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[2026] ZAGPJHC 608
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Global Business Administrators (Pty) Ltd v Mont Blanc Financial Services Pty Ltd (2025/106040) [2026] ZAGPJHC 608 (5 June 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case Number:
2025-106040
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
05 JUNE 2026
In the matter between:
GLOBAL
BUSINESS ADMINISTRATORS (PTY) LTD
Plaintiff
And
MONT
BLANC FINANACIAL SERVICES (PTY) LTD
Defendant
JUDGMENT
MVUBU, AJ
Introduction
[1]
When is it the right time to keep the door
open?
[2]
What
we know is that
‘
the
summary judgment procedure was not intended to “shut” (a
defendant) out from defending, unless it was very clear
indeed that
he has no case in the action.
[1]
That is not shutting the door but exercising a judicious decision in
balancing the interests of the plaintiff (who must get their
relief
where a clear and unanswerable case has been made), the interests of
the defendant (who will be afforded an opportunity
to defend when
they demonstrate that they have a case in the action) and the
interests of preserving scarce judicial resources
for those matters
that warrant the attention of a judge.
[3]
I do not, then, see summary judgment
proceedings as a coin toss between keeping the door shut or open.
Where the plea sets
out a bona fide defence and does so within the
meaning of Rule 32(3)(b), a court will afford the defendant an
opportunity to defend.
Where the defendant simply has no case,
the plaintiff must succeed at summary judgment stage, there is no
need to delay the plaintiff’s
destiny with justice.
Justice delayed is justice denied, after all. All this falling
snugly within the ambit and demands
of section 34 of the Constitution
of the Republic of South Africa, 1996. It is justice; the
ethical and moral principle of
ensuring fairness, impartiality, and
giving every person their due, when it is due and including at
summary judgment stage if it
is called for at that stage.
[4]
In my view, there can be no mention of
shutting the door on a defendant. Demonstrate a bona fide
defence, with full disclosure
of the nature and grounds underpinning
the defence, the matter goes to trial. That is the assessment and
each defendant is well
knowing of this fact or ought to be.
What is more, there is a “lighter” option, give security
to the plaintiff
to the satisfaction of the court for any judgment
including costs which may be given and the matter would go to trial.
Pleadings and pleaded
case
[5]
In its particulars of claim, the Plaintiff
pleads:
“
[4]
In and during December 2019, and at Johannesburg, the Plaintiff, duly
represented, and the Defendant, duly represented, entered
into an
oral agreement.
[5] The express
material (sic), alternatively tacit, further alternatively implied
terms of the oral agreement are the following:
5.1. The Plaintiff
would provide IT infrastructure, IT Technical Support Services and
related services to the Defendant (“the
Services”);
5.2. The Defendant
will pay the Plaintiff a monthly fee of R500 000.00 (five
hundred thousand rand) for the Services;
5.3. The Defendant
will pay adhoc (sic) fees, above the R500 000.00, associated
with the Services upon presentation of an invoice;
5.4. The Plaintiff
shall render monthly invoices in respect of the Services and adhoc
(sic) fees;
5.5. The agreement
shall continue indefinitely.”
[6]
That is the agreement, pleaded by the
Plaintiff. The Defendant admits this agreement as follows:
“
3.
The allegations contained in the paragraphs under reply are denied.
4. Without derogating
the (sic) from the generality of the aforesaid denial, the defendant
specifically pleads that:
4.1. it entered into
an oral agreement with the plaintiff during December 2019 on terms as
set out in the plaintiff’s particulars
of claim;
4.2. The defendant
admits that the plaintiff at some stage provided IT infrastructure,
technical support and related services to
the defendant;
4.3. The defendant and
the plaintiff amended the terms of the agreement as a result of the
plaintiff’s failure to provide
the technical support and
related services it agreed to provide;
4.4. To this end, the
parties agreed that the Defendant would make payment of a reduced fee
in the amount of around R150 000.00
(One Hundred and Fifty
Thousand Rands) monthly, for the IT Infrastructure provided by the
plaintiff to the defendant, which agreement
was reached between
Werner Roets and Nicola Iozzo.
4.5. The defendant
denies that it paid or was required to pay the plaintiff an amount of
R500 000.00 (five hundred thousand
rands) and ad hoc fees,
monthly;
4.6. The technical
support and related services which the plaintiff had to provide to
the defendant was not provided to the defendant
in accordance with
the arrangements between the parties, and as such a reduced fee was
payable in respect of the limited IT Infrastructure.
