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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025 - 143277
1. REPORTABLE: YES/ NO
2. OF INTEREST TO OTHER JUDGES: YES/NO
3. REVISED: YES / NO
DATE: 15/06/2026
SIGNATURE OF JUDGE:
In the matter between:
CORPFIN (PTY) LTD APPLICANT
and
JOLENE JACOBS FIRST RESPONDENT
LUCILLE JACOBS SECOND RESPONDENT
Delivered: 15 June 2026 – This Judgment was handed down electronically by
circulation to the parties’ and or parties’ representatives by email, by being uploaded
to the CaseLines system and by release to SAFLII.
JUDGMENT:
MARITZ, AJ
A. INTRODUCTION
1. This is an application for final relief brought by the applicant, wherein it seeks
to enforce a deed of settlement concluded between the applicant and ESRU
Investment Fortunes (Pty) Ltd (“ESRU”), the first respondent and the second
respondent on 22 May 2024, to have it made an order of court and to
recover the alleged outstanding balance. The respondents oppose the
application on the basis that it is not capable of determination on affidavit due
to the existence of material disputes of fact and that it falls within the ambit of
Rule 6(5)(g) of the Uniform Rules of Court.
B. COMMON CAUSE FACTS
2. The following facts are common cause between the parties:
2.1. A loan agreement was concluded between the applicant as the
lender and ESRU as the borrower, duly represented by the first
respondent on 14 March 2024.
2.2. Both the first and second respondents, separately, bound themselves
as sureties and co -principal debtors having signed deeds of
suretyship on 14 March 2024.
2.3. The first and second respondents further entered into an
unconditional guarantee separately in terms whereof they inter alia,
unconditionally and irrevocably guaranteed the obligation by ESRU to
the applicant of any and all obligations in existence or which may
accrue in the future. This guarantee was entered into separately by
the first and second respondents on 14 March 2024.
2.4. On 22 May 2024, the applicant and ESRU, the first respondent and
the second respondents entered into a deed of settlement. The deed
of settlement, inter alia , records an acknowledgement of
indebtedness on the part of ESRU, the first respondent and the
second respondent to the applicant.
2.5. The first and second respondents partially performed in terms of the
deed of settlement by transferring their shareholding in ESRU to the
applicant.
2.6. The deed of settlement provides for the sale of the property known as
Portion 18 (a portion of portion 12) of the farm Eerstegeluk 256,
Registration Division I.S, Province of Mpumalanga (“the property”).
The deed of settlement further houses a shortfall clause. The
property was sold. The applicant alleges a shortfall remains due and
payable by the first and second respondents.
2.7. The loan amount was approved for payment to the principal debtor ,
ESRU, but was paid to a third party, Desmo Trans (Pty) Ltd
(“Desmo”), represented by the erstwhile director, Mr. Evert Jacobs
(“Mr. Jacobs”), who is also the father of the respondents. Desmo was
placed into final liquidation on 22 May 2024, the date upon which the
deed of settlement was concluded.
C. THE ISSUES IN DISPUTE
3. The following disputes have been crystallised through the papers and through
argument on behalf of the applicant and the respondents.
[1] The applicant’s case
4. The applicant submits that the defences, dealt with below, are mala fide ,
vague, unsupported and raised for the first time more than sixteen months
after the deed of settlement was concluded and after partial performance.
The respondents were informed of the sale and never objected to the sale at
the time. The deed of settlement contains no reserve price and the shortfall
clause expressly contemplated the possibility of the sale proceeds being
insufficient. On pacta sunt servanda principles the deed of settlement must
simply be enforced.
5. The factual disputes, if any, are so implausible and fictitious that the Court
should take a robust approach and dismiss them on the papers.
[2] The defences raised by the respondents
a) Payment of the loan amount to Desmo
6. The loan agreement reflects the borrower’s account as ESRU Investment
Fortunes (Pty) Ltd, ABSA Bank, account number 4[...] and at paragraph 2.2
of the loan agreement provides that “the loan amount shall be advanced into
the borrower’s account or any such other account as per the borrower’s
special instance and request from time to time…”.
