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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No:728/2025
In the matter between:
HIGH YIELD TRADERS (PTY) LTD Applicant
And
ANDRE SPORT AND MINING
SUPPLIERS (PTY) LTD First Respondent
WILLEM BOTHA Second Respondent
Coram: MNYOVU AJ
Date reserved: 14 May 2026
Delivered: This judgment is handed down electronically by circulation to the
parties through their legal representatives’ email addresses. The date for the
hand-down is deemed to be 17 September 2026.
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ORDER
i. The application for summary judgement is dismissed.
ii. The applicant shall pay the Respondent’s costs on attorney and own
client scale B.
JUDGMENT
Introduction
[l] In this matter the applicant brought an application for summary judgement
against the respondents in respect of loan repayment agreement against the first
respondent, as a principal debtor, and second respondent, the surety. T he first
respondent fell into arrears, despite several demands, the second respondent
failed to perform his surety obligations under the suretyship.
Brief relevant factual background
[2] The applicant, entered into a written loan repayment agreement with the
first respondent, at all relevant times represented by the second respondent, in
his capacity as the first respondent’s sole director on or about 14 February 2017,
the initial capital amount loaned was R326 245.93 (three hundred and twenty -
six thousand two hundred and forty-five rand and ninety-three cents).
[3] The loan was secured by a suretyship agreement between the applicant and
the second respondent, the loan was to be paid back within 36 (thirty-six months
as from 01 October 2016, being R5 000.00 per month, including interest at a rate
of 2 % per month.
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[4] On 19 February 2025, a summons was issued by the applicant against the
first and second respondents, emanating from a breach of a loan repayment
agreement after the first respondent fell into arrears and second respondent failed
to fulfil the surety obligations.
[5] A notice of intention to defend was filed on 28 February 202 5, followed
by five special pleas, the applicant filed an application for summary judgement
on 15 April 2025, the respondents filed their affidavit resisting summary
judgement on 01 December 2025.
[6] The defences set out in the respondent’s affidavit were mainly that: (a) the
applicant’s claim has prescribed, (b) the excussion of the first respondent, (c) the
in duplum interest.
Issues for Determination
[7] Against this background, this application turns on the following issues:
7.1 whether the applicant ’s claim has prescribed in terms of s11 of
Prescription Act 68 of 1969,
7.2 whether the second respondent is entitled to the benefit of excussion
and division of first respondent and the application against the second
respondent is premature,
7.3 whether the application of in duplum interest to the quantum is
incorrect.
7.4 last but not least, whether the respondents demonstrated a bona fide
defence.
The applicant’s case
[8] The applicant’s contention is that the respondents have failed to disclose a
bona fide defence or raise any triable issues in their special pleas to meet the
requirements of Rule 32 (3) (b) of the Uniform Rules of Court.
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[9] The applicant’s counsel submitted that in this application he relies on the
principles established in Joob v Joob Investment (Pty) Ltd v Stocks Mavundla Zek
Joint Venture 1 where the Supreme Court of Appeal held that the summary
judgement procedure is not intended to unjustify prevent a defendant from
defending a claim unless it is clear that the defendant has no valid case.
[10] The applicant further argued that the respondent’s affidavit opposing the
summary judgement contains bare denials and fails to disclose essential material
facts, in support of this argument the applicant pointed out that this is supported
by Maharaj Barclays National Bank Ltd 2where the court held that the remedy
of summary judgement is granted where the plaintiff/applicant is unimpeachable,
and the defendant/respondent’s defence is bogus or bad in law.
Prescription
[11] The applicant asserts that their primary case on prescription is
straightforward in that, the last payment received from the respondent was R5
000.00 on 01 March 2022 interrupted prescription under section 14(1) of the
Prescription Act 68 of 1969, therefore prescription accordingly ran afresh from 1
March 2022 and expired 28 February 2025, proof is annexure “SJ1” this annexure
was noted in the particulars of claim as annexure “POC 8”.
[12] The applicant contends that the respondent’s contention that the last
payment received by the applicant was on 30 September 2021 is a bare denial, as
it is clearly seen and legible on “SJ1” and “POC 8” annexure, without counter-
evidence, their defence is unsupported by any factual basis and does not
constitute a bona fide defence.
1 [2009] ZASCA 23, 2009 (5) SA 1 (SCA); [2009] 3 All SA 407 (SCA) at paras 31 -32.
2 [1976] 2 All SA 121 (A).
