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[2026] ZAGPJHC 669
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Standard Bank of South Africa Limited v Tsuanami Trading Enterprise CC and Another (2025/006711) [2026] ZAGPJHC 669 (15 June 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number:
2025-006711
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
15
June 2026
In
the matter between:
THE STANDARD BANK OF
SOUTH
AFRICA
LIMITED
Applicant
and
TSUANAMI
TRADING ENTERPRISE CC
First Respondent
(Registration
no:2006/068582/23)
KENTSHI
JOHANNES MOKOENA
Second Respondent
This Judgment is handed
down electronically by circulation to the Applicant’s Legal
Representatives and the Respondents by
email, publication on Case
Lines and Saflii. The date for the handing down is deemed to be 15
June 2026.
JUDGMENT
MUDAU, J:
Introduction
[1]
This is an application by Standard Bank of
South Africa Limited (the “Bank”) against Tsuanami
Trading Enterprise CC
(the “first respondent”) and Mr
Kentshi Johannes Mokoena (the “second respondent”) in his
capacity as surety.
The Bank seeks three principal forms of relief:
i.
a money judgment against the respondents,
jointly and severally, for amounts owing under a business overdraft
and a business revolving
credit plan;
ii.
the return of three vehicles sold under
instalment sale agreements (a MAN truck and two Doosan forklifts) of
which the Bank remains
the owner; and
iii.
leave to return to court after the sale of
those vehicles to claim any shortfall between the outstanding
balances and the auction
proceeds.
[2]
The respondents oppose the application.
They raise two procedural points
in
limine
– alleged
non compliance with Uniform Rule 41A (mediation) and
prescription of certain claims – and, in their
heads of
argument belatedly, a defence based on section 129 of the National
Credit Act 34 of 2005 (the “NCA”). They
also contend that
the parties remain in settlement discussions and that the court
should pause the proceedings to allow for alternative
dispute
resolution.
[3]
Having
considered the founding, answering and replying affidavits, the heads
of argument, and the record as a whole, I find that
the respondents
have raised no bona fide defence on the merits,
[1]
that the points
in
limine
are
without substance, and that the Bank is entitled to the relief it
seeks. What follows are the reasons for that conclusion.
Background facts
[4]
The first respondent is a close
corporation. The second respondent is its sole member and bound
himself as surety and co principal
debtor under three suretyship
agreements dated 15 March 2011 (limited to R250,000), 6 April 2011
(unlimited), and 23 February 2016
(limited to R500,000).
[5]
The Bank and the first respondent concluded
three instalment sale agreements:
a)
First agreement (27 October 2020): Sale
of a 2020 MAN TGS truck. Principal debt: R1,514,527. Outstanding
balance as at the
founding affidavit: R299,981.60 plus interest.
b)
Second agreement (30 July 2021): Sale
of a 2014 refurbished Doosan forklift. Outstanding balance:
R92,020.37 plus interest.
c)
Third agreement (21 August 2021): Sale
of a 2017 Doosan forklift. Outstanding balance: R99,517.34 plus
interest.
[6]
The Bank also extended: A business
overdraft facility (4 February 2021) with an initial limit of
R300,000. As at the founding affidavit,
the first respondent owed
R298,952.64 plus interest at 19.25% per annum. A business revolving
credit plan (BRCP) (22 February 2016)
with an initial limit of
R200,000. The outstanding balance was R169,648.08 plus interest at
21.95% per annum.
[7]
The Bank alleges, and the respondents do
not genuinely dispute, that the first respondent defaulted on its
payment obligations under
all these agreements. A consolidated letter
of demand dated 17 October 2023 was sent to the respondents, calling
on them to remedy
the breach within ten days. They did not do so.
The answering
affidavit and its timing
[8]
The application was issued on 21 January
2025 and served on the respondents on 22 January 2025. The
respondents did not file an
answering affidavit within the prescribed
time. The matter was placed on the unopposed roll for 12 June 2025.
[9]
On
the morning of 12 June 2025 – while the unopposed hearing was
in progress – the respondents delivered their answering
affidavit. No application for condonation of the late filing was
filed, either then or subsequently.
[2]
[10] The Bank
correctly submits that the late filing without condonation is an
irregularity that could justify the court in
disregarding the
answering affidavit. However, in the interest of finality and because
the answering affidavit does not materially
advance a defence, I will
consider its contents but afford them little weight. The dilatory
tactic of filing on the day of an unopposed
hearing, without
explanation or condonation, tends to confirm that the respondents’
opposition is not bona fide.
The Rule 41A
(mediation) point in limine
[11]
The respondents argue that the Bank failed
to serve a notice in terms of Uniform Rule 41A, which requires a
party issuing proceedings
to indicate whether it agrees to or opposes
mediation. They contend that this failure is fatal and that the
application should
be dismissed or stayed pending mediation.
[12]
This
argument is factually incorrect and legally unsustainable. First, the
Bank has filed a notice of opposition to mediation dated
4 March
2025, served on the respondents’ erstwhile attorneys (Cox
Yeats) by email. A further notice was served on 24 June
2025 by the
Bank’s current attorneys, Jason Michael Smith Incorporated.
