Bank or the Bank) failed to comply with
the mandatory requirements of Section 129 of the National Credit Act
(NCA), pertaining to the delivery of the notice, in that the Track and
Trace report attached to its Particulars of Claim was sent to the wrong
Post Office, which is Hatfield, as opposed to Randburg. As a
consequence, summary judgment ought not to have been granted.
(ii) The Bank failed to verify the amount claimed as required by Rule 32
(2) (b) of the Uniform Rules. In the result, the Bank’s application for
summary judgment was fatally defective and summary judgment
ought not to have been granted.
(iii) As to the order of 7 March 2024, appellants contend that the court
erred in awarding costs de bonis propriis, in spite of the respondent
having not made a request for such costs.
2. The Bank opposes the appeal. As regards grounds (i) and (ii), the Bank says
that it will be severely prejudiced if the Appellants are allowed to pursue
these defences for the first time, before this court. The Bank refutes the idea
that the points raised are points of law. It has also applied to introduce
further evidence as provided for in Section 19 (b) of the Superior Courts Act,
Act 10 of 2013, to deal with the point relating to the Track and Trace once
and for all, submits the Bank. As regards paragraph 3 of the order of 7
March 2024, the Bank submits that the court a quo exercised its discretion
judiciously, with no suggestion that it misdirected itself as to the law or the
facts. Consequently, there is no room for this court to interfere with the
order. I start by sketching out the background facts, after introducing the
parties.
Parties
3. First Appellant is S[...] Z[...] M[...], an adult male corporate manager and
communications consultant. First Appellant resides at xxx Avenue, Nortcliff
Johannesburg. Second Appellant is D[...] C[...] Y[...] M[...], an adult female
radiographer. Second Appellant resides at xxx Avenue, Weltevreden Park,
Johannesburg. First and Second appellant were previously married to one
another. They divorced in April 2018. The Respondent is Standard Bank of
South Africa Limited, a public company with limited liability, duly registered in
terms of South African laws, with its principal place of business noted as 9th
Floor, S[...] Street, Johannesburg.
Background
4. The following is either common cause or has not been seriously contested:
i) On 30 August 2007, Appellants concluded a home loan agreement
with the Bank in terms of which the Bank agreed to advance an
amount of R 2 500 000, 00 (Two Million Rand Five Hundred
Thousand Rand) for the purchase of the Appellants’ home, (the
property). A mortgage bond was registered over the property as the
Bank’s security. The loan was to endure for a period of 240 months or
20 years. Appellants agreed to pay monthly installments in the
amount of R 25 804.71.
ii) As of 28 May 2020, Appellants were in arrears with their monthly
payments in the amount of R 153 805.97, with the full outstanding
balance on the home loan standing at R 1 651 789.59. On 29 May
2020, the Bank issued a notice as provided for in Section 129 of the
National Credit Act, NCA, (the notice) for delivery to the Appellants’
domicillium address as set out in the home loan agreement. On 23
July 2020 the Bank issued a summons seeking, inter alia, payment of
the amount of R 1 651 789, 59, together with interest and a special
order declaring the property executable.
iii) On 17 June 2021 the Bank filed for summary judgment against
Appellants.
Proceedings before the court a quo
5. The application for summary judgment was argued on 4 August 2021. In the
main, Appellants raised t wo defences. They are: (a) That the matter had
been settled; and ( b) The Bank’s breach of the Constitutional safeguards
built around the law of primary residences. Both defences were dismissed.
The argument regarding settlement foundered when the Appellants
conceded that they had not provided the Bank with the requested
information, to enable it to consider restructuring their home loan.
6. With regard to the Bank’s breach of the Constitutional safeguards on primary
residences, while the Appellants had made a general statement in their plea
that they had not received the notice in terms of Section 129 of the National
Credit Act, (notice), they added in their answering affidavit that the Bank
knew at the time it issued the notice that the Appellants had not lived at the
domicillium address for some four years and that they had moved to the
bonded home. However, the argument did not go very far as the Appellants
conceded that they had not provided the Bank with the written notice, within
14 days of their change of address , as provided for in Clause 17.3 of the
home loan agreement . Under the circumstances, the court found that the
notice had been duly delivered, in line with the provisions of the NCA and
the home loan agreement.
