SB Guarantee Company (RF) Proprietary Limited v Pule and Another (62497/2020) [2021] ZAGPPHC 619 (17 September 2021)

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

GAUTENG DIVISION, PRETORIA

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED

17 September 2021

CASENO: 62497/2020

In the matter between:

SB GUARANTEE COMPANY (RF)

APPLICANT

PROPRIETARY LIMITED

(Registration Number [....])

and

RAMOSEBI PAUL PULE

FIRST RESPONDENT

(Identity Number [....])

CATHERINE MAHLANGU

SECOND RESPONDENT

JUDGMENT

BHOOLA AJ

INTRODUCTION

[1] The Summary judgment application calls for strict circumspection and Judicial oversight in balancing the rights of both the applicant and the defendant. The summary judgment proceedings have been described as drastic and robust proceedings. In Joob Joob Investments v Stocks Mavundla Zek JV [2009] All SA 407(SCA) it was held that summary judgment proceedings are no longer extraordinary and the Rule must be applied properly. The summary judgment procedure exists for the applicant to obtain a speedy judgment against the defendant in cases where the defendant has no valid defence to the claim. By short-circuiting an otherwise potentially protracted trial, the applicant avoids incurring unnecessary costs associated therewith.

[2] Naturally, summary judgment cannot be granted where it is clear that some ventilation of evidence is required in order for the Court to come to a decision. Adopting this approach, the successful defendant who demonstrates a triable defence is not excised from further anticipated litigation. Thus the defendant retains (all) his Constitutional Rights to access justice, as enshrined in section 34 of the Constitution.

[3] The applicant in this matter, SB Guarantee Company (RF) Proprietary Limited, (applicants) applies for summary judgment against the first and second defendants, Ramosebi Paul Pule and Catherine Mahlangu (“the defendants/respondents), jointly and severally, the one paying the other to be absolved, for:

[3.1] Payment in amount of R2 088 263.55 together with interest on the aforesaid amount calculated at a rate of 7.150% per annum from 18th September 2020 to date of payment;

[3.2] An order declaring the defendants’ immovable property described as Erf [....] Savannah Country Estate Extension 5 Township, Registration Division J.R, Province of Gauteng held by deed of transfer number T[....] to be declared specially executable;

[3.3] An order authorising a writ of execution in terms of Rule 46 as read with Rule 46A for the attachment of the aforesaid immovable property; and

[3.4] That a reserve price be set for the sale of the property, at a sale in execution, at a value to be determined by the above Honourable Court;

[3.5] Costs of suit and further and/or alternative relief

FACTS

Common Cause, Admitted and Undisputed Facts

[4] The following is common cause between the parties.

[4.1] The Bank and the defendants entered into a Home Loan Agreement;

[4.2] The Principal Debt was secured by means of a Continuing Covering Bond;

[4.3] The defendants executed an indemnity agreement in favour of the Plaintiff and its successors in title.

[4.4] The defendants are in breach of the terms and conditions of the loan agreement and have not remedied such breach.

[4.5] The defendants breach has been occasioned by the first defendant’s loss of employment.

[4.6] The defendants as at 18th November 2020 were indebted to the bank under the Loan Agreement, and therefore the plaintiff under the indemnity, in the amount of R2 088 263. 55

[4.7] The Section 129 notices were received together with the summons.

[4.8] The property is the primary residence of the defendants.

APPLICANTS FACTS

[5] According to the plaintiff’s particulars of claim as well as the application for summary judgment, the applicant’s cause of action arises out of the defendants’ written indemnity, indemnifying the applicant for a guarantee issued by the applicant to the Standard Bank of South Africa Limited (the “Bank”) whereby the applicant undertook to pay to the Bank the amount owing by the defendants’ in terms of the loan agreement entered into by the Bank and the defendants’.

