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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Case Number : 705/2022
Not Reportable
SHACKLETON CREDIT MANAGEMENT PLAINTIFF
(PTY) LIMITED
and
KAMAL DEOLALL FIRST DEFENDANT
SHANITHA DEOLALL SECOND DEFENDANT
Coram: Reddy J
Reserved: 26 March 2026
Heads filed: 16 April 2026
Delivered: Judgment is handed down electronically by distribution to the parties’
legal representatives by e-mail and uploaded to Caselines. The date that the
judgment is deemed to be handed down is 1 June 2026 at 10h00.
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Summary: Application for summary judgment — plaintiff (cessionary of Standard
Bank) claims R250 626.90 plus interest on a personal loan agreement —
defendants plead prescription, defective cession, lack of jurisdiction, illegibility of
agreement, and absence of breakdown — whether the defences raise a bona fide
triable issue — none of the special pleas or merits defences withstand scrutiny —
claim not prescribed because of periodic payments, tacit acknowledgment and
service of summons within the prescriptive period — cession valid and properly
pleaded — court has jurisdiction over both defendants — no triable issue raised —
summary judgment granted with costs.
________________________________________________________________
JUDGMENT
________________________________________________________________
REDDY J
Introduction
[1] Before me is an unopposed application for summary judgment brought by
the plaintiff, Shackleton Credit Management (Pty) Limited (Shackleton), against
the first and second defendants, Kamal Deolall and Shanitha Deolall (the Deolalls).
The Deolalls are married in community of property. On 26 March 2026, th is
application appeared on the unopposed motion court roll. The Deolalls did not file
an opposing affidavit to resist the application. Additionally, they did not appear in
court that day.
Submissions by Shackleton in the unopposed court
[2] Advocate Smit for Shackleton addressed the court on the merits of the
application, and further argued that the Deolall’s plea raised no bona fide defence
constituting a triable issue. Moreover, Advocate Smit contended that the Deolalls
had filed their plea solely to stave off the litigation. Additionally, Shackleton had
fully complied with the procedural requirements of Uniform Rule 32.
[3] Advocate Smit further submitted that, the Deolalls having filed no resisting
affidavit, there was no sworn material before the court capable of clothing the bare
averments of the plea with legal or factual substance. Advocate Smit placed store
on, inter alia, Maharaj v Barclays National Bank Ltd 1; Jili v Firstrand Bank Ltd t/a
Wesbank 2 and passages in L de Villiers v an Winsen et al , Herbstein & Van
Winsen The Civil Practice of the High Courts of South Africa (5th ed) vol 1 at 532
and 536.
[4] Having heard Advocate Smit’s oral submissions, I was of the view that the
matter warranted more careful consideration of the defences pleaded before
summary judgment was granted, notwithstanding the absence of any opposing
affidavit. That being so , I invited Advocate Smit to file brief written heads of
argument addressing each pleaded defence. The heads were duly filed on 16 April
2026 and have been considered together with the papers and the oral submissions
made on 26 March 2026.
Background facts
[5] Shackleton is a cessionary of Standard Bank of South Africa Limited
(“Standard Bank”). It seeks judgment for payment of R250 626.90, together with
1Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A).
2 [2013] ZAKZNHC
interest thereon at the contractual rate of 11.560% per annum, calculated daily and
compounded monthly from 11 July 2017 to date of final payment, and costs of suit.
[6] The material facts are as follows. Standard Bank extended a personal loan
facility to Mr. Deolall pursuant to a written credit agreement entered on or about
28 July 2015. The agreement is governed by the National Credit Act 34 of 2005
(“the NCA”). Mrs. Deolall is joined in her capacity as a spouse married in
community of property.
[7] Standard Bank ceded its rights under the loan agreement to CVI Shackleton
(Pty) Ltd by way of a written deed of cession, which bears an execution date of 13
December 2019, although Shackleton’s deponent, Ms Victoria Lynne Bissett,
concedes that a clerical error arose in the declaration in that the cession was only
fully concluded on 18 December 2019 when Standard Bank, as the last party,
appended its signature. Shackleton thereafter substituted itself as plaintiff under the
name Shackleton Credit Manag ement (Pty) Limited. The court was furnished with
a copy of the substitution notice.
[8] Mr. Deolall made payments on the account on 28 July 2017, 28 March 2018,
1 August 2018, 28 September 2018, and 12 April 2019. On 3 September 2020,
during a telephone conversation with Yassar Basdew, a call centre employee at
Shackleton, Mr. Deolall acknowledged his indebtedness. Corroborative evidence
confirmed this.