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[13] Applicant’s further contends on 22 January 2025 an email sent to the
second respondent in which the second respondent acknowledged the existence
of the loan, without any dispute and undertook to recommence payments
constitute an express acknowledgement of liability by the respondents , this was
annexed on “POC9”, therefore, the running of the prescription was further
interrupted on 22 January 2025 before summons were served to the respondents
on 19 February 2025. The respondents defence on prescription is a bare denial
and bad in law.
Excussion of the first respondent
[14] Counsel for the applicant submits that the defence of excussion of the first
respondent cannot be sustainable because suretyship remains valid and
enforceable where the first respondent could not fulfil its obligations to make
repayments, the second respondent is b ound to perform in full, at all times the
second respondent had the first respondent’s benefit of excussion and division.
[15] Counsel for the applicant argued that because of the suretyship t he
excussion was automatically applicable , and was not excluded from the loan
repayment agreement, the second respondent has not pleaded any factual or legal
basis for his bare denial, no evidence was provided in his resisting affidavit to
sustain such excussion , the counsel for applicant further argued that excussion
was always available when the summons were served on 19 February 2025 the
second respondent does not have any bona fide defence on excussion.
In duplum
[16] The applicant’s contention is that the amount of R561 143.00 constitutes
the true principal debt owed by the respondents, made out from the outstanding
balance as R326 245.93 in Capital and R234 897.07 in Contractual Interest. The
agreed combined amount of R561 143.00 was expressly agreed as the amount to
be repaid , which is the reason they deviated from the initial claim of R1
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815670,02 to R1 122 286 which they further reduced to R 652 491.86 was for the
purpose of this application.
[17] Counsel argued that the respondent’s reliance on the amount reduced to
R1 122 286.00 for purposes of this application to pursue its defence is not a valid
defence as none of the defences were raised by the respondents on the total
amount of arrear interest which has accrued to outstanding principal debt as it
was agreed between the parties, as in any event, the in duplum limits the quantum,
which is the reason that, in the alternative, in this application the applicant claims
R652 491.86 as there are no triable issues warranting referral to trial on in
duplum rule.
The respondent’s case
[18] The respondents contend that all the three defences raised in their special
pleas and opposing affidavit are triable issues that requires to be ventilated in an
open court, to determine the applicant’s claim, the defences are valid and not bad
in law.
[19] In its resisting affidavit on summary judgement, t he respondents argued
that applicants claim prescribed on 31 August 2024 not 28 February 2025 in
terms of section 11 of the Prescription Act 68 of 1968, 3 more than three years
after claim lapsed.
[20] The respondents deny that payment of R5 000.00 was made to the
applicant on 1 March 2022, which payment could have cause the prescription to
run afresh, and deny that the correspondences sent by the applicant to the second
respondent to which respondent responded to on 22 January 2025 constituted
acknowledgement of liability have also interrupted prescription.
3 (d) save where an Act of Parliament provides otherwise, three years in respect of any other debt.
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[21] The respondents submitted that the last payment made to the applicant
according to annexure “SJ1” was made on 1 September 2021,which is the period
prescription run afresh and such prescription was not interrupted until the debt
became prescribed on 31 August 2024, the sporadic payments prepared by the
applicant on annexure “POC8” which are illegible document, do not show the
exact payment s, dates when and how those payments were made by the first
respondent to the applicant, the cause of action arose from the summons.
[22] The applicant’s debt was long extinguished by prescription on 31 August
2024, the applicant’s debt cannot be revived by acknowledgement on the 22
January 2025, when its period of prescription had run its full course and could no
longer be interrupted or extended by agreement, unless the acknowledgement
amounted to a new undertaking, which was never there , applicant’s claim is
premised on the prescribed loan repayment agreement and not on any new
undertaking to make payment by the respondents.
[23] In support of its argument counsel for the respondent relied also on s14(1)
of the Prescription Act, 68 of 1969 where it is stated that after the prescription
has run its course, as there is no running prescription to be interrupted, basically
applicant’s claim had long run its course by 31 August 2024, it cannot be
interrupted on the 22 January 2025. my emphasis
[24] In support of its argument the respondents pointed out t o various legal
authorities in which they relied upon with the issue of prescription Loubser,
Extinctive Prescription 2nd ed, p1 8, Vilakazi v National Employer’s General
Insurance Co Ltd 1985 (4) SA 251 ( C) where it was held that an
acknowledgement of liability after expiry of the prescription period can also not
constitute interruption of that period.
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[25] Based on excussion of the first respondent, the second respondent contends
that in relation to suretyship, he relies on the benefit of excussion and division,
because in the loan agreement he did not bind himself personally as co-principal
debtor for the f irst respondent’s indebtedness towards the applicant, he did not
waive or renounce the benefits of excussion and division, he is entitled to demand
excussion of the first respondent as a surety before he can be held liable towards
the applicant, the suretyship.