[6] The defendants’ executed the aforesaid written indemnity agreement in favour of the applicant and its successors in title. The terms of the indemnity were, amongst others, that in the event that the applicant became liable to pay any amount to the Bank or Transferee in terms of the aforesaid guarantee, the defendants would immediately become liable to the applicant in terms of the indemnity for the amount for which the applicant was liable under the guarantee given to the Bank or a Transferee.

[7] The defendants breached the terms and conditions of loan agreement by failing to pay the monthly instalments due in terms thereof, the breach was material, and on or about the 3rd April 2020 the Bank notified the applicant that the defendants were in breach of the loan agreement and that the applicant was forthwith required to discharge all of its obligations to the Bank in terms of the applicant’s guarantee, by promptly proceeding in a competent Court against the defendants’, under the indemnity, by calling up and foreclosing on the mortgage bond and enforcing such other remedies as were available to the applicant at law.

[8] Acting in accordance with the indemnity, on or about 3rd April 2020 the applicant caused a letter of demand to be dispatched to the defendants’ requiring the defendants to pay the full amount so due and payable forthwith and notwithstanding the applicant’s demand, the defendants’ either failed and/or refused and/or neglected to make payment as was requested.

[9] On the 30th October 2020, the applicant commenced enforcement procedures, by dispatching peremptory letters of default notices as contemplated in terms of Section 129(1) as read with section 130 of the National Credit Act, 34 of 2005 (“the NCA”) to both the defendants’ chosen domicilium, informing the defendants’ of their failure to pay their monthly instalments and requiring the defendants’ to remedy the breach of the loan agreement.

[10] Amongst other things, the defendants were also informed that they may refer the loan agreement to a debt counsellor, an alternative dispute resolution agent, consumer court or the ombudsman to resolve the dispute and agree on a plan to bring the arrears up to date. They were also informed should they fail to make payment of the outstanding amounts; the Bank was entitled to cancel the loan agreement and recover the full balance outstanding under the loan agreement.

[11] The defendants’ failed to remedy the breach and the applicant caused combined summons to be issued and subsequently served by the sheriff on the defendants on the 4th December 2020 in accordance with Uniform Rule 4(1)(a)(v).

[12] Both the defendants’ served a notice of intention to defend the action on the 14th December 2020 and accordingly filed their plea on the 26th February 2021.

[13] On the 23rd March 2021, the plaintiff commenced summary judgment proceedings against both the defendants alleging that the defendants do not have a bona fide defence and that they have entered a notice of intention to defend solely for the purposes of delay. Service was effected in terms of Rule 4A of the Uniform Rules, by consent between the parties.

[14] The applicant in their application for summary judgment verify the cause of action in accordance with the summons, which is not in dispute between the parties. They submit as a result of the defendants’ breach of the loan agreement the plaintiff is contractually entitled to claim payment of the full balance, subject to the provisions of Section 129 and 130 of the NCA, which they complied with. The applicant submits that the plaintiff is further entitled to an order declaring the property executable.

[15] According to the applicant, the defences raised by the defendants do not constitute triable issues for the reasons submitted.

DEFENDANTS FACTS

[16] The defendants in resisting summary judgment, filed an opposing affidavit on the 14th June 2021 (a day before the hearing), without seeking condonation from the Court. Since the defendants were unrepresented, and the applicant did not object to the late filing of the defendant’s opposing affidavit being uploaded onto CaseLines, in the interest of Justice, I condoned the late filing of the first defendant’s affidavit.

[17] Furthermore, there was no confirmatory affidavit by the second defendant and neither was the second defendant before the Court. I allowed the matter to proceed in the interest of justice simply because the first defendant at all material times drafted the pleadings on behalf of both the defendants, and the confirmatory affidavit would not have altered any of the material facts, but confirmed the first defendant’s opposing affidavits.

