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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
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A105/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 26 May 2026
MOKOSE SNI
In the matter between:
CALVIN KAGISHO THEKO Appellant
and
FIRSTRAND BANK LIMITED Respondent
JUDGMENT
MOKOSE J (POTTERILL J AND JANSE VAN NIEUWENHUIZEN J CONCURRING)
[1] The appellant appeals against the whole order of Sardiwalla J of 17 October 2022 in which
the following order was granted in favour of the respondent:
(i) payment of the sum of R4 792 169,21;
(ii) payment of interest on the sum of R4 792 169,21 at 6.75% per annum calculated daily and
compounded monthly in arrears from 30 January 2022 to the date of payment, both days
inclusive;
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(iii) that the following immovable property be declared specially executable in terms of Rule 46A,
with a reserve price of R3 900 000:
THE REMAINING EXTENT OF ERF 2[...] S[...] EXTENSION 24 TOWNSHIP
REGISTRATION DIVISION I.R. THE PROVINCE OF GAUTENG
MEASURING 1996 (ONE THOUSAND NINE HUNDRED AND NINETY-SIX) SQUARE METRES
HELD BY DEED OF TRANSFER T14696/2001
KNOWN AS 4[...] A[...] STREET, SANDOWN, 2196
(iii) that in the event that the reserve price set by the court is not achieved at the first sale, then
and in that, the immovable property described above may be sold at any subsequent sale in
execution to the highest bidder, without a reserve price;
(iv) that the Registrar is authorised to issue a Warrant of Execution against the immovable
property described above;
(v) that the Respondent pay the costs of this application on the scale as between attorney and
client.
[2] This order was granted without any reasons being provided. Furthermore, it is common
cause between the parties that Sardiwalla J had , pursuant to argument on behalf of both parties,
refused to accept a supplementary affidavit filed by the appellant herein. This refusal is not recorded
in the order. This appeal is unique in that Sardiwalla J granted leave to appeal without giving reasons
for his order. No reasons could be obtained from Sardiwalla J as he retired due to a medical condition
and reasons cannot be obtained. The parties agreed that the appeal be heard despite no reasons
being provided. This Court will approach the matter as if de novo before us.
[3] This appeal is based on the allegation that the appellant was over -indebted when the credit
facility agreement was concluded and that the respondent granted the appellant reckless credit.
Furthermore, the applicant appeals against the refusal by Sardiwalla J to allow the filing of a
supplementary affidavit.
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[4] The brief facts are as follows: on 28 May 2018 the appellant and the respondent concluded a
credit facility agreement in terms of which the respondent agreed to advance the appellant the sum
of R4 160 000,00 the salient terms of which were, inter alia, the following:
(i) the facility would be repayable over a period of 240 months;
(ii) a failure on the part of the appellant to pay any amount owing to the respondent when due
would constitute a default in terms of the credit facility agreement;
(iii) should the appellant fail to remedy the default within 10 business days of being informed of
such default in writing, the respondent would be entitled to, inter alia, require that the
whole amount outstanding on the credit facility agreement be paid in full or exercise its
rights in terms of all or any of the security documents, including but not limited to the right
to realise the security thereunder.
[4] As security for the indebtedness to the respondent, the appellant bound as a first mortgage
bond his immovable property in terms of Mortgage Bond B[...]. The appellant defaulted on the
credit facility agreement in respect of the monthly instalments due whereupon the respondent
called upon the appellant to remedy the said default. The respondent avers that it attempted to
avoid litigation and called upon the appellant to attend a meeting to discuss the default, to which the
appellant did not respond. Notices were sent to the appellant in terms of Section 129 (1) of the
National Credit Act 34 of 2005, but the appellant failed to make payment of the outstanding amount.
It was on this basis that the respondent launched the application in which Sardiwalla J granted the
order.
[5] The first ground of appeal noted by the appellant is that Sardiwalla J erred, inter alia, in not
allowing and duly considering the supplementary evidence proffered by the appellant i n its
supplementary affidavit.
supplementary affidavit.
