IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 36218/19
(1) REPORTABLE:~O
(2) OF INTEREST TO OTHER JUDGES: ¥e&/NO
(3) REVISED.
DATE
In the matter between:
NEDBANK LIMITED PLAINTIFF/ APPLICANT
and
MPUTI ALFRED MAMPURU DEFENDANT/RESPONDENT
This judgment was prepared and authored by the Judge whose name is reflected and
is electronically circulated to the parties/their legal representatives by e-mail and by
uploading it to the ·electronic file of this matter on Caselines. The date for hand-down
is deemed to be 22 June 2026
JUDGMENT
ENGELBRECHT AJ
Introduction
1. Nedbank Limited (Nedbank) brings an application for summary judgment,
seeking payment of a shortfall under an instalment sale agreement for a motor
vehicle. Mr Mputi Alfred Mampuru (Mr Mampuru) opposes the application.
Background and chronology
2. In March 2018, Nedbank and Mr Mampuru entered into a written instalment
sale agreement (the Agreement) under which Mr Mampuru was to pay monthly
instalments as provided for. Failure to pay amounts due to Nedbank would
entitle Ned bank to cancel the Agreement, obtain the return of the vehicle, sell
the vehicle, retain payments already made in terms of the Agreement, and
claim from Mr Mampuru the balance (if any) as damages.
3. When Mr Mampuru breached the Agreement, Nedbank, in May 2019,
instituted action seeking confirmation of termination of the Agreement, return
of the vehicle, and an order authorising Nedbank to apply to this Court on the
same papers (supplemented insofar as may be necessary), for judgment in
respect of any damages and further expenses, the amount of which could only
be determined after repossession and sale of the vehicle.
4. Mr Mampuru did not enter an appearance to defend or file a plea.
5. On 19 September 2019, default judgment was granted in terms of rule 31 (5)
of the Uniform Rules. The order confirmed termination of the Agreement and
ordered the return of the motor vehicle. Paragraph ( c) of the order gave
authorisation for application on· the same papers, supplemented insofar as
necessary, for judgment in respect of damages and further expenses incurred
by Nedbank in the repossession of the vehicle, "which amount can only be
determined once the vehicle has been repossessed by [Nedbank] and has
been sold". In brackets, the order recorded "Quantum portion postponed sine
die".
6. Nedbank repossessed the vehicle and had it valued. The vehicle was sold on
14 November 2019, and the net proceeds of the sale were credited to Mr
Mampuru's account, as reflected in a notification of 28 November 2019. The
notification recorded that the outstanding balance at the time was
R161 780.13, and Mr Mampuru was called upon to make payment. He did not.
By 12 February 2024, the issued certificate of balance reflected the amount
due as R164 219.16.
7. N~dbank made an application for default judgment once more. The damages
affidavit dated 27 February 2024, filed on Nedbank's behalf, indicated an
intention to seek judgment in the amount of R164 219.16 and no interest. On
25 April 2025, default judgment was refused on the basis that service was
stale. The default application was then served on Mr Mampuru on 12 June
2025.
8. On 26 June 2025, Mr Mampuru's legal representative filed a notice of intention
to defend on his behalf, and on 30 June 2025, Mr Mampuru filed his plea to
the particulars of claim.
8.1. He raised a special plea of prescription, alleging that the prescription
period began to run on 23 May 2019, alternatively on 19 September
2019, when default judgment was granted. Applying a three-year
prescription period, he pleaded that the claim for the payment of the
shortfall was to have been pursued by 23 May 2022, alternatively 19
September 2022. It was asserted that the claim had become
prescribed in accordance with the provisions of the Prescription Act
68 of 1969 (Prescription Act), although no specific provision of the
statute was identified.
8.2. A further special plea challenged the jurisdiction of this Court to
entertain the claim, on the basis that clause 20 of the Agreement
provided that "any legal proceedings that may be brought in terms of
this agreement may be heard in a magistrate's court, regardless of the
amount claimed", and because the amount claimed (R164 219.16)
falls within the monetary jurisdiction of the Magistrates' Court.
