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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 2025-028938
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
...... DATE 27 May 2026
SIGNATURE
In the matter between:
FIRSTRAND BANK LIMITED Applicant
(Registration Number: 1929/001225/06)
and
AUBREY LESIBA MPHAGO Respondent
(Identity Number: 7[...])
This order is made an Order of Court by the Judge whose name is reflected
herein, duly stamped by the Registrar of the Court and is submitted
electronically to the Parties/their legal representatives by e -mail. This Order
is further uploaded to the electronic file of this matter on Case Lines by the
Judge or his/her secretary. The date o f this Order is deemed to be 27 May
2026.
JUDGMENT
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DU PLESSIS, AJ
INTRODUCTION
1.
1.1. This is an opposed application in which the applicant, Firstrand
Bank Limited ("FNB" or "the applicant"), seeks monetary judgment
against the respondent, Mr Aubrey Lesiba Mphago, in his capacity
as surety and co -principal debtor for the indebtedness of AL
Mphago Civil Construction CC ("the principal debtor"). As more
fully set out below, the applicant ultimately seeks judgment for the
amount certified as outstanding on the loan account as at the date
of hearing, together with interest, the recoverable amount being
limited in terms of the suretyship, and costs on the attorney and
client scale.
1.2. At the hearing, Adv N G Louw appeared for the applicant. There
was no appearance for the respondent. I am satisfied, having
regard to the notice of setdown and the manner of service reflected
on the papers, that the respondent received proper notice of the
application and of the date upon which it was enrolled for hearing.
Notwithstanding the respondent's absence, the respondent has
delivered an answering affidavit raising certain defences. I have
considered those defences and deal with them fully in this
judgment, as I am obliged to do, since the applicant must satisfy
the Court that it is entitled to the relief it seeks.
1.3. The respondent's answering affidavit contends principally that (a)
the amount claimed by the applicant is incorrect because the loan
balance has reduced since the launching of the application; (b) the
immovable property which served as security has been sold for
R550 000.00, which sum must be brought into account; and (c) the
provisions of the Special Power of Attorney did not meet " the
notions of fairness, justice and equity".
BACKGROUND FACTS
2.
2.1. The factual matrix is, save in immaterial respects, largely common
cause and may be summarised as follows.
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2.2. On 10 October 2019, and at Pretoria, the applicant and the
principal debtor concluded a written loan agreement in terms of
which the applicant advanced a sum of R1 680 000.00 to the
principal debtor. The respondent, being the sole member of the
principal debtor, represented the principal debtor in concluding the
loan agreement.
2.3. The salient terms of the loan agreement, as set out in the founding
affidavit, were the following: (a) the loan would bear interest at a
variable rate linked to prime plus 90 basis points; (b) the loan was
repayable in monthly instalments of R23 047.01 over 120 months;
(c) failure to pay any amount when due would constitute an event
of default; (d) upon the occurrence of an event of default the
applicant would be entitled to claim the full outstanding balance
and enforce its security; and (e) a certificate signed by any
manager of the applicant would constitute prima facie proof of the
principal debtor's indebtedness.
2.4. On 28 August 2019 the respondent bound himself, in writing, as
surety and co -principal debtor in favour of the applicant for the
indebtedness of the principal debtor. The suretyship limits the
respondent's liability to R2 100 000.00 plus interest, finance
charges and other amounts specified therein.
2.5. On 15 October 2019, the principal debtor caused a first ranking
Sectional Covering Mortgage Bond to be registered over its
immovable property as security for the indebtedness owed under
the loan agreement.
2.6. During March 2023, the principal debtor fell into arrears and so
breached the loan agreement. Following the breach, on 9 March
2023, the principal debtor and the respondent signed an
Acknowledgment of Debt and Undertaking to Pay incorporating a
Special Power of Attorney ("the AOD"). In terms of the AOD the
principal debtor and the respondent: (a) jointly and severally
acknowledged indebtedness in the sum of R1 389 550.22 together
with interest at prime plus 0.90% per annum; (b) undertook to
with interest at prime plus 0.90% per annum; (b) undertook to
maintain minimum instalments of R25 000.00 per month from 30
March 2023; and (c) undertook to settle the full indebtedness by no
later than 1 October 2023, failing which the full balance would
become due and payable and the applicant would be entitled to
sell the property in terms of the Special Power of Attorney.
2.7. The principal debtor and the respondent failed to settle the full
outstanding indebtedness by 1 October 2023. The full balance
accordingly became due and payable. As at 16 January 2025, the
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indebtedness as certified by the applicant in the Certificate of
Balance (Annexure FA7) stood at R1 450 907.90. The
indebtedness has since reduced, and an updated Certificate of
Balance dated 27 May 2026 has been placed before the Court, to
which I return below.
2.8. It is common cause that the applicant attempted to sell the
property by auction on 10 July 2024, but no purchaser was found.