Which
agreement the defendant complied with as evidenced by the proof of
payments attached to the plaintiff’s particulars
of claim.
4.7. Such reduced fee
was depended on the services rendered by the plaintiff from time to
time;
4.8. The defendant
built it’s own internal structure to the technical support and
related services due to the failure of the
plaintiff in providing the
services it promised to deliver, and such internal structure attended
to the execution of the duties
and services the plaintiff was
deliver, but failed to do;
4.9. At no stage
during the reduced fee agreement and the payment thereof, did the
plaintiff dispute the amounts paid or notify
the defendant of an
alleged breach of the purported terms set out in plaintiff’s
particulars of claim;
4.10. The defendant
denies the alleged indefinite operation of the agreement and pleads
that the (sic)”
[7]
Paragraph 6.1 of the Defendant’s plea
is worthy of reproduction, it says:
“
6.1.
It denies that the plaintiff complied with the terms of the agreement
between the parties, in that the plaintiff failed to
provide the
defendant with the technical and related services as originally
agreed, subsequently resulting in the reduced fee agreement
between
the parties.”
[8]
In the affidavit resisting summary judgment
the following version is provided:
“
19.
In terms of the amended agreement, the monthly fee payable by the
responded was reduced to approximately R150 000.00 per
month (at
a maximum), which amount was variable and dependent on the limited
infrastructure actually provided by the applicant
from time to time.
20. No obligation
existed for the respondent to pay a monthly amount of R500 000.00,
nor any ad hoc fees, as alleged by the
applicant.
21. The respondent
complied with the amended agreement and made payment in accordance
therewith. The respondent paid for the
services rendered by the
applicant. Such payments are reflected in the applicant’s
own annexures.”
[9]
From the Defendant’s plea and
affidavit resisting summary judgment, one notices a few
contradictions and I set them out below.
Applicable principles
[10]
It
is trite that the Defendant need not prove his defence but merely
comply with Rule 32(3)(b), that being so I am not persuaded
that the
Defendant crossed the Rubicon. It was required of the Defendant
that the affidavit resisting summary judgment demonstrate
merits in
the defence
[2]
and he has failed
to do so.
[11]
The
legal position, as we know, is that it will be sufficient if the
defendant swears to a defence, valid in law, in a manner which
is not
inherently or seriously unconvincing.
[3]
As was held in
South
African Securitisation Programme (RF) LTD and Others v Cellsecure
Monitoring and Response (PTY) Ltd and Others
“
[33] I am
mindful that a bona fide
defence
is assessed upon a consideration of the extent to which the nature
and grounds of the defence and the material facts relied
upon have
been canvassed. Bona fides
does not
mean that the defendant has to satisfy the court that his version is
believed to be true. All the defendant is required
to do is to
swear to a defence valid in law, in a manner which is not seriously
unconvincing. Put differently, he should
show that there is a
reasonable possibility that the defence he advances may succeed on
trial.
”
[4]
Lack of bona fide defence
and contradiction in defence
[12]
The
defence is clearly not bona fide, in my view. I also find that
the said defence’s nature and grounds have not been
fully
disclosed, as accompanied by the material facts relied upon therefor,
being non-compliance with Rule 32(3)(b) requirements.
[5]
[13]
It is alleged by the Defendant that there
was a variation to the agreement. The Plaintiff does not know
about any such alleged
variation and avers that as proof that no
variation occurred, it continued to render monthly invoices in the
amount of R500 000.00
per month and no complaint was ever raised
by the Defendant that it being invoiced an incorrect amount.
The Defendant does
not even disclose when this variation took place.
[14]
In argument, it was submitted that the
variation contended for by the Defendant happened in July 2023.
That must mean that
from December 2019 to June 2023, the terms of the
agreement set out in paragraph 5 of the particulars of claim and
admitted in
paragraph 4.1 of the plea were undisturbed. Yet, on
some months prior this alleged change, there are non-payments in some
months and part payments in others, in line with the version put
forward by the Plaintiff. The fact that the Defendant decided
to make part payments, in the amount of R150 000.00 plus
ad
hoc
fees, does not mean (without more)
that there was variation of the agreement.
