Firstrand Bank t/a First National Bank v Letlotlo Enterprise (Pty) Ltd and Another (2426/22) [2025] ZANWHC 145 (29 April 2025)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

Case No: 2426/22

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

FIRSTRAND BANK LTD T/A

PLAINTIFF/APPLICANT

FIRST NATIONAL BANK

and

LETLOTLO ENTERPRISE

FIRST DEFENDANT/ RESPONDENT

(PTY) LTD

MOFAT TSIETSI MOYO

SECOND DEFENDANT/ RESPONDENT

CORAM: MAODI AJ

Date judgment reserved: 21 February 2025

The judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 29 April 2025 at 10H00am.

ORDER

1. Summary judgment is granted against the first and second defendants, jointly and severally the one paying the other to be absolved, for payment of the sum of R 375 117, 54.

2. Interest on the said sum at the rate of 19,50% (prime plus 10,50%) per annum, calculated and capitalised monthly from 1st September 2022 to date of payment.

3. The overdraft facility is cancelled.

4. Costs to the plaintiff on Magistrates’ Court Scale as between attorney and client and sheriff’s fees.

JUDGMENT

MAODI AJ

Introduction

[1] This is an opposed application for summary judgment.

Combined Summons (plaintiff’s version)

[2] The plaintiff is a registered credit provider. The first defendant is a company whose full and further particulars are to the plaintiff unknown. The second defendant is an adult male person whose full and further particulars

are to the plaintiff unknown. Both the first and second defendants chose an address 1[…] D[...] Y[...] D[...] Avenue, La Hoff, Klerksdorp as their domicilium citandi et executandi. All these issues are admitted by the first and second defendants in their Plea.

[3] According to the particulars of claim, paragraphs 4 and 5 thereof state as follows:

“4. On or about 14th June 2017 and at Klerksdorp, the plaintiff and the first defendant entered into a written overdraft agreement in terms of which the plaintiff lent and advanced monies to the first defendant as an overdraft agreement, quotation, declaration and pre-agreement statement. The overdraft agreement statements and general terms and conditions together, form the credit agreement between the plaintiff and the first defendant (hereinafter referred to as the “agreement”). A copy of the agreement is attached hereto and marked as “A”.

5. In concluding the agreement, the plaintiff was represented by its duly authorised representative, while the first defendant was represented by the second defendant, alternatively by its duly authorised representative.”

[4] The terms of the agreement are stipulated at paragraphs 6 to 6.10 of the particulars of claim as follows:

“6. The most salient terms for the current purposes of this facility agreement between the plaintiff and the first defendant are:

6.1 The plaintiff made an amount of R 430 000, 00 available to the first defendant on an overdraft facility account.

6.2 The first defendant would be entitled to utilise the facility up to the facility limited; however, if the plaintiff increases the limit or allows the first defendant to overdraw the facility, the first defendant would remain liable for payment of any such increase amount plus interest and fees.

6.3 The overdraft facility would bear finance charges at the plaintiff’s prime rate, from time to time, plus 7,50% which rate may be increased by the plaintiff to the maximum in terms of the agreement in the event of default.

6.4 The plaintiff would be entitled to charge a monthly service fee, which may be amended by the plaintiff at any time by giving reasonable notice to the first defendant.

6.5 The overdraft facility has no fixed repayment time, but the plaintiff has the right, at any time, to demand immediate payment of the full amount of the overdraft facility, together with finance charges.

6.6 The plaintiff would be entitled to cancel the facility at any time in the event of a change in the first defendant’s behavioural, financial and/or transactional circumstances.

6.7 If the first defendant breaches any term or condition of the agreement, all amounts owing in terms of such agreement will become immediately due and payable by the first defendant. Only for as far as the agreement may constitute a credit facility as defined in the National Credit Act 34 of 2005, would the plaintiff be required to give the firs defendant at least (10) business days’ notice of its intention to terminate the overdraft facility, without affecting any of its legal rights.

6.8 The amount of the first defendant’s indebtedness to the plaintiff in terms of the agreement may be determined and proved by a certificate purporting to have been signed by any of the plaintiff’s managers and will constitute prima facie proof of the content thereof in any legal proceeding against the first defendant.

6.9 Any notices to be given by the plaintiff to the first defendant shall be given by prepaid registered post, telefax, or delivered by hand to the firsts defendant at its registered address or the address chosen by the first defendant in the agreement. The address so provided by the first defendant shall be deemed to be the first defendant’s domicilium citandi et executandi.