[6] Ordinarily, and in motion proceedings, three sets of affidavits are filed, being the founding
affidavit, the answering affidavit and the replying affidavit. The court may, in certain circumstances,
exercise its discretion and permit the filing of further affidavits by the parties. It must be in
exceptional circumstances that such affidavits are permitted and where the court considers it
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advisable to do so. 1 There must, however, be a proper and satisfactory explanation as to why the
facts or information contained in the additional affidavit was not placed before the court earlier and
the court must also be satisfied that the opposing party would not be prejudiced by the introduction
of the supplementary affidavit, which prejudice cannot be remedied by a costs order.
[7] In his supplementary affidavit, the appellant sought to furnish the court with additional
information pertaining to the credit agreements he alleges were not part of the credit facility
agreement concluded with the respondent. No explanation was proffered as to why the information
was not furnished in the answering affidavit.
[8] The legal principles pertaining to the filing of further affidavits in motion proceedings are as
follows:
(i) there are normally three sets of affidavits in motion proceedings;
(ii) the court, having granted leave to file a further affidavit, will exercise its discretion in
permitting further affidavits to be filed in consideration that a matter must be adjudicated
upon all facts relevant to the issues in dispute;
(iii) only in exceptional circumstances will a court allow the filing of a further set of affidavits
once the issue of fairness to both parties has been ascertained;
[9] As we do not have the reasons for the refusal by Sardiwalla J, we will deal with this aspect de
novo. We are of the view that the principles as espoused above pertaining to the introduction of a
further application have not been met. There is no proper and satisfactory explanation for the
failure on the part of the applicant why the information sought to be introduced in the further
affidavit was not furnished in the founding affidavit. Accordingly, I am of the view that the court a
quo correctly disallowed the introduction of the supplementary affidavit. There is no basis to
overturn the decision of Sardiwalla J to disallow the supplementary affidavit.
overturn the decision of Sardiwalla J to disallow the supplementary affidavit.
[10] As stated above, a further ground of appeal is based on the allegation that the appellant was
over-indebted when the credit facility agreement was concluded and that the respondent granted
1 Riesenberg v Riesenberg 1926 WLD 59
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the appellant reckless credit. The onus of proving that the credit extended was reckless lies on the
consumer who alleges same.2
[11] Section 79 of the National Credit Act 34 of 2005 (“the Act”) provides that a consumer is
considered over-indebted if the preponderance of available information at the time a determination
is made, indicates that the particular consumer is or will be unable t o satisfy in a timely manner , all
the obligations under all the credit agreements to which the consumer is a party.
[12] Section 81 of the Act requires the credit provider to take reasonable steps to assess the
consumer’s general understanding and appreciation of the risks and costs of the intended credit ; the
rights and obligations of the consumer under a credit agreement ; debt repayment history including
his financial means , prospects and obligations; whether there is a reasonable basis to conclude that
any commercial purpose may prove to be successful , if the consumer has such a purpose when
applying for that credit agreement.
[13] The app ellant contends that the respondent failed or neglected to demonstrate in its
founding affidavit and replying affidavit that it had taken reasonable steps to conduct the assessment
as mandated in Section 81 of the Act. Alternatively, the app ellant contends that assuming the
assessment had been conducted, the respondent concluded the Structured Facility despite the
preponderance of information available to it indicating that it would make the app ellant over-
indebted.
[14] The respondent brought to the court’s attention the fact that prior to the launching of the
application which forms the subject of this appeal, it had instituted a similar application against the
appellant based on the same facts. However, the previous application was withdrawn as it had been
issued prematurely. The appellant had opposed the application and filed an answering affidavit in
which he had failed to place reckless credit in issue. The app ellant merely averred in the answering
affidavit that ‘despite the termination of his employment and attendant loss of income, he continued
to service his contractual obligations in respect of facilities he had with the respondent, albeit not
punctually’. The app ellant further contended that he had a steady and substantial income which
2 Johnson v The Standard Bank of South Africa Ltd [2024] ZANWHC 237 (10 September 2024)
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would enable him to ‘bring his accounts up to date and service his monthly obligations under the
facilities provided by the respondent’.
