Absa Bank Limited v Alumni Trading 156 (Pty) Ltd and Others (59003/2020) [2025] ZAGPPHC 1376 (11 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1376 | Noteup | LawCite sino index ## Absa Bank Limited v Alumni Trading 156 (Pty) Ltd and Others (59003/2020) [2025] ZAGPPHC 1376 (11 December 2025) Absa Bank Limited v Alumni Trading 156 (Pty) Ltd and Others (59003/2020) [2025] ZAGPPHC 1376 (11 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1376.html sino date 11 December 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 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case Number: 59003/2020 (1)  REPORTABLE: YES / NO (2)  OF INTEREST TO OTHER JUDGES: YES/ NO (3)  REVISED: YES/ NO In the matter between: ABSA BANK LIMITED Applicant and ALUMNI TRADING 156 (PTY) LTD First Respondent EMPOWER GROUP HOLDINGS (PTY) LTD Second Respondent ARVIND KUMAR GUPTA Third Respondent ANDREW ALEXANDER MAREN Fourth Respondent ALAN JEROME NAIDOO Fifth Respondent ANDRE LOUIS FOURIE Sixth Respondent Delivered: This judgment was prepared and authored by the Judge whose name 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 11 December 2025 . JUDGMENT MANAMELA, AJ # Introduction Introduction [1]  This matter came before me on 13 October 2025, where an order granting summary judgment against the Second to Sixth Respondents was made. The application for summary judgment was opposed by the Second to Sixth Respondents. Subsequent to the granting of the order the Second to Sixth Respondents filed a request for reasons for the decision in terms of rule 49(1)(c) of the Uniform Rules of Court. [2]  The order granted reads as follows – “ The Second to the Sixth Respondents, jointly and severally (together with any judgment which may subsequently be granted against the 1st Respondent), the one paying the other to be absolved, in the following terms - (a)         Payment of the sum of R682,163.65. (b)         Payment of interest on the amount of R682,163.65 at the rate of 9.00% per annum as from 11 March 2020, to date of payment, such interest to be capitalized monthly in arrears. (c)         Cost of suite on attorney and client scale. (d)         The operation of the order is suspended pending the finalization of the Rule 46 Application.” # Background Background [3]  The Applicant, ABSA Bank Limited, entered into a loan agreement with the First Respondent on or about 01 April 2009 for an amount of R900,000.00 (nine hundred thousand Rands), secured by a mortgage bond registered on or about 30 June 2009 against the property described as Portion 48 (a portion of Portion 8) of the Farm Groenkloof 464, Registration Division J.Q, North-West Province under Bond No. B[...]. [4]  On 10 November 2020, a summons was issued by the Applicant against the Second to Sixth Respondents (“the Respondents”), based on a suretyship agreement signed in favour of the Applicant, emanating from a breach of a loan agreement (after falling into arrears), between the Applicant and Alumni Trading 156 (Pty) Ltd, the First Respondent. [5]  A notice of intention to defend was filed on behalf of the First, Third to Sixth Respondents, on 4 December 2020. This was followed by an amended notice of intention to defend on 17 December 2020, wherein the attorneys for the Second to Sixth Respondents indicated that they were not acting on behalf of the First Respondent. On 9 March 2021, a notice in terms of rule 35(14) of the Uniform Rules of Court was issued by the Second to Sixth Respondents. On 31 May 2024, the Applicant filed a reply to the notice in terms of rule 35(14), and on 1 July 2024, a notice of bar was filed. [6]  The Applicant filed an application for summary judgment on 29 July 2024, after receiving the Respondents’ plea, served on 8 July 2024. The Respondents filed their affidavit opposing summary judgment on 30 September 2024, and the defences set out in the Respondents’ affidavit were mainly that: (a) the Respondents have been released from suretyship, (b) the Applicant has sufficient security in the form of a mortgage bond, (c) the Applicant delayed to prosecute the action, (d) the Applicant failed to provide the requested documents in terms of rule 35(14) and (e) the evidence provided by the Applicant through its deponent, is impermissible, as the deponent, Ms Berna Malan, allegedly does not have personal knowledge of the facts and as such the Respondents argued that the summary judgment application was an abuse of process. [7]  The Applicant could not proceed with this matter against the First Respondent, as it was deregistered at the time when this summary judgment was launched. Subsequently, on 7 October 2024, an application to restore the registration of the Rirst Respondent with CIPC was filed in terms of section 83(4)(a) read with section 82(4) of the Companies Act 71 of 2008 , and the order was granted in favour of the Applicant. [8]  The relief relating to the declaration of the mortgaged property as specially executable, in terms of rule 46A of the Uniform Rules of Court, was postponed sine die . # Issues of Determination Issues of Determination [9]  The Court had to consider whether the Respondents demonstrated a bona fide defence. Applicant's contention for summary judgment: [10] The Applicant’s contention