7. A further point raised during argument was the claim that the Appellants had
been prejudiced by the Bank’s conduct of sending the notice to the
domicillium. It was submitted had the Appellants received the notice, they
would have utilised the options provided for in Section 129 in order to agree
a payment plan to bring their account up to date. The court dismissed the
point, given the common cause fact that the Appellants failed to provide the
Bank with the information required to consider their request to restructure
the home loan. Summary judgment was thus entered in favour of the Bank
in the amount of R1 651 789.59, together with interest, and the property was
declared executable.
Application for leave to appeal and first application for leave to amend /
supplement grounds of appeal
8. On 26 August 2021, Appellants filed a notice of application for leave to
appeal. Two years passed before the application was set down for
argument, on 24 October 2023. On the day of the hearing, without notice to
the Respondent and without leave from the court, Appellants sought to
argue a point which had neither been pleaded, nor previously raised in the
summary judgment proceedings. The point was not even foreshadowed in
their Notice of Application for Leave to Appeal. The point had to do with the
fact that the amount of R 1 651 789, 59 sought in prayer 1 of the Notice of
Motion to the summary judgment application, had not been verified in the
founding affidavit, as required in terms of Rule 32 (2) (b) of the Uniform
Rules. Accordingly, continued the argument, the Bank’s application for
summary judgment was fatally defective and summary judgment ought not
to have been granted.
9. Mr. Rakgoale, on behalf of the Bank, resisted the introduction of the new
point, citing prejudice and suggesting that the Appellants were abusing the
process by raising a defence to the summary judgment application, after the
fact. He refuted the suggestion that the Bank had failed to verify the amount
and submitted that Rule 42 (b) and (c) was the appropriate procedure to
follow, to correct what is clearly a patent error. The court refused to entertain
the new ground and instead ordered a postponement. The order issued by
the court, however, came with some directives. Relevant for present
purposes are the following directives:
(i) The appellants were required to bring an application to amend their
grounds of appeal within 20 days.
(ii) They had to provide the court with legal authority which entitles them
to raise as a ground of appeal, a point which had not been raised
during summary judgment proceedings.
(iii) Appellant’s attorney had to provide an affidavit stating why he should
not be personally liable for the costs occasioned by the
postponement, the scale of which had yet to be decided.
Second application to amend / supplement grounds of appeal
10. The application for leave to appeal was again set down for 7 March 2024.
On 22 February, Appellants brought yet another application to
amend/supplement their grounds of appeal. The new ground had to do with
the fact that the Track and Trace report attached to the Bank’s Particulars of
Claim was delivered to the wrong post office, which is Hatfield, whereas the
Appellants’ local post office was Randburg. On this basis, it was contended
that the Bank had not complied with Section 129 as the notice would not
have reached the Appellants.
11. The Bank countered that the Appellants had not complied with Rule 28 in
that it had not been afforded the opportunity to respond. When the court
convened on 7 March, it refused the application to amend/supplement the
grounds of appeal brought on 23 November 2023, with costs; refused the
application to amend/supplement grounds of appeal brought on 22 February
2023, with costs; and ordered the Appellants’ attorney to pay the costs
occasioned by the postponement, on attorney and client scale, de bonis
propriis. The application for leave to appeal was postponed to 12 March for
final argument, based on the original grounds as filed on 26 August 2021.
On 25 March 2024, the application for leave to appeal was dismissed, with
costs.
Proceedings before this court: Ground 1: Failure to comply with the notice in
terms of S129 (notice)
12. Appellants submit that the crisp point of law they wish to submit before this
court is that the legal conclusion drawn by the Bank in its summary judgment
application that it had complied with the compulsory requirements of the
notice was incorrect and misleading. Appellants submit that on the Bank’s
own papers, it was plain that it had not complied with the provisions of
Section 129 because the registered letter, according to the Track and Trace
report attached to the Particulars of Claim, was sent to the incorrect post
office, which is Hatfield as opposed to Randburg.
13. For the first time, Appellants submit before this court that the Bank’s
Particulars of Claim were in fact excipiable and, on the basis of its failure to
comply with the notice requirement, the Bank’s cause of action was not
complete or had not yet accrued to it at the time. Appellants further submit
that the power of a court to determine a matter relating to a credit agreement
is suspended until such time that Section 129 has been complied with.
Accordingly, they ask the court to set aside the summary judgment and
direct the Bank to comply with the notice requirement before it applies for
summary judgment. Alternatively, this court should set aside the summary
judgment, adjourn the proceedings and direct the Bank to comply before it
resumes with the summary judgment proceedings.