7. The deed of settlement recorded that “ the parties agreed that the loan
amount would be repaid by ESRU to Corpfin within six months from the date
on which the loan amount (or first portion thereof) was advanced to ESRU,
and/or on ESRU’s behalf and/or to ESRU’s benefit.”
8. The respondents contend that the loan amount was not advanced to the
principal debtor, ESRU, but instead to a third party, Desmo, and that this
undermines the existence of a valid underlying debt, such that the deed of
settlement is premised on a material misapprehension or justus error.
9. The respondents allege that they entered into the deed of settlement on the
understanding that the loan amount had been advanced to ESRU as
recorded in the deed of settlement, and that they only later discovered that
the funds had been paid directly to Desmo. They allege that this constitutes a
material misapprehension as to the true structure of the transaction and the
identity of the principal debtor.
10. The respondents further contend that this gave rise to a material
misapprehension as to the identity of the true principal debtor and the true
structure of the transaction which vitiated their consent by justus error. They
further allege that payment to the third party was a breach of the settlement
agreement reached between the parties.
11. The applicant disputes this, contending that the respondents had knowledge
of, authorised, and/or consented to payment of the loan amount to Desmo,
and that such payment constituted proper performance of the loan
agreement.
b) The sale of the property
12. The respondents allege that the property was sold at a price substantially
below its true market value or intrinsic value, that there were irregularities in
the auction process including potential non -compliance with section 45 of the
Consumer Protection Act, 1 and that the applicant’s conduct in relation to the
sale materially prejudiced the respondents as sureties and parties to the deed
of settlement.
13. The respondents further allege that the auction was conducted by an
auctioneering house known as Devhula Auctioneers and was conducted
under suspicious circumstances. They allege that the auction proposal,
prepared by one Mr . Christoffel Andreas Greeff (“Mr Greeff”), incorporates a
record of the bidding which occurred during the auction held on 8 October
1 68 of 2008 (“Consumer Protection Act”).
2024. The name of “Mr. Christoffel Andreas Greeff ” appears nine times on
that record as a bidder. The respondents express concern regarding Mr .
Greeff, as an active director of Devhula Auctioneers, having participated so
actively in the bidding process. Of further concern to the respondents is the
fact that the applicant instructed the auctioneer to conduct the sale. This,
coupled with the auctioneer, Mr. Greeff, being actively involved in the bidding
process, posed a possible conflict of interest , which may have influenced the
sale of the property.
14. The relationship between the auctioneer and the applicant, as well as the end
purchaser, one Ms . Boshoff, who purchased the property on behalf of an
entity known as Fris Tra ns CC, raises questions regarding the integrity and
independence of the sale of the property on auction.
15. The respondents contend that this will have to be investigated to determine
the validity of the sale, which they contend was irregular.
16. Section 45 of the Consumer Protection Act provides that unless advance
notice is given that the owner or auctioneer intends to bid at an auction, the
owner or auctioneer must not bid or employ any person to bid at the sale,
must not knowingly accept any bid from a person who is the owner or
auctioneer or any person employed to bid on their behalf at the sale, and that
a court may be approached to declare the transaction fraudulent if the
subsection has not been complied with.
17. The following facts are alleged to place the validity of the sale in question:
17.1. The alleged sale of the property at a value significantly under the
market value;
17.2. The auctioneer’s failure to comply with section 45(5) of the Consumer
Protection Act by actively participating in the bidding process during
the auction held for the sale of the property , without giving the
requisite prior notice; and
17.3. The auctioneer having been instructed by the applicant or its legal
representatives to conduct the auction.
18. In support of their valuation contention, the respondents obtained a valuation
from an expert and recognised valuer, one Mr. Koop de Vries-Steiger, which
indicates that the property should yield at least R8 million on sale in the open
market and, if sold in forced sale circumstances, it would yield at least
R7 million.