6.10 The plaintiff would have the right to review or extend the facility in its discretion.”

[5] The plaintiff states that it has complied with the terms of agreement and that the plaintiff has elected to cancel the facility and call for payment. This is due to the change in the first defendant’s financial behavioural,

financial and/or transactional circumstances, which include, but not limited to failure to make regular and sufficient deposits and credits into the facility account to repay interest and fees, and a notable reduction in turnover on the facility account.

[6] As at the 31st August 2022 the first defendant was and remains indebted to the plaintiff in an amount of R 375 117, 54 together with interest on the said amount at the rate of 19,5% (prime plus 12,5%), per annum linked, capitalised monthly from 7th September 2022 to date of payment. This rate represents the applicable rate charged by the plaintiff in respect of overdraft excesses and which rate the plaintiff continues to charge in accordance with the terms of the said agreement until date of payment.

[7] The second defendant bound himself as surety and co-principal debtor with the first defendant,

for the repayment on demand of any sums of money, which the first defendant owes or may owe to the plaintiff for whatever cause arising including due fulfilment of all obligations by the first defendant to plaintiff. A copy of the Deed of Suretyship is attached to the particulars marked “B”.

[8] The plaintiff pleads that the agreement entered into between the parties is not subject to the provisions of the National Credit Act 34 of 2005 because the first defendant is a juristic person with an annual turnover, at the time the agreement was concluded, exceeding the threshold as defined in the Act. This is evident from the total annual turnover of the first defendant declared and confirmed to be more than R 1 million. The agreement is furthermore a large agreement as defined in the Act.

Plea (first and second defendants’ version)

[9] In their Plea, the first and second defendants admitted the particulars of the parties as stipulated at paragraphs 1 to 3 of the particulars of claim.

[10] The first and second defendants denied the contents of paragraph 4 of the particulars of claim, supra, save to admit that the first defendant applied for an overdraft agreement as per annexure “A”, which was not successful.

Further that the attachment to annexure “A” was only signed during April 2020, confirming that the application for credit facility was unsuccessful. The first and second defendants deny that a written agreement was concluded between the parties in 2017 as per annexure “A”, but no information is provided in support of the said denial, except that the plaintiff is put to the proof therefore. Therefore, the second defendant alleges that he could not have bound himself for something that was not existing.

Summary judgment

[11] On the 12th April 2024 the plaintiff delivered a summary judgment application wherein it requested an order for payment of R 375 117, 54 plus interest, costs on Magistrates’ Court Scale as between attorney and client and further that the overdraft facility agreement be cancelled. The affidavit for summary judgment sets out the issues referred to at Rule 32(2). The plaintiff further attached the first defendant’s bank statements to show that the first defendant was transacting on the overdraft facility.

[12] On the 4th July 2024 the first and second defendants gave notice to oppose summary judgment together with the opposing affidavit. The deponent to the first and second defendants’ opposing affidavit is the second defendant himself. He states that he is a businessman and the sole director of the first defendant. He raises a few points in limine. The first point in limine is authority of the deponent to the affidavit in support of the summary judgment. The second defendant states that the deponent admitted at paragraph 1.5.3 of her affidavit that she has not been personally involved and only familiarised herself with all facts. Therefore, she cannot testify that she has any first-hand knowledge or were involved in the alleged obtaining of the overdraft facility. Further that the deponent is not able to confirm the status of the disputed overdraft facility as any summary judgment

application must be supported by an affidavit of a person who is first hand able to confirm the claim of the Applicant and not deliver hearsay evidence.

[13] The second point in limine is the non-compliance of the affidavit. The second defendant states that a summary judgment must be supported by an affidavit, duly commissioned in terms of the Regulations contained in Government Notice R1258 of the 21st July 1972, as amended by Government Notice R 1648 of 19th August 1977 and must include identities of commissioner of oaths, appointment of commissioner and address of the commissioner. The defendants state that the document delivered by the plaintiff does not comply with the aforementioned Regulations as the commissioner is not identified or whether the commissioner is duly appointed or ex-officio and therefore it is not commissioned for obvious reasons. Therefore, there is no affidavit in support of the summary judgment application and the application should be dismissed.

[14] The defendants then deal with the issue of bona fide defence. The defendants state that the plaintiff’s claim is based on a written overdraft agreement, and not enrichment. The said agreement should comply with a credit agreement and therefore must comply with the Regulations for a valid credit agreement. As there is no such agreement before court, the claim should be dismissed. Further that the plaintiff relies on suretyship which is signed during April 2020. This agreement post-dates April 2017 when the money was allegedly advanced by the plaintiff. It is

impossible to sign surety in April 2020 in terms of a non-existent credit agreement which was allegedly concluded in 2017. On this

basis, the claim should be dismissed.