8.3. When it came to the merits, Mr Mampuru "noted" all of the allegations
in the Statement of Claim (SOC). The only denial offered concerned
the allegations in the SOC regarding jurisdiction. Then, purportedly
relying on a repetition of his special pleas, Mr Mampuru denied being
indebted to Nedbank.
9. Mr Mampl,.lru's plea was followed on 5 July 2025 by an answering affidavit
opposing default judgment.
10. Nedbank then filed its application for summary judgment on 16 July 2025. It
no longer pursued default judgment.
Summary judgment
11. Summary judgment procedure provides for a speedy judgment in favour of a
deserving plaintiff where it can be shown that the defendant does not have a
triable defence.
12. Rule 32 (2) provides:
"(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 subrule (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 p/aintiff 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 less than 15 days from the date of the
delivery thereof."
13. The defendant, in response, is required to set out facts which proven at trial,
will constitute an answer to the plaintiff's claim.
14. The Court, in evaluating the application for summary judgment, must be
guided by the consideration in Maharaj v Barclays National Bank Ltd, 1 where
Corbett JA stated the following;
"The grant of the remedy is based on the supposition that the plaintiff's claim
is unimpeachable and that the defendant's defence is bogus and bad in law."2
15. Generally speaking, the defendant must meet four requirements to thwart the
grant of summary judgment: he must disclose the nature of the grounds of his
defence, he must disclose the facts on which he bases his defence, the
defence must be bona fide, and the defence must be good in law. The facts
that he provides must be such that, if proven at trial, they will constitute an
answer to the plaintiff's claim.
Basis for the application and the defence raised in answer
16. In bringing its summary judgment application, Nedbank relies on the content
of the 19 September 2019 order, the subsequent repossession and sale of the
vehicle leading to a credit to Mr Mampuru's account, as well as a certificate of
1 1976 (1 ) SA418 (A).
2 At424G.
indebtedness that reflects the amount due by Mr Mampuru. An updated
certificate of balance dated 25 February 2025 reflects an indebtedness in the
amount of R167 755.18, but the notice of motion seeks payment only of the
amount of R164 219.16, being the amount of indebtedness reflected in the
February 2024 certificate of balance. No interest is sought, but the notice of
motion includes a prayer for costs on the attorney-and-client scale.
17. Dealing with the defences Mr Mampuru raised in his plea, Nedbank:
17 .1. relied on the judgment of the Supreme Court of Appeal (SCA) in
Standard Bank of South Africa Ltd and Others v Thobejane and
Others; Standard Bank of SA Ltd v Gqirana N O and Another3
(Thobejane) to dispose of the jurisdictional challenge;
17.2. in response to the prescription claim, referred to the unreported
judgment in FirstRand Bank Limited tla Wesbank v Shosholoza Steel
Suppliers (Pty) Ltd and Others4 (Shosho/oza) which held that
prescription was interrupted by the issue of summons, even though
the calculation of damages had to be postponed on the ground that
the amount due could not be ascertained at the time;5
17.3. highlighted that no further defence emerged from the plea, so that
there was no defence to the claim for payment; and
17.4. accordingly submitted that no bona fide defence was raised to its
claim.
18. Mr Mampuru's response in the answering affidavit setting out the basis for
opposition to summary judgment:
3 2021 (6) SA 403 (SCA).
4 [2014] ZAGPJHC 55.
5 At paras 30 - 32.
18.1. sought to make something of the fact that an ~arlier attempt to obtain
default judgment was met by an order to re-serve the default
application, and complained that Nedbank was taking a "detour",
describing its actions in bringing the summary judgment application
as "contempt ";
. 18.2. highlighted that there was a difference between the amount assertedly
credited to Mr Mampuru's account and the amount of credit reflected
in correspondence under the National Credit Act 34 of 2005 (NCA),
so that the due amount reflected in the certificate of balance is to be
questioned;
18.3. complained of absence of evidence that any amount was credited to
Mr Mampuru's account;
18.4. referred to the presence on Caselines of documents relating to
another matter, said to be prejudicial to Mr Mampuru on the basis that
he does not know what is to be made of the presence of these
documents on the Caselines profile in his matter;
18.5. submitted that the jurisdictional point was to be resolved by reference
to the terms of the Agreement, which provided for the institution of
proceedings in the Magistrates' Court; and
18.6. sought dismissal of the summary judgment application on the basis
that the Court did not enjoy jurisdiction, alternatively that the claim had
become prescribed, because prescription started running again when
the amount of indebtedness was capable of being established, and
was established in November 2019.