19. The respondents further allege that the initial mortgage bond registered and
secured over the property in favour of the applicant was for a capital sum of
R5 million with a provision for a further R2,5 million for associated costs and
interest, reflecting the inherent value of the property as being in the vicinity of
R7,5 million or more. Had this not been the case, and the property was only
valued at just over R4 million, as was realised on sale, then the applicant
would not have agreed to finance the property and secure the debt by means
of the R7,5 million mortgage bond registered.
20. The applicant disputes both the valuation and the alleged irregularities. The
applicant alleges that the property was sold at a fair market value, having
been properly advertised and sold on auction. The applicant further contends
that no reserve price was provided for in the deed of settlement and that,
therefore, the respondents’ contention regarding the sale price is irrelevant.
The applicant also disputes the correctness and reliability of the valuation
evidence produced by the respondents and alleges that the condition of the
property at the time of its sale (the applicant alleges that the property was
derelict), materially affected its value and sale price.
21. The respondents, further, dispute that they were informed of and participated
in decisions relating to the sale of the property.
22. This creates a material dispute of fact between the parties which will require
expert evidence to resolve.
c) Quantum and accounting
23. The respondents challenge:
23.1. The calculation of the outstanding amount;
23.2. The inclusion of certain amounts in the capital; and
23.3. The treatment of rental income and other payments.
24. The respondents allege that re-payments of the loan were made by the
applicant in the following forms:
24.1. Repayments made by the respondents;
24.2. Rental income collected by the applicant, alternatively paid by ESRU,
further alternatively paid by third parties in lieu of rental income; and
24.3. The proceeds of the sale of the property of ESRU.
25. The respondents, further, contend that:
25.1. Various payments were made that the applicant has not fully
accounted for, and that unexplained payments raised after the
advance of the capital, together with amounts improperly added post -
settlement, have inflated the amount claimed by the applicant;
25.2. The statement provided by the applicant does not properly reflect the
rental income collected by the applicant, is inconsistent, and does not
provide a proper explanation; and
25.3. The interest claimed by the applicant amounts to a sum , which upon
calculation, may result in an amount in excess of the capital amount
advanced, such that the in duplum rule comes into play, as , in terms
of this rule, the interest claimed from the respondents may not
exceed 100% of the capital amount advanced.
26. The respondents therefore contend that the entire debt calculation is
unreliable and requires re-calculation and evidence regarding such
calculation to be led.
d) The validity of the Deed of Settlement
27. The respondents allege that they entered into the suretyship on the
understanding that the loan amount would be advanced and paid to ESRU.
Thereafter, they allege they later entered into the deed of settlement under
the mistaken belief that the loan amount had in fact been advanced and paid
to ESRU. It later transpired that the loan amount had been paid to Desmo, an
entirely different company, such that there was no underlying causa.
28. The respondents further contend that this gave rise to a material
misapprehension as to the identity of the true principal debtor and the true
structure of the transaction, which vitiated their consent by justus error.
29. The applicant contends that the deed of settlement was properly entered into,
that it forms the basis of its claim against the respondents, and that the
respondents’ defences are not bona fide, are raised late, and are designed to
delay enforcement.
30. The respondents thus allege that there are multiple disputes of fact, namely,
the loan amount advanced to Desmo, the disputed property valuation, the
alleged irregular auction process and non -compliance with section 45 of the
Consumer Protection Act, as well as the disputed debt calculation , which
disputes cannot be resolved on affidavit.