[26] The respondents contend that at the time the applicant served the summons
to the first respondent on 19 February 2025, the applicant’s claim had already on
31 August 2024 and first respondent was deregistered on 21 January 2024 and
reinstated on 13 May 2025 , if the trial court finds the applicant’s claim to have
prescribed, the claim against the surety would have prescribed, and the first
respondent cannot be held liable as co -surety before excussion of the first
respondent has taken place, it is the second respondent’s right as surety to raise
the benefit of excussion in trial court, in his defence, which is the reason the court
should refer this matter for trial, as this is a triable.
[27] With regard to in duplum interest, the respondents contend that applicant’s
claim for capital and accrued interest totalling to R1 815 670.02 which has now
been reduced for purposes of this summary judgement application is in
contravention of the in duplum rule, the arrear interest exceeded the amount of
capital it was agreed upon.
[28] The respondent submitted to this court their defence does have merit in this
application and is bona fide applicant is not entitled to the summary judgement,
this issue is triable to determine the exact amount the first respondent is owing
should the applicant’s claim be found not to have become prescribed.
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Applicable Law
[29] Rule 32 (3) (b) - states that:
‘The defendant may satisfy the court by affidavit (which shall be delivered five days before the
day on which the application is to be heard) or with the leave of the court by oral evidence of
such defendant or of any other person who can swear positively t o the fact that the defendant
has a bona fide defence to the action, such affidavit of evidence shall disclose fully the nature
and grounds of the defence and the material facts relied upon thereof.’
[30] In terms of Rule 32 of the Uniform Rules of Court. Summary judgements
may be applied for claims only - (a) on a liquid document; ( b) for a liquidated
amount in money; ( c) for delivery of specified movable property; ( d) for
ejectment; together with any claim for interest and costs.
[31] The primary purpose of summary judgement is to provide a mechanism
for the expeditious resolution of cases where the plaintiff’s claim is unanswerable
and where the defendant does not hav e a bona fide defence. It is designed to
prevent unnecessary delays in litigation and avoid the costs associated with a full
trial when there is no genuine dispute of fact. Summary judgement is considered
an exceptional remedy and should be granted only in clear cases where th e
plaintiff’s claim unassailable and the defendant’s defence is manifestly without
merit.
[32] A plaintiff may apply for summary judgement after the defendant has
delivered the plea, and file an affidavit verifying the cause of action and stating
that, in their belief, the defendant has no bona fide defence and has entered an
appearance to defend solely for the purposes of delay.
[33] To resist the summary judgement, the defendant must satisfy the court that
they have a bona fide defence to the plaintiff’s claim.
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[34] The rationale for summary judgement is to prevent recalcitrant debtors
from delaying payments where no genuine defence exists, a defendant opposing
the summary judgement must fully disclose the nature and grounds of the defence
and the material facts relied upon, 4 bare denials do not constitute a bona fide
defence,5 this requires the defendant to:
(a) disclose fully the nature and grounds of the defence;
(b) provide material facts upon which the defence is based.
(c) show that the defence is bona fide and raises triable issues.
[35] The onus is on the plaintiff to establish that the defendant has no bona fide
defence and the claim is unanswerable, however, once the plaintiff has made out
a case a prima facie case, the onus shifts to the defendant to show that there is a
genuine issue for trial.
[36] The court has a discretion in granting or refusing summary judgement.
Even if the defendant’s affidavit does not fully meet the requirements of Rule 32,
the court may still refuse summary judgement if it is satisfied that there a
reasonable possibility tha t the defendant has a defence that should be heard at
trial.
[37] The court must guard against the abuse of the summary judgement
procedure, the procedure is not intended to depr ive a defendant of their
constitutional right to a fair trial but rather to prevent frivolous or vexatious
defences that serve only to delay the resolution of the matter,
4 Uniform rule 32(3) (b); Nedbank Ltd v Richardson [2022] ZAECGHC 96 at para 19.
5 Absa Bank Ltd v Peacock & Another [2020] ZAWCHC 154.
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[38] Section 34 of the Constitution of the Republic of South Africa 1996, 6
guarantees the right of access to the courts. The court must ensure that the
summary judgement procedure does not infringe upon the defendant’s
constitutional right to access the courts and to a fair trial as enshrined in s34.
Analysis
[39] The crux of this summary judgement is centred around three issues being
the defences raised by the respondent to the applicant’s claim , the first is the
significance of prescription, the second issue is benefit of the excussion and the
third issue is the in duplum interest owing by the debtor.
