IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DMSION, CAPE TOWN)
JUDGMENT
In the matter between:
BOTUMA INVESTMENT PROPRIETARY
LIMITED t/a ST AG AFRICAN
and
PA VEPRINT PROPRIETARY LIMITED
t/a CONCRETEX
Neutral citation:
Coram: Mgengwana ; AJ
Heard: 10 March 2026
Not Reportable
Case no: 2025-00387
PLAINTIFF
DEFENDANT
Delivered: 12 June 2026
Summary: Summary Judgement Application - Rule 32 of the Uniform
Rules of Court- Whether the defences raised in Defendant's Plea raise any
issues for trial.
ORDER
[ 1] In the result, I grant the following order:
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[1.1] Application for summary judgment is dismissed with costs
inclusive of counsel's fees on Scale B.
[1.2] Defendant is granted leave to defend the action.
JUDGMENT
MGENGW ANA; AJ
Judgement handed down: The judgement is handed down electronically by
circulating to the parties or legal representatives by email. The date for the
handing down of the judgment is deemed to be 12 June 2026.
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Introduction
[1] This is a summary judgment application in which the Plaintiff is
seeking an Order against the Defendant on the following terms:
(a) Payment ofR600 000.00
(b) Costs of suit;
( c) Further and/or alternative relief.
Background
[2] On 22 September 2022, the Plaintiff and the Defendant entered into a
Settlement Agreement (Settlement Agreement) on, inter alia, the following
terms after the parties had cancelled a Collaboration Agreement in terms
whereof the Plaintiff had advanced the sum of Rl 500 000.00 (the capital) to
the Defendant, this Collaboration Agreement was entered into on 3 May
202l(Collaboration Agreement):
(a) That the capital is repayable by way of payments of R50 000.00
per month which payments will be made on or before the 1st day of
each and every month commencing on 1 October 2022 interest free.
(b) That payments are to be made into the N edbank bank account
belonging to Stag Holdings, a Close Corporation (Stag).
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(c) That should any payment referred to in clause (a) above
(R50 000.00 monthly instalment) not be made on due date, then and in
that event, the Plaintiff will give the Defendant 5 days written notice
to make such payment, failing which the Plaintiff may institute
proceedings for recovery thereof.
( d) That no leniency, bdulgence, extension of time or other act of grace
that the said Plaintiff shall afford the Defendant with regard to
compliance with the terms hereof, and no neglect or failure on the part
of the Defendant to exercise or enforce any of his rights, shall operate
or be construed as a waiver by the Plaintiff or novation of the terms of
this document.
(e) That the terms of this document shall novate, cancel and supersede
the terms and conditions of all prior negotiations, document, letters or
other communications between the parties hereto, with the intent and
purpose that the terms and conditions hereof shall constitute the sole
memorial of the Agreement subsisting between the parties.
[3] Between 7 October 2022 and 7 March 2024 the Defendant paid the
Plaintiff a total amount of R900 000.00 and thereafter failed to abide by the
terms of the Settlement Agreement in that no further payments were made to
the Plaintiff by the Defendant. On 10 May 2024, the Defendant attorneys
responded to a letter dated 7 May 2024 which was apparently written by Piet
De Clerk. In the letter dated 10 May 2024, Defendant's attorneys submitted,
inter alia, that it believes the amount ofR900 000.00 already paid Plaintiff is
fair and reasonable under the circumstances and regards its obligation to Stag
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as settled. The Defendant went further to submit that it is not indebted to the
Plaintiff for any future amount or at all.
[ 4] On IO December 2024, the Plaintiff addressed a letter of demand to the
Defendant in which it claimed payment of the sum of R600 000.00 from the
Defendant within 5 days of the date of the letter of demand. The Defendant
neglected to pay the aforesaid amount ofR600 000.00 whereafter the Plaintiff
served combined summons on Defendant on 21 January 2025.