[15] The defendants further state that the fact that the plaintiff approached the High Court is to prevent the defendants access to court as it compels defendants to litigate at the High Court and appoint Counsel at high costs. The court should strike the application and transfer it to the Regional Court in Klerksdorp for proper ventilation and that the plaintiff should bear the costs.

Clarifications by the plaintiff

[16] On the 31st January 2025 the plaintiff filed another affidavit titled “affidavit in support of summary judgment” together with confirmatory affidavits by Sharlotte Rama (attorney for the plaintiff) and Kevin Van As (the commissioner of oaths). The affidavit is deposed to by the same person who deposed to the founding affidavit (Suneilla Williams) and contains the exact words or wording as the founding affidavit, except that it now contained a stamp by the commissioner of oaths.

[17] The affidavit by Kevin Van As states that he is an admitted attorney of the High Court and practising as such at Schuler Heerschop Pienaar Xaba. He attends the plaintiff’s offices weekly to commission affidavits for the plaintiff. He was present at the plaintiff’s offices on the 10th April 2024 to commission affidavits signed by the plaintiff’s representative, Mrs Suneilla Wiiliams. On the said date, he commissioned two affidavits in support of summary judgment for the above-mentioned matter, one by Mrs Williams and the other by plaintiff’s attorney Miss Sharlotte Rama. He confirms that there was an oversight on his part in that when commissioning both affidavits he had affixed his commissioner’s stamp to one affidavit and omitted the second affidavit. He confirms that the affidavit which was correctly and completely commissioned, with stamp affixed on the 10th April 2024 has now been placed before court.

The authorities and reasons for Judgment

[18] Summary judgment is governed by Rule 32 of the Uniform Rules of Court. At this stage, it is important to point out that the provisions of Rule 32(1) are not at issue or in dispute.

[19] Rule 32(2) is clear that the plaintiff shall deliver, together with the notice of application for summary

judgment, an affidavit made by the plaintiff or by any other person who can swear positively to the facts, in which the plaintiff

verifies the cause of action and the amount, if any, and identify any point of law relied upon and the facts upon which the plaintiff’s

claim is based, and an explanation briefly why the defence as pleaded does not raise any issue for trial.

[20] Rule 32(3) states that the defendant may give security to the plaintiff to the satisfaction of the court for any judgment including costs which may be given, or satisfy the court by affidavit, or with leave of the court by oral evidence of such defendant or of any other person who can swear positively to the fact that the defendant has a bona fide defence to the action. Such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon thereof.

First point in limine by defendant – Authority of deponent to plaintiff’s affidavit in support of Summary Judgment

[21] The law when it comes to authorisation to depose to an affidavit has long been settled. The plaintiff is a public company and the deponent has indicated that she has familiarised herself with the facts of the matter. In fact, at paragraphs 1.5.1 to 1.5.3 of her affidavit, the deponent states reasons why she can swear positively to the facts of the matter. She states that all the plaintiff’s records, accounts, agreements, security documents and other related and relevant documents concerning this claim are under her control and direct supervision. Further that in the ordinary course of her duties, at the plaintiff, she has acquired direct knowledge of the relevant financial position and status of the account with the plaintiff relating to all the information and documents referred to above. She has further familiarised herself with all facts in relation to the defendants.

[22] The case of Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) is very relevant and actually similar to our case:

In that case the defendant had an overdraft facility which was entered into by him and one D. Rees on behalf of the plaintiff. The defendant defaulted, and the plaintiff issued summons. The defendant filed a notice to defend. The plaintiff then applied for summary judgment. The defendant raised the following point in limine: “Rule 32 sub-rule 2 of the Uniform Rules of Court requires that the affidavit in summary judgment proceedings has to be made by a person who can swear positively to the facts, verifying the cause of action and the amount claimed. The affidavit of the said Mason does not comply with these requirements. Ex-facie the summons, plaintiff’s cause of action is alleged to be based on an oral agreement concluded between myself and the plaintiff who was represented by its duly authorised manager, one D.A Rees. The said Mason does not and cannot claim to swear positively to the facts and in the circumstances he cannot verify plaintiff’s cause of action.”