The respondent in his answering affidavit states that the property
has since been sold for R550 000.00. The applicant, in reply, does
not dispute the sale but states that the purchase price has not yet
been received by it and has therefore not yet been credited against
the outstanding balance.
THE RESPONDENT'S DEFENCES
3.
3.1. The respondent's answering affidavit raises three points which
must be considered.
3.2. First, the respondent contends that the amount claimed (R1 450
907.90) is incorrect, and he annexes a statement of account
(Annexure ALM1) reflecting a balance of R1 319 190.06 as at 4
August 2025. He pleads that the amount owed by him is not the
amount reflected in the Certificate of Balance.
3.3. Second, the respondent contends that the property has been sold
for R550 000.00 and that the claim must be reduced by that
amount.
3.4. Third, the respondent contends, in a single sentence and without
elaboration, that " the provisions of the Special Power of Attorney
did not meet the notions of fairness, justice and equity."
3.5. Save for these contentions, the respondent does not dispute the
conclusion of the loan agreement, the suretyship, the AOD, the
breach, or his joint and several liability as surety and co -principal
debtor. To the contrary, in paragraph 5.2 of the answering affidavit,
the respondent expressly admits that he is jointly and severally
liable with AL Mphago Civil Construction CC.
LEGAL FRAMEWORK
4.
4.1. It is trite that in motion proceedings the applicant must make out its
case in the founding affidavit, and that final relief may be granted
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where the facts averred by the applicant, together with the facts
admitted or not genuinely disputed by the respondent, justify such
an order. A bare denial or a bald assertion which does not raise a
real, genuine or bona fide dispute of fact does not preclude the
granting of relief. Where, as here, the respondent does not appear
but has filed an answering affidavit, the Court remains obliged to
satisfy itself that the applicant is entitled to the relief sought before
granting judgment.
4.2. A surety who has bound himself as co -principal debtor is liable
jointly and severally with the principal debtor, and may be sued for
the full outstanding indebtedness. The respondent in this matter
bound himself as surety and co -principal debtor and expressly
renounced the benefits of excussion and division in his suretyship.
He moreover admits his joint and several liability in his answering
affidavit.
4.3. As to the quantum, the applicant relies on Rossouw and Another v
FirstRand Bank Ltd 2010 (6) SA 439 (SCA), cited in the applicant's
heads of argument. In that matter the Supreme Court of Appeal
recognised that an applicant may rely on an updated certificate of
balance at the hearing of an application for monetary judgment,
since the indebtedness may legitimately fluctuate, for example
through further payments or credits, between the launching of the
application and the date of judgment. What is sought is judgment
for the amount actually outstanding as at the date of judgment, not
the amount stated in the notice of motion.
4.4. The provisions of the National Credit Act 34 of 2005 ("the NCA")
do not apply to the principal loan agreement, which is a large credit
agreement concluded with a juristic person (the close corporation)
and secured by a mortgage bond. By operation of section 8(5)
read with section 4 of the NCA, the suretyship given by the
respondent is similarly excluded from the NCA's reach. This is not
in dispute and is confirmed in the updated Certificate of Balance.
in dispute and is confirmed in the updated Certificate of Balance.
EVALUATION
5.
The quantum of the claim
5.1. The respondent's complaint that the amount claimed in the notice
of motion is incorrect is, on its own showing, no defence at all. His
own statement of account (Annexure ALM1) discloses an
outstanding balance of R1 319 190.06 as at 4 August 2025. That is
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itself an admission that a substantial debt remains owing to the
applicant. The fact that the balance has reduced since the notice of
motion was issued in March 2025 is unremarkable: it reflects
ordinary interest accruals, payments made or credits applied in the
intervening period.
5.2. As recognised in Rossouw v FirstRand Bank , the applicant is
entitled to rely on an updated certificate of balance at the hearing.
The applicant has, both in its replying affidavit and in its heads of
argument, expressly undertaken to place an updated certificate of
balance before the Court at the hearing and has expressly limited
its claim to the amount in fact outstanding at the date of judgment.
That stance is sound in principle and disposes of the respondent's
first complaint.
5.3. The applicant has duly produced an updated Certificate of Balance
signed by Ms Maryanne Jooste on 27 May 2026. It certifies the
indebtedness of the principal debtor as at 1 May 2026 as follows:
(a) on account number 3[...], the sum of R1 102 359.89 together
with interest at prime (then 10.25%) plus 0.90% per annum
compounded monthly; and (b) on account number 6[...], the sum of
R213 841.11 together with interest at prime plus 6.00% per annum
compounded monthly. In terms of clause 11.4 of the suretyship, a
certificate signed by a manager of the applicant constitutes prima
facie proof of the indebtedness. The respondent has placed
nothing before the Court to rebut that prima facie proof.
