ABSA Bank Home Loans Guarantee Company (RF) (Proprietary Limited) and Another v Kondwani Titus Kamanga

The plaintiffs (ABSA Bank Home Loans Guarantee Company and ABSA Bank Limited) sought summary judgment for a monetary debt against the defendant arising from a mortgage loan agreement. The defendant appeared in person and filed a notice of intention to plead in which he acknowledged being in arrears but pleaded with the plaintiffs not to execute against the mortgaged property as it was his primary residence. He stated he had made an offer to pay reduced instalments to bring his arrears up to date. The first plaintiff's deponent stated that the defendant's offer was not acceptable because the proposed monthly instalment would not even cover the interest on the mortgage loan. The defendant conceded he was in arrears with no defence to the alleged breach of contract or the extent of indebtedness claimed, which amounted to R5,590,996.40.

• Whether the defendant had raised a bona fide defence to the claim that would defeat the application for summary judgment
• Whether the plaintiffs had complied with their obligations under section 129 of the National Credit Act before seeking judgment
• Whether the court could unilaterally rewrite the parties' contractual obligations to suit the defendant's financial circumstances

The court granted summary judgment in favour of the plaintiffs with the following order: (1) The defendant is to pay the sum of R5,590,996.40 to the first plaintiff; (2) The defendant is to pay interest on that amount at the prime lending rate plus 1.25% per annum from 22 December 2023, calculated daily and capitalized monthly, to date of final payment; (3) The defendant is to pay the costs of suit on the agreed attorney and own client scale.

A court will not unilaterally rewrite a contract between parties to impose new contractual obligations on a creditor simply because a debtor can only afford reduced payments. For purposes of resisting summary judgment, a mere request for reduced payment terms without a viable defence to the debt does not constitute a bona fide defence. Compliance with section 129 of the National Credit Act requires creditors to actually consider a debtor's proposals for bringing payments up to date, not merely go through the motions. Where a defendant concedes indebtedness and raises no real defence to breach of contract or the quantum claimed, summary judgment will be granted.

The court made an observation that due to the judge's illness causing a lengthy delay in delivering judgment, the defendant hopefully had an appropriate opportunity during the intervening period to bring up the arrears on his instalments, which would entitle him to have the agreement reinstated within the meaning contemplated in sections 129(3) and (4) of the National Credit Act, notwithstanding the plaintiffs' success in the application. This indicates that the granting of judgment does not necessarily foreclose the defendant's right to reinstate the agreement if he subsequently brings his account up to date.

This case illustrates the limited grounds for resisting summary judgment applications in debt collection matters, particularly where a defendant concedes the debt but seeks to renegotiate payment terms. It confirms that courts will not unilaterally rewrite contractual obligations to suit a debtor's financial circumstances. The case also demonstrates the proper application of section 129 of the National Credit Act, confirming that creditors must genuinely consider debtors' proposals for debt restructuring, not merely pay lip service to the statutory requirements. The judgment also clarifies that even after summary judgment is granted, a debtor may still be entitled to reinstatement of the agreement under sections 129(3) and (4) of the National Credit Act if arrears are brought up to date.