[18] The first defendant, alluded to the fact that he has just graduated from law school and provided the court with proof of his results. On perusal of the defendant’s plea and the first defendants opposing affidavit, both documents contained many repetitions. The essence of the defendant’s plea and application opposing summary judgment is that the first defendant was unfairly dismissed from his employment. He subsequently, lost his employment which resulted in financial difficulty. He is currently making payment of R 5000. 00 (five thousand rand) per month and requested the applicant’s indulgence to continue receiving R5 000.00 (five thousand rand) per month pending the outcome of his damages claim in the Labour Court, which he believes has great prospects of success.

ISSUE

[19] The issue for determination is whether the defendants have raised bona fide defences

LAW

[20] I am dealing here with two very important aspects of law to which there were amendments. The one being summary judgment which is regulated by Rule 32 and the other is Execution of primary residence which is regulated by Rule 46A. It has become established principle that this double- barreled procedure adopted by the applicant has become accepted norm in these types of applications.[1]

Summary Judgments

[21] Summary judgment proceedings are regulated by Uniform Rule 32. It is important to note that the said application must be distinguished from the general application procedure in that the parties in summary judgment proceedings are referred to the applicant and defendant and the affidavits are referred to as founding and opposing affidavits.

[22] In so far as Rule 32(2) is concerned, there is proper procedural compliance by the applicant in this matter. The only contention raised by the applicant in so far as this application is concerned is the fact that the defendant does not have a bona fide defence to the action and that the notice of intention to defend has been served solely for the purpose of delay.

[23] Rule 32(3) provides upon hearing of an application for summary judgment the defendant may give security to the satisfaction of the registrar for any judgment including costs in terms of Rule 32(3)(a) of the Uniform Rules or satisfy the court by delivery of an affidavit …..that the defendant has a bona fide defence to the action, and such affidavit…….shall disclose fully the nature and grounds of the defence and the material

facts it relies upon. …… in terms of Rule 32(3)(b) of the Uniform Rules.

[24] A plethora of cases have established the principles relating to summary judgment. According to Breytenbach v Fiat SA (Edms) Bpk[2] it was decided that a defendant cannot approach the court with bold, vague and sketchy defences. This was reiterated in NPGS Protection & Services CC v First Rand Bank Ltd[3] the Supreme Court of Appeal made the following remarks: “The ever increasing perception that bald averments and sketchy propositions are sufficient to stave off summary judgment is misplaced and not supported by the trite general principles developed over many decades by our courts. See for example, the well-known judgment of this court in Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) where the proper approach to application of summary judgments are stated.”

[25] Joob Joob Investments v Stocks Mavundla Zek Joint Venture [2009] All SA 407(SCA) where it was held that summary judgment proceedings are no longer extraordinary and the Rule must be applied properly and the procedure is not intended to deprive the defendant with a triable issue or a sustainable defence his or her day in court. The SCA held that:

“[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.”

[3] In Maharaj v Barclays National Bank Ltd[4] , Corbett JA, as he then was, stated: "All that a Court enquires into is:

(a). Whether the defendant has "fully" disclosed the nature and grounds of his defence and the material facts upon which it is founded, and

(b). Whether on the facts so disclosed the defendant appears to have, as to either the whole or part of the claim, a defence which is both bona fide and good in law. If satisfied on these matters the Court must refuse summary Judgment either wholly or in part, as the case may be. "

DEFENCES

The default notices in terms of section 129 of the NCA.

[26] The applicant’s case is that defendants selected their domicilium addresses for purposes of giving legal notices in terms of the loan agreements as well as in terms of the mortgage bond and as envisaged in Section 96 of the NCA. The Applicant served Section 129 notices on the defendants elected domicilium addresses on the 30th October 2020. The proof of posting of the aforesaid section 129 notices, together with the track and trace reports were submitted.

[27] The applicant submits that reasonable consumers in the position of the defendants would have collected the aforesaid notices. However, the respondents failed and/or elected not to do so. In light of the aforesaid, the applicant submits that he has complied with the loan agreements, the mortgage agreement, the indemnifying agreement and the requirements of the NCA.