is that the Respondents have failed to raise any bona fide defence to meet the requirements of rule 32(3)(b). [1] The Applicant contends that the Respondents' plea and affidavit opposing summary judgment were filed solely to delay the enforcement of the Applicant's rights. Jurisdiction of the Court [11]  The Applicant addressed the Respondents' challenge to the court's jurisdiction, noting that the property in question, although situated in the North West Province, falls within the jurisdiction of the Pretoria High Court as per Government Notice 39540, published in the Government Gazette on 21 December 2015. This point was not canvassed further during the hearing. Respondents' Obligations Under Suretyship [12]  The Applicant argued that the Respondents' claims of being released from the suretyship are contradictory and unsupported by evidence. Delay Tactics by Respondents [13]  Applicant contents that the Respondents failed to disclose a bond fide defence or raise any triable issues in their plea and affidavit opposing summary judgment. Their opposition consists of bare denials and unsubstantiated claims, which do not meet the legal standard required to resist summary judgment. [14]  The Applicant denies the Respondents' contention that the deponent to the Applicant's affidavit lacks personal knowledge, on the basis that banking officials are not required to have personal knowledge of every fact but can rely on access to the Applicant's systems. Based on the judgment in Dean Gillian Rees & Edward Christopher Jowitt v Investec Bank Limited , the Supreme Court of Appeal of South Africa clarified the requirements for a deponent’s personal knowledge under Rule 32(2) of the Uniform Rules of Court, which governs applications for summary judgment. The court reaffirmed that a deponent does not need first-hand knowledge of every fact in the case. It is sufficient if the deponent has acquired personal knowledge through the ordinary course of their duties, especially in corporate or institutional contexts. Ms Ackermann, a Recoveries Officer at Investec, had access to the bank’s records and correspondence with the Appellants. Her role gave her sufficient exposure to the facts to swear positively to them, even though she did not sign the certificates of indebtedness or witness the signing of suretyship agreements. [15]  The court relied heavily on Maharaj v Barclays National Bank Ltd , which emphasized that: “ The ability to swear positively to the facts is essential… Generally speaking, before a person can swear positively to facts in legal proceedings they must be within his personal knowledge. ” However, it also noted that personal knowledge may be inferred from the deponent’s position and duties, especially when supported by documents. In the evaluation of evidence, the court must assess all documents properly before it to determine whether the affidavit meets the rule’s requirements. [16]  In the Dean Gillian Rees case, Ms Ackermann’s affidavit was found to be sufficient because she had: access to relevant documents, engaged in correspondence with the Appellants, demonstrated understanding of the claims and amounts. The court cautioned against rigid procedural formalism and emphasized commercial pragmatism. It stated that requiring first-hand knowledge of every detail would make it nearly impossible for institutions like banks to obtain summary judgment. A deponent can satisfy Rule 32(2) if they: Have access to relevant records, acquire knowledge through their professional duties, can reasonably verify the cause of action and amounts claimed, and assert that the Defendant has no bona fide defence. [17]  The Applicant asserts that the suretyships remain valid and enforceable, and the exercise of its discretion in not releasing the sureties is reasonable and commercially justified. [18] The Applicant’s counsel argued that he relies on the principles established in Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture , [2] where the Supreme Court of Appeal (SCA) held that the summary judgment procedure is not intended to unjustly prevent a defendant from defending a claim unless it is clear that the defendant has no valid case. The procedure is designed to prevent defences that delay the enforcement of a plaintiff/applicant's rights, causing unnecessary prejudice. [19] The Applicant argues that the Respondents' affidavit opposing summary judgment 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 v Barclays National Bank Ltd , [3] where the court held that the remedy of summary judgment is granted when the plaintiff/applicant's claim is unimpeachable, and the defendant/respondent's defence is bogus or bad in law. [20]  The Respondents' reliance on the time taken by the Applicant to pursue its claim is not a valid defence, as the Applicant retains the right to enforce its claim at its discretion. The Respondents’ Case: [21]  The Respondents contend that they were released as sureties by the Applicant in 2015 following their request in 2011. This request was made after the Respondents sold their shareholding in Empower Group Holdings (Pty) Ltd, which was the sole shareholder of Empowerprop (Pty) Ltd, the sole shareholder of the First Respondent. The Respondents argue that their involvement