The issues
19. The plea and affidavit in opposition to summary judgment raise three issues
for determination:
19.1. whether the jurisdictional objection is good in law;
19.2. whether the prescription point is good in law; and
19.3. whether concerns expressed about the calculation of the amount due
provide a basis to refuse summary judgment.
20. I highlight that the complaint about the "detour" does not raise an issue for
determination. After service of the default judgment application, notice of
intention to defend was given and a plea filed. There was no basis for
Nedbank to pursue default judgment by that stage. It was not precluded in
law, then, from bringing a summary judgment application within the prescribed
period. Nedbank did so.
Jurisdiction
21. The asserted claim that this Court lacks jurisdiction cannot be sustained.
22. In Thobejane the SCA made an order that the "High Courl must enterlain
matters within its territorial jurisdiction that fall within the jurisdiction of the
Magistrates' Courts, if brought before it, because it has concurrent jurisdiction
with the Magistrates Courl",6 and the "High Courl is obliged to enterlain
6 Thobejane Order para 1.
matters that fall within the jurisdiction of a Magistrates' Court because the High
Court has concurrentjurisdiction". 7 The SCA further ordered that "There is no
obligation in law on financial institutions to consider the cost implications and
access to justice of financially distressed people when a particular court of
competent jurisdiction is chosen in which to institute proceedings".8 In making
these orders, the SCA confirmed long-standing jurisprudence to the effect that
a Court that enjoys concurrent jurisdiction cannot decline to exercise its
jurisdiction.
23. Confronted with the unassailable authority of the SCA, counsel for Mr
Mampuru nevertheless valiantly argued that, under the pacta sunt servanda
principle, the action ought to have been instituted in the Magistrates' Court,
because the parties agreed on the jurisdiction of the Magistrates' Court. That
argument cannot be upheld. It is plain that clause 20 of the Agreement was
permissive in its language, using the word "may" rather than "must", thereby
allowing an election to proceed in the Magistrates' Court.
24. The judgment of the Constitutional Court in Saboath General Traders (Pty) Ltd
tla Sausage Saloon and Another v Mthatha Mall (Pty) Ltd9 is dispositive.
There, the agreement between the parties contained a clause in which they
had "unconditionally and irrevocably' consented to the jurisdiction of the High
Court, but action was then instituted in the Magistrates' Court. The
Constitutional Court recorded the position in Foize Africa (Ply) Ltd v Foize
7 Thobejane Order para 2.
8 Thobejane Order para 4
9 [2023] ZACC 43.
Beheer BV,10 where the SCA held that "parties to a contract cannot exclude
the jurisdiction of a court by their own agreement". The majority in the
Constitutional Court, moreover, considered that consent to the jurisdiction of
one Court does not amount to an agreement to the exclusive jurisdiction of
that Court.11 Zondo CJ (as he then was), for the minority, held that the effect
of the clause in that case was "nothing more than that, if either party instituted
proceedings in the High Court against the other arising out of the lease, the
latter could not object on the basis that the High Court had no jurisdicf;on". 12
The situation is no different here: Nedbank was entitled under the Agreement
to institute action in the Magistrates' Court, but the clause did not ouster its
entitlement nevertheless to proceed in the High Court if it wished to do so.
Prescription
25. That brings me to the consideration of the special plea of prescription. It must
meet the same fate as the jurisdictional plea.
26. Our Courts treat the claim for cancellation, return of goods, and the
subsequent payment of the shortfall as linked elements within a credit
provider's enforcement arsenal. Waiting for the vehicle to be sold to calculate
the exact figure is merely a mechanism to quantify the pre-existing debt, rather
than a completely separate, delayed debt.13
10 2013 (3) SA 91 (SCA) at para 21.
