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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number : 120260/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
15/5/ 2025
In the matter s between: -
WESBANK, A DIVISION OF FIRSTRAND
BANK LIMITED Applicant
and
BOHLALE MOTHIPA GROUP (PTY) LTD First Respondent
MOTHIPA MANTSHO MOJAPELO Second Respondent
JUDGMENT
JACOBS AJ:
[1] This is an application for summary judgment. The plaintiff instituted action
against the first defendant for the return of 2020 Mercedes Benz X350D 4 Matic
Power motor vehicle and ancillary relief following the alleged default on the part of
the first defendant to make payment of instalments payable to the plaintiff under an
electronic instalment agreement. Summary judgment is sought for the return of the
vehicle bought by the first respondent and for the postponement of the balance of
the relief sought after taking into account the proceeds from the sale of the vehicle in
execution by the plaintiff.
[2] The respondent challenges the plaintiff’s right to claim judgment on the
following grounds:
2.1. That the National Credit Act is applicable and that the plaintiff has failed to
comply with the said enactment including the issue of a notice in terms of section
129 of the National Credit Act;
2.2. That the plaintiff failed to attach to the summons a certificate showing that
it is registered as a credit provider;
2.3. The entitlement of the plaintiff to cancel the contract; and
2.4. The valid cancellation of the contract justifying return of the vehicle as
claimed by the plaintiff.
[3] In addition to the abovementioned defences , the defendants on or about 8
May 2025 delivered a notice of amendment in terms of “section 28” (sic) to the effect
that during or about December 2020 the second defendant entered into a customary
marriage which is in community of property and that, as a result of the customary
union which is in community of property, the party thereto Nthabiseng Moretsele,
who did not sign the suretyship in terms of which the second defendant is being held
liable while she has a direct and substantial interest in the matter , should have been
joined as a defendant in the proceedings afoot here. The defence the notice of
amendment seek to introduce is, therefore, dilatory.
[4] The defendants (or any of them) do not show with the required measure
of particularity that the National Credit Act applies to the transaction. I agree with
counsel for the plaintiff that the defendants have not challenged in its plea or its
answering affidavit the allegations contained in paragraph 11 of the particulars of
claim to the effect that the provisions of Act 34 of 2005 are not applicable to the
agreement on which the claim is based. Firm allegations in this context are
contained in the particu lars of claim alleging that the first defendant as juristic person
has a turnover in excess of the statutory amount and that the agreement on which
the claim is based is, therefore, a “large agreement” as contemplated by the
provisions of Act 34 of 2005. The challenge of the respondents in this regard is
nothing more than a bold and sketchy denial of the allegations. The findings in
Assetline South Africa (Pty) Ltd v Colani Investment Holdings (Pty) Ltd 2021 JDR
0893 (KZD) at [17] are firmly apposite here in my view to conclude that there was no
need for the plaintiff to attach a valid certificate of registration as a credit provider
when the loan was advanced. The inapplicability of the National Credit Act renders
this defence baseless.
[5] The defendants challenge the plaintiff’s right to cancel the agreement. In
the absence of proof of payment (compliance by them with the terms and conditions
of the agreement) the plaintiff’s entitlement to claim payment and demand return of
the vehicle follow ex lege . The defendants ’ challenge of the plaintiff ’s right to have
cancelled the agreement concerned is without any substance and do es not
constitute a triable issue within the meaning of the term in rule 32.
[6] The defendants notice of intention to amend to raise the dilatory defence
mentioned above took place at a late stage. At the time of their plea (20 August
2024) the content of the notice of amendment was within their knowledge. It might
be in certain instances necessary to postpone an application for summary judgment
to afford a party in the position of the defendants the opportunity to amend their
pleadings. But this is not such an instance. No explanation is offered for the
lateness of the dilatory conduct of the defendants in delivering their notice of
intention to amend.
[7] I agree with counsel for the plaintiff that section 17(5) of the Matrimonial
Property Act 88 of 1984 which provides that were a debt is recoverable from a joint
estate, the spouse who incurred the debt or both spouses jointly may be sued
therefore and where a debt has been incurred for necessa ties for the joint
household, the spouses may be sued jointly and severally. A dilatory defence of
joinder within the context which the defendants ’ raise it in these proceedings has
been rejected repeatedly by our courts and it suffices to refer to Strydom v Engen
Petroleum Ltd 2013 (2) SA 1987 (SCA) at [23] – [25] as guiding authority on the
point. In my view the dilatory defence raised in the notice of amendment does not
constitute a triable issue within the context of rule 32.
[8] In my view the defendants have not shown sufficient facts to deny the
plaintiff summary judgment for delivery of the vehicle concerned and I grant
summary judgment as follows:
1. Return and delivery to the plaintiff of the 2020 Mercedes -Benz X350D
4Matic Power with chassis number: W[...] and engine number: 6[...] and
authorising the plaintiff to sell the said vehicle and credit the proceeds of
such sale towards the reduction of the debt owed by the first and second
defendants;
2. That the claim for damages and interest components of the plaintiff’s
claim be postponed indefinitely; and
3. That the first and second defendants pay the plaintiffs costs for the
summary judgment application on the scale as between attorney and
client.
H F JACOBS
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Heard on : 12 May 2025
For the applicant: Adv K M Boshomane
Email: km@advboshomane.co.za
Instructed by: Rossouws, Lesie Inc
Email: jmoodley@rossouws.co.za
For the respondent:
Instructed by: Malale Nthapeleng Attorneys
Email: info@malnattorneys.co.za
Date of Judgment : 15 May 2025