with the First Respondent ceased in 2011, and the Applicant’s failure to release them as sureties for the specific account in question was an oversight. They assert that the Applicant’s representatives failed to communicate effectively, leading to this omission. [22]  The Respondents argue that the Applicant is already in possession of adequate security for the full judgment debt and costs in the form of a mortgage bond over the immovable property that is the subject matter of the action. They contend that this security is sufficient to cover the Applicant’s claim. [23]  The Respondents highlight that the Applicant took no steps to prosecute the action for nearly four years after instituting it in November 2020. They argue that this delay undermines the Applicant’s application for summary judgment. [24] The Respondents assert that the case involves several triable issues, including: a.     The applicability and correctness of the "standard terms and conditions" attached to the particulars of claim, which are dated February 2011, while the loan agreement was concluded in April 2009. b.     Disputes regarding the terms of the registered mortgage bond and whether they applied to the loan agreement. c.     The absence of a deed of suretyship for the Fourth Respondent, which the Applicant has failed to produce. d.     The quantum of the Applicant’s claim, including the accuracy of the calculation and the interest rate applied. [25]  The Respondents argued that the Applicant failed to comply with their substantive request for documents under rule 35(14). These documents, which include internal correspondence regarding the release of sureties and other relevant records, are critical to the Respondents ability to plead and defend the action. [26]  The Respondents challenged the affidavit supporting the Applicant’s application for summary judgment, asserting that the deponent, Ms. Berna Malan, lacks personal knowledge of the facts and has made unsubstantiated and hearsay allegations. They argue that this approach is impermissible in summary judgment proceedings and demonstrates the existence of triable issues. [27]  The Respondents allege that the Applicant’s application for summary judgment constitutes an abuse of process. They argue that the Applicant is attempting to pre-empt triable issues and circumvent their constitutional right to a fair hearing at trial under section 34 of the Constitution of the Republic of South Africa, 1996. [28]  Based on the above, the Respondents submit that they have disclosed bona fide defences and raised material disputes of fact that require adjudication at trial. They further request that the Applicant’s application for summary judgment be dismissed, leave to defend be granted, and costs be awarded against the Applicant on an attorney-and-client scale in terms of uniform rule 32(9)(a). Legal principles on summary judgment: [29] Section 34 [4] of the Constitution of the Republic of South Africa, 1996 guarantees the right of access to the courts. Summary judgment proceedings appear to be in conflict with the provisions of section 34. The court must ensure that the summary judgment procedure does not infringe upon the Defendant’s constitutional right to access the courts and to a fair trial as enshrined in section 34. Summary judgment permits the granting of a final judgment or order in a defended action without full pleadings or a trial. [5] In considering this matter the court has to carefully balance the need for expeditious resolution of disputes against the Defendant’s right to a fair trial. Summary judgment should only be granted where the Plaintiff has demonstrated that the Defendant’s defences are not bona fide and do not raise any triable issues. [30]         In terms of rule 32 of the Uniform Rules of Court, summary judgments 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; or (d) for ejectment; together with any claim for interest and costs. [31]  The primary purpose of summary judgment is to provide a mechanism for the expeditious resolution of cases where the Plaintiff’s claim is unanswerable and where the Defendant does not have 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 judgment is considered an exceptional remedy and should be granted only in clear cases where the Plaintiff’s claim is unassailable and the Defendant’s defence is manifestly without merit. [32]  A Plaintiff may apply for summary judgment after the Defendant has delivered a plea. The Plaintiff must 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 purpose of delay. [33] To resist summary judgment, the Defendant must satisfy the court that they have a bona fide defence to the Plaintiff’s claim. The rationale for summary judgment is to prevent recalcitrant debtors from delaying payment where no genuine defence exists. [6] A Defendant opposing summary judgment must fully disclose the nature and grounds of the defence and the material facts relied upon. [7] Bare denials do not constitute a bona fide defence. [8] 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. [34]  Rule 32(3)(a) and (b) makes provision for a party to either furnish security to the Plaintiff to the satisfaction of the registrar for any judgment that may be given or satisfy the court by affidavit or by oral evidence establishing fully the nature and grounds of the defence as well as the material facts relied thereon. Such a defence must also be bona fide . [35] Summary judgment proceedings are not intended to be a trial by affidavit [9] . 