There was therefore no non-compliance. Second, Rule
41A does not
compel mediation.
[3]
It requires
the parties to state their position. The Bank stated its opposition,
and it is entitled to do so. The rule does not
give a respondent a
veto right over the applicant’s choice to proceed directly to
court. Third, the respondents’ own
conduct has frustrated any
meaningful mediation. They surrendered the two forklifts – but
only after the forklifts had been
stripped of essential parts,
rendering them of little to no value. They have refused the Bank
access to the truck to conduct a
valuation. A party cannot
simultaneously refuse to cooperate with pre-litigation engagement and
then complain that the other party
failed to mediate. The mediation
point is accordingly dismissed.
The prescription
points in limine
[13]
The respondents plead that parts of the
Bank’s claim have prescribed under the
Prescription Act 68 of
1969
. In particular, they allege that the debt under the BRCP became
due on 21 February 2019 (more than three years before service of
the
application on 22 January 2025) and that the instalment sale debts
became due on various dates in 2023 and 2024.
[14]
The Bank raises several answers, all of
which are sound. First, the claim for the return of the vehicles is
not a “debt”
as ordinarily understood for prescription
purposes. The Bank is the owner of the vehicles under the instalment
sale agreements
until full payment is made. An action by an owner to
recover its property does not prescribe in the same way as a monetary
claim.
Even if it were a debt, the cause of action arises only upon
demand and cancellation, which occurred here on 17 October 2023, well
within three years of the application.
[15]
Second, in relation to the monetary claims
(overdraft and BRCP), the agreements expressly provide that the full
outstanding amount
is payable
on
demand
. The Bank made written demand on
17 October 2023. Prescription commenced on that date. The application
was served on 22 January
2025, which is less than three years later.
The debts had not prescribed.
[16]
Third, the respondents have acknowledged
liability in ways that interrupt prescription. The payment of R10,000
(or R12,000 as later
alleged) after the proceedings were issued is an
express acknowledgment of indebtedness. The surrender of the
forklifts, even in
a stripped condition, is a tacit acknowledgment of
the Bank’s rights.
Section 14
of the
Prescription Act provides
that an acknowledgment of liability interrupts prescription.
[17]
Fourth, the respondents’ allegation
that the BRCP debt became due on 21 February 2019 is
bald
and unsubstantiated. The BRCP was a
revolving
facility:
The first respondent could draw, repay, and redraw. Under clause 16.4
of the agreement, the Bank was entitled to
withdraw the facility at
any time. The debt became due only when the facility was called up,
which occurred on 17 October 2023.
There is no proof that any
specific amount was due and payable on 21 February 2019, and the
respondents’
ipse dixit
does
not discharge the onus that rests on a party pleading prescription.
The prescription point is therefore dismissed.
The belated reliance
on
section 129
of the NCA
[18]
In their heads of argument filed on 28
October 2025 – nearly ten months after the application was
launched – the respondents
for the first time raised a defence
under section 129 of the NCA. They argue that the Bank, as credit
provider, was obliged to
deliver a notice under
section 129
before
instituting proceedings, and that the failure to do so renders the
application premature and invalid.
[19]
This
defence is not pleaded in the answering affidavit. It appears for the
first time in the heads of argument. That is impermissible.
[4]
A party cannot raise a new cause of action or a new defence at the
stage of argument without amending its pleadings. The respondents
have not sought to amend their answering affidavit, nor have they
provided any explanation for the delay.
[20]
Even if I were to entertain the point on
its merits, it would fail. The Bank has consistently maintained –
and the respondents
have not disputed – that the NCA does not
apply to the first respondent because it is a juristic person with an
annual turnover
or asset value exceeding R1 million.
Section 4
(1)
(a) (i) of the NCA excludes such juristic entities from the
protections of the Act. The instalment sale agreements, the
overdraft,
and the BRCP were all concluded for business purposes, not
as consumer transactions. Section 129 therefore has no application.
The argument under the NCA is an afterthought and is rejected.
The merits
Breach
and entitlement to relief
[21]
The answering affidavit does not
meaningfully dispute the existence of the agreements, the terms
thereof, the Bank’s performance,
or the fact of non payment.
To the contrary, the respondents admit that they entered into the
agreements, that the certificates
of balance are prima facie proof of
indebtedness (subject to a right to rebut, which has not been
exercised), and that the Bank
complied with its obligations.
[22]
In relation to the instalment sale
agreements: The respondents admit that they are in breach. They have
surrendered the two forklifts,
thereby conceding that the Bank is
entitled to possession. The fact that the forklifts were stripped is
not effectively disputed.
The Bank has provided photographic evidence
(annexure “LT4”) showing the stripped condition. The
respondents’
suggestion that the stripping might have occurred
after the Bank took possession is speculative and unsupported by any
evidence.
No contemporaneous hand over inspection was requested by
the respondents, nor did they object at the time of surrender. The
inference
is inescapable that the stripping occurred while the
forklifts were in the respondents’ control. As for the truck,
the respondents
have refused access for a valuation and have not
surrendered it. The Bank remains the owner and is entitled to its
return.