[28] He submits that there is no merit in the defendants’ allegations that they did not receive the aforesaid notices and the defendants’ attempt at this defence is not bona fide and not fit for trial.

[29] the defendants only received the default notices in terms of Section 129 of the NCA on the 18th December 2020, after being served with the summons on the 4th December 2020. The explanation advanced was they only received notices from the post office on the 17th December 2020 and proceeded to collect them the following day. The first defendant submitted, he checked his post constantly because he had applied for many job opportunities and was awaiting responses.

[30] I inspected the default notices as well as the addresses furnished in the agreements before the court. My investigations reveal that the applicant in this case dispatched notices in terms of Section 129 read with Section 130 of the NCA on the 30th October 2020 to the defendants at both their chosen domicilium addresses being, “E[....] Centre [....] Silver Place [....] Pretoria Street S[....] and [....] L[....] Crescent, Savannah Country Estate” by registered mail. The aforesaid notices were posted from the Hatfield post office on the 3rd November 2020. The track trace reports reveal that the first notification was dispatched to the defendants at Silverlakes post

office on the 10th November 2020 and at the S[....] post office on the 11th November 2020.

[31] The defendant, in paragraph 3.8 of opposing affidavit submits they only received the letters on 18th December 2020, after being served with the summons on the 4th December 2020. In as much as the letters may have been dispatched on the said date, with the Covid -19 pandemic it is probable that the notices could have been delivered late and only received on the 18th December 2020. What I cannot accept is the fact that the defendants only received such notices on the 18th December 2020. This version is highly improbable simply because the summons was served on the 4th December 2020 and the Section 129 default notices in terms of the NCA was attached to the summons. The defendant alludes to the fact had he received the said notices he would have commenced mediation proceedings early.

[32] I find that the plaintiff had complied with the dispatching of the Section 129 notices, and it had reached the destination post offices of the defendants. Nothing more is expected of the plaintiff.

The Defendants deny the applicant is entitled to the full outstanding amount.

[33] The applicant submits that the defendants agreed to the terms and conditions of the agreement, which includes the Bank’s entitlement to claim the full outstanding balance. When the debtor defaults, the bank invariably exercises its rights in terms of the agreements signed and forecloses by seeking to execute against the property. The Bank’s rights generally include the right to call up the loan, accelerate payment and claim execution.

[34] The applicant submits in terms of the mortgage agreement signed by the defendants, the bond amount of the indebtedness of the defendants to the applicant, they agreed that this may be proved by a certificate signed by any manager or administrator of the applicant whose authority need not be proved. They also agreed that such certificates shall be accepted as proof of the facts therein stated unless the defendants are able to prove the facts are incorrect and shall be sufficient for the purposes of obtaining inter alia summary judgment against the defendants. The defendants do not state the basis which they allege that the applicant is not entitled to the full outstanding amount, they merely make bald averments and sketchy propositions that the applicant is not entitled. The applicant submits that the respondents’ defence is not bona fide and not fit for trial.

[35] The defendants in their plea deny that the plaintiff is entitled to the full outstanding balance because arrangements were made between the plaintiff and the Bank to pay R5000,00 (five thousand rand) per month until the first defendant’s damages claim was finalised in the Labour Court.

[36] A perusal of the affidavit opposing summary judgment, evidences the allegations relating to the banks entitlement to claim the full outstanding balance is admitted by the first defendant. Furthermore, the defendants concede that when a debtor defaults on repayment of the loan secured by a mortgage bond, the bank invariably exercises its rights in terms of the agreement of loan, which are usually contained in the mortgage bond, and forecloses by seeking to execute against the property.

[37] The defendant also concedes that the Bank’s rights generally include the right to call up the loan, accelerate payment and claim execution and they agree that the amount to be paid including the interest is determined and proved by a certificate of balance signed by the manager or administrator of the applicant, whose appointment and authority to sign need not be proved.

[38] The defendants dispute that the letter dated 3rd April 2020 was received by them.