11 At para 35.
12 At para 66.
13 BMW Financial Services (SA) (Pty) Ltd v Heydenreich (2023} ZAGPJHC 307.
27. In Rademeyer v Ferreira, 14 the Constitutional Court put it thus:
"{59] ... Prescription of a debt starts running as soon as the debt becomes
due, or when knowledge of the debt becoming due can reasonably be
expected of the creditor. Prescription is judicially interrupted when
process initiating a lawsuit for recovery of that particular debt is
issued and served on the debtor. In our law breach of contract is
remediable through two mutually exclusive options - a claim for specific
performance that seeks, notwithstanding the breach, to keep the
contract alive; or cancellation of the contract and a claim for damages.
{60] When an election is made to sue for specific performance, axiomatically
that lawsuit cannot possibly be a basis for the judicial interruption of the
running of prescription in respect of cancellation and a damages claim in
respect of the same debt arising from breach of the contract. Judicial
interruption of the running of prescription of the latter can self
evidently only occur when the election is made to cancel and sue for
damages. And, plainly, where summons has been issued and served
to determine liability in respect of damages for breach of contract
within the three-year prescription period, it matters not that you sue
after the three-year period t<J determine the quantum of the
damages in respect of that same claim. This is because the later
14 [2024] ZACC 24.
claim for the assessment of damages is a continuation of the first
proceedings to determine liability . ... ,,is
28. That is the essence of what the Shosholoza judgment reflects, albeit in the
context of an amendment to particulars of claim, where it held that a claim
made, but envisaging calculation of the amount at a later stage, constitutes a
claim for payment of damages that interrupts prescription as contemplated in
s 15(1) of the PrescriptionAct. 16
29. In the present case, Nedbank issued and served summons for the
determination of the liability in consequence of the breach of the Agreement.
The assessment of damages pursuant to the repossession and sale of the
vehicle is a continuation of the initial process, in which Nedbank obtained an
order expressly postponing the determination of damages sine die. The
factual situation is distinguishable from that prevailing in Nedbank Limited v
Leboss Guest Lodge Pty Ltd and another, 17 where an initial summons was
issued only for cancellation of the agreement and repossession, and a
separate summons was later issued for recovery of the shortfall amount. To
put it simply:
29.1. the 2019 action included the claim for any post-sale shortfall;
15 Emphasis supplied.
16 Shosholoza at paras 30 - 32.
17 [2025] JOL 69776 {GJ).
29.2. the 2019 default judgment order expressly postponed only the
quantification of that amount;
29.3. that order was never abandoned or set aside; and
29.4. the present summary judgment application is a continuation of the
same proceedings to determine the postponed indebtedness.
The asserted dispute on calculation
30. All that remains is the question whether the allegations made in the affidavit
opposing summary judgment concerning the calculation of the asserted
indebtedness can stand in the way of the grant of the relief sought.
31. The first issue that confronts Mr Mampuru is that he raises no cognisable
defence on the merits in the plea. In the plea, allegations concerning
indebtedness were simply noted and otherwise ostensibly denied through
reliance on the special pleas.
32. The second issue is that clause 17.4 of the Agreement provides that:
"We may provide a certificate from any one of our managers whose position
we need to prove showing the amount that is due and how it is calculated.
Unless you are able to satisfy the court that the amount in the certificate is
incorrect, you agree that we may use the certificate as face value proof of the
amount you owe us if we take legal action against you."
33. In Senekal v Trust Bank of Africa Ltc/18 the Appellate Division (as it then was)
considered the purpose of a certificate of balance clause and held that its
primary purpose is to facilitate proof of the amount of indebtedness, and that
a certificate shall be sufficient or prima facie proof of the amount due. The
evidential weight of a certificate of balance has also been recognised in
Rossouw and Another v FirstRand Bank Ltd, 19 where the SCA held that, where
a contract provides that a certificate of balance constitutes prima facie proof
of indebtedness, such a certificate is sufficient evidence of the amount due
unless the debtor places evidence before the Court to challenge its
correctness.
34. Of course, a certificate of indebtedness is not immune from scrutiny. A
genuine dispute about the amount owing constitutes a triable issue. However,
it is not sufficient t9 deny indebtedness without raising particulars that show
the balance is wrong. A defendant must do more than raise unparticularised
suspicions.20 A bare denial, unsupported by any facts, does not discharge the
onus placed on Mr Mampuru by clause 17.4, "to satisfy the court that the
amount in the certificate is incorrect".
