Nedbank Limited v Mokgolo (031959/2023) [2025] ZAGPJHC 850 (3 September 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: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 850 | Noteup | LawCite sino index ## Nedbank Limited v Mokgolo (031959/2023) [2025] ZAGPJHC 850 (3 September 2025) Nedbank Limited v Mokgolo (031959/2023) [2025] ZAGPJHC 850 (3 September 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_850.html sino date 3 September 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 (GAUTENG LOCAL DIVISION, JOHANNESBURG) Case No.  031959/2023 (1)      REPORTABLE: NO (2)      OF INTEREST TO OTHER JUDGES: NO (3)      REVISED. SIGNATURE DATE:  3 September 2025 In the matter between: NEDBANK LIMITED Plaintiff and MERCY MMALEHLOHONOLO MOKGOLO Defendant ##### ##### JUDGMENT JUDGMENT D’OLIVEIRA AJ : 1 This is an opposed application for summary judgment. 2 In December 2017, the plaintiff and the defendant concluded a written instalment sale agreement in terms of which the plaintiff sold a 2012 Nissan Juke 1.6 Acenta+ (“ the Nissan ”) to the defendant for R154 846.00. 3 In terms of the agreement: 3.1         interest would be charged on the above capital amount at a fixed rate of 14.3% per annum, compounded monthly in arrears; 3.2          the capital amount, plus interest, would be repaid by the defendant in 72 monthly instalments, the last instalment being due on 25 December 2023; and 3.3          the plaintiff would retain ownership of the Nissan until the defendant had paid all amounts owed to the plaintiff under the agreement. 4 The agreement, inclusive of the above terms, is not disputed. 5 After the conclusion of the agreement, the defendant took possession of the Nissan.  She remains in possession of the Nissan today. 6 It is also not disputed that during the currency of the agreement, the defendant breached the agreement by defaulting on payment and fell into arrears. 7 This caused the plaintiff to deliver a notice of breach on 6 March 2023 by registered post to the defendant’s address, 6[...] J[...] Avenue, Brakpan. On the same day, 6 March 2023, the plaintiff also delivered a notice of termination of debt review in terms of section 86(10) of the National Credit Act 34 of 2005 (“ the Act ”) by registered post to the same address. 8 When the defendant failed to respond to the aforesaid notices, the plaintiff served a combined summons on the defendant on 4 May 2023, in which it claimed judgment against the defendant in the following terms: “ 1.    Cancellation of the agreement entered into between the Plaintiff and the Defendant; 2.     An order authorising the Sheriff of the high court to attach, seize and hand over the vehicle to the plaintiff; 3.     Costs of suit; 4.     The plaintiff is given leave to approach the above Honourable Court on the same papers duly supplemented for payment of the difference between the balance outstanding and the market value of the vehicle in the event of there being a shortfall after the vehicle has been repossessed and sold or re-leased and there being a balance outstanding by the Defendant to the Plaintiff. ” 9 Attached to the particulars of claim that formed part of the combined summons was the agreement, the notice of breach, and the notice terminating debt review in terms of 86(1) of the Act. 10 The combined summons was duly served at the defendant’s residential address, 6[...] J[...] Avenue, Brakpan. It came to the attention of the defendant, who filed a notice of intention to defend, and subsequently delivered a plea and a counterclaim on 28 June 2023. 11 The plaintiff launched its application for summary judgment in the terms set out above on 17 July 2023.  The application for summary judgment was also duly served by sheriff on 20 July 2023 at the defendant’s residential address. 12 The defendant delivered an affidavit opposing summary judgment on 4 September 2023. 13 The defendant’s plea and affidavit opposing summary judgment disclose no substantive defences to the plaintiff’s claim. 14 The only defences to the plaintiff’s claim contained in the plea and affidavit opposing summary judgment were dilatory defences. The defendant pleaded that she did not receive the notice of breach or the section 86(10) notice terminating debt review prior to the service of the summons. 15 The defendant pointed out that while it may be true that her domicilium citandi et executandi and her residential address is 6[...] J[...] Avenue, Brakpan, and while it may be true that the plaintiff despatched both the notice of breach and the 86(10) notice to this address, the “ tracking slip ” of the Post Office shows that the Post Office delivered the postage slip to the wrong address. The postage slip recorded the address as 1[...] J[...] Avenue, Brakpan, not 6[...] J[...] Avenue, Brakpan. 