[39] I find that the defendants concede the agreements. They concede that there was a breach of the agreement and they agree they affixed their signatures to the agreements thereby binding themselves to the terms and condition of the agreements.

[40] I find that it is highly improbable to admit that all the agreements are valid on the one hand and then deny that applicant is entitle to enforce its rights. Furthermore, there is conflict in the defendant’s own evidence in this regard in that they deny the issue in the plea but admit it in the affidavit opposing summary judgment. In this regard the only defence to be drawn is that the defendants were parties to the agreements in question and by virtue of signing such agreements it follows ex lege the terms of the agreement are material and binding on the parties.

Arrangements are in place regarding repayment

[41] The applicant submits that the defendants allege that they have been making payments of R5000.00 (five thousand rand) per month towards the loan agreement and that the aforesaid payments were in terms of an arrangement made with the Bank’s representatives. This is denied by the applicant.

[42] The applicant submits Annexure “RPP5” attached to the defendants’ plea states

“a reduced instalment of R 10 000.00 per month will be paid over three months, effective from 2018 -09-25 to 2018 -11-25……….

Your full monthly instalment will resume on 2018 -12-24”

[43] The applicant submits that the defendant did not continue with the full monthly instalment from 24th December 2018. Furthermore, there existed no payment arrangement as of 24th December 2018 and the defendants were obliged to pay the full monthly instalment.

[44] The applicant attempted to assist the defendants with payment arrangement on or about June 2019 wherein the defendants were required to make monthly payments of R 5000.00 (five thousand rand) commencing from 26th June 2019 in order to refer the account for a possible re-spread. The defendants defaulted in terms of the interim payment arrangements as can be noted by multiple debit order reversals following June 2019.

[45] During March 2020, the applicant again attempted to assist the defendants with another payment arrangement to refer the account for a possible re-spread, however, the defendants were unable to enter into a payment arrangement to assist the defendants as the first defendant was unemployed.

[46] The applicant submits, as at 24th December 2018, there existed no formal payment arrangement with the defendants and that any subsequent attempts to assist the defendants with a possible re-spread on the account were unsuccessful. He submits that the defendants’ reliance on a payment arrangement is therefore incorrect.

[47] The defendants admit that they were making and are currently making repayments of R5000.00 (five thousand) per month towards the bond account. They submit the amount was arranged with the Bank representatives. The defendant submits, that the Bank agreed to accept R5000.00 (five thousand) rand per month and he continued to make such payment. He submits further, when the second request was made to extend the payment of R5000.00 per month, the Bank’s representatives, agreed to accept such payment on condition that the defendants sign an Easy Sell programme.

[48] The first defendant submits, he despatched two correspondences via email to the applicant requesting a response to continue payment of the existing agreement of R5000.00. The Bank did not communicate with him further. Both the emails were affixed to the plea. He submits if he received a response from the Bank, he would certainly have proceeded with alternative dispute resolution or mediation. In the meantime, the applicants continue and still continue to receive payment for R5000.00 per month.

[49] The document attached to the defendants plea reveals the following:

[49.1] the first defendant advised the applicants of his termination of employment on the 31st July 2018 and requested for the payment plan to be restructured.

[49.2] the defendants entered into a payment arrangement with the plaintiff in a correspondence dated 22nd October 2018 , informing the first defendant that his monthly instalment was R18 678, 30 cents (eighteen thousand six hundred and seventy eight rand and thirty cents. They furthermore agreed that for the period 25th September 2018 until 25th November 2018 the defendants could pay R10 000.00 (ten thousand rand per month) and that the defendants will resume to pay the full monthly instalment on the 25th December 2018. The applicant submits that this agreement was honoured by defendants.

[49.3] On the 22nd May 2019 and on 18th February 2020 further requests were made by the defendants to the applicant to motivate for the instalments to be reduced to R5000.00 per month. There was no response from the applicant and a follow up letter was dispatched on the 12th March 2020.

