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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN
Case No: 2026-002650
In the matter between:
NEDBANK LIMITED Applicant
and
ADRIAAN VAN ROOIEN Respondent
Reportable / Not reportable
Coram: Anderssen AJ
Heard: 11 June 2026
Delivered: Electronically on 31 July 2026
Summary: Summary judgment – reckless credit defence – failure to meet
requirement of ‘fully’ – discretion exercised in favour of the respondent – best
interests of minor children a deciding factor in exercising judicial discretion
ORDER
1. The application for summary judgment is refused.
2. The respondent is granted leave to defend the main action.
3. The costs of the summary judgment application shall be costs in the
cause.
JUDGMENT
Anderssen AJ:
Introduction
[1] The applicant (“Nedbank”) concluded an instalment sale agreement , within
the provisions of the National Credit Act 1 (“NCA”), with the respondent
(“VR”) in terms of which VR purchased a 2017 Volkswagen Polo Vivo. The
purchase price, together with interest, was to have been repaid in 72
monthly instalments (at a rate of R3 441.70 per month ). Nedbank
remained the owner of the vehicle until the purchase price had been paid
in full. In the event of a failure by VR to meet his obligations in terms of the
agreement, Nedbank retained the right to cancel the agreement and to
claim the full amount owing at the time. To this end they would be entitled
to the return of their vehicle so that same may be sold and, in addition, to
claim damages from VR. Nedbank deliver a section 129-notice to VR when
he fell in arrears. When VR did not pay the arrears, Nedbank caused a
summons to be issued.
[2] Nedbank now seeks summary judgment against VR , who appeared in
person at the hearing. VR, in his plea, raised a defence of ‘reckless
1 34 of 2005.
lending’ averring that, at the time the agreement was concluded his salary
and financial obligations were such that the monthly instalment was not
reasonably affordable. The averment is made that Nedbank did not
conduct a proper and reasonable affordability assessment as it was
required to do in terms of the NCA. Nedbank claims this is no bona fide
defence as it conducted a credit assessment prior to concluding the
agreement based on the representations made to it by VR and concluded
that VR could afford the loan. According to the Income and Expense sheet
VR had R5 133.34 available to him from his salary and could therefore
afford the monthly instalments.
The legal position
[3] One of the aims of the NCA is to promote responsibility in the credit market
by encouraging responsible borrowing and discouraging reckless
lending.2 When seeking to resolve consumer over -indebtedness through
debt enforcement or debt restructuring, for instance, the NCA also places a
premium on the satisfaction of all responsible – as opposed to
irresponsible – financial obligations. 3 The concept ‘reckless credit ’ is
defined in s 80(1)(a) and (b) of the NCA:
(1) A credit agreement is reckless if, at the time that the agreement was made, or
at the time when the amount approved in terms of the agreement is increased,
other than an increase in terms of section 119 (4) –
(a) the credit provider failed to conduct an assessment as required by section 81
(2), irrespective of what the outcome of such an assessment might have
concluded at the time; or
(b) the credit provider, having conducted an assessment as required by section
81(2), entered into the credit agreement with the consumer despite the fact that
the preponderance of information available to the credit provider indicated that-
2 Section 3(c).
3 Section 3(g) and (i).
(i) the consumer did not generally understand or appreciate the consumer’s risks,
costs or obligations under the proposed credit agreement; or
(ii) entering into that credit agreement would make the consumer overindebted.
[4] Section 80(1) should be read with section 81 (1)(a) and (2), which
determines that when applying for a credit agreement, and while that
application is being considered by the credit provider, there are obligations
resting on both the prospective consumer and the credit provider. On the
one hand the prospective consumer must fully and truthfully answer any
requests for information made by the credit provider as part of the
assessment. On the other hand
a credit provider must not enter into a credit agreement without first taking
reasonable steps to assess-
(a) the proposed consumer's-
(i) general understanding and appreciation of the risks and costs of the proposed
credit, and of the rights and obligations of a consumer under a credit agreement;
(ii) debt re-payment history as a consumer under credit agreements;
(iii) existing financial means, prospects and obligations; and
(b) whether there is a reasonable basis to conclude that any commercial purpose
may prove to be successful, if the consumer has such a purpose for applying for
that credit agreement.