[9] Simple summons was issued and served on the Deolalls on 4 April 2022.
Service on the first defendant was effected via his spouse (the second defendant) at
their shared address, and service on the second defendant was effected personally.
Shackleton thereafter followed the prescribed procedural route: a declaration was
delivered on 16 January 2025; a notice of bar was served on 10 April 2025; and,
after being placed under bar, the defendants delivered a plea on 17 April 2025. The
summary judgment application was served on 12 May 2025, within the fifteen -day
window contemplated by Uniform Rule 32(1) as amended. The matter was set
down for 26 March 2026.
The defences
[10] The Deolalls raised the following defences in their plea:
(a)prescription in that the loan agreement was concluded on 28 July 2015 and
the summons was served only in 2022, exceeding the three -year period under
the Prescription Act 68 of 1969;
(b)no cause of action against Mrs. Deolall , as Shackleton pleaded no
independent cause of action against her in its declaration;
(c)lack of jurisdiction, as all parties are domiciled in KwaZulu -Natal and the
matter should therefore be heard in the Durban or Pietermaritzburg High
Court;
(d)failure to specify in the agreement that Shackleton did not identify, with
sufficient particularity, which agreement is relied upon;
(e)defective cession as the cession does not specify what was ceded and does
not explain the defendants’ nexus to the cession;
(f)illegibility of Annexure B as the copy of the loan agreement annexed to the
declaration was said to be illegible; and
(g)absence of a breakdown, as Shackleton did not furnish a breakdown of the
amounts claimed despite repeated requests.
Legal Principles
[11] The court’s power to grant summary judgment is found in Uniform Rule 32.
Summary judgment is a drastic remedy. It shuts the door of the court against a
defendant without a trial. In Maharaj v Barclays National Bank Ltd , the court
held that it is therefore available only where the plaintiff can establish its claim
clearly and the defendant fails to raise a bona fide defence that is good in law and
that raises a genuine triable issue.3
[12] The defendant who resists summary judgment must, in an affidavit, disclose
the nature and grounds of the defence and the material facts relied upon. The
defence must be bona fide and not merely a delaying tactic. The court does not
enquire into the probabilities; it asks only whether the defence, if accepted as true,
would constitute a valid defence.4
[13] The Deolalls have not filed an affidavit resisting summary judgment. Put
plainly, there is no sworn material before the court to lend factual substance to the
bare averments of the plea. Notwithstanding this, the court is obliged to consider
whether the plea, in its entirety, discloses a triable defence. It is trite that a court
should not grant summary judgment as a matter of course simply because no
resistance affidavit was filed. The court must be satisfied that the plaintiff has
established the prerequisites for the remedy.
3 Op cit fn 1
4Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228B–C.
Defences
Prescription
[14] The Deolalls plead that the action became prescribed before summons was
served in 2022. This contention is anchored on the date of conclusion of the loan
agreement, being 28 July 2015, and appears to submit that, calculated from that
date, three years elapsed before service.
[15] The argument misplaces the application of prescription in our law.
Prescription begins to run from the time a debt becomes due, not from the date of
conclusion of the agreement.5 Even if one were to accept, for the sake of argument,
that the prescription ran from the date of the final instalment or the date on which
the full balance became due, two distinct acts by Mr. Deolall interrupted the
running of the prescription.6 First, Mr. Deolall made payments on the account as
late as 12 April 2019. Each payment constitutes an acknowledgment of liability
which interrupts the running of prescription. Consequently, the prescriptive period
was, at the very earliest, extended to 12 April 2022.
[16] Moreover, on 3 September 2020 , Mr. Deolall expressly acknowledged the
indebtedness in the telephonic communication with Shackleton’s call centre
employee. That acknowledgment constituted a further interruption. Service of
summons on 4 April 2022 accordingly extinguished any prescriptive period that
5See s 12(1) of the Prescription Act 68 of 1969.
6See Prescription Act above s 14.
may otherwise have begun to run. As I see it, the claim had no t prescribed by the
time the summons was served.
[17] It follows that this defence is entirely without merit. It does not raise a
genuine triable issue.
No cause of action against Mrs. Deolall
[18] The Deolalls contend that Shackleton pleaded no cause of action against
Mrs. Deolall in the declaration. This contention is not borne out by the pleadings.