D. RELEVANT LEGAL PRINCIPLES
a) The principle of pacta sunt servanda
31. In the matter of Mercedes-Benz Finance and Insurance v Thobejane 2 where
the court held as follows:
“[23] In Barkhuizen v Napier [8] in the majority judgment of Ngcobo J he
emphasised that public policy requires the contractual obligations freely
and voluntarily undertaken should be honoured, precisely because this
requirement gives effect to the central constitutional values of freedom
and dignity. This emphasis is entirely harmonious with the approach by
the Supreme Court of Appeal to the same question in inter alia, Brisley
v Drotsky, Afrox Healthcare Limited v Strydom [9], South African
Forestry Co. Ltd v York Timbers Ltd [10], Bredenkamp v Standard Bank
[11], Law Society of the Northern Provinces v Mahon [12] and Potgieter
& Another v Potgieter NO & Others.”
b) Compromise (transactio)
32. It is trite that a compromise or settlement ( transactio) is a contract which has
as its object the prevention, avoidance or termination of litigation. It has the
effect of res judicata irrespective of whether it is embodied in an order of
court and it is an absolute defence to any action based on the original claim.
33. A compromise is a substantive contract which exists independently of the
cause that gave rise to it. The agreement must relate directly or indirectly to
an issue or lis between the parties; it must not be objectionable both from a
legal and practical point of view and it must not be at odds with public policy.
2 Mercedes-Benz Finance and Insurance, a division of Mercedez-Benz Financial Services South
Africa (Pty) Ltd v Thobejane (Leave to Appeal) (16432/2019) [2023] ZAGPPHC 407 (26 May
2023) at para [23].
The agreement must hold some practical and legitimate advantage. A
compromise cannot perpetuate an invalid agreement.
34. A court, in considering whether to make a settlement an order of court, does
not consider the merits of the litigation, provided that the terms of the
settlement accord with the constitution and are not at odds with public policy.
It does, however, have the discretion to refuse to make a settlement an order
of court, but it cannot amend the settlement. In the absence of a reservation
of the right to proceed on the original cause of action, a compromise
agreement bars any proceedings based on the original cause. In addition, the
defendant is not entitled to go behind the compromise and raise defences to
the original cause of action when sued on the compromise.
35. A compromise may be set aside if it was obtained fraudulently or on the
ground of mistake, provided that the error vitiated true consent, and did not
merely relate to the motive of the parties or to the merits of the dispute. In
Gollach, the Court held as follows:
“A transactio, whether extra -judicial or embodied in an order of
court has the effect of res judicata. It is obvious that, like any
other contract (and like any order of court), a transactio may be
set aside on the ground that it was fraudulently obtained. There
is authority to the effect that it may also be set aside on the
ground of mistake, where the error is Justus.”
36. The Constitutional Court in Eke v Parsons,3 confirmed that a court may make
a settlement agreement an order of court where the agreement is competent
3 2016 (3) SA 37 (CC).
and proper to be made an order, relates to the issues between the parties
and does not offend the law or public policy.4 The underlying contract and the
ordinary principles in the of contract, including grounds for rescission such as
fraud, misrepresentation, duress or justus error , remain applicable , when
making such an order.
c) Deed of suretyship
37. A suretyship is an accessory obligation: the liability of the surety is dependent
upon the existence of a valid and enforceable principal debt. Where a person
binds him/herself as "surety and co-principal debtor", he/she remains in law a
surety; the words " co-principal debtor " primarily import a waiver of the
benefits of excussion and division.5
38. Further, it is worth mentioning the principle set out in Gruhn v M Pupkewitz ,6
where the Court held in summary judgment proceedings as follows:
“That a purchaser as against a seller normally knows what the
case is about must be accepted, but it is not necessarily so that
a surety, who stands in for the price of goods sold and delivered
to a purchaser, knows what the case is about. Thus, where the
seller applies for summary judgment against the surety, and the
surety alleges that he has reason to believe that the amount
claimed does not represent the correct price of the goods sold,
it cannot be said that he has no defence to the application, and
the Court must exercise its discretion and give the surety the
opportunity of asking for further particulars and of defending the
action.”
4 At paras [25] to [31].
5 Neon and Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SA 463 (A) at 471D; Kilroe-
Daley v Barclays National Bank Ltd 1984 (4) SA 609 (A) at 623G.
