IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG
Case No: 12251/2023P
In the matter between:
BMW FINANCIAL SERVICES Applicant
and
NDLANGISA FUNERAL SERVICES CC First Respondent
LUNGISANI ROBERT NDLANGISO Second Respondent
ORDER
___________________________________________________________________
The following order is made:
1. The application for c ondonation for the late filing of the summary judgment
application is dismissed with costs on scale B .
2. The application for summary judgment is refused .
3. The respondents are granted leave to defend the main action .
4. The costs of the summary judgment application shall be costs in the cause.
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JUDGMENT
Delivered: 9 July 2025
___________________________________________________________________
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Masipa J
[1] This is an application brought in terms of Uniform r ule 32 for summary
judgment against the respondents for delivery of specified movable property and
related relief arising from an instalment sale agreement. The application is
accompanied by a condonation application.
[2] The respondents oppose the application on two primary grounds :
(a) the application for summary judgment was filed outside the prescribed time
period, and condonation should not be granted; and
(b) the respondents have a bona fide defence relating to the payments made and
the alleged dispute over arrears and allocation of payments.
[3] The applicant seeks repossession of a motor vehicle pursuant to an
instalment sale agreement concluded with the first respondent, alleging breach
arising from non -payment. The matter relates to an instalment sale agreement in
terms of which the applicant seeks delivery of a motor vehicle. It is common cause
that at the time the application for summary judgment was launched, the
respondents had brought the ir account up to date, but this was after the default and
the issuance of summons . It also seeks costs and ancillary relief. In opposing the
summary judgment application, the respondents rely, inter alia, on the absence of
arrears and their efforts to make payment to resolve the matter. Consequently, the
respondents seek the dismissal of the condonation and summary judgment
applications together with costs.
[4] The applicant instituted action proceedings against the respondents pursuant
to their alleged breach of an instalment sale agreement. A notice in terms of s 129 of
the National Credit Act1 (“the NCA ”) was issued, and thereafter summons. The
respondents entered an appearance to defend, and the applicant subsequently
launched an application for summary judgment one day after the prescribed 15 -day
period.
1 National Credit Act 34 of 2005 .
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[5] The applicant did not simultaneously file an application for condonation for the
late filing and only did so eight months later . The respondents argued that they were
entitled to oppose condonation as the application was out of time since it was not
launched simultaneously with the summary judgment application. The reason
proffered by the applicant for the delay was the unavailability of the deponent of the
founding affidavit for signature, who was based in another province, causing a
logistical delay. The explanation is that the affidavit had been timeously
commissioned in Gauteng but delays arose due to the deponent’s availability and
physical transmission to KwaZulu -Natal for filing. Importantly, the application was
electronically served within time.
[6] The delay is minimal and has been reasonably explained. Additionally,
despite the application being launched out of time and therefore not in conformance
with the provisions of rule 32, the respondents filed an opposing affidavit which dealt
mainly with the merits of the summary judgment application. Their conduct was
tantamount to a condonation/acceptance of the summary judgment application. As
correctly argued by the applicant, the applicant could also have had recourse to the
provisions of rule 30A. Additionally, it has been the practice that condonations be
entertained despite being filed long after the main application. Any defect in the
launching of the summary judgment application has been cured by the filing of a
condonation application, which now falls to be determined.
[7] It is settled law that condonation is not granted as a mere formality. The test,
as established in Melane v Santam Insurance Co Ltd ,2 requires consideration of four
interrelated factors: the degree of lateness, the explanation there for, prospects of
success, and the importance of the case . While all four must be considered, strong
prospects of success may justify condonation even where the delay is not entirely
satisfactorily explained.
[8] However, the overriding consideration in this case is the absence of any
discernible prospects of success. I am not persuaded that the applicant has shown
such prospects of success. The core of the applicant’s case rests on the
2 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C -D.
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enforcement of cancellation and return of the vehicle based on the respondents’
failure to timeously meet their payment obligations under the agreement. The
respondents had already remedied the arrears by the time the summary judgment
application was filed. While it is true that default occurred, the agreement was
effectively reinstated through conduct, and the matter is not one deserving of the
stringent remedy of summary judgment.
[9] Although the applicant contends that the payments were unallocated or made
after default was triggered, it does not convincingly establish the persistence of the
breach as at the date of issue of summons. Instead, the evidence points to an
account that had been brought up to date or substantially cured by the time
enforcement was pursued. The continued pursuit of cancellation and repossession in
these circumstances raises serious concerns about fairness and proportionality.
