In the matter between:
FNB MORTGAGE LOANS (RF) LIMITED Plaintiff / Applicant
and
KAMOHELO MOKOTJO Defendant / Respondent
REASONS
GREYLING AJ
INTRODUCTION:
1. On 4 May 2026 summary judgment was granted in favour of the
Plaintiff, FNB Mortgage Loans (RF) Ltd, against the Defendant, Mr
Kamohelo Mokotjo. The order included relief declaring the immovable
property executable in terms of Rule 46A, fixing a reserve price of R3
300 000.00, and directing the Defendant to pay the costs of the
application.
2. The Defendant requested reasons for the order. These are my reasons.
3. The matter concerns an opposed summary judgment application
together with Rule 46A relief. The issues requiring determination were
the Plaintiff’s locus standi, the Defendant’s challenge to cession and
securitisation, the alleged non-receipt by the Defendant of the section
129 notice under the National Credit Act 34 of 2005, the allegation of
reckless credit, the Rule 46A enquiry and the appropriate reserve price.
4. The court considered all the relevant material uploaded onto CaseLines
and those referred to during argument.
5. Summary judgment is not granted merely because a Plaintiff’s claim
appears probable. The Court must be satisfied that the Defendant has
not disclosed a bona fide defence which is good in law and which raises
an issue properly triable at trial. The Defendant must disclose the nature
and grounds of the defence and the material facts relied upon with
sufficient particularity. A bare denial, a demand for proof or a legal
conclusion without supporting facts does not suffice. These legal
principles were applied when the Court granted the order sought by the
Plaintiff.1
6. The Plaintiff’s claim was founded on a written mortgage loan agreement
and mortgage bond. The Plaintiff alleged that the Defendant had
defaulted, that the indebtedness had become due and payable and that
the Plaintiff was entitled to enforce payment through the Uniform Rule
46A mechanisms.
7. The Defendant did not place before Court facts which, if established at
trial, would defeat the Plaintiff’s claim. Therefore, the Plaintiff had
1 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A); Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA
226 (T); Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA).
verified its cause of action and had engaged sufficiently with the
defences raised in the amended plea and became entitled to the relief
sought.
8. The Defendant contended that the particulars of claim were defective
and that the cause of action was incomplete or excipiable. These
submissions were advanced with reference to Nedbank Ltd v Kgobe,2 In
Kgobe, the Plaintiff sued under an instalment sale agreement relating to
a motor vehicle but failed to plead delivery of the vehicle. Amm AJ held
that delivery was a necessary averment and that the Plaintiff’s cause of
action was therefore incomplete.
9. Kgobe is distinguishable as this is not a goods-sold-and-delivered, but a
loan agreement with a mortgage-loan as security. Plaintiff’s cause of
action was correctly pleaded with no obvious lacuna. The Defendant’s
complaint was not, in substance, that the loan, bond, breach,
indebtedness, or enforcement mechanism was absent from the pleaded
case. The real thus is locus standi, premised on the cession agreement
not properly and fully pleaded. This Court read the judgment and it is
clearly distinguishable from the present set of facts and no basis for
legal argument advanced.
10. The Defendant’s argument was that the Plaintiff had not proved that it
was the creditor entitled to sue as the originating loan documentation
referred to First National Bank, a division of FirstRand Bank Ltd,
whereas the Plaintiff before Court is FNB Mortgage Loans (RF) Ltd. It
2 Nedbank Ltd v Kgobe [unreported judgment by Amm AJ Gauteng Local division under case number 2023 -
007205 dated 19 October 2024]
is trite that a Plaintiff relying on cession must place sufficient material
before Court to establish, at least prima facie for purposes of summary
judgment, that it is the creditor entitled to enforce the claim. However,
this was not a case of the mere absence of cession. The cession appeared
prima facie from the source documents before Court, was recorded
against the title deed at registration of the mortgage bond and the
written loan agreement specifically makes provision for a cession. This
provided objective support for the Plaintiff’s entitlement to enforce the
mortgage security. In the absence of a competing creditor, the
Defendant did not identify an actual break in the chain of title. The
challenge to cession and securitisation was therefore formality over
substantive and did not engage the legal shortcomings annunciated in
Badenhorst.3 Badenhorst does not hold that every general denial of
cession defeats summary judgment. It also does not hold that a prima
facie cession appearing from source documents and recorded against
registration of the mortgage bond must be disregarded. Hence, on the
facts before me, the Plaintiff’s locus standi was sufficiently established
and this argument was accordingly rejected.
11. The Defendant contended that the section 129 notice had not been
received. This argument lost sight of the statutory enquiry. It is now trite
that the question is not whether the Defendant subjectively received or
accepted receipt of the notice, but whether the Plaintiff took the steps
required by the National Credit Act and the applicable authorities to
bring the notice to the Defendant’s attention. The Plaintiff placed before
Court the section 129 notice and the supporting dispatch and track-and-
3 FirstRand Bank Limited v Badenhorst NO and Others (2022/5936) [2023] ZAGPJHC 779 (10 July 2023).
trace material. The Defendant’s assertion of non-receipt did not, without
more, displaced the evidentiary value of that material. Kubyana4 makes
clear that the enquiry is whether the credit provider took the steps
reasonably required to bring the notice to the consumer’s attention.
Once such steps are shown, a bare denial of actual receipt is insufficient.
Absent allegations that the notice was sent to an incorrect address or
that the dispatch process was materially defective the Court cannot find
that the statutory process failed in a manner attributable to the Plaintiff.
The section 129 defence was accordingly rejected.
12. The Defendant raised reckless credit under sections 80 and 81 of the
National Credit Act. That defence was not sufficiently raised and
correctly not persisted with during argument. This court do not hold that
the passage of time, by itself, creates a legal time-bar to a reckless-
credit, but relevant to whether the defence is genuine and sufficiently
particularized and raised at a level of generality.
13. As a result, The Defendant’s opposition rested on labels: cession,
securitisation, non-receipt of a section 129 notice, reckless credit, and
Rule 46A. These labels were not supported by material facts sufficient
to constitute triable defences.
14. Summary judgment was therefore granted.
4 Kubyana v Standard Bank of South Africa Ltd 2014 (3) SA 56 (CC);
15. Subsequent summary being granted, the Rule 46A was considered
separately. The property was treated as residential property for purposes
of the enquiry; whether execution was justified; whether the property
was the Defendant’s primary residence and lastly, whether less drastic
means were available, and what reserve price should be fixed.
16. The Constitutional Court in Jaftha5 requires judicial oversight where
execution against a home may implicate a debtor’s housing interests.
17. The more direct authority on reserve prices remains the Full Court
decision in ABSA6, which requires meaningful judicial oversight and
recognises that a reserve price may be an appropriate safeguard in
residential execution matters. The authorities do not prescribe a single
arithmetic formula for fixing a reserve price and therefore it’s a judicial
safeguard to be determined on the facts before Court. This court applied
all the necessary factors and fixed the reserve price at R3 300 000.00.
18. Therefore the draft was made an order of Court.
5 Jaftha v Schoeman; Van Rooyen v Stoltz 2005 (2) SA 140 (CC).
6 ABSA Bank Ltd v Mokebe 2018 (6) SA 492 (GJ); Gundwana v Steko Development CC 2011 (3) SA 608
(CC); Standard Bank of South Africa Ltd v Saunderson 2006 (2) SA 264 (SCA).