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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025-037934
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 04 September 2026
SIGNATURE:
In the matter between:
CHANGING TIDES 17 (PTY) LTD N.O. Applicant / Plaintiff
and
FANUEL JOHN MOTSEPE Respondent / Defendant
This judgment was prepared and authored by the Judge whose names is reflected herein an d is
handed down electronically by circulation to the parties’ legal representatives by email and by
2
uploading it to the electronic file of this matter on CaseLines. The date and time for this hand -
down is deemed to be 10:00 on 04 September 2026.
JUDGMENT
INTRODUCTION
1. Two applications are before this Court. Although they are separate, they are
linked. The first is an application by the plaintiff for summary judgment in terms
of Uniform Rule 32 for payment of the sum of R2,177,923.39, together with
interest and costs. The second is an application in terms of Uniform Rule 46A
for an order declaring the defendant’s immovable residential property specially
executable, subject to a reserve price. Both applications are opposed. They
were enrolled for hearing on the same day.
2. For the reasons set out below, I am satisfied that the defendant has met the
requirements of Rule 32(3)(b) as he has disclosed a defence which is bona fide,
good in law, and which raises triable issues. The application for summary
judgment must accordingly be refused and the defendant granted leave to
defend. It follows that the application under Rule 46A must stand over.
THE PARTIES
3. The plaintiff is Changing Tides 17 (Pty) Ltd N.O., which sues in its
representative capacity as the duly appointed sole trustee of the South African
3
Home Loans Guarantee Trust (“SAHL Trust”), a trust registered as a credit
provider in terms of the National Credit Act1.
4. The defendant is Mr Fanuel John Motsepe, the registered owner and occupier
of the immovable property described as Erf [...] B[...] N[...] Township,
Registration Division I.R., Province of Gauteng, situated at 7[...] S[...] Avenue,
Bramley North, Johannesburg (“the property”). It is common cause that the
property is the defendant’s primary residence.
THE FACTS
5. The plaintiff’s cause of action arises from a series of interrelated agreements
concluded during September 2009. How these agreements are to be
interpreted, and how they fit together, is central to the dispute between the
parties. The agreements are the following:
5.1. a written loan agreement, under which Blue Banner Securitisation
Vehicle RC1 (Pty) Ltd (“the Lender”) advanced a home loan in the sum
of R1,275,000 to the defendant;
5.2. a written indemnity, under which the defendant indemnified the SAHL
Trust against any loss, cost, claim, expense or liability incurred by it as
a consequence of the defendant’s failure to perform his obligations
under the loan agreement;
1 34 of 2005 (“The NCA”).
4
5.3. a written guarantee, in terms of which the SAHL Trust guaranteed to the
Lender the due and punctual payment of the defendant’s indebtedness,
subject to the terms of a Common Terms Guarantee Agreement (“the
CTGA”); and
5.4. as security for the defendant’s obligations under the indemnity, an
indemnity (mortgage) bond was registered over the property on 24
November 2009 in an amount not exceeding R1,400,000.
6. The plaintiff pleads that, as a result of the defendant’s default:
6.1. the Lender called up the guarantee;
6.2. the SAHL Trust thereby became liable to the Lender; and
6.3. the defendant is, in turn, liable to the SAHL Trust under the indemnity in
the amount claimed.
7. The plaintiff further pleads compliance with section 129(1)(a) of the National
Credit Act, and relies upon a certificate of balance and demand.
THE PLEADINGS AND PROCEDURAL HISTORY
8. On 19 March 2025, the summons was issued and served on 31 March 2025.
9. On 14 May 2025 the defendant delivered a plea:
9.1. In his first special plea, the defendant alleges that the debt was
accelerated by demand on or about 2 November 2018 and has
5
prescribed in terms of section 11(d) read with section 12(1) of the
Prescription Act2.
9.2. The second special plea raises lis alibi pendens in respect of an earlier
action between the parties.
9.3. On the merits, the defendant denies the plaintiff’s allegations, disputes
the plaintiff’s locus standi and pleads non-compliance with Rule 46A.
10. On 4 June 2025, the application for summary judgment was launched. On 10
July 2025, the plaintiff brought the application in terms of Rule 46A and on 22
July 2025, the defendant delivered his affidavit resisting summary judgment.