6 Gruhn v M Pupkewitz & Sons (Pty) Ltd 1973 (3) SA 49 (A).
d) Disputes of fact in motion proceedings
39. The principal ways in which a dispute of fact may arise are set out in Room
Hire v Jeppe Street Mansions7 as follows:
“It may be desirable to indicate the principal ways in which a
dispute of fact arises. The clearest instance is, of course, (a)
when the respondent denies all the material allegations made
by the various deponents on the applicant's behalf, and
produces or will produce, positive evidence by deponents or
witnesses to the contrary. He may have witnesses who are not
presently available or who, though adverse to making an
affidavit, would give evidence viva voce if subpoenaed. There
are however other cases to consider. The respondent may (b)
admit the applicant's affidavit evidence but allege other facts
which the applicant disputes. Or (c) he may concede that he
has no knowledge of the main facts stated by the applicant, but
may deny them, putting applicant to the proof and himself giving
or proposing to give evidence to show that the applicant and his
deponents are biassed and untruthful or otherwise unreliable,
and that certain facts upon which applicant and his deponents
rely to prove the main facts are untrue. The absence of any
positive evidence possessed by a respondent directly
contradicting applicant's main allegations does not render a
case such as this free of a real dispute of fact. Or (d) he may
state that he can lead no evidence himself or by others to
dispute the truth of applicant's statements, which are peculiarly
within applicant's knowledge, but he puts applicant to the proof
thereof by oral evidence subject to cross-examination.”
I. Deciding factual disputes on affidavit
40. Price JP in Soffiantini v Mould8 said the following:
7 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163.
8 1956 (4) EDCC page 150 at page 154G.
“It is necessary to make a robust, common-sense approach to a dispute
on motion as otherwise the effective functioning of the Court can be
hamstrung and circumvented by the most simple and blatant
stratagem. The Court must not hesitate to decide an issue of fact on
affidavit merely because it may be difficult to do so. Justice can be
defeated or seriously impeded and delayed by an over -fastidious
approach to a dispute raised in affidavit.”
41. In Williams v Tunstall 9 the Court held that a judgment could and should be
granted on motion for a money sum when the respondents only defence was
an objection, as a matter of procedure , to such a course. The only test to be
applied is the existence or non -existence of a bona fide dispute on a material
fact.
II. The Plascon-Evans rule
42. The general rule, as stated in Stellenbosch Farmers’ Winery 10 has been
followed and applied on numerous occasions: if the material facts are in
dispute and there is no request for the hearing of oral evidence, a final order
will only be granted on notice of motion if the facts as stated by the
respondent together with the facts alleged by the applicant that are admitted
by the respondent justify such an order, unless the Court is satisfied that the
respondent’s version consists of bold or uncreditworthy denials, raises
fictitious disputes of fact, is so far -fetched or so clearly untenable or so
palpably implausible as to warrant its rejection merely on the papers.
9 1949 (3) SACR 835.
10 Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235
E-G; This approach was approved in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd 1984 (3) SA 623 (A).
43. The Plascon-Evans rule was referred to by the Constitutional Court in
Democratic Alliance in Re: Electoral Commission of South Africa v Minister of
Cooperative Governance11 as follows:
“The Plascon -Evans rule is that an application for final relief
must be decided on the facts stated by the respondent, together
with those which the applicant states and which the respondent
cannot deny, or of which its denials plainly lack credence and
can be rejected outright on the papers.”
44. In National Director of Public Prosecutions v Zuma ,12 it was held that motion
proceedings, unless concerned with interim relief, are all about the resolution
of legal issues based on common cause facts. Unless the circumstances are
special, they cannot be used to resolve factual issues because they are not
designed to determine probabilities.
III. Uniform Rule 6(5)(g)
45. Rule 6(5)(g) is wide in its application and empowers the Court to make such
an order as it deems fit with a view to ensuring a just and expeditious
decision, where an application cannot properly be decided on affidavit.13
46. As a general rule, an application for the hearing of oral evidence must be
made in limine and not once it becomes apparent that the applicant is failing
11 2002 (1) BCLR 1 (CC) at [40] footnote [15].