[15]
I must then accept that from December 2019
to June 2023, the Plaintiff provided the Services (as defined) and at
a fee of R500 000.00
plus an
ad hoc
fee. This position persisted until the alleged variation and
which happened because:
15.1.
monthly fee payable by the responded was
reduced to approximately R150 000.00 per month (at a maximum),
which amount was variable
and dependent on the limited infrastructure
actually provided by the applicant from time to time.
Paragraph
19 of the affidavit resisting summary judgment.
15.2.
No obligation existed for the respondent
to pay a monthly amount of R500 000.00, nor any ad hoc fees, as
alleged by the applicant.
Paragraph 20
of the affidavit resisting summary judgment.
15.3.
The technical support and related
services which the plaintiff had to provide to the defendant was not
provided to the defendant
in accordance with the arrangements between
the parties, and as such a reduced fee was payable in respect of the
limited IT Infrastructure
. Paragraph
4.6 of the plea.
15.4.
the parties agreed that the Defendant
would make payment of a reduced fee in the amount of around
R150 000.00 (One Hundred
and Fifty Thousand Rands) monthly, for
the IT Infrastructure provided by the plaintiff to the defendant
.
Paragraph 4.4 of the plea.
[16]
No complainant of limited IT infrastructure
existed from December 2019 until June 2023. What changed in
2023 – one does
not know and the Defendant is silent about it,
when one would expect him to have said something.
[17]
I must also accept that the Plaintiff
rendered the technical support and related services between December
2019 and June 2023 (at
least). Put differently, when did the
Defendant realise
that it was not being provided
technical support and related services, as agreed? Again, the
Defendant is silent about this
when an expectation exists that an
explanation would be provided. The explanation is demanded
especially given what is stated
in paragraph 4.2 of the plea:
“
The
defendant admits that the plaintiff at some stage provided IT
infrastructure, technical support and related services to the
defendant”
[18]
When did the provision of the services
stop? We know that the services were provided “
at
some stage
” and we know that the
variation is caused by the failure of the Plaintiff, allegedly, to
provide the services. We are
left in the dark when the alleged
breach (failure by the Plaintiff to provide the services) occurred.
Yet, we are expected
to accept that there was a breach by Plaintiff
and that resulted in the variation. There is a contractual
defence fitting
these type of scenario – at least on the
Defendant’s version – it is the
exceptio
non adimpletti contractus
. The
Defendant does not even invoke this defence.
[19]
There is simply no build up to this
variation, as one would expect. It is sudden, neither
unexplained nor explainable.
That is telling of itself.
[20]
Add to that, even the variation of the
amount is cast in some doubt – it is “
approximately
R150 000.00 per month
”, it
is R150 000.00 “
at a maximum
which amount was variable and dependent on the limited infrastructure
actually provided by the applicant from time
to time
”
and “
in the amount of around
R150 000.00
”. We are
not told about this limited infrastructure and when the Plaintiff
first started providing the alleged limited
infrastructure. The
Plaintiff says it did provide the services (as defined). A firmer
position would thus be expected from
the Defendant and this makes the
Defendant’s version seriously and inherently unconvincing.
[21]
There is a blanket denial of the liability
for
ad hoc
fees and yet, the Defendant has been paying
ad
hoc
fees until March 2025.
[22]
Without any evidence to the contrary, I
must accept that the Plaintiff’s case – as admitted by
the Defendant –
is unanswerable. That is, at least from
December 2019 until about June 2023, the parties carried themselves
in terms of their agreement.
That there was a variation, the
Defendant bears the onus, and the version is unconvincing to say the
least. This is because:
22.1.
The
details of the said variation are
unknown to the Defendant. In argument Ms Marx (for the
Defendant) submitted that the variation
may have been around July
2023. That is, the Defendant is not even sure when this alleged
variation took place.
22.2.
I have already mentioned the unconvincing
version relating to the self-same R150 000.00. It becomes harder
to accept this alleged
change when one has regard to the unspecified
alleged breach committed by the Plaintiff. Also, it is unclear why
the Plaintiff
in the absence of a clear breach that the Plaintiff was
itself aware of, would agree to change the fee
after
the agreement had been agreed to in 2019 and the Plaintiff had
performed and on its version, continuing to perform. This is more
curious when we know the value of money has depreciated. Why would
the Plaintiff value its services at R500 000.00 in 2019
and
“only” to R150 000.00 in 2023, four (4) years later.
22.3.