14. The rule relating to raising a point of law for the first time on appeal is trite. In
Naude and Another v Fraser1, it was said that a court of appeal may not be
precluded from giving the right decision, on accepted facts, merely because
a party failed to raise a legal point. In Barkhuizen v Napier, it was said:
‘The mere fact that a point of law is raised for the first time on appeal is not in
itself sufficient reason for refusing to consider it. If the point is covered by the
pleadings, and if its consideration on appeal involves no unfairness to the other
party against whom it is directed, this Court may in the exercise of its discretion
consider the point.’2
15. It is this rule that the Appellants have latched on to in pursuing the two
grounds before this court, which were neither pleaded nor raised during the
summary judgement proceedings. In Rowland and Others v Logos Carriers
CC the appellant in that case sought to introduce a legal point of jurisdiction
on the eleventh hour. Refusing to entertain the point, the court reasoned:
‘[37] The question of whether an appellate court may entertain a point raised for
the first time on appeal is settled: as held in Paddock Motors (Pty) Ltd v
Igesund, such a point may be considered if specific conditions are met—
namely, the issue must be covered by the pleadings, its determination must not
cause unfairness to the opposing party, the relevant facts must be common
cause or clearly established on the record, and there must be no reason to think
that additional evidence would have been led had the point been raised earlier.
1 (150/97) [1998] ZASCA 56; 1998 (4) SA 539 (SCA); [1998] 3 All SA 239 (A) ; 1998 (8) BCLR 945 (SCA)
(26 June 1998), paragraph 7; Alexkor Ltd and Another v Richtersveld Community and Others (CCT19/03)
[2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003), paragraph 44.
2 (CCT72/05) [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) (4 April 2007), paragraph
39.
[38] The present case does not fall within these exceptions. While the question
of jurisdiction is a legal issue, it is not one devoid of factual implications. Had the
jurisdictional challenge been raised timeously, Logos would have had the
opportunity to clarify the first appellant's true income, sources of income, and
residential circumstances. The bare assertion in the answering affidavit that the
first appellant earns R15 000,00 is unsubstantiated.’3
16. The point of departure therefore, is to consider whether the point pertaining
to the Bank’s alleged non-compliance with Section 129 is a legal point? The
answer must be a clear no. It is not a legal issue. Even if this conclusion is
wrong, the point dealing with the notice requirement is not one that can be
dealt with free of factual detail. The Appellants, as I had indicated in the
background section, had pleaded a bare denial in their plea, suggesting that
they never received the notice. The same bare denial was repeated in the
answering affidavit to the summary judgment application with suggestions
that the Bank knew that it had to deliver the notice at the bonded address as
opposed to the notice or domicillium address.
17. In their application for leave to appeal filed on 26 October, Appellants’
grounds relating to the notice were simply that: (i) The court failed to attach
sufficient weight to the purpose of the notice, and that is, to have any
practical effect, the notice must be personally served; and (ii) The court
failed to have regard to one of the Appellants’ key defences, that the
respondent avoided giving effect to Section 129, by serving the notice at the
domicillium as opposed to the mortgaged property. As is apparent, the
3 (376/2024) [2026] ZASCA 36 (24 March 2026), paragraphs 37-38.
Appellants’ case around the notice has been constantly evolving. The point
regarding the Track and Trace report was never raised at any stage before
the court a quo. This should be the end of this ground of appeal.
18. Perhaps for completion, the Bank, as I had indicated, has applied for leave
to introduce evidence of the full Track and Trace report. In its founding
affidavit to the application to lead further evidence, the Bank cites the
prejudicial manner in which the Appellants have conducted themselves
throughout this litigation, with their defences constantly changing,
notwithstanding that they have been legally represented. The Bank submits
that had the Appellants raised the point at the appropriate stage, it would
have been alerted to the incomplete Track and Trace report and taken steps
to present before the court the full report, via an application to amend. The
Bank adds that the registered slips attached to its Particulars of Claim state
very clearly that the notice was directed to the Appellants’ domicillium
address in Randburg.
19. Ironically, the Appellants chose to oppose the application. The relevant rule
was espoused in Singh and Another v Ebrahim, and it reads:
‘(1) There should be some reasonably sufficient explanation, based on
allegations which may be true, why the evidence which it sought to lead was
not led at the trial.
(2) There should be a prima facie likelihood of the truth of the evidence.
(3) The evidence should be materially relevant to the outcome of the trial.
Non-compliance with any one of these requirements would ordinarily result
in a refusal of the application to lead further evidence.’ 4
4 (413/09) [2010] ZASCA 145 (26 November 2010), paragraph 132.