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 discloses a defence that is bona fide and raises a triable issue. A bona fide defence is one that is genuinely advanced and is not merely a delaying tactic. The Defendant must provide sufficient detail to enable the court to determine whether the defence is plausible and capable of being sustained at trial. [36]  The onus is on the Plaintiff to establish that the Defendant has no bona fide defence and that the claim is unanswerable. However, once the Plaintiff has made out a prima facie case, the onus shifts to the Defendant to show that there is a genuine issue for trial. [37]  The court has a discretion in granting or refusing summary judgment. Even if the Defendant’s affidavit does not fully meet the requirements of Rule 32, the court may still refuse summary judgment if it is satisfied that there is a reasonable possibility that the Defendant has a defence that should be heard at trial. [38]  The court must guard against the abuse of the summary judgment procedure. The procedure is not intended to deprive a Defendant of their constitutional right to a fair trial but rather to prevent frivolous or vexatious defenses that serve only to delay the resolution of the matter. Analysis [39] The crux of this summary judgment is centred around the significance of the suretyship. It is trite law that suretyship is a legal instrument through which a co-debtor can be held liable for the debt of the principal debtor. Suretyship is accessory in nature and remains binding until the principal debt is discharged. [10] If a principal debtor fails to perform, or fails to perform in full, the surety must perform in full or to the extent that the principal debtor has failed to do so, subject to any limit imposed on the surety’s obligations under the suretyship. It is further 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 excussion. [40]  The Respondents’ claim that they were released as sureties in 2015 is not supported by sufficient evidence. While they allege that the Applicant’s failure to release them for the specific account in question was an oversight, they have not provided any concrete proof of such a release or any documentation confirming the Applicant’s intention to release them from liability for the specific debt. The Respondents’ reliance on their "impression" of being released is speculative and does not constitute a valid defence. Furthermore, the Applicant has categorically denied that any decision was made to release the Respondents as sureties for the debt in question, and the Respondents have failed to provide evidence to substantiate their claim. [41]  The Respondents’ argument that the Applicant already holds adequate security in the form of a mortgage bond does not absolve them of their liability as sureties. The existence of security does not negate the Applicant’s right to enforce the suretyship agreements against the Respondents. The Respondents have not demonstrated how the existence of the mortgage bond invalidates their obligations under the suretyship agreements. [42]  The Respondents’ contention that the Applicant delayed prosecuting the action for four years is not a valid defence against summary judgment. The delay in prosecuting the matter does not negate the Applicant’s claim or the Respondents’ liability under the suretyship agreements. Furthermore, the Respondents have not demonstrated any prejudice suffered as a result of the delay that would justify denying summary judgment. [43]  The Respondents’ assertion of triable issues is unconvincing. The alleged discrepancies in the "standard terms and conditions" and the registered mortgage bond do not directly impact the validity of the suretyship agreements signed by the Respondents. The Respondents have admitted to signing the deeds of suretyship, and their liability under these agreements is not contingent upon the terms of the loan agreement or the mortgage bond. Additionally, the absence of a deed of suretyship for the Fourth Respondent does not affect the liability of the other Respondents, who have acknowledged signing their respective deeds of suretyship. The argument about the Fourth Respondent, Andrew Alexander Maren, revolves around the claim that he did not sign a deed of suretyship in favour of Absa Bank for the First Defendant's indebtedness. The Respondents argue that the Applicant failed to attach, to its particulars of claim, the signed Deed of Surety by the Fourth Defendant when making allegations that the deeds of suretyship were signed by all Defendants. The Respondents argue that the document attached as "D.1" to the particulars of claim was signed by the Fourth Defendant in his capacity as an authorized signatory for the Second Defendant company, Empower Group Holdings (Pty) Ltd, and not as a personal surety. Therefore, the Defendants argue that there is no basis for Absa to seek summary judgment against the Fourth Defendant, in so far as the Fourth Respondent is concerned