[23]
In relation to the overdraft and BRCP, the
respondents do not deny the amounts claimed. They argue only that
settlement discussions
should continue. Settlement discussions,
however genuine, do not deprive a creditor of the right to pursue
judgment where no binding
compromise has been reached. The
respondents have not made any concrete, bankable proposal that would
retire the indebtedness within
a reasonable time. The cash flow
projection they provided (annexure “LT5”) confirms that
they lack the financial capacity
to liquidate the debt without
judgment and execution.
[24]
There is accordingly no genuine dispute of
fact on the merits. The Bank has established its paper claims, and
the respondents have
raised no defence that would warrant a trial or
a referral to oral evidence.
The
alleged compromise and good faith
[25]
The respondents submit that they have acted
in good faith by proposing debt restructuring and by offering to
surrender the forklifts
while retaining the truck to continue earning
an income. They accuse the Bank of bad faith for refusing mediation
and for proceeding
with enforcement.
[26]
I do not accept this characterisation. The
Bank is a commercial lender entitled to enforce its contractual
rights. It sent a detailed
letter of demand. It engaged in settlement
discussions, as the respondents themselves acknowledge. It requested
financial information
to assess any proposal – information that
the respondents have not fully provided. When the Bank finally gained
access to
the forklifts, they were stripped. This is not the conduct
of a borrower acting in good faith; it is the conduct of a borrower
attempting to frustrate the creditor’s legitimate recourse.
[27]
The “compromise” alleged by the
respondents is no compromise at all. Surrender of assets that are
already subject to
a claim for delivery does not create a new
agreement. There is no writing, no meeting of the minds on essential
terms, and no variation
of the underlying obligations. The
respondents cannot unilaterally convert the Bank’s right to
repossess into a “compromise”
simply by handing back
property that has been damaged.
Costs
[28]
The Bank seeks costs on an attorney and own
client scale, relying on the cost clauses in the various agreements
(e.g., clause 23
of the instalment sale agreements, which provides
for such costs). The respondents have not challenged the validity or
enforceability
of those clauses.
[29]
Given the respondents’ dilatory
conduct – filing an answering affidavit on the day of the
unopposed hearing without
condonation, raising meritless points
in
limine
, advancing a new NCA defence
only in heads of argument, and stripping the forklifts – this
is an appropriate case for a punitive
costs order. The agreements
themselves contemplate attorney and own client costs. I see no reason
to depart from that contractual
regime.
Order
[30]
In the premises, I make the following
order:
a.
The respondents’ points
in
limine
are dismissed.
b.
The first respondent and the second
respondent are hereby ordered, jointly and severally, the one paying
the other to be absolved,
to pay to the applicant:
i.
the sum of R298,952.64 in respect of the
overdraft agreement (account number 62835726000), together with
interest thereon at the
rate of 19.25% per annum, calculated daily
and compounded monthly in arrears, from 25 July 2024 to date of final
payment;
ii.
the sum of R169,648.08 in respect of the
business revolving credit plan (account number 410118915), together
with interest thereon
at the rate of 21.95% per annum, calculated
daily and compounded monthly in arrears, from 25 July 2024 to date of
final payment.
c.
The first respondent is ordered to deliver
to the applicant, within five (5) days of service of this order, the
2020 MAN TGS 26.480
BLS LX 6X4 T/T (engine number 5[…],
chassis number A[…]), failing which the Sheriff of this Court
is authorised and
directed to take possession of the said vehicle
wherever it may be found and to deliver it to the applicant.
d.
The applicant is granted leave to sell the
three vehicles (the two Doosan forklifts already surrendered and the
MAN truck to be
surrendered) by way of public auction, and to hold
the proceeds in reduction of the outstanding balances under the
respective instalment
sale agreements.
e.
The applicant is granted leave to approach
this Court on the same papers, duly supplemented, for judgment for
any shortfall remaining
after the sale of the vehicles (the
difference between the outstanding balances under the instalment sale
agreements and the net
auction proceeds), together with interest
thereon and costs.
f.
The respondents are ordered to pay the
costs of this application jointly and severally, the one paying the
other to be absolved,
such costs to be paid on the scale as between
attorney and own client, including the costs of counsel and the costs
of the unopposed
hearing on 12 June 2025 wasted as a result of the
respondents’ late filing.
MUDAU J
JUDGE OF THE HIGH
COURT
JOHANNESBURG
Date
of Hearing:
25 May 2026
Date of Judgment:
15 June 2026
APPEARANCES
For the
Applicant:
Adv M Desai
Instructed
by:
Jason Michael Smith Inc
For
the Respondents:
No Appearance
Instructed
by
:
Mokgothu Attorneys
[1]
See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634I–635A.
[2]
See
generally,
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 353A.
[3]
See
Kalagadi
Manganese (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd
[2021] ZAGPJHC 127 at para 24;
City
of Cape Town v Michels and Others
[2025] 3 All SA 95
(WCC) at para 168.
[4]
See
Minister
of Land Affairs and Agriculture and Others v D & F Wevell Trust
[2007] ZASCA 153
;
2008 (2) SA 184
(SCA) at
[43]
.