11. The earlier action, referred to in the defendant’s special plea, was instituted by
the plaintiff under case number 2019/2894 against the defendant on
substantially the same facts. An application for summary judgment in that action
was refused by the Honourable Justice Kumalo (“Kumalo J”), who held that
triable issues existed, including in relation to the HOC premiums and legal costs
debited to the account, which had to be dealt with at trial. That action was
subsequently withdrawn by the plaintiff during July 2024, and thereafter the
present action was instituted.
THE LEGAL FRAMEWORK
2 68 of 1969 (“The Prescription Act”).
6
12. Rule 32(1) of the Uniform Rules of Court, in its amended form, entitles a
plaintiff, after the defendant has delivered a plea, to apply for summary
judgment on a claim that is founded, inter alia, on a liquidated amount in money.
13. In terms of Rule 32(2)(b), the plaintiff must, in its supporting affidavit, verify the
cause of action and the amount claimed, identify any point of law relied upon
and the facts upon which the claim is based, and explain briefly why the
defence as pleaded does not raise any issue for trial. The affidavit must be
made by the plaintiff or by a person who can swear positively to the facts.
14. In terms of Rule 32(3)(b), the defendant may resist the application by satisfying
the court, on affidavit, that he has a bona fide defence to the action. The
affidavit must fully disclose the nature and grounds of the defence and the
material facts relied on.
15. The nature of the remedy is settled. Although for many years described as
extraordinary and stringent, the Supreme Court of Appeal in Joob Joob
Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 3 cautioned against
such labels, holding (at paragraph [32]):
“The rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a triable issue or
a sustainable defence of her/his day in court. … Having regard to its
purpose and its proper application, summary judgment proceedings
only hold terrors and are ‘drastic’ for a defendant who has no defence.”
3 2009 (5) SA 1 (SCA).
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16. The leading authority remains Maharaj v Barclays National Bank Ltd 4, in which
Corbett JA5 formulated a two-part enquiry:
16.1. whether the defendant has “ fully” disclosed the nature and grounds of
his defence and the material facts upon which it is founded; and
16.2. whether, on the facts so disclosed, the defence is both bona fide and
good in law.
17. The defendant is not required to formulate his opposition with the precision of a
plea (although, since the amendment of Rule 32, the application follows delivery
of a plea), nor to persuade the court of the ultimate correctness of his defence;
it suffices that the defence is not inherently or seriously unconvincing and that it
carries a reasonable possibility of success at trial. A court satisfied that this
threshold has been crossed is bound to refuse summary judgment.
18. There are three further principles, relevant to this application, which I deal with
below.
The deponent must swear positively to the facts
19. The supporting affidavit must be deposed to by a person who can swear
positively to the facts. The standard is set out in Maharaj v Barclays National
Bank Ltd6:
4 1976 (1) SA 418 (A).
5 At 425G–426E.
6 1976 (1) SA 418 (A) at 423.
8
19.1. Where the plaintiff is a corporate entity, first -hand knowledge by the
deponent of every fact comprising the cause of action is not required;
19.2. It suffices that, having regard to the office the deponent holds and his or
her access to the plaintiff’s books and records, the deponent is able to
swear positively to the facts. Undue formality is to be avoided.
20. That approach was reaffirmed by the Supreme Court of Appeal in Rees v
Investec Bank Ltd 7, where knowledge derived from an institution’s records
under the deponent’s control was held sufficient.
21. The plaintiff submits, correctly as a matter of principle, that a defendant may not
raise in its affidavit a defence that is not pleaded in its plea, and that the res
judicata, HOC -premium and legal -costs contentions are impermissible new
matter that should be disregarded ( AHMR Hospitality ). The special pleas of
prescription and lis pendens were pleaded, and the prescription defence,
including its dependence on the interpretation of the interrelated agreements , is
an elaboration of a pleaded defence rather than a new one.
The claim must be for a liquidated amount in money
22. A claim only qualifies under Rule 32(1)(b) where it is for an amount that is either
agreed upon or capable of speedy and prompt ascertainment. An untaxed bill of
costs, and an account comprising items which the defendant contends have
been wrongly debited, have been held not to constitute liquidated amounts. In
7 2014 (4) SA 220 (SCA) at paras 14 - 15.