[23] At paragraphs 11 and 12 of the Maharaj case supra, it is stated as follows:

“…In regard to certain of these facts, it would be difficult, if not impossible, for any one person to have first-hand knowledge of every fact that goes to make up the plaintiff’s cause of action. In this connection I am in full agreement with the following remarks of Miller J, in Barclays National Bank ltd v Love (supra, at pp 516 – 7), made with reference to an affidavit made by the manager of a branch of the plaintiff bank (oddly enough also at the Stanger branch), ‘we are concerned here with an affidavit made by the manager of the very branch of the bank at which overdraft facilities were enjoyed by the defendant. The nature of the deponent’s office in itself suggests very strongly that he would in the ordinary course of his duties acquire personal knowledge of the defendant’s financial standing with the bank. This is not to suggest that he would have personal knowledge of every withdrawal of money made by the defendant or that he personally would have made every entry in the bank’s ledgers or statements of account, indeed, if that were the degree of personal knowledge required it is difficult to conceive of circumstances in which a bank could ever obtain summary judgment. It goes without saying that a manager of a bank who claims to have personal knowledge of the extent to which a client has overdrawn his account must needs rely upon the bank records which show the amounts paid into the account and the amounts withdrawn by client’”

[24] At paragraph 13 of the Maharaj case supra, it is stated as follows:

“In this case the deponent, Mr Mason, does not specifically state that he has personal knowledge of the overdraft arrangements made by the defendant with the manager of the Stanger branch of the bank and the state of defendant’s current account at the relative time. On the other hand, he does say, in paragraph 1 of his affidavit, that he is the assistant to the branch manager of the Stanger branch. It is not clear what the duties or status of the assistant are but, if one reads this averment together with the statement in paragraph 2 that the deponent swears positively that the defendant is liable on the claim and for the amount as detailed in the summons and upon the cause of action as set out therein there is perhaps enough to justify the conclusions that in the course of his duties Mr Mason would have acquired a personal knowledge of the defendant’s financial standing with the bank and the state of his current account. This is to some extent reinforced by the fact that in paragraph 4 of his opposing affidavit (quoted above) the defendant merely puts in issue the deponent’s ability to depose to the oral agreement of overdraft entered into with the manager, Mr Rees. He does not deny the deponent’s ability to speak of the current state of his (the defendant’s) account. Moreover, the affidavit does not specifically allege that Mr Mason was not present when the arrangements were made or that he could not have acquired first-hand knowledge of the arrangements in the course of his duties, e.g- from discussions with the defendant himself. Finally, it appears from the rest of defendant’s affidavit that the real dispute relates not to the fact that overdraft facilities were granted to him but to the amount, if any, actually owed by him on overdraft. Viewing the matter, “at the end of the day”, I consider that, although this is a borderline case, there is just sufficient to enable the affidavit to pass muster. At any rate, I am not prepared to hold that the trial judge erred in overruling the point in limine.”

[25] Erasmus, the Superior Court Practice, Second Edition, Vam Loggerenberg, Volume 2, Juta, Uniform Rules of Court at page D1 – 393 states that: “If the plaintiff is a company and the deponent is authorised by the company to swear the affidavit, and the deponent does not state in his affidavit the grounds, indicating only that the facts deposed to by him are within his personal knowledge, the court will none the less not hold the affidavit to be defective for that reason, as long as the deponent is someone who would ordinarily be presumed to have personal knowledge of the matter.”

[26] This point in limine can therefore not succeed and is hereby dismissed.

Second point in limine – non-commissioning of affidavit

[27] The second point in limine by the defendants is that the affidavit in support of summary judgment does not comply with Regulation contained in Government Notice R1258 of 21st July 1972 as amended by Government Notice R1648 of 19th August 1977.

[28] I agree with paragraph 11 of Khumalo J in the case of Standard Bank of South Africa Limited v Redmond (80438/2015)

[2016] ZAGPPHC 396 (2 June 2016) that:

“With regard to Regulation 1 – 4, the court has a discretion to refuse to receive an affidavit attested otherwise than in accordance with the regulations depending upon whether substantial compliance with the regulations has been proved or not”

[29] Erasmus, Superior Court Practice at page D – 392 state that: “In FirstRand Bank Limited t/a FNB Home Loans v Freddie (unreported, FB Case no 4075/2016 dated 16 November 2016) it was held (at paragraph [5] – [14] that the plaintiff was entitled to file supplementary affidavits of the deponent to plaintiff’s affidavit in support of its application for summary judgment and the commissioner of oaths before whom the deponent appeared, explaining that the deponent in fact appeared before the commissioner at Johannesburg (as stated in the commissioner’s certificate) despite the latter’s stamp having reflected her business address as being at Boksburg.”

