A recent judgment handed down in the High Court in Mahikeng underscores that even well-resourced lenders must fully substantiate their claims, because credible disputes over figures, standing, or process can be enough to block summary judgment and force a trial.
The ruling signals a shift towards stricter judicial scrutiny in debt enforcement matters, highlighting the need for higher evidentiary discipline. It reinforces that summary judgment is not a rubber stamp, even in seemingly straightforward cases, and reflects a growing trend of defendants challenging loan account calculations, interrogating documentation chains, and scrutinising affidavit processes.
Background to the dispute
The matter arose from an application by FirstRand Bank for summary judgment against Jan Abraham Christoffel Dry, seeking payment of an outstanding mortgage debt and an order declaring his immovable property specially executable. The bank ultimately sought R264 308.70, after accounting for payments made.
The claim stemmed from a mortgage bond originally registered by Saambou Bank, with the debt later transferred through BOE Bank before ultimately vesting in FirstRand. The bank alleged an outstanding balance of R460 843.23 in July 2025, with arrears of R38 839.82 reflected in a section 129 notice issued under the National Credit Act (NCA).
Dry opposed the application, raising a series of preliminary objections that challenged both the substance of the claim and the bank’s entitlement to enforce it.
Legal issues before the Court
The Court was required to determine whether FirstRand had met the stringent requirements for summary judgment – a procedure reserved for cases where there is no genuine dispute of fact.
Dry’s defence raised multiple issues, including:
- whether FirstRand had properly established its legal standing to enforce the mortgage bond;
- whether the amount claimed was accurate and legally “liquid”;
- whether the bank had complied with statutory requirements under the NCA; and
- whether the founding affidavit complied with the rules governing commissioners of oaths.
Court’s reasoning and findings
Judge Andrew Reddy held that these issues, taken together, disclosed bona fide and triable disputes that could not be resolved on the papers.
On the question of standing, the Court found that the absence of proof of a registered cession of the mortgage bond raised a legitimate dispute as to whether FirstRand was entitled to enforce the security. The failure to provide a complete documentary chain linking the original lender to the current claimant left its entitlement open to challenge.
The Court also scrutinised the bank’s evidence, focusing on the verifying affidavit deposed to by Roy Gomes, a manager in legal recoveries at FirstRand. Gomes attested to the bank’s claim and the amount allegedly owed, relying on records that had passed through multiple institutions following the transfer of the debt.
The Court noted that in such circumstances, a deponent must explain how they acquired personal knowledge of the underlying records and establish their reliability. An affidavit that merely repeats stored or inherited data, without setting out a proper evidential foundation, raises concerns about hearsay and is insufficient to meet the evidential threshold required for summary judgment.
Concerns were further raised about the validity of the founding affidavit itself. The affidavit had been commissioned by a commissioner of oaths who was a panel attorney for the bank, raising questions about independence and compliance with regulatory requirements. The Court held that, at the very least, this created reasonable doubt that could not be resolved in favour of the bank at the summary judgment stage.
On the quantum of the claim, the Court found that the inclusion of untaxed legal costs in the capital amount undermined its status as a liquidated claim. It held that contractual provisions could not override the requirement that a claim be capable of prompt and exact calculation for purposes of summary judgment.
The Court also reiterated that a certificate of balance constitutes only prima facie proof of indebtedness and may be rebutted where specific discrepancies are identified. It pointed to discrepancies in the arrears, which increased from R38 839.82 in the earlier statutory notice to R224 443.31 in the later certificate of balance, reinforcing concerns about the accuracy of the claim and supporting the finding that the section 129 notice was defective and constituted a bona fide defence to enforcement.
The Court further addressed the bank’s request to have the property declared specially executable under Rule 46A of the Uniform Rules of Court, which governs when a home may be sold to satisfy a debt. It noted that such relief depends on a valid and enforceable monetary claim. As summary judgment on the debt was refused, the application for executability was rendered moot and refused alongside the main claim, meaning the Court did not proceed to consider whether it would be just and equitable to authorise the sale of the property.
The judgment does not deal with the value of the property relative to the debt – a factor typically relevant in Rule 46A proceedings – because the matter did not progress beyond the threshold question of whether the bank had established a valid and enforceable claim.
The Court emphasised that summary judgment is intended to prevent sham defences, not to shut a defendant out of court where genuine disputes exist. It held that FirstRand’s case could not be described as “unanswerable”, and the interests of justice required the matter to proceed to trial.
The Court rejected the bank’s attempt to fast-track the matter, allowing the defendant to fully contest the claim at trial, with the issue of legal costs to be determined at the conclusion of the proceedings.
