IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 52965/2018
In the matter between:
FIRSTRAND BANK LIMITED T/A WESBANK Plaintiff
and
MNTUKABONI MPUNGOSE Defendant
The judgment is handed down electronically by circulation to the parties’ legal representatives
by email . The date for hand -down is deemed to be 4 June 2025.
________________________________________________________________
J U D G M E N T
________________________________________________________________
Mazibuko AJ
INTRODUCTION
[1] The plaintiff instituted an action against the defendant for damages suffered
after it repossessed a 2015 Jaguar XJ 5.0 VB S/C Supersport LWB with engine
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE : 4 JUNE 2025
SIGNATURE:
2
2 number […] and chassis number [… ] ('the Jaguar') that was allegedly sold for
just above R2.7 million to the defendant .
BACKGROUND
[2] It is alleged that the defendant breached the written instalment sale agreement
('the agreement') concluded on 4 May 2017 between the plaintiff and the
defendant by failing to make due and punctual monthly instalments of about
R38 000 in terms of the agreement.
[3] On 23 August 2019, the parties agreed that the Jaguar should be sold. On 25
August 2019, it was uplifted from one Mr JJ Steyn ('Steyn') at a car dealership
in Montana, Pretoria. It was sold on auction on 5 November 2019 for a sum of R 701 500.00. The agreement was cancelled.
[4] The plaintiff claims from the defendant the difference between the outstanding
balance owing on the Jaguar under the agreement and the value the Jaguar was sold for.
[5] The matter served before the court for trial. At the conclusion of the plaintiff's
case, parties were respectively granted leave to amend their pleadings at their
instance. Amendments were respectively effected. The defendant applied for
absolution from the instance, contending that the plaintiff had not presented the
necessary evidence to sustain the allegations contained in the particulars of
claim. The application is opposed. The court acceded to the counsel's request
to file their respective heads of argument by 11 April 2025.
PLAINTIFF'S CASE
[6] In order to prove its case, the plaintiff relied on its particulars of claim and called
three witnesses: Jacobus van der Merwe Mans ('Mans'), Julianne Barnard
('Barnard') and Mswanyianeng Khotsamotladi ('Khotsamotladi').
[7] In its summons, the plaintiff asserted the following:
'4. The agreement was completed and signed online and electronically by
the defendant . lt constitutes a valid agreement in accordance with the
3
3 provisions of the Electronic Communications and Transactions 25 of
2002 ( 'the ECT') inter alia in that:
4.1. lt comprised, and was completed in the form of a data message,
which data message is accessible in a manner usable for subsequent reference as defined in Section 12 of the ECT Act;
4.2. lt was signed by way of an electronic signature, which electronic
signature was intended by the defendant to serve as a signature;
4.3. lt was electronically signed in compliance with Section 13 of the
ECT Act, which signature is regarded as being a valid electronic signature and to have been applied properly, unless the contrary is proved
5. The agreement had the following material terms and conditions:-
5.1. Plaintiff sold the motor vehicle to defendant , who purchased same
from plaintiff ;
5.2. The total amount payable was a sum of R2 717 612.64, of which
the first instalment of R38 713.02 (the combined amount consisting of the monthly instalment of R37 744.62 and the monthly service fee of R68.40) was payable on 15 JUNE 2017
and thereafter 70 instalments of R38 713.02 each on the same
day of each successive month and a final instalment of R38 713.02 payable on 15 MAY 2023,
5.3. Plaintiff would remain the owner of the motor vehicle until
defendant had paid all amounts due under the agreement;
5.4. The risk in respect of the motor vehicle would pass to the
defendant on delivery of the vehicle, or signature of the
agreement, whichever happens first.
5.5. ln the event of defendant failing to comply with any of the terms
and conditions of the agreement or failing to pay any amount due under the agreement, plaintiff would be entitled, at its election and
without prejudice and in addition to any other rights which it may
have under the agreement, to inter a lia cancel the agreement,
obtain return of the motor vehicle, retain all payments already
made in terms of the agreement and to claim as liquidated
4
4 damages, payment of the O difference between the balance
outstanding and the market value of the motor vehicle, determined by a person nominated by plaintiff, defendant having
agreed to be bound by such valuation;
5.6. Defendant chose the address in paragraph 2 above as his
domicilium citandi et executandi for purposes of the agreement;
5.7 Defendant would be liable for legal costs and collection
commission arising from her failure to comply with any of the terms and conditions of the agreement if the matter was referred to an external debt collection company or attorney.