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determining the question the court does not limit itself to the summons , the
defence disclosed in the defendant’s opposing affidavit must also be taken into
account.
The defendant is, in general, confined to the defence pleaded
23. Since the plaintiff’s affidavit is directed at explaining why the defence as
pleaded does not raise an issue for trial, the defendant is, in the ordinary
course, held to the version advanced in his plea. He may elaborate on a
pleaded defence in his affidavit, but he may not raise, for the first time in the
affidavit, a defence which has no foothold in the plea, nor advance a version
inconsistent with the plea without a reasonable explanation. The full court in
AHMR Hospitality (Pty) Ltd t/a Bakenhof Winelands Venue v Da Silva8, held:
“[I]t would thus be the natural course of progression for a defendant, in
the face of a summary judgment application, to expand upon the
defence or defences so raised in its plea - in its affidavit. But the cart
cannot be put before the horse. In other words … a defendant cannot
for the first time raise defences in its affidavit opposing summary
judgment, where no such defences exist in its plea.”
24. The full court further cautioned that a court “ is not there to speculate on how
litigants intend to prosecute their case ,” and is “ confined to what is before
them”.9 The mere possibility that a defendant might amend its plea will not save
an affidavit that introduces impermissible new matter. Genuinely new matter
must therefore be left out of account. That position is to be distinguished from
8 2024 (3) SA 100 (WCC) at paragraph [14].
9 At paragraph [16].
10
the case of a defendant who has pleaded a substantive defence but has not
pleaded over fully upon the merits, where the appropriate course may be a
postponement to permit amendment and the exchange of supplementary
affidavits, rather than the grant of final relief10.
APPLICATION OF THE LAW TO THE FACTS
The matters not persisted in
25. The special plea of lis alibi pendens does not assist the defendant as the 2019
action has been formally withdrawn and the defendant accepts that to be so.
26. The challenge to the plaintiff’s locus standi , based on the contention that the
SAHL Trust, having paid nothing to the Lender, suffered no loss, is no longer
pursued. The indemnity was framed as a separate and independent primary
obligation.
27. Neither of the above two defences, if taken alone, would have precluded the
grant of summary judgment.
Prescription and the construction of the security
28. The plaintiff contends that the indebtedness, being secured by a mortgage
bond, prescribes only upon the expiry of thirty years in terms of section 11(a)(i)
of the Prescription Act. The defendant’s first special plea, by contrast, expressly
invokes section 11(d) of the Prescription Act, the three -year period, pleading
10 Absa Bank Ltd v Meiring 2022 (3) SA 449 (WCC) and Belrex 95 CC v Barday 2021 (3) SA 178
(WCC).
11
that the debt was accelerated during November 2018 and prescribed in
consequence. The defendant’s answer to the plaintiff’s reliance on the
mortgage bond is, in essence, one of interpretation. The defendant contends
that, on a proper reading of the guarantee and the CTGA:
28.1. the indemnity bond secures the indemnity and not the loan;
28.2. the indemnity and the bond become enforceable only once the Lender
has called up the guarantee and the SAHL Trust has assigned its rights
to the Lender; and
28.3. the right to call up the guarantee is an ordinary personal right which
prescribes within three years.
29. On the defendant’s construction, since the underlying loan debt had prescribed,
the guarantee could not thereafter be called up so as to trigger the indemnity or
the bond. He relies, inter alia, on Kilburn v Estate Kilburn 11 and Fourlamel (Pty)
Ltd v Maddison12.
30. Whatever its ultimate merits, this raises a serious question of contractual
interpretation, given the interdependence of the loan, the indemnity, the
guarantee, the CTGA and the bond. The defendant’s contention cannot be said
to be mala fide, nor bad in law, nor inherently or seriously unconvincing.
11 1931 AD 501.
12 1977 (1) SA 333 (A).
12
31. It is precisely the kind of question that ought to be determined after evidence
has been presented at trial, and not on affidavit. It constitutes a triable issue.