[5] The Defendant served a Notice of Intention to Defend on the Plaintiff
on 4 February 2025 and its Plea on 28 March 2025 whereafter the Plaintiff
served a summary judgement application on the Defendant on 22 April 2025
and had same set down for hearing on 4 June 2025. After opposition thereto,
the summary judgement application was then postponed to 10 March 2026.
[6] The Defendant raised, inter alia, the following defences in its plea:
(a) It raised a Special Plea of Non-Joinder based on the allegation that the
Collaboration Agreement referred to indirectly in the Settlement Agreement was
concluded by the Plaintiff and Birdhill and not by the Plaintiff and the Defendant The
Settlement Agreement purported to cancel the Collaboration Agreement between the
Plaintiff and Birdhill without involving Birdhill. The Special Plea goes on to allege that
the Defendant Jacked authority to cancel the Collaboration Agreement on behalf of
Birdhill. ln the premises, this Court cannot adjudicate Plaintiff's claim without joining
Birdhill as party to the proceedings first according to the Defendant.
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(b) It denied and put the Plaintiff to proof of its allegation that the whole cause of
action arose within the jurisdiction of this Court given that the Collaboration
Agreement was concluded with Birdhill, an Irish entity.
(c) It pleaded that the alleged advance of the capital was not made by the Plaintiff
but by Stag which is a distinct legal entity from the Plaintiff as evidenced by
payments totaling Rl 500 000.00 (1 x RSOO 000 and 3x R333 000).
(d) It pleaded that the Plaintiff lacks locus standi to claim payment of a debt it did not
advance in respect of an agreement it was not party to.
( e) It admitted to making payments totaling R900 0000.00 to Stag and not the Plaintiff
as it had no obligation towards the Plaintiff in terms of the Settlement Agreement
(t) It denied the allegation that the parties to this litigation do not fall within the scope
of section 8(3)(a)(i) of the National Credit Act 34 of 2005 (the Act).
(g) In the alternative, and should it be found that the Settlement Agreement is
enforceable, the Defendant denied that the amount ofR600 000.00 is due and payable
as the Plaintiff failed to comply with clause 3 of the Settlement Agreement which
provides that should any payment not be made on the due date, the Plaintiff shall give
the Defendant 5 days' written notice to make such payment, failing which the Plaintiff
may institute proceedings. In this instance, Plaintiffs notice dated 11 December 2024
demanded payment of the full outstanding balance of R600 000.00 within 5 days but
did not specify any missed instalment or provide notice to remedy a specific breach
as contemplated by clause 3.
[7] In essence, besides the Special Plea, the Defendant has taken issue with
the jurisdiction of this Court to hear this action, locus standi of the Plaintiff to
institute the action, compliance with the provisions of the Act and compliance
with paragraph 3 of the Settlement Agreement should the court in the main
with paragraph 3 of the Settlement Agreement should the court in the main
action come to the conclusion that the Defendant herein bad the necessary
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authority to cancel the Collaboration Agreement even though it was not party
thereto.
[8] Plaintiffs submissions in the main is that the defences raised by the
Defendant in his plea do not raise any issues for trial for, inter alia, the
following reasons:
(a) Even though it admits that the Collaboration Agreement was entered into by
it and Birdhill, however, the Defendant had at all times presented to it that Birdhill
was a related party to the Defendant and controlled by the Defendant and always
acted accordingly. As proof of the a foregoing, both the Settlement Agreement and the
Collaboration Agreement were signed by the same person, Mark Patrick Ryan.
Therefore, the Settlement Agreement was validly entered into. Anyway, the capital
was advanced to the Defendant and no funds were at any stage advanced to
Birdhill.
(b) The Settlement Agreement does not contain any operative provision purporting
to cancel the Collaboration Agreement as pleaded by the Defendant. The
Collaboration Agreement was already cancelled when the Settlement Agreement was
entered into keeping in mind that the Defendant at all times represented to the
Plaintiff that Birdhill was a related party to it and controlled by it. The Defendant is
therefore precluded from relying on the cancelled Collaboration Agreement to deflect
liability under the operative Settlement Agreement.