[49.4] According to annexure RPP8, dated 21st December 2021, the defendants dispatched an email to the applicant informing the applicant that the first defendant reached settlement with his previous employer and is able to pay the monthly instalment of R18 000.00 (eighteen thousand rand) for the next six months and requested to review the situation in June 2019.

[49.5] According to RPP 9 dated the 11th March 2020, 15th April 2020 and 23rd April 2020 the applicants forwarded the Easy Sell Programme.

[49.6] In the interim, the defendants continued and continue to make payments of R5 000 (five thousand rand per month) which is tacitly accepted by the applicant.

[50] The quest for summary Judgment is based on a trite argument that there are no triable issues of fact and the application is initiated by a plaintiff that contends that all the necessary factual issues are settled and, therefore, need not be tried. If there are triable issues of fact in any cause of action or if it is unclear whether there are such triable issues, summary judgment must be refused as to that cause of action. The purpose of the summary judgment procedure is to afford an innocent plaintiff who has an unanswerable case against an elusive defendant a much speedier remedy than that of waiting for the conclusion of an action[5].

[51] I am of the view that this particular defence there appears to be a triable issue, the outcome which is not clear from the papers and require to be ventilated at a trial.

That the property concerned is their primary residence

[52] This alleged defence has become common cause between the parties that the property in quest is the defendant’s primary residence.

THE COURTS DISCRETION

[53] The court has an overriding unfettered discretion which it must exercise judicially and not arbitrarily. I have the discretion to exercise whether I should on the facts averred by the plaintiff, grant summary judgment or whether, on the basis of the defence raised by the defendants, I should refuse it. If the court has any doubt as to whether the plaintiff’s case is unanswerable at trial such doubt should be exercised in favour of the defendant and summary judgment should accordingly, be refused. The court can exercise its discretion and refuse summary judgment even if the requirements resisting summary judgment have not been met[6]. Considering the extraordinary and drastic nature of the summary judgment remedy in Maharaj v Barclays National Bank Limited[7], Corbett JA stated:

“The grant of the remedy is based on the supposition that the plaintiff’s claim is unimpeachable and that the defendant’s defence is bogus and bad in law”[8].

[54] The test is whether on the set of facts before me, I am able to conclude that the defence raised by the defendant is a sham, a bogus or is bad in law. What I have to decide on is whether, on the facts alleged by the applicant in its particulars of claim, I should grant summary judgment or whether the defendant’s opposing affidavit discloses such a bona fide defence that it should refuse summary judgment.

[55] Due to the peremptory nature of Rule 32, courts are extremely reluctant to grant summary judgment unless satisfied that the applicant has an unanswerable case. This is because summary judgment is a drastic and robust remedy in that it permits a judgment to be given without trial. It closes the doors of the Court to the defendant.[9] It is only when there is no doubt that the applicant has an unanswerable case that it should be granted.[10] In Shepstone v Shepstone[11], Miller J said:

“The court will not be disposed to grant summary judgment where, giving due consideration to the information before it, it is not persuaded that the plaintiff has an unanswerable case” and that… “a defendant may successfully resist summary judgment where his affidavit shows that there is a reasonable possibility that the defence he has advanced may succeed on trial”.

[56] Considering the above authorities, which established the legal principles relating to summary judgment as well as Rule 32 of the Uniform Rules of Court, I see no reason to deviate from such principles. I find that for the reasons alluded to above, the application for summary judgment must fail. The defendant is not unsuited in this matter.

[57] I accordingly find that there is no reason to deal with the issue pertaining to executability at this stage of the proceedings.