5.4. I pause to observe that the updated certificate reflects, in addition
to the loan account, a separate amount of R213 841.11 on account
number 6[...] at the rate of prime plus 6.00%. According to the
founding affidavit, account 6[...] was a Facility Agreement which
the principal debtor held with the applicant. The relief originally
claimed in the notice of motion was confined to the loan -account
indebtedness, and the applicant, by the draft order handed up at
indebtedness, and the applicant, by the draft order handed up at
the hearing, persists only in seeking judgment for the loan -account
balance of R1 102 359.89 at prime plus 0.90%. An applicant is
bound by the case made out in its founding papers, and judgment
will accordingly be granted only in respect of the indebtedness on
account 3[...]. That amount falls well within the amount originally
claimed and within the limit of the respondent's suretyship.
The sale of the property for R550 000.00
5.5. The respondent's second contention is that the purchase price of
R550 000.00 for which the property is said to have been sold must
be deducted from the claim. The applicant does not dispute that
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the property has been sold, but states on oath that the proceeds
had not been received by it as at the date of the replying affidavit.
The respondent has placed no evidence before me to suggest that
the proceeds have, in fact, been paid over to the applicant or
credited against the loan.
5.6. A debt is reduced when payment is received and credited, not
when a sale agreement is concluded. The applicant has correctly
undertaken to bring the proceeds, if and when received, into
account by means of the updated certificate of balance to be
produced at the hearing. The respondent's contention therefore
does not constitute a defence; at most, it concerns the calculation
of the amount for which judgment will ultimately be given.
The challenge to the Special Power of Attorney
5.7. The respondent's third and final complaint is that the Special
Power of Attorney "did not meet the notions of fairness, justice and
equity." This contention is, with respect, devoid of substance for at
least three reasons.
5.8. First, the assertion is wholly unparticularised. The respondent does
not identify which provision of the Special Power of Attorney is said
to be unfair, why it is unfair, in what manner it offends notions of
justice or equity, or what consequence ought, in law, to follow. A
bald allegation of this kind raises no triable issue.
5.9. Second, the respondent's stance is internally contradictory. He
simultaneously complains that the Special Power of Attorney was
unfair and relies on the very sale that flowed from it to seek a
reduction of the debt by R550 000.00. He cannot, in the words of
the old adage, both approbate and reprobate. By insisting that the
sale price be credited to him, the respondent accepts the validity of
the Special Power of Attorney and the sale that resulted from it.
5.10. Third, and in any event, the present application is one for monetary
judgment against the respondent in his capacity as surety. The
relief sought does not depend on the exercise of any power
relief sought does not depend on the exercise of any power
conferred by the Special Power of Attorney; it is founded on the
loan agreement, the suretyship and the AOD. Even if the Special
Power of Attorney were impugnable (which has not been shown),
that would not detract from the respondent's underlying contractual
indebtedness.
Conclusion on the merits
5.11. On the established principles set out above, the facts averred by
the applicant, taken together with those admitted by the
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respondent, justify the relief sought. The respondent has admitted
his joint and several liability as surety and co -principal debtor, has
admitted the existence of a substantial outstanding indebtedness,
and has raised no bona fide dispute of fact in relation to the
conclusion or terms of the loan agreement, the suretyship, the
AOD, or the breach. The defences raised are either no defences in
law or are bald and unsupported.
COSTS
6.
The applicant seeks costs on the attorney and client scale. Clause 25 of the
suretyship and the corresponding provisions of the loan agreement entitle the
applicant to recover its costs on the attorney and own client scale. Such a
contractual entitlement, freely undertaken between commercial parties, is
ordinarily enforced by the courts, particularly in matters of this kind where the
creditor has had to incur the expense of litigation to recover what is plainly
due. I see no reason to depart from that ordinary position.
ORDER
7.
In the result, and the applicant having made out a proper case for the relief it
seeks, I make the following order:
7.1. Judgment is granted in favour of the applicant against the
respondent for:
7.1.1. Payment of R1 102 359.89;
7.1.2. Payment of interest on R1 102 359.89 at the rate of
prime plus 0.90% per annum, compounded monthly,
calculated from 1 May 2026 until date of payment;
7.1.3. The amount recoverable from the respondent is limited
to R2 100 000.00 plus interest and/or finance charges
as set out in Clause 3 of the respondent's suretyship
annexed to the applicant's founding affidavit as
Annexure FA2.
7.2. The respondent is to pay the costs of the application on the scale
as between attorney and client.
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_____________________________
DU PLESSIS AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
Date of hearing: 25 May 2026
Date of judgment: 27 May 2026
For the applicant:
Adv N G Louw
Instructed by:
Rorich Wolmarans & Luderitz Inc, Pretoria
For the respondent:
Adv T Mojapelo
Instructed by:
Twala TR Attorneys, Pretoria