(c) It was not required to join Birdhill as Birdhill is not party to the Settlement
Agreement and therefore has no interest in the current proceedings which are strictly
between the Plaintiff and the Defendant. The Defendant, through its attorneys of
record, has never denied its indebtedness to the Plaintiff. The Special Plea of non
joinder of Birdhill is not only misguided but amounts to a delaying tactic aimed at
frustrating the Plaintiffs enforcement of a valid and binding agreement.
(d) Both agreements were entered into in Cape Town and payment of the capital
was indeed made by Stag but this payment was made on behalf of the Plaintiff and
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therefore, the Plaintiff does have locus standi to reclaim the capital. Anyway, as the
Defendant acknowledged its indebtedness to the Plaintiff in clause 1.1 of the
Settlement Agreement and undertook to repay same to the Plaintiff, the Defendant is
therefore precluded from now challenging Plaintiffs locus standi.
( e) The Settlement Agreement is not a credit agreement under the provisions of the
Act and therefore, no compliance therewith is required. Clause 3 of the Settlement
Agreement does not place an obligation on the Plaintiff to punctually give 5 days'
written notice to the Defendant the moment a payment was missed, and it also
does not oblige the Plaintiff to immediately institute proceedings for the
recovery of each and every single payment missed.
Issues to be determined
[9] This Court is being called upon to determine whether the Defendant's
Plea discloses a genuine defence to Plaintiff's particu1ars of claim or not.
Applicable Law
[10] Rule 32 of the Uniform Rules of Court, which governs Summary
Judgement Applications, states the following:
"(l) The plaintiff may, after the defendant has delivered a plea, apply court
for summary judgment on each of such claims in the summons as is only
(a) on a liquid document;
(b) for a liquidated amount in money;
( c) for delivery of specified movable property;
(d) or for ejectment,
together with any claim for interest and costs.
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(2)
(a) Within 15 days after the date of delivery of the plea, the plaintiff
shall deliver a notice of application for summary judgment, together with
an affidavit made by the plaintiff or by any other person who can swear
positively to the facts.
(b) The plaintiff shall, in the affidavit referred to in sub-rule (2)(a)
verify the cause of action and the amount, if any, claimed, and identify any
point of law relied upon and the facts upon which the plaintiff's claim is
based, and explain briefly why the defence as pleaded does not raise any
issue for trial.
( c) If the claim is founded on a liquid document a copy of the document
shall be annexed to such affidavit and the notice of application for summary
judgment shall state that the application will be set down for hearing on a
stated day not being less than 15 days from the date of the delivery thereof.
(3) The defendant may-
( a) give security to the plaintiff to the satisfaction of the court
for any judgment including costs which may be given; or
(b) satisfy the court by affidavit (which shall be delivered five
days before the day on which the application is to be heard), or
with the leave of the court by oral evidence of such defendant
or of any other person who can swear positively to the fact that
the defendant has a bona fide defence to the action; such
affidavit or evidence shall disclose fully the nature and
grounds of the defence and the material facts relied upon therefor."
[11] InJoobJoob Investments v Stocks Mavundla ZEK1, Navsa JA states the
following with regard to the Summary Judgement procedure :
1 2009 (5) SA I (SCA).
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"[31] So too in South Africa, the summary judgment procedure was not
intended to 'shut (a defendant) out from defending' , unless it was very clear
indeed that he had no case in the action. It was intended to prevent sham
defences from defeating the rights of parties by delay, and at the same time
causing great loss to plaintiffs who were endeavouring to enforce their
rights.
[32] The rationale for summary judgment proceedings is impeccable.