This defence is raised in the plea: the special plea expressly pleads prescription
under section 11(d) of the Prescription Act, and the construction advanced in
the affidavit is an elaboration of this defence and does not amount to new
matter as contemplated in AHMR Hospitality.
Res judicata and issue estoppel
32. The defendant further contends that the matter is res judicata, alternatively that
issue estoppel operates, because summary judgment was refused by Kumalo J
in the 2019 action and the plaintiff’s subsequent withdrawal and re -institution of
the action on substantially the same papers. This contention was, however,
advanced for the first time in the affidavit resisting summary judgment and was
not pleaded. Therefore, on the principle set out in AHMR Hospitality , it is
impermissible new matter which must be left out of account, and I do not rely on
it.
The quantum and the question of liquidity
33. The defendant disputes the Home Owner’s Cover (“HOC”) premiums and the
legal costs debited to his account, contending that the costs have not been
agreed or taxed, and cannot be taken into account and that absent the HOC
premiums and legal costs, he may not be in arrears at all. Insofar as that
dispute is itemised only in the affidavit, the plaintiff is correct that a bald denial
of indebtedness in a plea does not, of itself, raise a triable issue (NPGS
13
Protection and Security Services CC v FirstRand Bank Ltd 13). The portions of
the affidavit resisting summary judgment which are unsupported by the plea
must be approached with caution.
34. That, however, does not conclude the enquiry. Whether the claim is for a
liquidated amount in money within the meaning of Rule 32(1)(b) is a
jurisdictional precondition to the remedy, and the court must satisfy itself that it
is met. In determining whether the amount is a liquidated amount in money, the
court has regard to the summons and to the defence disclosed in the opposing
affidavit. An account incorporating untaxed legal costs and disputed HOC
premiums is not capable of speedy and prompt ascertainment.
35. The plaintiff’s papers complicate this exercise further, reflecting materially
different amounts at different dates:
35.1. R1,917,895.08, as at 23 September 2024, in the letter sent in terms of
section 129 of the National Credit Act;
35.2. R2,064,917.17, as at 29 November 2024, in the particulars of claim
(paragraph 11);
35.3. R2,177,923.39, as at 29 November 2024, in the particulars of claim
(paragraph 12);
13 2020 (1) SA 494 (SCA).
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35.4. The difference between the amounts mentioned in paragraphs 11
(arrears) and 12 (amount due owing and payable) of the particulars of
claim is not clear from the papers and not easily ascertainable.
35.5. R2,334,536.64, as at June 2025 in the replying affidavit to the Rule 46A
application;
35.6. R2,177,923.39 claimed in the application for summary judgment.
36. While a certificate of balance may, in an appropriate case, constitute prima facie
proof of an amount claimed, it cannot convert a genuinely unliquidated amount
into a liquidated one.
The challenge to the deponent’s knowledge
37. The defendant has also challenged the deponent’s lack of personal knowledge
of the salient facts. The allegation is without merit. The deponent, Ms Maraj, is
the manager of the litigation department of SAHL, the entity which originated
and administers the loan on behalf of the Lender and which administers the
affairs of the SAHL Trust. Ms Maraj states that she has under her control, and
access to, all files, records and computer data pertaining to the defendant’s
mortgage loan account, and that her knowledg e of the facts derives either
personally or from that access. Measured against Maharaj and Rees, that is
precisely the office and means of knowledge which entitle the deponent for a
corporate creditor to swear positively to the facts. The defendant, for his part,
advances a bare assertion as he identifies no particular averment shown to lie
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beyond the deponent’s means of knowledge, and each of the underlying
transactions is in any event evidenced by the written instruments annexed to
the papers. Insofar as the objection relies on the stricter approach in Le Roux14
that approach must, for the reasons given in paragraph 16 above, yield to the
authority of the Supreme Court of Appeal. Insofar as the true target is the
deponent’s authority rather than her knowledge, the answer lies in Ganes and
Another v Telecom Namibia Ltd15, where it was held that it is the authority of the
attorney to institute the proceedings that is relevant, and the remedy of a
defendant wishing to challenge it is a notice in terms of Rule 7(1), which was
never delivered. This point in limine therefore fails.