The payment schedule – which the
Defendant accepts when it suits it and denies it when it suits it –
reflects shortfall
payments in March 2023 (R50 000.00 was paid);
April 2023 (R50 000.00 was paid), May 2023 (R100 000.00 was
paid)
and June 2023 (R100 000.00 was paid). When invited the
Defendants to “tender” payment and/or agree an order for
the payment of the shortfall that is glaringly common cause, this
invitation was declined. This renders the defence not “bona
fide”. This is so because of paragraph 7 of the plea which
states that: “
The
(…)
admits that Annexure “A” to the particulars of claim
demonstrates a payment schedule but denies that the payment schedule
was agreed between the parties
”
as read with paragraph 21 of the affidavit resisting summary judgment
and which states “
“
21.
The respondent complied with the amended agreement and made payment
in accordance therewith. The respondent paid for the
services
rendered by the applicant. Such payments are reflected in the
applicant’s own annexures.”
22.4.
The
Defendant cannot blow hot and cold, “
no
person can be allowed to take up two positions inconsistent with one
another, or as is commonly expressed, to blow hot and cold,
to
approbate and reprobate
”.
[6]
That is exactly what this Defendant has done in these proceedings –
blow hot and cold, approbate and reprobate. It is this
inconsistency
that make the Defendant’s version inherently and seriously
unconvincing.
[23]
While the Defendant intimated that it
intends amending its plea, without pre-empting any said intended
amendment(s) it will be difficult
to reconcile any later version with
the present inconsistencies. Be that as it may, I am not making a
pronouncement on events that
are at present unknown. What is known at
present, the plea as well as the affidavit resisting summary judgment
do not disclose
a bona fide defence.
[24]
In the result, I am inclined to grant
summary judgment.
Costs
[25]
The Plaintiff seeks costs on Scale C, as
set out in both the combined summons and application for summary
judgment.
[26]
But for the belated suggestion of a
variation, everything else was common cause and thus there can hardly
be any complexity to speak
of. Nor were the papers voluminous. The
value of the claim is R12 million but that does not, in my view,
elevate it to a level
justifying costs on scale C.
[27]
The liability lies from a commercial
agreement, the existence of which is common cause, and which the
Plaintiff could have been
more diligent in enforcing and perhaps the
value of the claim may have been lesser.
[28]
In the result, costs on Scale B would be
justified.
Conclusion
[29]
I thus find that the Plaintiff is entitled
to summary judgment and with costs on Scale B.
Order
[30]
I make the following order:
1.
The Defendant is ordered to pay the
Plaintiff an amount of
R 12 100 000.00
with interest, calculated at the prescribed rate of interest from the
date of service of the summons until date of final payment.
2.
The Defendant is to pay the Plaintiff’s
costs of the action (including summary judgment proceedings) on scale
B
K.
MVUBU
ACTING
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
This Judgment was
handed down electronically by circulation to the parties/their legal
representatives by email and by uploading
to the electronic file on
Court Online. The date for hand-down is deemed to be 05 June 2026.
Date of
Hearing
:02 June 2026
Date of
Judgement
:05 June 2026
For the
Plaintiff
:Adv. Van Niekerk
Instructed
by
:Rogers Kruger Smith Inc.
For the
Defendant
:Adv. Marx
Instructed
by
:Classen & Associates Inc.
[1]
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
[2009]
ZASCA 23; 2009 (5) SA 1 (SCA).
[2]
He
& She Investments (Pty) Ltd v Brand NO
2019
(5) SA 492 (WCC).
[3]
NBS
Boland Bank v One Berg River Drive and Others, Deeb and Another v
ABSA Bank Ltd; Friedman v Standard Bank of South Africa
Ltd
(291/98, 428/98, 85/99)
[1999] ZASCA 60
;
[1999] 4 All SA 183
(A);
1999 (4) SA 928
(SCA) (10 September 1999) paragraphs 33-35.
[4]
South
African Securitisation Programme (RF) LTD and Others v Cellsecure
Monitoring and Response (PTY) Ltd and Others
(21647/2021) [2022] ZAGPPHC 925 (25 November 2022) paragraph 33.
[5]
Maharaj
v Barclays National Bank Ltd
1976
(1) SA 418(A).
[6]
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations
of State Capture, Corruption and Fraud in the Public Sector
Including Organs of State and Others
(CCT 52/21)
[2021] ZACC 28
;
2021 (11) BCLR 1263
(CC) (17 September
2021) para 101.