12 2009 (2) SA 277 (SCA) at para [26].
13 Moosa Bros and Sons (Pty) Ltd v Raja 1975 (4) SA 87 (D) at 91A (“Moosa Bros”).
to convince the Court on the papers or on appeal. 14 The circumstances must
be exceptional before a Court will permit the applicant to apply in the
alternative for the matter to be referred to evidence should the main argument
fail. It is undesirable that a Court mero motu orders a referral to oral
evidence.15
47. The presence of a dispute of fact in an opposed application, and the nature
thereof, will often be the determining consideration in deciding whether viva
voce evidence should be ordered.16
48. The Court has a wide discretion in deciding whether to refer a matter to
evidence. 17 The Court will refer a matter to trial if the dispute of fact is
incapable of resolution on the papers and too wide -ranging for resolution by
way of referral to oral evidence. 18 In such an instance, it is essential that the
issues be defined. Referral to trial is an alternative procedure to dismissal of
the application in such circumstances and is appropriate where the applicant,
when launching the application, could not reasonably have foreseen that a
serious dispute of fact, incapable of resolution on the papers, was bound to
develop.19
14 Law Society, Northern Provinces v Mogami 2010 (1) SA 186 (SCA) at [23].
15 De Reszke v Maras 2006 1 SA 401 (C) at paras 32 to 33.
16 Moosa Bros at 93D; Minister of Environment Affairs and Tourism v Scenematic 24 (Pty) Ltd
2005 (6) SA 182 (SCA) at 202H.
17 Lombaard v Droprop CC 2010 (5) SA 1 (SCA) at 10A–D.
18 Less v Bornstein 1948 (4) SA 333 (C); Room Hire Co at 1162.
19 Standard Bank of S.A. Ltd v Newgarten 1987 (3) SA 695 (W) at 699A.
IV. Costs in circumstances of referral to oral evidence or trial
49. In the ordinary course, the Court will make the costs of the application abide
the result of the action. Where costs will not be made costs in the cause is
where the applicant should have known that the proceedings brought by him
would be abortive: in such case he will be ordered to pay them himself.20
E. APPLICATION OF THE LEGAL PRINCIPLES TO THE FACTS
50. The applicant’s case is founded on the deed of settlement as an independent
causa. On the papers, it is common cause that the respondents signed the
deed of settlement, that the agreement records an acknowledgement of
indebtedness, that there is a shortfall clause and that it contains a clause
permitting it to be made an order of court. These facts establish, at least
prima facie, a complete cause of action in favour of the applicant.
51. The respondents do not dispute that they signed the deed of settlement, nor
that they partially performed under it. However, the existence of a settlement
agreement does not preclude a party from raising material disputes of fact
relating to the underlying transaction, particularly where such disputes may
bear upon the validity, enforceability or proper interpretation of the
compromise.
20 Brown v Cloete 1914 CPD 757; Room Hire Co at 1162.
52. The applicant’s claim is framed as one for the enforcement of a deed of
settlement, which, as a matter of law, constitutes a compromise creating new
obligations and extinguishing prior causes of action.21
53. The applicant contends that the respondents’ defences are contrived, vague,
and not bona fide , and that there is force in this submission, particularly
having regard to the respondents’ conduct and partial performance.
54. The test is, however, not whether the respondents’ case is ultimately
persuasive, but whether their version is so far -fetched or untenable that it
may be rejected on the papers. The respondents’ case is not a direct attack
on the formal validity of the deed of settlement, but rather that it was
concluded in circumstances where the underlying transaction was
misunderstood or misrepresented (justus error).