The procedure is not intended to deprive a defendant with a triable issue or
a sustainable defence of her/his day in court. Our courts, both of first
instance and at appellate level, have during that time rightly been trusted to
ensure that a defendant with a triable issue is not shut out. In the Maharaj
case at 425G-426E, Corbett JA, was keen to ensure first, an examination of
whether there has been sufficient disclosure by a defendant of the nature
and grounds of his defence and the facts upon which it is founded. The
second consideration is that the defence so disclosed must be both bona fide
and good in law. A court which is satisfied that this threshold has been
crossed is then bound to refuse summary judgment. Corbett JA also warned
against requiring of a defendant the precision apposite to pleadings.
However, the learned judge was equally astute to ensure that recalcitrant
debtors pay what is due to a creditor.
[33] Having regard to its purpose and its proper application, summary
judgment proceedings only hold terrors and are 'drastic' for a defendant
who has no defence. Perhaps the time has come to discard these labels and
to concentrate rather on the proper application of the rule, as set out with
customary clarity and elegance by Corbett JA in the Maharaj case at 425G-
426E."
[12] In the unreported but reportable judgement Cohen N.O. and Others vs
Deans2 Nicholls JA held as follows:
2 2023 [ZASCA] 56.
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"[29] The only decision to trace the history and reasoning behind the
amended procedure for summary judgment in detail is Tumileng Trading
CC v National Security and Fire (Pty) Ltd; E & D Security Systems CC v
National Security and Fire (Pty) Ltd (Tumileng). As observed by Binns
Ward J in Tumileng, most of the old authorities still apply in determining
whether a defendant has disclosed a bona fide defence. All the defendant is
required to do is disclose a genuine defence, as opposed to 'a sham' defence.
Prospects of success are irrelevant and as long as the defence is legally
cognisable in the sense that it amounts to a valid defence if proven at trial,
then an application for summary judgment must fail.
[31] The high court failed to consider the test to be applied in deciding
whether to grant summary judgment. This was, and remains, whether the
facts put up by the defendants raise a triable issue and a sustainable defence
in the law, deserving of their day in court. The defendants must fully
disclose the nature and grounds of their defence and the material facts on
which it is founded. All a defendant has to do is set out facts which if proven
at trial will constitute a good defence to the claim."
Analysis of the defences raised by the Defendant
[13] The inescapable fact is that the Settlement Agreement that is the subject
of these proceedings is a product of the cancelled Collaboration Agreement
entered into by Birdhill Investment Limited (Ireland) (Birdhill) and the
Plaintiff at the beginning of May 2021. It therefore goes without saying that
Birdhill bas substantial and direct interest in the cancellation of the
Collaboration Agreement entered into by it and the Plaintiff. This is more so
if Birdhill disputes the validity of the cancellation of the Collaboration
Agreement without its input as such cancellation then paved the way for the
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conclusion of the Settlement Agreement which is the subject of these legal
proceedings. This Court therefore finds that the Special Plea of non-joinder
and the challenge to Defendant's authority to cancel the Collaboration
Agreement are triable issues that would have to be determined by the trial
court .
[14] There is also a dispute regarding this Court's jurisdiction to hear this
action. This dispute arises from the Defendant's denial of Plaintiffs allegation
that the whole cause of action arose within the jurisdiction of this Court as the
Collaboration Agreement, which was concluded with Birdhill, an Irish
Company. This defence cannot be sustained as both the Collaboration and
Settlement Agreements were entered into in Cape Town. This defence
therefore does not constitute a bona fide defence.
[15] The issue of locus standi is not very clear at this stage as the Plaintiff
admits that the capital was not advanced to the Defendant by the Plaintiff but
by Stag. However, the Plaintiff averred that Stag made such advance on behalf
of the Plaintiff, and this is disputed by the Defendant on the basis that there is
no evidence of agency or assignment that has been provided to support this
assertion. Moreover, the Defendant went on to aver that the amount of
R900 000.00 has all been paid to Stag's bank account and this supports its
contention that any of its obligations are owed to Stag and not the Plaintiff
This is the basis of Defendant's averment that the Plaintiff lacks locus standi
to claim the R600 000.00 from the Defendant. This Court finds that clarity on
the issue of locus standi will only be achieved at trial stage after evidence has
been led by both parties to these proceedings and therefore concludes that the
dispute around the issue of locus standi in judicio of the Plaintiff to institute
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these proceedings constitutes a triable issue.