The new matter and its consequences
38. I accept the plaintiff’s submission, founded upon AHMR Hospitality , that a
defendant may not raise in his affidavit a defence not pleaded in his plea, and
that the contentions of res judicata , and the itemised dispute concerning the
HOC premiums and legal costs, insofar as they were not pleaded, are new
matter to be left out of account. Even when fully accepted, that submission does
not assist the plaintiff. The special plea of prescription was pleaded, and the
defendant’s reliance upon the construction of the security is an elaboration of
that pleaded defence and not a new one. AHMR Hospitality itself acknowledges
that it is natural for a defendant to expand in his affidavit on a defence already
raised in his plea . What is not permitted is the introduction of an entirely new,
14 2014 (1) SA 475 (WCC).
15 2004 (3) SA 615 (SCA) at 624I - 625A.
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unpleaded defence. The pleaded defence of prescription accordingly survives,
and it alone requires the refusal of summary judgment.
39. The plaintiff submits, correctly as a matter of principle, that a defendant may not
raise in its affidavit a defence that is not pleaded in its plea, and that the res
judicata, HOC -premium and legal -costs contentions are impermissible new
matter that should be disregarded ( AHMR Hospitality ). The special pleas of
prescription and lis pendens were pleaded, and the prescription defence,
including its dependence on the construction of the security, is an elaboration of
a pleaded defence rather than a new one.
A further point: the affidavit in support of summary judgment has not
been commissioned by a commissioner of oaths
40. Upon reading the papers it became apparent that the affidavit in support of the
application for summary judgment was commissioned by a Candidate Legal
Practitioner, one Lindile Prince Shem. Mr Shem, expressly describes himself on
his stamp as a “Candidate Legal Practitioner”. A candidate legal practitioner is
not, by virtue of that status, an ex officio commissioner of oaths. The stamp
further records “Commissioner of Oaths (RSA)” and bears the reference
“10/2/9/1”; the latter appears to be a Department of Justice reference
associated with appointments of commissioners of oaths.
41. The stamp itself does not establish when, where or in terms of what instrument
Ms Shem was appointed as a commissioner of oaths, nor the territorial extent or
continued validity of any such appointment.
17
42. In the circumstances, and insofar as reliance is placed upon an individual
appointment under section 5 of the Justices of the Peace and Commissioners of
Oaths Act, 16 proof of that appointment is required. His status as a candidate
legal practitioner, standing alone, affords no authority to administer an oath. The
Justices of the Peace and Commissioners of Oaths Act as well as its
Regulations, prescribe which people in what offices may be designated
commissioner of oaths as well as the powers assigned to these commissioners
of oaths.
THE APPLICATION IN TERMS OF RULE 46A
43. Rule 46A governs execution against residential immovable property which is the
primary residence of a judgment debtor. The constitutional jurisprudence, Jaftha
v Schoeman; Van Rooyen v Stoltz 17, Gundwana v Steko Development 18 and
Absa Bank Ltd v Mokebe 19 requires a court, before authorising such execution,
to have regard to all relevant circumstances, to consider whether there is any
less drastic means of satisfying the debt, and, where execution is warranted, to
fix a reserve price.
44. It is an essential requirement of relief under Rule 46A that there be a judgment
debt. Summary judgment having been refused, and no money judgment having
yet been granted, the application to declare the property specially executable is
premature. It cannot be entertained now and must stand over for decision, if still
16 16 of 1963.
17 2005 (2) SA 140 (CC).
18 2011 (3) SA 608 (CC).
19 2018 (6) SA 492 (GJ).
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necessary, once the action is concluded. I make no finding on the disputed
valuations or the proposed reserve price of R1,109,468.13, both of which
remain in issue. I further make no finding on the defendant’s contention that a
sale at approximately one -third of the property’s market value could not be
justified, or on his challenge to the deponent’s averments. These are matters to
be determined in due course.
COSTS
45. Costs ordinarily follow the result, and the defendant has succeeded in resisting
summary judgment. The established approach, however, is that the costs of an
unsuccessful application for summary judgment are best treated as costs in the
cause as the application is only a step in the action, and the costs are then
ultimately borne by the party who fails at the trial. Exercising my discretion, and
because the issues raised will be determined at the trial, I consider it just that
the costs of the application f or summary judgment be costs in the cause, and
that the costs of the application in terms of Rule 46A, which stands over, be
reserved.