[30] The authorities cited above are almost identical to the issue in casu. The plaintiff has filed affidavits explaining the commissioning of the affidavit in support of summary judgment and addressing the requirements of Regulations governing the administration of an oath or affirmation. In my view, there was substantial compliance with the regulations.

[31] The point in limine is therefore dismissed.

Bona fide defence

[32] The defendants deny the existence of an overdraft facility agreement concluded between the parties in 2017 as alleged by the plaintiff. The defendants further state that the fact that the 2017 alleged agreement is non-existent, the suretyship allegedly signed in 2020 should also fall off as the second defendant could not have bound himself surety for a contract which does not exist. Further that the alleged agreement would constitute a credit agreement and should be governed by the regulations for a valid credit agreement. Also that the matter is justiciable in the magistrates court, given the amount claimed, and

therefore should be referred to the Klerksdorp Magistrates Court.

[33] I find the defendant’s approach to a bona fide defence very flawed.

[34] Firstly, a defence on credit agreement requirements should raise issues in contravention of the National Credit Act 34 of 2005. Nowhere in the defendants’ Plea or affidavit resisting summary judgment is a defence of failure to comply with the National Credit Act raised or addressed. The defendants have not set out any grounds or reasons for same.

[35] To the contrary, the plaintiff stipulated in its particulars of claim and in the affidavit supporting summary judgment that the first defendant is a juristic person and therefore excluded from the application of the National Credit Act. See paragraph 11.3 of particulars of claim and paragraph 3.2 of the affidavit in support of summary judgment.

[36] On that basis, the defence of failure to comply with the National Credit Act is dismissed.

[37] With regard to the conclusion and existence of the agreement, the signature on the affidavit resisting summary judgment as contained at page 110 of the bundle is the same as the signature on the agreement annexure “A” as contained at page 60 of the bundle. In fact, the defendant does not deny signature on annexure “A”, but states that there was no agreement concluded as the first defendant only made an application which was not accepted by the plaintiff. As to how this conclusion is arrived at, given the fact that the overdraft facility was utilised by the defendant, as per bank statements attached by the plaintiff, remains a mystery.

[38] The defendants do not stipulate the ground or reasons why they say there was no agreement between the parties,

despite the fact that annexure “A” was signed by the second defendant, his spouse and the credit provider’s representative (plaintiff’s representative) and initialled by all of them on every page.

[39] The defendants’ Plea contains a bare denial, while the affidavit resisting summary judgment does not set out the grounds for their denial.

[40] I am in agreement with the authorities that are clear on the fact that this procedure, (summary judgment), should no longer be referred to as a drastic remedy. See Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at paragraphs 32 to 33 where it is stated as follows:

“[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. After almost a century of successful application in our courts, summary judgment proceedings can hardly continue to be described as extraordinary. Our courts, both of first instance and at appellate level, have during that time rightly been trusted to ensure that a defendant with a triable issue is not shut out. In the Maharaj case at 425G-426E, Corbett JA, was keen to ensure first, an examination of whether there has been sufficient disclosure by a defendant of the nature and grounds of his defence and the facts upon which it is founded. The second consideration is that the defence so disclosed must be both bona fide and good in law. A court which is satisfied that this threshold has been crossed is then bound to refuse summary judgment. Corbett JA also warned against requiring of a defendant the precision apposite to pleadings. However, the learned judge was equally astute to ensure that recalcitrant debtors pay what is due to a creditor.

[33] 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. Perhaps the time has come to discard these labels and to concentrate rather on the proper application of the rule, as set out with customary clarity and elegance by Corbett JA in the Maharaj case at 425G-426E.”

[41] Therefore, I find that the defendants have not established a bona fide defence. I am of the view that the issues raised by the defendants are only to delay the matter.

[42] It should be noted that the attachment to annexure “A” as referred to by the defendants, (paragraph 4 of Plea and paragraphs 5.5 and 5.6 of the affidavit resisting summary judgment), is the suretyship itself. One wonders how a person can sign a suretyship almost three (3) years after the main agreement (overdraft facility) for which the defendants would like this court to believe was never granted. This does not make sense.

[43] The suretyship is based on the main agreement and there is no bona fide defence established in respect of same (the suretyship). The suretyship is therefore accepted as proven.

