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with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
CASE NO: 2023/054703
HEARD: 17 SEPTEMBER 2025
DECIDED:22 SEPTEMBER 2025
1) REPORTABLE: NO
2) OF INTEREST TO OTHER JUDGES: NO
3) REVISED.
DATE 22 September 2025
SIGNATURE
In the matter between:
BMW FINANCIAL SERVICES SOUTH AF- Ap-
plicant
RICA (PTY) LTD
(In its capacity as cedent of the rights of Su-
perdrive Investments (Pty) Ltd (RF)
And
JOHANNES MAHLATSE MAUNATLALA MARISHANE Re-
spondent
This judgment has been handed down remotely and shall be circulated to the
parties by way of email / uploading on caselines. The date of hand down shall
be deemed to be 22 September 2025.
________________________________________________________________
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ORDER
________________________________________________________________
1. The application for leave to appeal is dismissed with costs on a scale as
between attorney and client.
________________________________________________________________
JUDGMENT
________________________________________________________________
BAM J
Introduction
1. This is an application for leave to appeal the judgment and order of this court
of 1 March 2024. The application is brought by the respondent. In terms of the
order, this court authorised, inter alia, cancellation of the instalment sale
agreement between the parties; the attachment, seizure and handover the
motor vehicle described as BMW 330i M Sport A/T (G20), Engine number
F[...], with Chassis Number W[...] by the Sheriff of the High Court; and other
ancillary relief. The reasons for the order were handed down on 12 May 2025.
The delay in furnishing the reasons was due to a human error. The
respondent’s communication requesting reasons was never brought to the
attention of this court. As may be apparent already, I refer to the parties as
they were in the summary judgment application brought by BMW Financial
Services South Africa, (BMW).
Respondent’s grounds of appeal
2. The respondent contends that the court erred in the following respects:
(i) In not considering the merits and content of the appellant’s opposing affidavit
and annexures;
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(ii) In not considering the notices of amendment and that establishing the
authority of legal representatives acting on behalf of the applicant, as
provided for in Rule 7.
(iii) In not noticing that the respondent had filed an application for
condonation for the late filing of his opposing affidavit and in not ensuring the
correct procedure had been followed by the applicant, BMW. The correct
procedure, it is contended was for BMW to bring an application for contempt.
(iv) In not applying the point of law applicable under the circumstances;
(v) In not making an enquiry into whether the applicant complied with rule 32 in
respect of the summary judgment; and
(vi) In not providing the respondent enough opportunity to make out his case
as per his opposing affidavit.
Applicable legal principles
3. Legislative provision is made in Section 17 (1) (a) of the Superior Act1 for
applications for leave to appeal. In the relevant parts, the section read:
‘(a) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that:
(i) The appeal would have a reasonable prospect of success; or
(ii) There is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration;’
4. The standard an applicant for leave to appeal must meet has been espoused
in many a case by the Supreme Court of Appeal. In particular, in MEC for
Health, Eastern Cape v Mkhitha and Another, it was said that:
‘An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of success
on appeal. A mere possibility of success, an arguable case or one that is
1 Act 10 of 2013.
Page | 4
not hopeless, is not enough. There must be a sound, rational basis to
conclude that there is a reasonable prospect of success on appeal.’2
5. Where the court is not persuaded about the prospects of success, it must still
enquire into whether there is a compelling reason to entertain the appeal...
‘but here too the merits remain vitally important and are often decisive’
Ramakatsa and Others v African National Congress and Another3.
Analysis
6. Perhaps prior to delving into the question whether there is any prospect of
success for the respondent on appeal, based on his grounds, some
background is necessary. On 23 June 2023, the applicant served a combined
summons against the respondent with which it sought an order authorising it,
inter alia, to recover certain outstanding monies in terms the instalment sale
agreement that was existing at the time between the parties, cancellation of
that agreement, and taking repossession of the vehicle. The arrears on the
vehicle at that stage as set out in the particulars of claim were R 21 9374, and
the total outstanding in terms of the instalment sale was said to be R 991 755.
7. The matter progressed to the stage where the applicant applied for summary
judgment in 23 October 2023. On the day of the hearing, an order was issued
by this Court, per Tshombe AJ, that the respondent file his answering papers
to the summary judgment application within TEN (10) days from date of the
order and further pay the applicant’s wasted costs. The application was then
postponed to 1 March 2024. The court order was brought to the attention and
notice of the respondent as far back as 30 October 2023.
8. On 1 March, at 10h16, while the court was in session, without seeking leave
of the court, the respondent uploaded onto Caselines his answering affidavit
2 (1221/2015) [2016] ZASCA 176 (25 November 2016), paragraph 17.
3 (Case No. 724/2019) [2021] ZASCA 31 (31 March 2021), paragraph 10.
4 The amounts do not include cents.
Page | 5
together with notices in terms of Rule 7 and in terms of Rule 28. As already
mentioned in the reasons subsequently issued by this court, the answering
affidavit did not raise any triable issues.
9. Back to the respondent’s grounds, I have interrogated the respondent’s
grounds and conclude that there is simply no prospect that another court
would come to a different decision. Two matters raised in the grounds remain
to be answered. They are, the challenge that the court erred in not realising
that there was an application for condonation, and the fact that the court erred
in not affording the respondent the opportunity to make his case. I deal with
the two in turn, beginning with the first one. The respondent never made any
application for condonation. This is plain from his answering affidavit. He
simply set out his understanding of the court order of 23 October 2023 and
invited the court, in the event it required reasons for the delay in filing the
answering affidavit, to make that make such requirement known to him. Under
no circumstances can the two statements attributed to the respondent in this
paragraph be regarded as an application for condonation.
10. The respondent claims he was not afforded an opportunity to make his
case, as made in his answering affidavit. It is not clear what the respondent is
aiming at with this ground statement. What is plain is that the respondent had
more than four months to file his answering affidavit and set out his case. His
belated answering affidavit, though irregularly uploaded onto Caselines while
the court was in session, without an application for condonation, disclosed no
defence to the applicant’s claim. Under the circumstances, leave to appeal
cannot be granted and the application stands to be dismissed with costs.
Order
1. The application for leave to appeal is dismissed with costs on a scale as
between attorney and client.
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N.N BAM J
JUDGE OF THE HIGH COURT,
GAUTENG DIVISION,
PRETORIA
Date of Hearing: 17 September 2025
Date of Judgment: 22 September 2025
Appearances:
Counsel for the Applicant: Adv S Webster
Instructed by: Macrobert Inc.
Brooklyn, Pretoria
Respondent: in absentia