[5] Section 81(3) prohibits a credit provider from entering into a reckless credit
agreement with a prospective consumer. Should a credit provider breach
this prohibition, a court has various remedies as se t out in section 83,
which includes declaring that the credit agreement is reckless and setting
aside all or part of the consumer's rights and obligations under that
agreement, as the court determines just and reasonable in the
circumstances; or suspending the force and effect of that credit
agreement.4
[6] Rule 32(3)(b) allows VR to satisfy the court by affidavit that he has a bona
fide defence to the action and such affidavit must disclose fully the nature
and grounds of the defence and the material facts relied upon therefor .
The summary judgment procedure is not intended to deprive defendants
with a triable issue, or a sustainable defence, of their day in court. 5 What is
required of a court hearing a summary judgment application is, first, an
examination of whether there has been sufficient disclosure by a defendant
of the nature and grounds of the defence and the facts upon which it is
founded. Second, whether the defence so disclosed is both bona fide and
good in law. If these thresholds have been met, the court is bound to
refuse summary judgment.6
[7] Rule 32(5) affords the court hearing an application for summary judgment
a discretion as to whether to enter summary judgment or not. Thus, even if
a defendant fails to comply with the provisions of Rule 32(3)(b), which
requires a full disclosure of the nature and the grounds of the defence (or
counterclaim) as well as the material facts upon which they rely, it does not
mean that summary judgment will follow .7 The requirement that , in the
defendant’s affidavit, the nature and the grounds of their defence, and the
material facts relied upon therefor, are to be disclosed ‘fully’, was
4 ABSA Bank Ltd v De Beer 2016 3 SA 432 (GP) at [64].
5 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1
(SCA) at 11G-12D.
6 See Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 425G -426E and Tumileng
Trading CC v National Security and Fire (Pty) Ltd (3670/2019) [2020] ZAWCHC 28 (30 April
2020); 2020 (6) SA 624 (WCC) at para [13].
7 See in this regard Soil Fumigation Services Lowveld CC v Chemfit Technical Products
(Pty) Ltd (680/2002) [2004] ZASCA 31 (31 March 2004); [2004] 2 All SA 366 (SCA); 2004 (6) SA
29 (SCA) at para [10].
discussed in the Breitenbach-matter.8 What is required is that the
defendant’s defence be not set out so baldly, vaguely or laconically that
the Court, with due regard to all the circumstances, receives the
impression that the defendant has, or may have, dishonestly sought to
avoid the dangers inherent in the presentation of a fuller or clearer version
of the defence which they claim to have.9
[8] In SA Taxi Securitisation,10 the Court said the following:
Since the enactment of the NCA, there seems to be a tendency in these Courts
for defendants to make bland allegations that they are “over -indebted” or that
there has been “reckless credit”. These allegations, like any other allegations
made in a defendant’s affidavit opposing summary judgment, should not be
“inherently and seriously unconvincing”, should contain a reasonable amount of
verificatory detail, and should not be “needlessly bald, vague or sketchy”. A bald
allegation that there was “reckless credit” or there is “over -indebtedness” will not
suffice.
Discussion
[9] The answering affidavit sets out the reckless lending defence in sparse
terms. VR simply points out that, when the agreement was concluded, his
monthly gross income was R9 092.62 and his net income was R7 643.34.
The credit report reflected a discretionary income of R4 477.63 (after
deduction of living expenses of R1 423.71 and ITC expenses of R1 753.00
according to the credit report). VR avers that the monthly instalment
represented about 45% of his monthly net income and , according to the
assessment, left him with a calculated surplus of R974.69. VR also
complains in his answering affidavit that Nedbank failed to consider his
practical expenses such as transport and food, his minimum living
8 Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228B/C.
9 Breitenbach at 229A.
10 SA Taxi Securitisation (Pty) Ltd v Molete; SA Taxi Securitisation (Pty) Ltd v Makhoba
(51330/09, 52948/09, 53080/09) [2010] ZAGPJHC 24 (30 March 2010); 2011 (1) SA 310 (GSJ)
expenses and his actual financial commitments.
[10] To this can be added that, when the ITC expenses in respect of clothing
accounts and other credit facilities are added to the monthly instalment, it
raises the 45% ratio to 81%. On th is fact alone I am concerned that
Nedbank may not have properly considered t hat “entering into that credit
agreement would make the consumer overindebted” as it was obliged to
do.
[11] At the hearing VR admitted that he managed to make payments initially but
he pointed out that the moment his circumstances changed (an increase in
rental and his children now living with him) he was unable to make the
payments.