6. The plaintiff duly delivered the motor vehicle to defendant .'
Evidence of Mans
[8] Mans testified that in 2017, he was employed at Automania CC Toyota Kyalami
as a car Finance and Insurance manager. Part of his duties was to assist
customers in finding vehicle finance with various banks and insurance with
different insurers. He stated that the process that he would generally follow was
that the finance and insurance contract could be concluded manually or
electronically. Both parties would sign the physical document with a pen with
respect to the manual contract.
[9] The electronic contract would be completed and signed digitally, with the
customer's identity being verified before finalisation. The One-Time Pin ('OTP')
is sent to the customer's registered phone number. The customer must enter
the OTP on the bank's website to access the agreement, the contract number
and their identity number before proceeding with the process. Also , he would
generally require the potential customer's original documents, such as an
identity document, bank statements, and other FICA documentation.
[10] The electronic contract system includes a Debicheck mandate, which
customers must authorise via their online banking platform. The contract cannot be completed unless the Debicheck mandate is accepted. He would also assist customers in entering these details into the system directly linked to the bank.
5
5 He testified that he had no control over the information provided by customers
and never signed on behalf of a customer. The terms Icontract and Econtract
both refer to electronic agreements . According to him, it is impossible to enter
into such contracts without the customer's knowledge.
[11] He also stated that he would complete the necessary documentation on behalf
of the potential customers and submit it to the banks. The bank would assess
the application and determine whether or not to grant finance. He would then inform the customer of the outcome. If the customer accepts the financing terms, they will sign the contract and secure insurance before the vehicle is
handed over to the customer. The customer would sign the agreement in his
presence, and he would act as a witness.
[12] He referred to pages C59, C61 to C63 of the discovered documents. The C59
document reflects a digitally signed agreement between the parties. He referred
to the stamp in the middle of the page as representing an electronic signature.
In terms of C63, the defendant was required to settle three existing financed
motor vehicles before entering into a new agreement. They were financed through Toyota Financial Services and Nedbank. In settling the outstanding
debt regarding the three cars, the defendant traded them in. He also referred
to C64 , where the customer confirmed that he has no pending credit
applications, any existing finance agreements would be settled in full and that
the plaintiff's affordability assessment was conducted based on the assumption
that previous debts had been settled.
[13] Mans referred to C72, which was retained by the bank and never shown to the
defendant . It reflected that the Jaguar was registered in the defendant's name,
and the defendant was a title holder. He also referred to C73, which showed
that the Jaguar was handed over to the defendant on 4 May 2017. Further, he
testified that he personally verified the defendant's identity before handing over
the car to him.
[14] Under cross-examination, Mans stated that he had no independent recollection
of the matter. He relies on the information as reflected in the documentation.
6
6 He said that on the same day, 4 May 2017, he assisted the defendant with a
manual financing application to purchase a BMW X5 M50D, engine number […]
and chassis number […] ('the BMW X5') from the same dealership. The contract
was concluded with Standard Bank, and he witnessed the conclusion of that
contract. Regarding the Jaguar, he wrote the defendant's name on the printed
delivery receipt. Though the contract was electronically, the plaintiff required
the physical delivery receipt to be signed to ensure the car was delivered to the
defendant . He conceded that he was not present when the Jaguar was
physically handed over to the defendant or the person who took possession
thereof.
[15] He also conceded that he was obligated to inform the plaintiff concerning the
defendant's additional credit application to purchase the BMW X5 through
Standard Bank and the defendant's financial commitment and that such
conduct of non-disclosure was deceitful.
[16] It was put to him that since he or the dealership had the defendant's identity
document, bank details and other FICA documentation, they could have used the same documentation for the credit application to the plaintiff without the
defendant's knowledge. Mans does not dispute that the defendant is illiterate
and cannot speak English or Afrikaans.
Evidence of Barnard
[17] Barnard testified that she is a debt collector and was contracted to recover the
Jaguar. She traced it to JJ Steyn's dealership in Zambezi. She contacted the
defendant , who refused to sign a termination agreement. She recovered the
Jaguar after submitting an affidavit to the plaintiff to facilitate repossession. She
testified that she communicated with the defendant in English a few times and
was under the impression that he had no difficulty communicating in English.