[16] There is also a dispute around the letters sent by Defendant's attorneys
on 19 April 2022 wherein the Defendant acknowledged liability for the capital
and a letter dated 10 May 2024 wherein the Defendant admitted that it has
already paid R900 000.00 of the capital. The Plaintiff avers that these two
letters amount to admissions of liability by the Defendant to the Plaintiff.
[17] However, the Respondent avers that the letter of 19 April 2022 was
conditional as it stated that repayment would occur "as and when it is
convenient and financially prudent" due to economic constraints post Covid
19 and accordingly, this letter does not constitute unconditional admission of
liability to the Plaintiff. This Court does not accept Defendant's averment in
this regard as it is clear that the Defendant unconditionally accepted liability
in this letter however it sought to only delay repayment as a result of the
economic constraints resulting from Covid 19. This Court therefore finds that
the defence raised by the Defendant in respect of the letter dated 19 April 2022
is not bona fide.
[18] The Defendant also asserted that the letter dated 10 May 2024 merely
mentioned that the amount of R900 000.00 already paid was "fair and
reasonable under the circumstances,". This, according to the Defendant, was
an indication of the Defendant's belief that its obligations were fulfilled or
that further liability was disputed. This Court agrees with Defendant's
interpretation of the letter 10 May 2024 as Defendant's attorneys ended
paragraph 2.8 of this letter with a sentence saying that "Our client therefore
regards its obligations to Stag as settled." (My underlining). The underlined
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words also corroborate Defendant's assertion that it had an obligation to pay
Stag and not the Plaintiff.
[19] The question of whether the Settlement Agreement, which is the subject
of this litigation is a credit agreement and therefore falls within the ambit of
section 8 of the Act, can only be answered after evidence has been led. It is
definitely not enough for the Plaintiff to simply aver that it is not a credit
agreement without more or by simply averring that the parties do not fall
within the scope of section 8(3)(a)(i) of the Act.
[20] There is also a dispute around the interpretation of clause 3 of the
Settlement Agreement. Defendant avers the Plaintiff failed to comply with
clause 3 of the Settlement Agreement as the Plaintiff failed to give the
Defendant 5 days written notice to make payment of R50 000.00 for a specific
month failing which the Plaintiff will institute legal proceedings. According
to the Defendant, the Plaintiff's notice dated 11 December 2024 demanded
payment of the full R600 000.00 within 5 days but did not specify any missed
instalment or provide notice to remedy a specific breach as required by clause
3. Even though the Plaintiff denied that it was obliged to immediately give 5
days' notice to the Defendant the moment a specific payment is missed
however, the Defendant avers that strict compliance with clause 3 is a
condition precedent to enforcement and the current notice' s failure to specify
the missed payment renders the debt unenforceable until proper notice is
given. This Court finds that this alternative defence is plausible and therefore
incapable of outright dismissal without more evidence being led in respect
thereof. This defence that has been raised in the alternative also constitutes a
triable issue.
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[21] This Court therefore finds that some of the defences raised by the
Defendant do indeed disclose bona fide defences that are good in law. The
Court therefore finds that the Defendant should be granted leave to defend the
action instituted against it by the Plaintiff.
[22] In the result, I grant the following order:
22.1 Application for summary judgment 1s dismissed with costs
inclusive of counsel's fees on Scale B.
22.2 Defendant is granted leave to defend the action.
Acting Judge of the High
APPEARANCES:
For the plaintiff :
Instructed by:
For the Defendant:
Instructed by:
Mr. J.D. De Vries
Hannes Gouws & Partners Inc.
Ms. M. Grobler
Mr. P. Tredoux
Deon Perold & Associates Inc.
Mr. D. Perold
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