16 The question is whether this mistake on the part of Post Office implies that summary judgment should be refused, and the matter should be referred to trial. 17 In my view, the answer to the question is no. 18 Clause 12.1 of the agreement regulates the giving and receiving of legal notices for the purposes of the agreement. It provides as follows: “ You will be deemed to have received any notice from us within 7 (seven) Business Days after we have sent the notice to your chosen address by post …. You agree that registered mail will be used for delivery of legal notices to you. ” 19 In terms of clause 12.1, any legal notices sent to the defendant’s chosen address by registered mail are deemed to have been received within seven business days, whether the legal notices have in fact been received or not. 20 The defendant agreed to this deeming provision. She also agreed that registered mail may be used for the delivery of any legal notice. She therefore agreed to bear the risk of the Post Office failing to actually deliver a legal notice sent by the plaintiff to the correct address. 21 The notice of breach and the section 86(10) notice are both legal notices. It is not disputed that the plaintiff duly sent both the notice of breach, and the section 86(10) notice, by registered post to 6[...] J[...] Avenue, Brakpan.  It was the Post Office that apparently captured the address incorrectly, and apparently dispatched the postage slips to 1[...] J[...] Avenue, Brakpan. 22 In terms of clause 12.1 of the agreement, the risk of this error is born by the defendant. Notwithstanding the error, the notices were deemed to be delivered within 7 business days of having been sent. The plaintiff was therefore entitled to cancel the agreement and claim recovery of the Nissan after the lapse of 10 days. 23 Another difficulty for the defendant in relying on the defence that she did not receive the section 86(1) notice, is section 130(4)(b) of the Act. 24 In terms of section 130(4)(b) of the Act, the failure of a plaintiff to deliver a notice in terms of 129(1) or 86(10) of the Act, does not mean that the credit agreement may not be enforced in such proceedings. 25 Section 130(4)(b) of the Act provides that if the Court determines that a notice in terms of sections 129(1) or 86(10) of the Act was not delivered, the Court must, in those circumstances, adjourn the matter before it and make an appropriate order setting out the steps the credit provider must complete before the matter may be resumed. 26 Therefore, even if the plaintiff had failed to deliver a notice in terms of section 129 or 86(10) of the Act, it would not mean that the plaintiff’s claim falls to be dismissed. Rather, section 130(4)(b) of the Act would come into operation. 27 But in this instance, a notice in terms of section 86(10) of the Act was delivered. In this regard, it is clear that the defendant received both the notice of breach and the section 86(10) notice by the latest 4 May 2023. It is also not disputed that the section 86(10) notice was duly delivered to the defendant’s debt counsellor and the National Credit Regulator on or about 6 March 2023. 28 Since the defendant was under debt review at the time that the section 86(10) notice was delivered, there was no obligation on the plaintiff to also deliver a notice in terms of section 129(1) of the Act. 29 Finally, despite that she had received both the notice of breach, and the section 86(10) notice, by 4 May 2023 at the latest, the defendant failed to remedy her breach. She also failed to make any attempt to compromise with the plaintiff, or reinstate the credit agreement, or otherwise resolve her admitted default under the agreement. 30 Instead, the defendant elected to persist in her default. She elected not to voluntarily surrender the vehicle to the plaintiff. She continued to use and enjoy the Nissan despite knowing that it belonged to the plaintiff and that she was not paying for the vehicle or its use. In so doing, the defendant took advantage of the inherent delay in legal proceedings to hold onto the plaintiff’s motor vehicle for as long as possible without paying for it. 31 In this regard, the defendant, who appeared in person at the hearing, confirmed that she has not made any payment towards the reduction of the amount owed to the plaintiff since the delivery of the summons on 4 May 2023. 32 The result of the defendant’s election to persist in her default is: 32.1              The agreement ran to completion on 25 December 2023, which was the date the defendant should have paid the last instalment. 32.2              The credit agreement cannot be reinstated by payment of arrears. 