[18] Under cross-examination, she conceded that she did not verify the identity of
the person with whom she telephonically communicated. Steyn refused to hand over the Jaguar voluntarily. The defendant alleged the vehicle was obtained
fraudulently.
7
7 Evidence of Khotsamotladi
[19] Khotsamotladi testified that he is an attorney employed by the plaintiff .
Reviewing the relevant documentation, he found that the defendant entered
into an agreement with the plaintiff to purchase the Jaguar.
[20] The Icontract was completed electronically. Regarding the Icontract, t he plaintiff
sends an OTP to the customer's phone number for verification. The customer
has to click a read and accept button to move to the next page. He stated that
the plaintiff conducted an affordability assessment and verified the defendant's
credit profile with credit bureaus. The information provided by the credit bureau
was considered accurate.
[21] Under cross-examination, he testified that the Debicheck system was not in use
at the plaintiff when the agreement was signed. Mans was an independent
person employed by the dealership. He was not the plaintiff's agent . No
plaintiff's representative was present when the agreement was signed. He was
not familiar with the provisions of section 2(3)(b)(i) of the NCA.
ISSUE IN DISPUTE
[22] The court has to determine whether the parties entered into the instalment sale
agreement for the Jaguar on 5 May 2017.
PARTIES’ ASSERTIONS
[23] The plaintiff , through its counsel, argued that the court ought to accept its
version that the defendant on the day in question entered into two instalment
sale agreements, one through signing a printed paper with regard to the BMW
X5 with Standard Bank and the other electronically for the Jaguar, which is the
subject matter for this matter. The Icontract is based on the principle of offer
and acceptance. Once the plaintiff provides the customer with an agreement to
sign online and electronically, the plaintiff has already accepted all the terms
and conditions offered to the customer. Only then can the customer analyse by reading every page and clicking that he accepts the terms on each page; the
contract will automatically be concluded once all pages have been accepted.
Further, it has adduced evidence that the defendant entered into an instalment
8
8 sale agreement with the plaintiff on 04 May 2017 and purchased the Jaguar
vehicle. Mans represented both the dealership and the credit provider. The
stamp in the middle of the page constitutes an electronic signature of the
defendant as well as acceptance from the plaintiff .
[24] The defendant has acknowledged in writing that the plaintiff delivered the
Jaguar motor vehicle to the defendant at the dealership. The defendant
performed in terms of the Icontract by making payment of monthly instalments in the amount of R38,713.02 and subsequently defaulted.
[25] On behalf of the defendant , it was argued that the plaintiff has not proven that
the defendant entered into an online agreement that he electronically signed in
purchasing the Jaguar from the plaintiff and taking delivery thereof.
[26] It was further argued that the defendant was a victim of fraud perpetuated
against him. He was falsely induced to sign the delivery receipt, which must have been included in the documentation for purchasing a BMW X5 vehicle he
purchased on the same day. If the court found that an agreement was
concluded between the parties, he disputes that there was proper affordability
assessment in terms of the NCA by the plaintiff , thereby the plaintiff
contravening the provisions of sections 80 and 81 of the NCA. The agreement
did not comply with the provisions of section 2(3)(b)(i) of the NCA
1 and the
Electronic Communications and Transactions Act2 ('ECTA').
THE LAW
[27] 'At the close of the case for the plaintiff , the defendant may apply for absolution
from the instance, in which event the defendant or one advocate on his behalf
1 (3) If a provision of this Act requires a document to be signed or initialed by a party to a credit
agreement, that signing or initialing may be effected by use of -
(b) an electronic signature as defined in the Electronic Communications Act, 2002 (Act 25 of 2002), provided that -
(i) the electronic signature is applied by each party in the physical presence of the other party or an agent of the party; and (ii) the credit provider must take reasonable measures to prevent the use of the consumer's electronic signature for any purpose other than the signing or initialing of the particular document that the
consumer intended to sign or initial.
2 25 of 2002.
9
9 may address the court and the plaintiff or one advocate on his behalf may reply.