[44] With regard to the issue of jurisdiction, the law is settled. See Standard Bank of SA Ltd and Others v Thobejane and Others 2021 (6) SA 403 (SCA) at paragraphs 3; 4; 16; 57 and 61 as follows:

“[3] At the instance of the respective Judges-President several of such cases were placed before a full court of each Division. As appears from the judgments, the trigger was apparently twofold. First there was a concern that the rolls of the High Court were being congested by matters which could have been heard in the Magistrates’

Court. In Gauteng there was a concern about matters that could have been heard in the local seat in Johannesburg clogging-up the roll in the main seat in Pretoria. Second, there was a belief that impecunious debtors were suffering prejudice because they would,

should they wish to oppose a claim, have to travel to a High Court when a Magistrates’ Court was supposedly nearby and more

convenient to attend. Also, were a debtor to wish to resist a claim, legal costs would be less in the Magistrates’ Court than in the High Court. In light of these considerations was it appropriate for a plaintiff to sue out of a court other than that closest to the defendant.

[4] Having collected the cases to be heard by the respective full courts, the Judges President formulated a number of questions for them to answer. Four questions were posed to the Gauteng Court. The questions were thus: (i) – Why should the High Court entertain matters that fall within the jurisdiction of the Magistrates’ Court?;

(ii) – Is the High Court obliged to entertain matters that fall within the jurisdiction of the Magistrates’ Court purely on the basis that the High Court may have concurrent jurisdiction?; (iii) – Is the Provincial Division (sic) of the High Court obliged to entertain matters that fall within the jurisdiction of a Local Division (sic) on the basis that the Provincial Division (sic) has concurrent jurisdiction; (iv) – Is there not an obligation on financial institutions to consider the cost implications and access to justice of financially distressed people when a particular forum is considered?

…

[16] … The import of this section is to authorise the High Court to decide all matters other than those reserved for other courts. The notion that the sweep of this authorisation can lightly be compromised is untenable. No monetary cap exists in respect of the High Court, an indication of its universal scope of authority, subject to s 169.

[57] Accordingly, the premise relied on in the court a quo that the inherent jurisdiction of the court can be the basis for directly contradicting a legal right cannot be sustained. The statutory provision or rule of common law which founds the premise of the legal right would have to be declared unconstitutional, an issue never addressed, and indeed, in relation to the questions posed to the court, could not legitimately have been addressed. If as a matter of policy, a hierarchy of choice about courts of concurrent jurisdiction is to be imposed on litigants, it is beyond the power of the High Court to create such a hierarchy pursuant to a purported exercise of an inherent jurisdiction to regulate its own process.

[61] It does not automatically follow that the obvious need to address the plight of the poor means that the practicalities of concurrent jurisdiction are causally connected with that plight. The facilitation of an effective opportunity for poor folk to vindicate their rights requires more than proximity of a forum and low costs. It requires, regardless of where the lis is contested, to have appropriate expertise available to them. Moreover, it is an appropriate question to pose, in relation to foreclosure matters as a prime example, whether so drastic an event as the repossession of a person’s home ought not, as a matter of policy, to enjoy the scrutiny of the High Court rather than the Magistrates’ Court. In the absence of a holistic and evidence-based enquiry the invocation of constitutional values in the abstract is unhelpful. The subject of how to enable poor folk to use the courts effectively implicates the role (and funding) of Legal Aid South Africa, and the several NGOs which give assistance to the poor to litigate, no less than the exercise by a plaintiff of a choice of venue. The idea that

there might be a causal connection between the implications of concurrent jurisdiction and an effective way to alleviate these

social circumstances warrants an empirical enquiry to determine that as a fact. The court a quo was denied the opportunity to consider the matter based on the fruits of such an enquiry.”

Conclusion

[45] I am satisfied that the plaintiff has made out a case for summary judgment.

Order

[46] I therefore make an order as follows:

1. Summary judgment is granted against the first and second defendants, jointly and severally the one paying the other to be absolved, for payment of the sum of R 375 117, 54.

J. T. MAODI

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

FOR THE PLAINTIFF:

ADV. B RILEY

Instructed by:

JAY MOTLHOBI INC.

C/o DC Kruger Attorneys

29 North Street

Golf View

MAHIKENG

Ref: DCK.F17/2022

TEL: 018 381 1680

Email: amandakruger@telkomsa.net

FOR 1st & 2nd RESPONDENTS : ADV. HJ SCHOLTZ

Instructed by:

THERON, JORDAAN & SMIT INC.

C/o CJP Oelofse Attorneys

9 Aerodrome Crescent

Industrial Sites

Ref: CJPO/JH/MHK1080

Email: nicolene@cjpo.co.za