35. In the present case, the basis upon which the correctness is challenged is
that:
18 1978 (3) SA 375 (A).
19 201 0 (6) SA 439 (SCA) at para 48.
20 Sag/o Auto v Black Shades Investments 2021 (2) SA 587 (GP).
35.1. a notice in terms of s 127(5)(b) of the National Credit Act 34 of 2005
(National Credit Act) asserted that the amount credited to the account
was R40 500, although the letter reflected that the proceeds of the
sale of the vehicle amounted to R39 678.42;
35.2. but the damages affidavit asserts a credit of R39 678.42, as does the
affidavit in support of the summary judgment application;
35.3. Nedbank has not provided the Court with "the date of the alleged
payment and bank statements proving the alleged payment";
35.4. if Nedbank were to provide date of payment, Mr Mampuru could "draw
my bank statement to show the Honourable court that the alleged
amounts never reached my bank account";
35.5. no amount of money was paid to Mr Mampuru after repossession of
the vehicle;
35.6. a notice in terms of s 127(5)(b) of the National Credit Act "can easily
be drafted and manipulated to suit the Plaintiff 's narrative"; and
35.7. failure to account on monies that had not reached Mr Mampuru's bank
account constitutes a bona fide reason for him to defend the matter;
36. As regards the difference between the s 127(5)(b) notice and the amount
credited, it would appear that the reference to R40 500 credit in the letter is a
clerical discrepancy. The amount asserted to be credited - on oath - is
consistent with the amount reflected in the letter as being the proceeds of the
sale, after allowed deductions. The best that can be said about Mr Mampuru's
position is that the letter incorrectly reflected the amount credited. However,
the certificate of balance is produced together with statements on oath
confirming that the amount credited is R39 678.42. There is no basis upon
which Mr Mampuru can assert an entitlement to a credit exceeding the
proceeds of the sale. Even if the letter incorrectly asserted a credit of R40 500,
Nedbank enjoys a contractual entitlement to rely on the certificate of
indebtedness in the summary judgment proceedings.
37. The remainder of the "defence" is ostensibly based on a wrong understanding
that the proceeds of the sale would have been paid into Mr Mampuru's bank
account, rather than credited to the loan account. Essentially, Mr Mampuru is
asking for discovery to prove the contents of the certificate of balance. But
this does not constitute a bona fide defence, especially not in the absence of
anything other than speculation on the part of Mr Mampuru that the amount of
R39 678.42 had not been credited to the loan account. He signed the
Agreement, which entitled Nedbank to rely on the certificate of indebtedness,
unless he could show a Court that the amount was incorrect. Apart from not
setting out in his plea any defence on the merits (merely noting the allegations
in the Statement of Claim), no bona fide defence emerges from the affidavit
opposing summary judgment.
Conclusion
38. No triable issue emerges from the plea. The jurisdictional objection and the
prescription point are bad in law. No defence on the merits is offered in the
plea, and the attempt at amplifying the plea in the opposing affidavit by casting
aspersions on the certificate of balance does not present a triable issue either.
39. Nedbank seeks attorney-and-client costs. Mr Mampuru advances the
argument that the matter could have been instituted in the Magistrates' Court,
and that, therefore, costs should be limited to an award for costs on the
Magistrates' Court scale. I agree. The order reflects this.
Order
40. In the result, the following order is made:
1. Summary judgment is granted in favour of the Plaintiff against the
Defendant, for payment of the amount of R164 219.16.
2. The Defendant is ordered to pay the costs of suit on the scale as
between attorney and client, such costs to be taxed on Magistrate's
Court scale.
Judgment reserved: 10 June 2026
Judgment delivered: 22 June 2026
Appearances:
For the Plaintiff/ Applicant:
Advocate CJ Welgemoed
Instructed By: Strauss Daly Incorporated
For the Defendant/ Respondent:
CHT
ACTING JUDG IGH COURT
OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
Advocate OM Setumu (Trust Account Advocate)