The defendant or his advocate may thereupon reply on any matter arising out
of the address of the plaintiff or his advocate.'3
[28] An order of absolution from the instance has been described as follows: 'An
order granted either at the end of the plaintiff's case or at the end of the whole
case, dismissing the plaintiff's claim. Its effect is to leave the parties in the same
position as if the case had never been brought, for a judgment of absolution from the instance does not amount to res judicata, and the plaintiff is entitled to
proceed afresh.'
4
[29] Absolution from the instance can only be granted if the onus rests upon the
plaintiff . If the onus rests on the defendant , there can be no order for absolution
from the instance either at this stage or later.5
[30] The court has a discretion to grant or refuse absolution from the instance, which
discretion is to be exercised based on fairness, equity and the interest of
justice.
6 It has been held that in the ordinary course of events, absolution at the
end of the plaintiff's case should be granted sparingly. In exercising discretion,
the court may consider that the plaintiff's case may be strengthened by
evidence emerging from the defendant's case.7
[31] The test to be applied is whether the plaintiff has made out a prima facie case,
which calls for the defendant to answer. Where the plaintiff relies on inferences,
it is sufficient if the inference he wishes to draw is a reasonable one; it need not
be the only reasonable inference.
8
3 Rule 3 9(6) of the Uniform Rules of Court.
4 The seminal work Jones & Buckle, the Civil Practice of the Magistrates' Courts in South Africa (Act
325).
5 (Schoeman v Moller 1949 4 All SA 60 (O); 1949 3 SA 949 (O).
6 Fedgas (Pty) Ltd v Rack- Rite Bop (Pty) Ltd [1997] 3 All SA 68 (B).
7 Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 4 All SA 252 (T); 1958 4 SA 307 (T).
8 (Marine and Trade Insurance Co Ltd v Van der Schyff 1972 1 All SA 144 (A); 1972 1 SA 26 (A); Alli v
De Lira 1973 4 All SA 547 (T); 1973 4 SA 635 (T).)
10
10 [32] In Gafoor v Unie Versekeringsadviseurs (Edms) Bpk,9 the court stated:
"Another observation that may be made is that as a rule when a trial Court
refuses absolution at the close of the plaintiff's case, it avoids unnecessary
discussion of the evidence, lest it seem to take a view of its quality and effect that should only be reached at the end of the whole case. In the same way, on
appeal, it is generally right for the Appellate Tribunal, when allowing an appeal against an order granting absolution at the close of the plaintiff's case, to avoid,
as far as possible, the expression of views that may prematurely curb the free exercise by the trial Court of its judgment on the facts when the defendant's
case has been closed."
[33] The agreement constitutes a valid agreement in accordance with the provisions
of ECTA, where it 'was completed as an accessible data message, signed by
way of an electronic signature intended to be a signature, and signed in
compliance with Section 13 of ECTA, which signature is a valid electronic signature and have been applied properly unless the contrary is proved.'
DISCUSSION
[34] In order to survive absolution from the instance, the plaintiff is required to
adduce evidence relating to all the elements of the claim. At the trial, the defendant persistently challenged the plaintiff's evidence pertaining to the
agreement's validity with regard to the Jaguar. He denied having any intentions
of purchasing the Jaguar. He went to the dealership to purchase the BMW X5,
not the Jaguar. I believe the witnesses did not help demonstrate material facts
cogent to the plaintiff's claim. In their testimonies, they could not withstand
cross-examination on the foundational and material basis of the Icontract and
the delivery receipt upon which the plaintiff has placed its reliance . As well as
the circumstances and facts leading to the conclusion of the agreement.
[35] In considering whether the plaintiff's case may be strengthened by evidence
emerging from the defendant's case, I have had regard to the pleadings and
evidence adduced at trial. The question of who was the plaintiff's employee
9 1961 (1) SA 335 (A) at 340D -G
11
11 appointed to represent it when the agreement with the defendant was
concluded remained unanswered. Khotsamotladi's testimony was that at the
time the agreement was signed, no one was present on behalf of the plaintiff ,
and Mans was no plaintiff's representative. Therefore, the plaintiff's counsel's
submission that Mans represented both the dealership and the plaintiff cannot
be sustained. Further, even if the defendant were to open its case and adduce
evidence, he would not be of assistance to the plaintiff's case in this regard.