32.3 The amount owed by the defendant to the plaintiff has increased from R141 946.66, at the date of service of combined summons, to R171 278.36 [1] , at the date of the hearing. The amount owed will continue to increase with the aggregation of interest at a compound rate of 14.3%. 33 In the circumstances: 33.1              There is no dispute that the defendant owes the plaintiff R141 946.66, plus interest at a compound rate of 14.3% from date of summons to date of final payment. 33.2              There is no dispute that the defendant defaulted on payment. 33.3              There is no dispute that the defendant persisted in her default, for over two years, despite receiving the plaintiff’s notice of breach and notice in terms of section 86(10) of the Act. 33.4              There is no dispute that the plaintiff is and remains the owner of the Nissan, because the defendant has not paid for it in terms of the agreement or at all. 33.5              There is no dispute that the agreement has been terminated, either because the plaintiff cancelled the agreement or by effluxion of time. 34 In the circumstances, the defendant has no bona fide defence and there is no triable issue that justifies the refusal of summary judgment and the referral of the matter to trial. 35 Finally, the defendant is not assisted by her counterclaim. 36 The defendant’s claim that the vehicle was not in good condition at the time it was delivered to the defendant is in conflict with the terms of the written instalment sale agreement. 37 In this regard: 37.1              Clause 1.1 of the agreement provides that: “ I/We have taken delivery of the goods, which are in good order and condition, to my/our entire satisfaction and according to my/our specifications or requirements, and I/we confirm that all defects, if any, have been shown to me/us by the dealer. ” 37.2              Clause 3.3 provides: “ You must inspect the Goods for any defects before collecting the Goods.  If any defect is found, you must not take delivery of the Goods and you must inform us immediately. ” 37.3              And clauses 23.1 and 23.2 provide: “ 23.1  This agreement contains all the provisions agreed by both you and us, and the terms, contained herein will be the only terms binding you and us. 23.2   No changes may be made to this Agreement and this Agreement may not be cancelled, unless: 23.2.1   such change is done in writing and is signed by both parties or 23.2.2   such change is agreed to telephonically by both Parties which is recorded and logged onto our electronic client system and subsequently reduced to writing. ” 38 It is common cause that the defendant took delivery of the vehicle on 15 December 2017, and has remained in possession and enjoyed the use of the Nissan since that date. 39 There is no record, agreed in writing and signed by the parties, or recorded on the plaintiff’s electronic system and subsequently reduced to writing, to the effect that the vehicle was not in good condition at the time she took delivery. 40 Even if there was any defect or lack in the Nissan’s condition at the time the defendant took delivery, the defendant has long waived or lost any right of recourse in this regard. 41 The defendant’s counterclaim is without merit. It does not constitute a bona fide defence to the plaintiff’s claim. 42 In the circumstances, the following order is made: “ Summary judgment is granted in favour of the plaintiff in the following terms: 1. The written agreement concluded between the plaintiff and the defendant dated 15 December 2017 is cancelled. 2. The sheriff is authorised and directed to attach, seize and hand over the following vehicle to the plaintiff: 2012 Nissan Juke 1.6 Acenta+, with Engine No: H[...], Chassis No: S[...]. 3. The defendant is ordered to pay the plaintiff’s costs of suit. 4. The plaintiff is given leave to approach the court in due course on the same papers, duly supplemented, to recover the shortfall between what the plaintiff recovers on the vehicle and the amount owed by the defendant to the plaintiff.” A J D’OLIVEIRA Acting Judge of the High Court This judgment is handed down electronically by circulation to the parties or their legal representatives by email, by uploading to Caselines, and by publication of the judgment to the South African Legal Information Institute. The date for hand-down is deemed to be 3 September 2025. HEARD ON: 4 June 2025 DECIDED ON: 3 September 2025 For the Applicants: W Naude Instructed by Hammon Pole Attorneys For the Respondent Appearance in person [1] This amount was confirmed to the court from the bar by counsel who appeared on behalf of the plaintiff. sino noindex make_database footer start