55. In my mind, t he most significant factual dispute concerns the payment of the
loan amount to Desmo rather than to ESRU. This dispute raises several
interrelated questions, inter alia:
55.1. Whether the loan agreement was performed in accordance with its
terms;
55.2. Whether the applicant was authorised to pay the amount so
advanced to an unrelated third party;
21 Gollach supra at 922H to 923A.
55.3. Whether the respondents had knowledge of and consented to the
payment to a third party; and
55.4. Whether the underlying indebtedness, which forms the foundation of
the deed of settlement, is properly calculated.
56. These issues are factually and legally material, as they bear directly on the
existence and enforceability of the indebtedness recorded in the deed of
settlement. The disputes are not supported by detailed evidence on either
side and are inherently credibility-based.
57. They cannot be resolved without oral evidence. As such, the respondents’
version cannot be dismissed as fictitious or clearly untenable. The
respondents’ partial performance under the deed of settlement weighs
against them and may ultimately prove decisive at trial, but it is not sufficient,
in itself, to eliminate the factual disputes raised.
58. Regarding the sale of the property, as a matter of contractual interpretation,
the absence of a reserve price and the inclusion of a shortfall clause in the
deed of settlement tend to favour the applicant. However, the respondents’
case is not limited to contractual interpretation. It includes allegations of
improper conduct in the sale process, a substantial disparity between alleged
market value and sales price, and potential irregularities in the auction.
59. These issues involve factual and potentially expert evidence, including
valuation evidence, which cannot be received on affidavit. Even if the
respondents’ case is not ‘bullet proof’ , it is not so devoid of substance as to
be rejected on the papers.
60. Furthermore, while the respondents’ challenge to quantum is broadly stated
and lacks particularity, it is intertwined with the manner in which the loan was
allegedly advanced, the treatment of payments and rental income, and the
capitalisation of amounts. These issues are not purely issues of arithmetic
and cannot be separated from the broader factual disputes.
61. The Court must consider the factual disputes not in isolation, but
cumulatively. When viewed holistically, the disputes concern the performance
of the loan agreement, the knowledge and conduct of the respondents, the
validity of the sale of the property, and the correctness of the quantum
claimed. These disputes are interrelated, factual, and depend upon credibility
findings such that they cannot be determined on affidavit. In the
circumstances, motion proceedings are not suited to the resolution of these
disputes.22
62. The Court must exercise its discretion under Rule 6(5)(g) in a manner that
promotes a fair and just determination of the issues. The disputes identified
are not confined to discrete, narrow questions that could be resolved by
limited oral evidence. They are broad and foundational, and their proper
determination will require pleadings, discovery, oral evidence, cross -
examination and expert testimony.
22 Room Hire Co supra at 1162 to 1165.
63. A referral to oral evidence on limited issues would not adequately address the
complexity of the disputes. The appropriate course is therefore to refer the
matter to trial.
64. While the applicant has established a prima facie case based on the deed of
settlement, the respondents have raised disputes of fact that are sufficiently
real, material and not clearly untenable. In these circumstances the applicant
is not entitled to final relief on motion. The matter must be determined in trial
proceedings, where the disputes may be properly ventilated.
F. ORDER
65. In the circumstances I make the following order:
65.1. The application is referred to trial;
65.2. The notice of motion shall stand as a simple summons;
65.3. The applicant shall deliver a declaration within 20 (TWENTY) days of
the date of this order;
65.4. The respondents shall deliver the plea within 20 (TWENTY) days
after receipt of the declaration;
65.5. The parties shall thereafter proceed in accordance with the Uniform
Rules of Court applicable to trial proceedings, including discovery
and pretrial procedures; and
65.6. The costs of the application are reserved for determination by the trial
Court.
S MARITZ AJ
Acting Judge of the High Court
Pretoria
Heard: 20 April 2026
Delivered: 15 June 2026
For the applicant: Adv Hannes Lerm
Instructed by: Van Rooyen & Associates Inc
For the respondents: Adv Johann Hershenson SC and Ruan Britz
Instructed by: Barnard & Patel Attorneys