[36] It is not in dispute that on 4 May 2017, the defendant personally attended at
Auto Mania CC to purchase a BMW X5. According to the agreement and the
delivery receipts, Mans assisted him in concluding a written instalment
agreement for the sale of the BMW X5. He took delivery of the BMW X5. Mans's testimony about the Icontract relating to the Jaguar was that the agreement was
concluded electronically using a DebiCheck system. Khotsamotladi's testimony was that at the time of the agreement, the plaintiff did not have DebiCheck yet,
and same was not in use.
[37] In terms of the agreement relating to the Jaguar, the defendant was required to
pay an initial deposit of R150 000 and a monthly instalment of R38 713.02.
None of the witnesses nor the pleadings could shed light on who paid the
deposit as it was evident it was not the defendant , nor was it from any of his
banking accounts. However, from the discovered documentation, the R150 000
was paid as an initial deposit. The plaintiff would know from whose account the
deposit came, as well as the dealership represented by Mans and or Steyn. On
the other hand, the evidence is that the defendant had traded in his three motor
vehicles financed through Toyota Financial Services and Nedbank to purchase
the BMW X5.
[38] Mans testified that he does not recall assisting the defendant . He is relying on
the documentation provided. He conceded that according to the delivery receipt, he completed the delivery receipt with regard to the Jaguar. On the
other hand, his handwriting appears on the delivery receipt of the BMW X5. Reliance on and reference to the delivery receipt document itself and the mere
fact that it contains the defendant's name is not sufficient to prove that the
12
12 parties entered into an agreement. It cannot be inferred solely on that basis that
the defendant entered into a contract with the plaintiff . The plaintiff does not
deny that the defendant did not complete that receipt , though his name appears
there. Mans cannot recall whether he specifically assisted this particular
customer, the defendant . That is understandable when regard is had to the
passage of time and the nature of his work, which causes him to deal with
different people all the time. There is also no evidence that the defendant took
delivery of the Jaguar.
[39] The Jaguar was seized from Steyn in another dealership in Montana. The
evidence revealed that Steyn is one of the dealership people who were
allegedly present on the day the defendant concluded a contract with Standard
Bank concerning the BMW X5 and when the alleged Icontract for the Jaguar
was concluded. It is not clear how the Jaguar ended up with S teyn at a
dealership in Montana. Steyn was not called to testify, especially to demystify
the allegation raised by the defendant that he might have been induced to sign
the delivery receipt of the Jaguar whilst signing the documentation relating to the BMW X5. I believe the allegation of being induced, as raised by the
defendant , is not without relevance when one has regard to the facts and
circumstances of this matter. Be that as it may, the court is alive to the fact that
parties are the ones who know their cases better than a presiding officer.
[40] In light of the preceding submissions of counsel respectively, absolution from
the instance ought to be granted. I am inclined to agree with the defendant that
it is unnecessary for him to answer to the allegations made against him by the plaintiff regarding the agreement concerning the Jaguar, as the requirement of
the provisions of section 2(3)(b)(i) of the NCA had not been met .
[41] With regard to agreements, compliance and authorship must be proved for the
electronic signature to be valid under the ECTA.
10 The plaintiff has not led
sufficient evidence indicating prima facie that the defendant had entered into an
electronic agreement with it or evidence material and relevant to its claim. In
10 Spring Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash 2015(2) SA 118 (SCA).
13
13 my respectful view, there is no evidence upon which the court could find in the
plaintiff's favour. On behalf of the defendant , there were suggestions, contrary
to the plaintiff's case, that were put to the plaintiff's witnesses. I find that the
plaintiff has not met the requirements of its claim. As a result, the application
for absolution from the instance ought to be granted. There is no reason why
costs should not follow the result.
[42] In the result, the following order is made;
Order:
1. The application for absolution from the instance is granted.
2. The plaintiff is to pay the defendant's costs.
______ ________
N G M MAZIBUKO
Acting Judge of the High Court
Gauteng Division, Pretoria
14
14 Date of Hearing: 4 to 6 March 2025
Judgment delivered on: 4 June 2025
APPEARANCES:
For the Plaintiff: Adv PJA Griesela Attorney for the Plaintiff: Strauss Daly
For the defendant : Adv PA Walkins
Attorney for the defendant : Sarlie & Associates INC