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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No: 202 3/070442
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
DATE 16 May 2025
SIGNATURE
In the matter between:
POTPALE INVESTMENTS (PTY) LTD Applicant /Plaintiff
and
KOTELO RABOTSHEGWANE PETR US Respondent /Defendant
____________________________________________________ _______________
JUDGMENT
_______________________________________________________________ ____
BARNES A J
[1] On 12 February 2025, I granted an order in the following terms:
“Summary judgment is granted against the Defendant as follows:
1. Confirmation of termination of the agreement;
2. Return of the 2019 TOYOTA QUANTUM 2.5 D -4D SESFIKILE 16S
with engine number 2[...] and chassis number A[...] to the Plaintiff
forthwith ;
3. Attorn ey and client costs to be taxed.”
[2] I indicated that I would give reason s for my order in due course. These are my
reasons.
[3] The Plaintiff’s claim ar ose out of a n agreement (“the Agreement”) entered
into between the Plaintiff and the Defendant on 27 September 2022 in terms
of which the Plaintiff leased the motor vehicle described above (“the motor
vehicle”) to the Defendant.
[4] The motor vehicle was leased by the Defendant for the purposes of
conducting a taxi business and it was accepted by the parties the Agreement
was a credit agreement in terms of the provisions of the National Credit Act 34
of 2005 (“the NCA”).
[5] In terms of the Agreement , ownership of the motor vehicle remained with the
Plaintiff until such time as the Defendant had paid all the amounts due in
terms thereof.
[6] The Defendant was obliged , in terms of the Agreement, inter alia , to pay a
monthly instalment of R14 916.04. If he failed to do so, the Agreement entitled
the Plaintiff to terminate the Agreement, repossess the motor vehicle and
recover the legal costs of doing so on the scale as between attorney and
client.
[7] The Defendant fell into arrears . Following the requisite demand in terms of the
provisions of sections 129 and 130 of the NCA , the Plaintiff instituted action
against the Defendant . The Plaintiff sued for confirmation of the termination of
the Agreement , the return of the vehicle , and costs on the scale as between
attorney and client.
[8] Following receipt of the Defendant’s plea, the Plaintiff launched an application
for summary judgment. The Defendant filed an affidavit opposing summary
judgment but failed to file heads of argument or a practice note.
[9] There was , without explanation, no appearance for the Defendant at the
hearing of the summary judgment application .
[10] In his papers, t he Defendant admit s that ha s failed to make the repayments in
terms of the Agreement. He does so in the following terms:
“I admit that I am in arrears with the repayment. The reason is that I
cannot afford the monthly payments as my monthly income is no t
enough to pay the instalments on a regular basis.”
[11] The defences raised by the Defendant are twofold:
11.1 First, he contends that : “I signed the contract but did not read it. I only
achieved Standard 3 at school and cannot read English. The contents of the
contract were also not explained to me.”
[12] Second, he contends that : “The Defendant is not aware of any assessment
done by the Plaintiff in terms of s 81(2) of the NCA. The Defendant did not
give any documentation or financial information to the Plaintiff to do the
necessary assessment. If any assessment were (sic) made, it was done on
forged documentation.” On the basis of this , the Defendant avers that the
Agreement constituted “reckless credit” in terms of the provisions of the NCA
and therefore falls to be suspended or set aside.
[13] Neither of the Defendant’s contentions are convincing.
[14] In relation to the first, the Defendant admits that his intention was “to buy a
vehicle for commercial purposes.” He also admits that “they told me that I will
pay R15 000.00 per month.” This is in contradiction to his averment that the
contents of the Agreement were not explained to him.
[15] It is therefore clear, on the Defendant’s own version, and despite his
protestations to the contrary, that he was aware that he was signing an
agreement to purc hase a motor vehicle for commercial purposes (in his case
for use as a taxi) and that in terms of the Agreement he was required to pay a
monthly instalment of R15 000.00 (the actual amount in terms of the
Agreement was R14 916.04).
[16] The Defendant’s second contention is pleaded in similarly vague and
contradictory terms. In particular, the Defe ndant admits in his affidavit
opposing summary judgment that he “arrived at the dealership with a
recommendation letter, his ID and three months bank statements.” This is in
stark contradiction to the averment in his plea that “he did not give any
documentation or financial information to the Plaintiff” (the basis of his
“reckless credit” claim).