[10] The parties were requested to submit further heads to address whether the
provisions of the NCA were applicable, secondly, whether the provisions of the
Consumer Protection Act3 (‘the CPA’ ) applied and lastly, whether the matter invokes
issues of public policy and public interest. In response to the invitation both parties
filed supplementary heads.
[11] The applicant relied on National Director of Public Prosecutions v Zuma4
where it was held that the judicial function of the court is to confine its judgment to
issues before it by deciding matters that are germane or relevant, not creating new
factual issues or by making gratuitous findings against persons who were not called
upon to defend themselves. The issues raised with the parties were germane to the
issues in this matter and arose from the facts of the matter. There were accordingly
no new facts arising . The issues raised are capable of consideration. In addition to
this, the parties were afforded an opportunity to address these issues since they
were raised with counsel in court and a view was formed that they be afforded
sufficient opportunity to address them.
3 Consumer Protection Act 68 of 2008.
4 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 15 .
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[12] Although the applicant submitted that the CPA does not apply due to the
application of the NCA (s 5(2) (d)), that does not negate the court’s obligation to
assess contractual enforcement through the lens of public interest. That assessment
is independent of statutory protection and grounded in constitutional values.
[13] The applicant contends that it was entitled to proceed in terms of the
instalment sale agreement, arguing that it retained a contractual right to cancel upon
breach. The respondent referred to ABSA Home Loan Guarantee Co (RF) (Pty) Ltd
and Another v Moodley and Another5 which held that only an act of breach was
sufficient to initiate proceedings. However, this position cannot be viewed in isolation
from the prevailing legal context. As the Constitutional Court made clear in Beadica
231 CC and Others v Trustees , Oregon Trust and Others ,6 the strict enforcement of
contractual terms must yield to the overarching demands of good faith, fairness, and
public policy.
[14] In this regard, Beadica held that “public policy demands that contracts freely
and consciously entered into must be honoured ”7. Applying those principles, I am of
the view that it would be contrary to public policy for a credit provider to persist with
enforcement action, particularly repossession, in circumstances where the defaulting
party has rectified its breach prior to the matter being heard . Enforcement in such
circumstances serves no purpose other than to punish the consumer, and is entirely
at odds with the rehabilitative and equitable principles that underpin both the NCA
and public policy. This court cannot lend its imprimatur to litigation that is pursued
purely to vindicate a strict contractual right in the face of compliance.
[15] The public interest in this matter is real and not incidental. The applicant is a
financial service provider inherently tied to serving vulnerable members of the public.
In this case, it would be contrary to public interest and policy considerations to permit
the applicant to enforce its rights strictly on the basis of past default, when the
underlying indebtedness has been cured. The law does not operate in a vacuum.
The purpose of credit regulation must be seen as encouraging good faith
engagement and promoting consumer rehabilitation, not as punishing transient
5 ABSA Home Loan Guarantee Co (RF) (Pty) Ltd and Another v Moodley and Another [2023]
ZAGPJHC 828.
6 Beadica 231 CC and Others v Trustees , Oregon Trust and Others 2020 (5) SA 247 (CC).
7 Ibid para 83.
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default that has been remedied. Courts must remain alert to credit providers who
weaponize technical breach for swift asset recovery, even where the rationale for
enforcement has fallen away.
[16] Although the delay in filing the application for summary judgment is short and
potentially excusable, there are no prospects of success in the summary judgment
application itself. The applicant bears the onus to demonstrate that the respondents’
opposing affidavit does not disclose a bona fide defence, and that the respondents
have entered an appearance to defend merely for the purposes of delay .
[17] Against this backdrop, I find that the applicant’s insistence on return of the
vehicle despite having received the arrears is neither equitable nor in the public
interest. This weighs decisively against granting summary judgment. The
respondents have raised genuine disputes of fact regarding breach and compliance,
and the matter is not suited to final relief on motion. T he issues raised in defence
disclose triable disputes of fact which ought to be ventilated at trial. Accordingly, both
the application s for condonation and summary judgment must fail.
Order
[18] The following order is accordingly made:
1. The application for c ondonation for the late filing of the summary judgment
application is dismissed with costs on scale B .
2. The application for summary judgment is refused.
3. The respondents are granted leave to defend the main action .
4. The costs of the summary judgment application shall be costs in the
cause.
__________ ________________
Masipa J
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DETAILS OF THE HEARING
Matter heard on: 13 May 2025
Judgment Date: 9 July 2025
Appearance Details:
For the applicant: Mr D Moo dley
Instructed by: Macroberts Incorporated
For the respondent s: Ms C Jacob
Instructed by: Foster and Govender