COSTS

[58] As a general rule the award of the costs remains in the discretion of the Judge.[12] The general rule is that such costs should follow the result, being the successful litigant. being that costs are awarded to a successful litigant[13] The usual costs orders in summary judgment applications is to reserve costs for determination by the trial Court.[14]

[59] Rule 32 (9) provides that:

“(9) The court may at the hearing of such application make such order as to costs as to it seems just: Provided that if -

(a) The plaintiff makes an application under this rule, where the case is not within the terms of subrule (1) or where the plaintiff, in the opinion of the court, knew that the defendant relied on a contention which would entitle him to leave to defend, the court may order that the action be stayed until the plaintiff has paid the defendant’s costs, and may further order that such costs be taxed as between attorney and client; and

(b) ….”

[60] The purpose of the above subrule is, on the one hand, to discourage unnecessary or unjustified applications for summary judgment and, on the other hand, to discourage defendants from setting up unreasonable defences.[15]

[61] I the final analysis, I intent to deviate from the norm of reserving costs for determination by the trial court. My view is that such an order will not be appropriate in the circumstances. It will only serve to burden e the trial Court with a colossal burden of replaying these proceedings for the purpose of determining liability for the costs. The appropriate costs order in the circumstances is costs in the cause

ORDER

[62] In a result, I make the following order

[62.1] Summary Judgment is refused.

[62.2] The defendant is granted leave to defend the summons.

[62.3] Costs are costs in the cause.

C. B. Bhoola

Acting Judge of the

High Court of South Africa

Gauteng Division, Pretoria

Delivered: This judgment was prepared and authored by the Judges whose names is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 17 September 2021.

APPEARANCES

Counsel for the Applicant

: Advocate K. Moloisane

Instructed by

: Vezi & De Beer INC

Respondent (In person)

: Mr RP Pule

Date of Hearing (via MS Teams) : 17 June 2021

Date of Judgment

: 17 September 2021

[1] Absa Bank Limited v Sawyer (2018/17056) [2018] ZAGPJHC 662 (14 December 2018) par 13-16. Changing Tides 17 (Pty) Ltd NO v Rademeyer and Another (1911/2019) [2019] ZAGPPHC 165 (31 May 2019) par 18 and 19.

[2] 1976(2) SA 226 (T) at 229 F-H.

[3] NPGS Protection & Services CC v First Rand Bank Ltd 2020 (1) SA 494 (SCA) AT 498I -499A

[4] 1976(1) SA 418(A)

[5] See Meek v Kruger 1958 (3) SA 154 (T) at 156 and 158; Joob Joob Investments (Pty) Ltd v Stock MavundlaZek Joint Venture 2009 (5) SA 1 SCA 11C-G; Also Majola v Nitro Securitisation 1 (Pty) Ltd 2012 (1) SA 226 A SCA at 232 F-G

[5] See Meek v Kruger 1958 (3) SA 154 (T) at 156 and 158; Joob Joob Investments (Pty) Ltd v Stock MavundlaZek Joint

Venture 2009 (5) SA 1 SCA 11C-G; Also Majola v Nitro Securitisation 1 (Pty) Ltd 2012 (1) SA 226 A SCA at 232 F-G

[6] Mahomed Essop (Pty) Ltd v Sekhukhulu and sons 1967 (3) SA 728 D.First National Bank of South West AfricaLtd v Graap 1990 NR 9 (HC)

[7] 1976 (1) SA 418 (A)

[8] Ibid footnote 6 at 424G

[9] Evelyn Haddon & Co Ltd v Leojanko (Pty) Ltd SA 662 OPD at 666A and the authorities quoted therein

[10] Breitenbrach v Fiat S.A. (EDMS) Bpk 1976 (2) SA 226 AT 229

[11] 1974 (2) SA 462 E-H

[12] (Kruger Bros & Wasserman v Ruskin 1918 AD 63 at 69); Ward v Sulzer 1973 (3) SA 701 , Ward v Sulzer 1973 (3) SA 701 A.

[13] In Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 2003 (1) SA 204 (T)

[14] Maharaj v Barclays Bank Ltd supra at 428

[15] Vermoelen J in Foridar Construction Co (SWA) Pty Ltd v Kriess 1975 (1) SA 875 (SWA) at 878A