CONCLUSION
46. The summary judgment cannot be granted and must be refused. The
application in terms of Rule 46A is postponed sine die and the defendant is
granted leave to defend the action. A concise summary of the grounds for this
finding follows.
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47. The following defences are without merit:
47.1. The defence of lis pendens is without merit as the 2019 action was
withdrawn;
47.2. The plaintiff’s lack of locus standi was abandoned by the defendant in
his own affidavit;
47.3. the bare denial of indebtedness cannot stand in the light of NPGS;
47.4. the challenge to the deponent’s personal knowledge fails on Maharaj
and Rees;
47.5. the authority to institute proceedings fails on Ganes absent a Rule 7
notice; and
47.6. res judicata, as an independent defence, was never pleaded and cannot
be raised after the fact.
48. The following defences, however, are such that summary judgment must be
refused and the defendant be granted leave to defend:
The first reason, the defendant’s special plea of prescription
48.1. The first reason is the defendant’s special plea of prescription, which
turns on a genuine question of interpretation of the interlinked
agreements. The plaintiff’s answer to prescription is that section 11(a)(i)
of the Prescription Act provides that a debt secured by a mortgage bond
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prescribes in thirty years. However, the defendant’s interpretation of the
interlinked agreements and their manner of execution is that:
48.1.1. The indemnity bond secures his obligations under the
indemnity, not the loan;
48.1.2. The indemnity only becomes actionable once the Lender calls
up the guarantee;
48.1.3. The right to call up the guarantee is an ordinary personal right
prescribing in three years; and
48.1.4. Once the loan debt prescribed in 2022, the whole transaction
‘chain’, guarantee, assignment, indemnity, bond , became
unenforceable on the accessory principles in Kilburn. The
argument engages the actual wording of clauses 4.1, 4.5 and 5
of the guarantee.
48.2. Summary judgment does not require a decision on which interpretation
is correct; it requires only that the defence be bona fide and arguable in
law. An arguable point of interpretation on which the entire claim stands
or falls is a triable issue, and since the defendant in fact pleaded
prescription as a special plea, this defence has a proper foothold in the
plea and the plaintiff’s ‘new-matter’ objection cannot succeed.
48.3. Under Maharaj and Joob Joob, with any doubt resolved in favour of a
trial, this alone justifies refusal.
21
The second reason is quantum and liquidity
49. The account includes HOC premiums and legal costs that were neither agreed
nor taxed. The defendant contends that, absent these amounts, he may not be
in arrears at all. The plaintiff’s own papers show materially different figures at
different dates, for example:
49.1. R2,064,917.17 in the particulars of claim;
49.2. R2,334,536.64 in the Rule 46A founding affidavit; and
49.3. R2,177,923.39 as claimed.
50. A certificate of balance is prima facie proof, however it cannot make a genuinely
contested account speedily ascertainable. The liquidity requirement is
jurisdictional, and as such does not depend on whether the defendant pleaded
the point perfectly.
The third reason is Kumalo J’s judgment
51. The third reason is Kumalo J’s judgment in the 2019 action. Kumalo J held that
the HOC premium and costs dispute “ cannot be dealt with adequately in
summary judgment proceedings and requires proper ventilation in another
forum like a trial .” The plaintiff then withdrew that action and re -issued on the
same papers. The same issue remains, and the Court’s earlier finding remains
relevant. The dispute is still triable.
ORDER
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52. In the premises, the following order is made:
1. The application for summary judgment is refused.
2. The defendant is granted leave to defend the action.
3. The application in terms of Rule 46A is postponed sine die.
4. The costs of the application for summary judgment shall be costs in the
cause.
5. The costs of the application in terms of Rule 46A are reserved.
___________________________
SOPHIA MARITZ
Acting Judge of the High Court
Gauteng Division, Pretoria
APPEARANCES
For the applicant/plaintiff: Adv P I Oosthuizen
Instructed by: Velile Tinto & Associates Inc (ref S7824)
For the respondent/defendant: Adv K Meyer
Date of judgment: 03 September 2026
Electronically delivered