[12] The credit report, with the credit assessment, provides the following
information:
• Gross income declared R9 092.62
• LESS statutory deductions R1 449.28
• Total nett income R7 643.34
• LESS living expenses R1 423.71
• Discretionary income R6 219.63
• LESS total ITC expenses R1 753.00
• Discretionary income R4 466.63
• LESS new MFC payment R3 419.94
• Net surplus R974.69
[13] On the face of it the ‘living expenses’ of R1 423.71 seems very low. The
quantification of this amount is not explained. No regard was had to the
new expenses that would be introduced by the purchase of the vehicle,
such as the costs of insuring the vehicle and fuel charges, when
determining what the net surplus would be. The report also did not include
VR’s then transport costs even though the history of payslips showed that
he had been employed by the same person for some time.
[14] The Income and Expense declaration contained in the application for
finance is equally disappointing. It does not cast light on the quantification
of the ‘living expenses’. It only includes an amount of R1 000 for ‘food and
entertainment’. All other items (save for the clothing accounts) were left
blank. It is inconceivable that the schedule would not reflect the costs
relevant to VR’s accommodation ( the rental he pays ), electricity,
telephone, and maintenance / education costs for the two minor children –
particularly as the schedule allows for these expenses to be filled in .
According to the application VR was living at 6[...] D[...] Street in
Moorreesburg.
[15] The income and expense declaration also recorded another source of
income as being “spousal/child” but gives no further information. The
information obtained and the investigation done appears less than
satisfactory and seems to support VR’s complaint. Nedbank was obliged to
consider “existing financial means, prospects and obligations ” but it does
not appear as if this was properly considered on the little information
provided. It simply records that VR had a net income of R7 643.34 per
month. I cannot see from either document how this was calculated as it
appears from VR’s 15 annexed payslips that he was paid weekly, received
an hourly wage and was, at times, paid overtime.
[16] To the extent that VR’s answering affidavit did not provide more
information on what he disclosed to the credit provider and what he was
asked to disclose when making application for finance, I am able to
exercise my discretion in terms of Subrule (5). The question is whether I
should do so. The defence was properly raised in the plea and confirmed
in the answering affidavit. I have already expressed above my concern
regarding the sparsity of information in the income and expense schedule
and the credit assessment, which appear ex facie these documents. This
is clearly a triable issue and oral evidence will be necessary to determine
whether the credit was recklessly advanced.
[17] I am further persuaded that I should exercise the court’s discretion in
favour of VR because of the principle that in all matters concerning a minor
child, the best interests of that child is paramount. In VR’s answering
affidavit he has recorded that the vehicle is essential for him to earn an
income and that he needs it to meet his family obligations. He expressed
the fear that losing the vehicle would mean losing his employment. At the
hearing it transpired that VR works at an abattoir and drives to work very
early in the morning (around 03h00) when public transport is not available
to him. He is financially responsible for his two minor children, aged 12 and
8, and fearful that he will lose his employment if he no longer has the car
because it has been repossessed.
[18] In light of the above I am of the view that VR has raised a bona fide
defence, good in law, even if not fully explained. I am able to exercise my
discretion in favour of VR and grant him leave to defend the main action as
I do not believe the matter is suited to final relief on motion. VR has
tendered to Nedbank to pay R2 000 per month, which tender he has
increased to R2 500. Should he fail to make these payments, he does so
at his peril because, if the defence ultimately fails, he will owe Nedbank a
substantial amount in damages.
[19] After hearing oral argument I stood the matter down and directed the
parties to engage in settlement discussions – should settlement not be
achieved, I would hand down my judgment. I have, since then, been
furnished with further affidavits from Nedbank’s attorney indicating that the
parties did enter into settlement negotiations and that these did not bear
fruit as VR is only able to afford paying R2 500.00 (instead of R3 441.70)
per month. I was informed that restructuring the agreement had not worked
in the past and that extending the repayment period was not feasible
either. VR also provided me with an affidavit reiterating his defences.
[20] I was informed by my registrar, on 30 July 2026 at 13h36, that she
received an enquiry regarding when this judgment would be delivered. This
surprised me as the judgment was, to the best of my knowledge, delivered
electronically on 26 June 2026. An investigation established that my
registrar had attempted to distribute the judgment electronically on 26 June
2026 but that the emails were going out excluding the scanned copy of the
judgment. My apologies to the parties for the delay.
[21] The order is reflected above.
__________________________
ANDERSSEN J S
Acting Judge of the High Court
Appearances:
For the applicant: Adv N Hammond
Instructed by: Smith Tabata Buchanan Boyes
For the respondent: Mr Van Rooien (in person)