[17] It is salutary, at this juncture, to highlight the standard which must be met by a
defendan t in order to defeat a claim for summary judgment. In Breitenbach v
Fiat SA (Edms) Bpk 1972 (2) SA 226 (T), Colman J delivering the judgment of
the Full Court, held as follows :
“It must be accepted that the subrule was not intended to demand the
impossible. It cannot therefore be given its literal meaning when it
requires the defendant to satisfy the Court of the bona fides of his
defence. It will suffice, it seems to me, if the defendant swears to a
defence, valid in law, which is not inherently and seriously
unconvincing .
Another provision of the subrule which causes difficulty is the
requirement that in the defendant’s affidavit , the nature and grounds of
his defence and the material facts relied upon therefor, are to be
disclosed ‘fully’……
…...the word fully should not be given its literal meaning in Rule 32(3)
and no more is called for than this: that the statement of material facts
be sufficiently full to persuade the Court that what the defendant had
alleged, if proved at trial, will constitute a defence to the plaintiff’s
claim. What I would add however, is that if the defendant’s defence is
averred in a manner which appears in all the circumstances to be
needlessly bald, vague or sketchy, that will constitute material for this
Court to consider in relation to the requirement of bona
fides .”1(Emphasis added)
[18] In South African Taxi Securitisation v Mbatha 2011 (1) SA 310 (GSJ)
(“Mbatha”) this Court dealt with a similar application for summary judgment for
the repossession of a motor vehicle following breach of a credit agreement by
the consumer. There, as here, the Defendant raised the defence of “reckless
credit” in terms of the NCA in an attempt to defeat the claim for summary
judgment. The Court held as follows:
“The principles enunciated in Breitenbach v Fiat are no less applicable
when the Defendant deposing to an affidavit resisting summary
judgment is relying upon defences based on sections of the NCA.
Since the enactment of the NCA there seems to be a tendency in these
courts for defendants to make bland allegations that they are ‘over
indebted ’ or that there has been ‘reckless credit ’. These allegations,
like any other allegations made in a defendant’s affidavit opposing
summary judgment should not be ‘inherently and seriously
unconvincing ’, should contain a reasonable amount of verificatory
detail, and should not be needlessly bald, vague or sketchy. A bald
allegation that there was ‘reckless credit ’ or that there is ‘over-
indebtedness ’ will not suffice.”2 (Emphasis added)
[19] In my view, this is a case in which the vague and contradictory allegations
made by the Defendant are ultimately “inherently and seriously unconvincing”
and therefore fall significantly short of the level of cogency and plausibility
1 At 228.
2 At para 26.
required in our law to defeat a claim for summary judgment.
[20] Even however if I am wrong in this regard, the Defendant’s contentions,
assuming they were found to be credible, would not constitute a cognisable
defence to the Plaintiff’s claim for repossession of the motor vehicle. This is
so because, even if the Agreement were to be suspended or set aside on the
bases contended for by the Defendant, the Plaintiff, who remains the owner of
the motor vehicle, would still be entitled to the repossession thereof . This
Court came to the same conclusion in Mbatha:
“It seems unlikely that the legislature ever intended that the consumer
could keep ‘the money and the box.’ If the consumer obtained
possession and use of a motor vehicle in circumstances in which no
credit should have been extended to the consumer, it would be
fundamentally unfair and counterproductive for the consumer to
continue to use the vehicle while at the same time not making
payments under the agreement.
If the consumer had a valid complaint that, but for the recklessness of
the credit provider, the consumer would never have become involved in
the transaction, it might be just and reasonable to set aside the
agreement. In that event the agreement would be null and void, as if it
had never been. As a consequence the credit provider, who remains
the owner of the vehicle, would be entitled to restoration of the vehicle.3
(Emphasis added)
[21] The same logic would apply if the Agreement was suspended in terms of the
NCA. Thus in Mbatha this Court held that:
“If on the other hand, the effect of the Agreement is merely suspended,
all elements of the Agreement would have to be suspended. This
would mean that the consumer would not be entitled to continue to
3 At paras 46 and 47.
retain possession of the vehicle during the period of suspension. At the
same time, the consumer would not have to make any payments
during the suspension period.”4
[22] In either event then, the Defendant has raised no cognisable defence to the
Plaintiff’s claim for repossession of the motor vehicle.
[23] It was for these reason s that I granted the Plaintiff’s application for summary
judgment.
BARNES AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Heard: 12 February 2025
Reasons: 16 May 2025
Appearances:
Applicant :
Adv R Stevenson, instructed by Marie -Lou Bester Inc
4 At para 48.
Respondent:
No appearance