[15] The app ellant’s version regarding reckless credit is therefore contradictory to his earlier
version and is misplaced if one has regard to th at version. The court in the matter of Standard Bank
of South Africa Limited v Sithole3 held as follows:
“The respondents’ reliance on alleged reckless credit and/or over indebtedness at this stage, seems
misplaced if one has regard to their unequivocal undertaking to settle the arrears as and when their
cash flow permits same. The respondents cannot be allowe d to have the best of both worlds. It is
evident that they would wish to h onour their obligations in terms of the agreement and as such the
reliance on this defence does not assist the respondents in any way.”
[16] I agree with the respondent that the conclusion reached in the matter of Standard Bank of
South Africa v Sithole (supra) is justified in this matter. The appellant cannot be allowed to have the
best of both worlds.
[17] The appellant contends further that he (the appellant) was over -indebted when the credit
facility agreement was concluded and that the respondent granted him reckless credit. His monthly
payment obligations exceeded his monthly income at the time that the credit facility agreement was
concluded. He avers that his monthly income was the sum of R124 788,65 and his monthly payment
obligations amounted to R128 317,00. This was a clear over indebtedness as there was a shortfall of
R3 528,35.
[18] In response thereto, the respondent brought to the court’s attention that it was a specific
condition of the credit facility agreement that certain of the appellant’s existing liabilities were to be
settled from the proceeds of the facility. Those facilities were listed on the credit facility agreement
but were included by the appellant in the list of monthly payment obligations. This resulted in the
appellant overstating his monthly payment obligations by an amount of R19 848,00. Accordingly,
there was no shortfall but a substantial surplus when the credit facility agreement was concluded.
3 [2021] ZAGPJHC 456 (23 September 2021) at para [9]
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[20] The versions of both the appellant and the respondent are clearly contradictory and
irreconcilable. Motion proceedings are designed to resolve legal questions and not questions of fact.
The general rule is that final relief in motion proceedings may only be granted if those facts as stated
by the respondent, together with those facts stated by the app licant that are admitted by the
respondent, justify the granting of the application, unless it can be said that the denial by the
respondent of the facts alleged by the app licant is not such as to raise a real, genuine and bona fide
dispute of fact.
[21] In assessing whether a dispute of fact on the papers has been genuinely raised, the court
does not go into the merits of the respondent’s defence. It merely considers whether the
respondent’s averments, if they were to be established in a trial, would make out a defence to the
applicant’s claim. The court would also assess whether the respondent’s averments making out a
prima facie defence are made bona fide.
[22] In my view, the appellant (respondent in the court a quo) failed to make out a defence to the
respondent’s claim (applicant in the court a quo). The appellant’s allegations of over -indebtedness
were based on a n overstatement of his monthly expenses as stated above. Furthermore, the
appellant’s reliance of reckless credit was contradicted by his prior sworn statement in the earlier
application where he affirmed his ability to service the debt . No mention of reckless credit was
made therein. This constitutes a waiver of such defence and undermines the later version.
[23] Accordingly, I am of the view that the order granted by the court a quo was justified in
respect of the monetary judgment and the declaration of executability of the immovable property
under Rule 46A of the Uniform Rules of Court.
[24] This matter was before the court on 12 November 2025 where it was postponed and the
[24] This matter was before the court on 12 November 2025 where it was postponed and the
costs reserved. There is no reason why the costs should not follow the order.
[25] Accordingly, the following order is granted:
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The appeal is dismissed with costs on an attorney and client scale . This includes the costs of
the appearance and postponement of the matter on 12 November 2025.
______________________
SNI MOKOSE J
Judge of the High Court of South Africa
Gauteng Division, Pretoria
I agree
____________________
S POTTERIL J
Judge of the High Court of South Africa
Gauteng Division, Pretoria
I agree
______________________
N JANSE VAN NIEUWENHUIZEN J
Judge of the High Court of South Africa
Gauteng Division, Pretoria
For the Appellant: Adv WJ Roos
On instructions of: Biccari Bollo Mariano Inc
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For the Respondent: Adv NG Louw
On instructions of: Rorich Wolmarans & Ruderitz Inc
Date of Hearing: 4 March 2026
Date of Judgment: 26 May 2026