20. On the first requirement, I am satisfied with the Bank’s explanation. The
Bank has also attached a confirmatory affidavit from its instructing attorneys,
suggesting that it was an oversight that the full Track and Trace report was
not attached. The registered slips on their own indicate that the registered
mail was directed at the correct post office. The Bank suggests that had the
point been raised pointedly, at the appropriate time, it would have presented
the full track and trace report. As to the second requirement, relating to the
prima facie likelihood of the truth of the evidence, credit providers generally
rely on the Track and Trace report to substantiate their compliance with
Section 129. In Kubyana v Standard Bank of South Africa Ltd, the court
remarked:
‘Once a credit provider has produced the track and trace report indicating that
the section 129 notice was sent to the correct branch of the Post Office and has
shown that a notification was sent to the consumer by the Post Office, that credit
provider will generally have shown that it has discharged its obligations under
the Act to effect delivery. The credit provider is at that stage entitled to aver that
it has done what is necessary to ensure that the notice reached the consumer.’5
21. Finally, the Track and Trace report is material to this particular ground of
appeal. I am satisfied that the requirements set out in Singh6 have been met.
The Track and Trace report demonstrates that the registered mail was not
sent to the incorrect post office as submitted in the Appellants’ heads of
argument. This ground of appeal is thus dismissed. I may add that failure to
deliver the notice is not fatal. Where the court is not satisfied as to the
5 (CCT 65/13) [2014] ZACC 1; 2014 (3) SA 56 (CC); 2014 (4) BCLR 400 (CC) (20 February 2014),
paragraph 53.
6 Note 6 supra.
delivery of the notice, it must adjourn the proceedings so that the credit
provider effect such delivery. The point is made in Sebola and Another v
Standard Bank of South Africa Ltd and Another:
‘Thus, while section 129(1)(b) appears to prohibit the commencement of legal
proceedings altogether (“may not commence”), section 130 makes it clear that
where action is instituted without prior notice, the action is not void. Far from it.
…The bar on proceedings is thus not absolute, but only dilatory. The absence
of notice leads to a pause, not to nullity.7
Ground 2: Failure to verify the amount as required by Rule 32(2) (b)
22. In essence, the Appellants submit, for the first time before this court, that the
Bank’s summary judgment application ought not to have been granted
because the deponent to the founding affidavit failed to verify the amount
claimed. Appellants submit that the application was fatally defective for want
of compliance with Rule 32 (2) (b). They state that they were prejudiced by
about R 200 000.00, which is the difference between the judgment amount
of R 1 651 789, 59, and the correct amount outstanding at the time of R
1 452 739. 23. On this basis, the Appellants invite the court to set aside the
order or vary the amount of summary judgment by ordering the correct
amount of R 1 452 739.23.
23. There is no dispute that this defence was not raised during the summary
judgment proceedings. This ground too is not a legal point. On this basis
alone, this point should not be entertained.
7 (CCT 98/11) [2012] ZA C 11; 2012 (5) SA 142 (CC); 2012 (8) BCLR 785 (CC) (7 June 2012), paragraph
53.
24. In the founding affidavit to the summary judgment application, the deponent
under the heading, ‘Facts upon which the Plaintiff’s claim is based’ refers to
the higher amount of R 1 651 789.59 as the amount outstanding as at 20
May 2020, and attaches a certificate of balance of that date. Later in the
founding affidavit, the deponent states that the full amount owed by the
Defendants (Appellants) to the Plaintiff and secured by the bond, is the
amount of R 1 452 793.23, which amount excludes further interest from 7
June 2021 to date of full payment, both dates inclusive. The amount is then
substantiated by way of a certificate of balance dated 7 June 2021.
25. What had happened, and the Appellants say as much in their first
application to amend their grounds of appeal, is that none of the parties had
regard to the later certificate of balance during summary judgment
proceedings. In other words, the oversight occurred on both sides.
Nevertheless, to rectify the mistake caused by the oversight, the court, as
stated in its reasons handed down on 24 April 2024, shared its views that
the appropriate route to correct the amount was to pass an order in terms of
Rule 42 (b) or (c). The Bank had made a submission along the same vein.
26. During the hearing before the court a quo, on 7 March 2024, Appellants,
according to the reasons, made a volte-face, and pursued the line that the
court grant them leave to appeal, indicating that they were not going to
follow the Rule 42 route. Now, two years later, with costs mounting, the
Appellants ask this court, as an alternative to the main relief sought, that this
court correct the amount granted during the summary judgment
proceedings. I am reminded of the words of the court in Madibeng Local
Municipality v Public Investment Corporation Ltd8, that litigation is not a
game.
