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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025- 065783
DATE: 04.03.2026
In the matter between
NED BANK LTD Plaintiff / Applicant
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and
MOKOENA , SIFISO COMFORT Defendant / Respondent
J U D G M E N T
MOU LTRIE J : The applicant is the plaintiff in an action
in which it seeks various kinds of relief against the
respondent (as defendant ) arising out of a credit
agreement concluded between the parties in respect of the
purchase of a vehicle.
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The particulars of claim allege that the respondent
breached the agreement, in that he fell behind on
payments in respect of the funds extended to him , and that
the agreement has consequently been cancelled. The
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES : NO
(3) REVISED
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respondent delivered a plea. The plea does not dispute the
content of the agreement or , indeed , the allegation that
the respondent was in breach thereof. T his was confirmed
by Mr Mok oena who appeared in person today before me.
The particulars of claim allege that any breach of
the agreement by the respondent entitles the applicant ( in
addition to various other remedies ) to take repossession of
the goods. Although various prayers are contained in t he
notice of motion for summary judgment , Mr Mc Turk made it
clear at the hearing before me that only the relief sought 10
is that contained in prayers 1 and 2, those being
confirmation of the cancellation of the agreement and
return of the goods , and conceded that the relief sought in
prayers 3 and 4 was not amenable to summary judgment.
In view of the content of the plea and the
information furnished to me in c ourt by the respondent, it
is more than clear that the respondent has no bona fide
defence vis -à-vis the relief of cancellation and return of
the goods. In argument before me, the respondent raise d
a number “defences ”. I will deal with each of them briefly
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in turn.
Firstly, although he allege s non -compliance with
section 108 of the National Credit Act, 34 of 2005 in
relation to the giving of regular statements , Mr Mokwena
was not able to identify any authority that would justify the
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refusal of summary judgment in the limited respects
sought as a result of any such violation , and I can think of
no reason why this would be the case . In any event, and
more fundamentally, no such violation has been pleaded,
and the only defences that may be raised in a summary
judgment application are those foreshadowed in the plea
(Absa Bank Ltd v Meiring 2022 (3) SA 449 (WCC) para
20 ).
Secondly, the respondent dispute s certain of the
entries on annexure SJ4, being the transaction history 10
attached to the summary judgment application . Once
again no defence was raised by the respondent in his plea
in relation to this matter, and for that reason alone, this
defence does not avail him. However, even accepting that
it can be taken into account, Mr Mc Turk referred me to the
provisions of Section 111 of the National Credit Act, which
provides the relevant remedy for non- compliance with the
requirement to provide an explanation for any disputed
entries in a statement. Effectively, that remedy is that it is
only if such a concern is raised prior to the
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commencement of enforcement proceedings that there
would be any reason for me not to consider this
application for summary judgment. And in the current
matter, it is apparent that the enforcement proceedings
had already commenced at the time that the concern was
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raised.
The third argument raised by Mr Mokwena was a
factual dispute over the amount outstanding under the
credit agreement. Mr Mokwena, however, conceded
(correctly in my view) that the dispute of the amount
outstanding is one that would stand over for later
determination in relation to the remaining elements of the
claim in respect of which summary judgment is not sought.
The same applie s to the fourth argument raised by
Mr Mokwena , namely the contention that the amount
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claimed is not a liquidated sum in money as required by
Rule 32. Mr Mokwena again ( correctly) conceded during
the hearing that this is not a defence that avails him in
circumstances where no amount is actually claimed in the
current summary judgment proceedings.
Finally, Mr Mokwena raised an argument based on
the general proposition that the conduct of the applicant or
plaintiff and its legal representatives had been unjust
towards him. He referenced Section 34 of the
Constitution, which provides that every person has the
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right to have their disputes determined fairly in a Court, as
well as the case of Beinash v Wixley 1997 (3) SA 721
(SCA) relating to the abuse of Court processes. I engaged
with Mr Mokwena on this matter but he was not able to
identify any particular manner in which the procedure that
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had been followed in Court had been unjust or was in
breach of Section 34 or constituted an abuse, and only
referred to a concern regarding “ procedural ambush ”
regarding the filing of heads of argument. I do not accept
that there is any reason why I should not grant summary
judgment in this matter in the limited respects that are
sought, and indeed, Mr Mokwena was constrained to
concede during argument that he had not been excluded
from any possibility of making any argument he may wish
to make or raise any defence which he is entitled to raise
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in this Court.
In the circ umstances, it is apparent that the
applicant is entitled to an order in terms of prayers 1 and
2 of the notice of motion.
I see no reason why the applicant should not be
entitled to its costs of suit, although I do not consider that
the matter was a particularly complex one . I do accept
that it was justified in appoint ing counsel.
And therefore I make the following order:
1. The applicant’s cancellation of the
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agreement is confirmed.
2. The respondent is to return the goods
described as a 2014 MAN 27440, engine
number 5 […] and chassis number A […] to
the applicant .
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3. The respondent is ordered to pay the
applicant’s costs of suit, including the
costs of counsel on scale “ A”.
…………………………..
MOULTRIE J
JUDGE OF THE HIGH COURT
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Hearing and judgment: 4 March 2026
Ex tempore judgment revised: 14 May 2026
For the plaintiff: S McTurk instructed by MacRobert Inc.
For the defendant: In person.