To this effect, paragraph 3 of the declaration records, expressly, that Mrs. Deolall
is married to Mr. Deolall in community of property. What ought to be underscored
is that the Deolalls admitted in paragraph 5 of the plea that their marriage was a
marital regime in community of property.
[19] Our law is clear. Where spouses are married in community of property, the
joint estate is liable for debts incurred by either spouse in the management of the
joint estate during the subsistence of the marriage. It follows as a necessary legal
consequence that a creditor is entitled to proceed against both spouses to obtain a
judgment enforceable against the joint estate. Mrs. Deolall was properly joined. No
separate cause of action against her individually is required.
[20] This defence is without legal foundation and is rejected.
Jurisdiction
[21] The Deolalls contend that this court lacks jurisdiction because all parties are
based in KwaZulu -Natal. Convenience does not determine jurisdiction. The
enquiry is whether the court has a recognised basis for exercising jurisdiction over
each defendant in respect of the claim asserted.
[22] As regards Mr Deolall, clause 13 of the loan agreement records the address
2[…] C[…] N[…] A[…], Bosduif Crescent, Safari Gardens/Safarituine,
Rustenburg as his domicilium citandi et executandi .. Absent any written
notification from Mr. Deolall of a change of address, the Rustenburg address
remains operative. This court accordingly has jurisdiction over the first defendant
ratione domicilii and ratione contractus. The principle that the plaintiff follows the
defendant to his forum is well established.7
[23] As regards Mrs Deolall, she is not a party to the loan agreement and has
nominated no independent domicilium under it. She is joined solely in her capacity
as spouse married in community of property to Mr. Deolall. The cause of action
asserted against her is not an independent claim , but the self-same claim advanced
against the joint estate. Section 17(5) of the Matrimonial Property Act 88 of 1984
expressly contemplates that a creditor may institute proceedings against both
spouses jointly in respect of a debt recoverable from the joint estate. 8 Where a
single, indivisible claim is brought against spouses jointly and severally in respect
of the joint estate, and this court has jurisdiction over one spouse in respect of that
claim, it has jurisdiction over the other spouse in respect of the same claim. To
hold otherwise would be to require a plaintiff to fragment a single joint estate
claim across different jurisdictions, a result that the law does not require or permit.
7Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A) at 305C.
8 s17(5) of the Matrimonial Property Act 88 of 1984 provides that, where a debt is recoverable from the joint estate,
a creditor may institute legal proceedings against the spouse who incurred the debt, or against both spouses jointly.
The plaintiff has correctly joined both spouses.
Jurisdiction over Mrs. Deolall is accordingly established as an incident of
jurisdiction over the joint estate claim.
[24] A court has a discretion to decline jurisdiction in favour of a more
convenient forum, but that discretion arises only on application. No such
application has been made. The jurisdiction defence fails as to both defendants.
Failure to specify the agreement and illegibility
[25] The Deolalls plead that Shackleton does not specify which agreement is
relied upon, and that Annexure B to the declaration is illegible. Both contentions
are unfounded. The declaration identifies the loan agreement with specificity. It
identifies the parties, the date, the nature of the facility, and annexes a copy of the
agreement. Shackleton’s affidavit in support of the summary judgment application
further annexes a legible copy of the agreement for the Deolalls’ edification.
[26] The averment of illegibility is an exercise in grasping at straws. There are no
primary facts. The illegibility allegation is unsubstantiated. To my mind , it is the
kind of formulaic objection courts have repeatedly deprecated.
[27] It does not disclose a genuine triable issue.
Defective cession
[28] The Deolalls plead that the cession is defective because it does not specify
what was ceded and does not explain how they are linked to the cession. The first
cession agreement, properly read, identifies in points 1 to 6 precisely what was
ceded. Clause 14.1 of the loan agreement further provides that Standard Bank may
cede its rights under the agreement to any person without the borrower's prior
consent. Accordingly, there is a contractual basis for the cession , and no consent
was required.
[29] The Deolalls’ complaint that the declaration’s date, 13 December 2019,
differs from the actual execution date, 18 December 2019, is, as Shackleton’s
deponent correctly concedes, the result of a clerical error. It does not impeach the
validity of the cession, an independent legal event governed by the agreement
itself. The error is immaterial to Shackleton’s entitlement.
[30] This defence, too, fails.