the order granted would have to be amended. ​ [44]  The Respondents’ claim that the Plaintiff failed to provide the requested documents under rule 35(14) does not constitute a valid defence against summary judgment. The Applicant has provided certain documents in response to the request and has stated that other documents are not in its possession. The Respondents have not demonstrated how the absence of these documents materially affects their ability to defend the claim or how it establishes a bona fide defence. [45] The Respondents’ challenge to the affidavit of the Applicant’s deponent, Ms. Berna Malan, is without merit. The deponent is a Senior Legal Advisor in the Applicant’s Home Loans Recoveries Division and is authorised to depose to the affidavit. The Respondents’ allegations regarding her lack of personal knowledge are speculative and do not invalidate the affidavit. It has long been established in money disputes that a witness who claims personal knowledge of a cause of action in summary judgment proceedings must either set out the circumstances from which his or her knowledge, or it must appear from the nature of the evidence that the facts are within his or her knowledge [11] . A person in Home Loans recoveries is well placed and delegated to depose to facts relating to distressed credit accounts. In any event, the Applicant is not required to provide detailed evidence at the summary judgment proceedings but only to demonstrate that the Respondents’ defences are not bona fide and do not raise triable issues. [46]  The Respondents’ claim that the Applicant’s application for summary judgment constitutes an abuse of process is unfounded. The Applicant has followed the procedural requirements under Rule 32 and has provided sufficient grounds for seeking summary judgment. The Respondents’ reliance on constitutional rights is misplaced, as the summary judgment procedure itself is a legitimate mechanism provided under the rules of court to prevent unnecessary delays in litigation where no genuine defence exists. Conclusion [47] The Respondents failed to meet the requirements of Rule 32(3)(b) by not fully disclosing the nature and grounds of their defence or providing material facts to support their claims. I found the defences raised by the Respondents very speculative, unsupported by evidence, or irrelevant to the validity of the suretyship agreements. The Applicant has complied with the Rule 32 requirements, including verifying the cause of action and the amount claimed. The Respondents have failed to demonstrate a bona fide defence or raise triable issues that would justify the refusal of summary judgment. The Applicant's claim is unimpeachable, and the Respondents' defence is deemed bogus and bad in law, as per the principles established in Maharaj v Barclays National Bank Ltd. [12] Amendment to Operative Order [48]  Accordingly, the court found that the Applicant is entitled to the relief sought. Those are the reasons for the order granted on 13 October 2025, save to state that the Fourth Respondent is excluded from the order, accordingly. For the avoidance of doubt and to ensure clarity, the order granted on 13 October 2025 is amended to exclude the Fourth Respondent, Andrew Alexander Maren, from liability under the summary judgment. The operative order should therefore read as follows: The Second, Third, Fifth and Sixth Respondents, jointly and severally (together with any judgment which may subsequently be granted against the First Respondent), the one paying the other to be absolved, in the following terms: (a) Payment of the sum of R682,163.65; (b) Payment of interest on the amount of R682,163.65 at the rate of 9.00% per annum as from 11 March 2020 to date of payment, such interest to be capitalized monthly in arrears; (c) Costs of suit on an attorney-and-client scale; (d) The operation of the order is suspended pending the finalization of the Rule 46 application. P N MANAMELA ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA Date of hearing: 13 October 2025 Judgment delivered: 11 December 2025 APPEARANCES: Counsel for the Applicant:  WJ Roos Attorneys for the Applicant: Velile Tinto & Associates Inc. Attorneys Counsel for the Respondent: J Delport Attorneys for the Respondent: Serfontein Viljoen & Swart Attorneys [1] Rule 32(3)(b) – The defendant may – (b) 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 to the fact that the defendant has a bond 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 therefor. [2] [2009] ZASCA 23 ; 2009 (5) SA 1 (SCA); [2009] 3 All SA 407 (SCA) at paras 31-32. [3] 1976 (1) SA 418 (A); [1976] 2 All SA 121 (A). [4] 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. [5] Arend v Astra Furnishers (Pty) Ltd 1974 1 SA 298 (C) at 298G and 304F-G. [6] Joob Joob Investments (above n 2). [7] Uniform rule 32(3)(b ); Nedbank Ltd v Richardson [2022] ZAECGHC 96 at para 19. [8] Absa Bank Ltd v Peacock & Another [2020] ZAWCHC 154. [9] Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) [10] Liberty Group Ltd v Illman [2020] ZASCA 38 2020 (5) SA 397 (SCA). [11] President of the RSA v M&G Media Ltd [2011] ZACC 32 ; 2012 (2) SA 50 (CC); 2012 2 BCLR 181 (CC) paras 28-31. [12] Maharaj (above n 3). sino noindex make_database footer start