27. To sum up, there was and is no fatal defect as the Appellants seek to make
out in their papers before this court. The correct amount outstanding at the
time was verified in the summary judgment application. The point as is now
formulated undermines our established principles of interpretation as
espoused in Coral Lagoon Investments 194 (Pty) Ltd and Another v Capitec
Bank Holdings Limited 9. This is so because, the Appellants, without reading
the affidavit as a whole, simply suggest that the verification of the various
amounts renders the application defective. This is consistent with the
manner the Appellants have conducted themselves throughout this litigation,
constantly changing the substratum of their grounds.
28. At first, the ground was that the amount of R 1651 789.59 claimed in the first
prayer of the Notice of Motion to the summary judgment application had not
been verified. Before this court, it is the verification of various amounts in the
founding affidavit that renders the application fatally defective. The
8 (603/2017) [2018] ZASCA 93 (1 June 2018), paragraph 30.
9 (Case no.887/2021) [2022] ZASCA 144 (24 October 2022), paragraph 15:
It is trite that interpretation is, generally speaking, an objective process of attributing meaning to the words
used in a document, read in the context of the document as a whole and having regard to the apparent
purpose of the words. It
is a unitary exercise which must be approached holistically: simultaneously considering the text, context
and purpose.
submission is devoid of merit. There was no defect to the summary
judgment application, much less a fatal one.
Ground 3: The court erred as to costs
29. The formulation of this ground is rather strange in that all that the Appellants
suggest is that the court erred in ordering costs de bonis propriiis in that the
Bank had neither sought nor supported such order. They state that the Bank
must have accepted their explanation as to the manner in which their
grounds were handled and supplemented along the way. Appellants add
that the court descended into the arena inappropriately in granting the order.
While it is not clear what the last point suggests, the law when it comes to
interference by an appellate court on the exercise of a true discretion by a
lower court is trite, and is set out in Trencon Construction (Pty) Limited v
Industrial Development Corporation of South Africa Limited and Another,
where it was said:
‘[85] A discretion in the true sense is found where the lower court has a wide
range of equally permissible options available to it. This type of discretion has
been found by this Court in many instances, including matters of costs,
damages, and in the award of a remedy in terms of section 35 of the Restitution
of Land Rights Act. It is “true” in that the lower court has an election of which
option it will apply and any option can never be said to be wrong as each is
entirely permissible.
[88] When a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate for an appellate court to interfere unless it is satisfied
that this discretion was not exercised—
“judicially, or that it had been influenced by wrong principles or a
misdirection on the facts, or that it had reached a decision which in the
result could not reasonably have been made by a court properly
directing itself to all the relevant facts and principles.” (Footnote
omitted.)’ 10
30. That the Bank had neither sought nor voiced anything regarding the costs
order ultimately granted by the court is no reason for this court to interfere.
Costs, as it is now settled, unless expressly otherwise enacted, are a matter
for the presiding judicial officer11. There is no suggestion that the court below
did not exercise its discretion judiciously or misdirected itself as to the facts
or the law. This ground of appeal must accordingly fail.
Order
1. Prayer 1 of the order granted on 4 August 2021 is hereby amended as
follows:
‘Payment of the amount of R 1 452 793. 23 (One million Four Hundred
and Fifty-Two Thousand, Seven Hundred and Ninety-Three Rand, and
Twenty-Three cents)’
Otherwise, the appeal is dismissed.
2. The appeal against paragraph 3 of the order of 7 March 2024 is
dismissed.
3. Respondent’s application to lead further evidence succeeds with costs.
4. Appellants must pay Respondent’s costs of appeal.
10 (CCT198/14) [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) (26 June 2015),
paragraphs 85, 88.
11 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CT5/95) [1996] ZACC
27; 1996 (2) SA 621 (CC); 1996 (4) BCLR 441 (CC) (19 March 1996), paragraph 3.
——————————————
BAM J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
——————————————
SWANEPOEL J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
——————————————
VAN NIEKERK J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
Date of Hearing: 18 February 2026
Date of Judgment: 16 April 2026
Appearances:
Counsel for the Appellant: Adv W.B Boonzaier
Instructed by: O’Donovan Attorneys
c/o T.C Hitge Attorneys
Lynnwood, Pretoria
Counsel for the Respondent: Adv P.R Long
Instructed by: Vezi & De Beer Incorporated
Lynnwood, Pretoria