Absence of a breakdown
[31] The Deolalls assert that they were not furnished with a breakdown of the
claim despite requests to Standard Bank and its legal representatives. The claim,
however, is a liquidated amount based on a credit agreement and a certificate of
balance. The amount of R250 626.90 is pleaded in the declaration and confirmed
by the certificate of balance and the account statement. A liquidated amount
requires no further breakdown. It is a quantum ascertainable from the document
itself.
[32] Even so, the Deolalls’ complaint about a breakdown is directed at Standard
Bank and its representatives. Shackleton is a cessionary and stands in the shoes of
the cedent insofar as the rights under the agreement are concerned.
[33] It follows that the defence is without merit.
Section 129 notice
[34] The Deolalls put Shackleton to proof of delivery of the s 129(1)(a) notice.
Three aspects require separate consideration ; the legal obligation, the scope of the
obligation as between the Deolalls, and the effect of the registered items having
been returned to sender.
[35] The NCA’s s 129(1)(a) obligation runs to the consumer, the party to the
credit agreement to whom credit is granted. 9 That person is Mr. Deolall . Mrs.
Deolall is not a consumer under the agreement; she is joined on community of
property grounds alone. There is accordingly no independent statutory obligation
to deliver a s 129 notice to her, and the absence of a separate compliant delivery to
her does not impeach Shackleton’s right to proceed.
[36] Towards this end, the s 129 letter, to both the summons and the declaration,
was sent by registered post on 15 March 2022 to Mr. Deolall’s domicilium address
at Rustenburg, the very address he nominated in the agreement for the receipt of
legal notices. The track -and-trace records confirm that the registered item was
tendered at the Rustenburg post office and was ultimately returned to sender after
the consumer failed to collect it.
[37] The law is settled that a s 129(1)(a) notice is duly delivered when sent by
registered post to the consumer’s chosen address in the credit agreement and
9 "Consumer" is defined in s 1 of the N ational Credit Act 34 of 2005 as the party to a credit agreement to whom
credit is granted. Mrs. Deolall is not a party to the loan agreement and accordingly does not fall within the statutory
definition.
received at the designated post office, even if the notice is ultimately not collected
by the consumer.10 A consumer may not nominate an address for receipt of notices
and thereafter defeat the statutory mechanism by declining to collect registered
mail addressed to that address .11 The fact that the registered item was returned to
sender does not invalidate delivery. The track -and-trace records show the item
reached the Rustenburg post office, which satisfies the delivery requirement.
Compliance with s 129 is accordingly established.
[38] The defence is not a bona fide one.
Conclusion
[39] Viewing the defences in their entirety, I am satisfied that none of them raises
a genuine triable issue capable of resisting summary judgment. The plea reads as a
careful series of technical objections, each designed to delay the inevitable. The
Deolall’s have not placed a single fact before this court that, if proven at trial,
would constitute an answer to Shackleton’s claim.
[40] Shackleton’s case, by contrast, is pleaded with precision and is supported by
appropriate documentary evidence , the loan agreement, the cession, the certificate
of balance, the payment history, the record of the acknowledgment of liability, and
proof of compliance with the NCA. The requirements of Rule 32(2) are satisfied.
[41] I conclude that Shackleton has established an unanswerable case. Summary
judgment must be granted.
10 Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC) para 86-88.
11Kubyana v Standard Bank of South Africa Ltd 2014 (3) SA 56 (CC) paras 35–38.
Costs
[42] Costs follow the result. There is no reason to depart from the ordinary rule.
The Deolalls, despite having been served with the application and the set -down
notice on more than one occasion, chose neither to resist the application on
affidavit nor to appear in court. Shackleton is entitled to its costs.
[43] As to the scale of costs , I have considered whether the loan agreement
contains a contractual basis for costs on an attorney-client scale. There is no
contractual entitlement to costs on any enhanced scale. The costs award shall be on
the party-and-party scale.
Order
[44] Resultantly, I make the following order:
1. Summary judgment is granted against the first and second defendants,
jointly and severally, the one paying the other to be absolved, for:
(a) payment of the sum of R250 626.90;
(b) interest on R250 626.90 at the rate of 11.560% per annum,
calculated daily and compounded monthly from 11 July 2017 to date
of final payment; and
(c) costs of suit on the party-and-party scale.
______________________________
A REDDY
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the Plaintiff: Advocate D Smit
Instructed by: Lynn & Main Attorneys, Pietermaritzburg
C/O VRTW Inc, Mahikeng
For the Defendants: No appearance