[40] It is common law in South Africa that most consumer debts prescribe after
three years, section 11 of the Prescription Act 68 of 1969 specifies the exact time
period after which different types of debts are extinguished, in this current matter
the is an ordinary debt in a form of contract, a loan agreement between the
applicant and first respondent, and second respondent being the surety.
[41] The applicant’s claim prescribed on 30 September 2019, applicant ’s
illegible document annexed as ‘POC8’ in particulars of claim and ‘SJ1’ in its
application is not clear enough to read, it is not a legible print for this court to
make out the letters and words, it is faded to the point where this court cannot be
able to read it, the applicant cannot use the illegible document as proof of
payment, knowing well that the onus is on them to establish that the respondent
have no bona fide defence. I am of the view that the applicants should have
submitted proper bank statements obtainable from the bank to prove prescription
claim.
6 Section 34 of the Constitution provides that’[e]veryone has the right to have any dispute that can be resolved
by the application of law decided in a fair public hearing before a court or, where appropriate, another independent
and impartial tribunal or forum.
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[42] The onus shifts to the respondent to show that there is a genuine issue for
trial, the respondent’s argument that last payment was made to the applicant on
1 September 2021 and applicants claim has prescribed on 31 August 2024 is also
not supported by sufficient evidence but by the “SJI” submitted by the applicant,
the ‘SJ1’ is the concrete proof to substantiate their defence as well. I am not
satisfied with the annexure ‘POC8’ in which the applicant relied on sporadic
payments, I cannot penalise the respondent based on illegible documents, I am
satisfied that there is a reasonable possibility that the respondent has a defence
that should be heard at trial.
[43] Suretyship is accessory in nature and remains binding until the principal
debtor is discharged.7 It is trite that where the principal debtor is in default , the
creditor may call on the surety for performance, subject to the surety’s right to
raise the benefit of excursion.
[44] I am of the view that the second respondent had the right to raise the benefit
of excussion as his defence, where there is a specific performance to be made on
under suretyship and the applicant should have called the second respondent prior
to issuing the summons to perform his surety obligations and enquire on the
benefit of excussion and division, not to speculate as they did in this application.
[45] The second respondent ’s argument that the reinstatement of the first
respondent had a complete and automatic retrospective effect now, at the time of
deregistration it had not effect on the second respondent’s defence on excussion,
is a valid defence, a material fact which is capable of being sustained at trial.
[46] Same as it applies to the in duplum interest, the applicant does not know
the exact amount is the respondent indebted to it, the applicant could not verify
7 Liberty Group Ltd v Illman [2020] ZASCA 38 2020 (5) SA 397 (SCA).
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the exact amount claimed, this is also a material fact that requires to be ventilated
and be heard in trial. There are two different amounts claimed by the applicant
from the summons, tripling the capital amount into R1 815 670.02 and reducing
the amount to R 1 122 286.00 or alternatively R652 491.86 in their founding
affidavit, this material fact upon which the respondent’s defence is based requires
to be ventilated, calculated at trial, and for settlement.
[47] Summary judgement proceedings are not intended to be a trial by affidavit8
the court is not required to determine the merits of the case or resolve factual
disputes at this stage, instead the court must assess whether the defendant’s
affidavit simply disclose a defence that is bona fide and raises a triable issue.
[48] Having considered the evidence before me, the respondents have a
constitutional right to a fair trial, respondents have defences that should be heard
at trial.
[49] A bona fide defence is one that is genuinely advanced and is not merely a
delaying tactic, I am of the view that respondents met the requirements of Rule
32 (2) (b) by fully disclosing the nature and grounds of their defences to support
their claims, I found the defences raised very relevant in law, with the validity of
suretyship, the applicant have an answerable claim especially on prescription, in
duplum and excussion.
Costs
[50] The general rule in matters of costs is that the successful party should be
given costs. In determining who the successful party is, the court looks to the
substance and not the form of the judgement.
8 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A);
Conclusion
[ 51] I find that the applicant did not make out a prima facie case for summary
judgement, this application stands to be dismissed, respondent 's defence are bona
fide and good in law.
Order
[52] In the result, I make the following order:
1. The application for summary judgement is dismissed.
ii. The applicant shall pay the Respondent 's costs on attorney and own
client scale B.
For the Applicant
Instructed by
For the respondents:
Instructed by:
B.F.MNYOVU
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Adv. Alex Ellis
Chambers Attorneys INC, Potchefstroom
Clo CJP Oelofse Attorneys, Mahikeng
Adv. R GRUNDLINGH
Scheepers & Aucamp Attorneys
Potchefstroom
Clo LFS Attorneys, Mahikeng
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