SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 39269/2021
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
In the interlocutory matter (exception) between:-
RIYADH DOOLA
I.D: 7[....]
Excipient
and
BMW FINANCIAL SERVICES (SOUTH AFRICA)
(PTY) LIMITED
Respondent
In re:
BMW FINANCIAL SERVICES (SOUTH AFRICA)
(PTY) LIMITED
Plaintiff
and
RIYADH DOOLA
Defendant
I.D: 7[....]
This judgment is handed down electronically by distribution to the parties e -
mail addresses as indicated in the respective practice notes. The date of hand
down is deemed to be 22 October 2025
JUDGMENT
Reid J:
Introduction
[1] This is an exception against amended particulars of claim of the plaintiff
in the main proceedings (respondent in this interlocutory application)
being BMW Financial Services South Africa (Pty) Ltd (“BMW”).
[2] BMW has instituted action against the excipient/defendant ( referred to
as the excipient) on 6 August 2021, and the parties have since been in
prolix litigation. The main action is for damages resulting from non -
payment in the amount of R1,020,039.13 (One Million Twenty
Thousand and Thirty Nine Rand and Thirteen Cents) for the sale of a
2019 BMW 440i Gran Coupé motor vehicle.
[3] The excipient failed to file heads of argument within the time period
specified in the Practice Directives of this Court. The heads of
argument was only filed on 4 August 2025 at 08h12, which is the day
that the matter was heard. Due to the failure to comply with the
Practice Directives, the excipient’s heads of argument is subsequently
not before Court.
Material factual background
[4] On 13 February 2019 the principal debtor in the main action , Northend
Showroom CC concluded a written instalment sale agreement with
BMW, and the excipient concluded a written personal suretyship
agreement with BMW. The principal debtor Northend Showroom CC
has been placed under voluntary l iquidation which was finalised in
2020.
[5] BMW successfully claimed repossession of the motor vehicle on or
about 3 October 2019, through the liquidator of the principal debtor
Northend Showroom CC (in liquidation). The vehicle was repossessed.
[6] The exception is brought on the basis that the summons discloses no
cause of action in that the breach procedure stipulated in the contract
has not been set out in detail. The argument is thus that t he shortfall
and damages claimed from the excipient are not set out in the
particulars of claim in a manner which is clear and concise.
[7] The exception reads as follows:
1. The agreement upon which the plaintiff relies is an alleged
instalment sale agreement entered into between the Plaintiff
and Northend Showroom CC (in liquidation), attached to the
plaintiffs particulars of claim as Annexure "A".
2. In terms of paragraph 6.6.1 of the particulars of claim, the
plaintiff pleads as follows:
"6.6.1 In the event of default by NORTHEND
SHOWROOM CC with its obligations in terms of the
Agreement, the plaintiff would be entitled, without
prejudice to any other rights that it may have in law, to
cancel and /or terminate the agreement, and claim from
NORTHEND SHOWROOM CC the full amount that would
have been paid, had NORTHEND SHOWROOM CC
fulfilled all obligations due in terms of the agreement. To
this end, the plaintiff would be entitled to:
6.6.1.1 to claim return and repossession of the
goods;
6.6.1.2 to sell the goods;
6.6.1.3 in addition to the aforementioned, claim
damages."
3. In paragraph 18 of the plaintiff ’s particulars of claim the
plaintiff pleads that the agreement was cancelled and/or
terminated due to the defendant's alleged breach,
alternatively the agreement is cancelled by the particulars of
claim.
4. The plaintiff claimed repossession of the motor vehicle on or
about 3 October 2019, through the liquidator of the principal
debtor Northend Showroom CC (in liquidation). The plaintiff
authorised the liquidator to act on their instruction and to take
repossession of the vehicle and to realise the value of the
vehicle for the benefit of the plaintiff as a secured creditor the
liquidated estate of Northend Showroom CC in liquidation).
Annexed hereto marked "RD1" and "RD2" respectively is the
Plaintiff's claim that was submitted to the Liquidator and the
Liquidator's Agent's receipt confirming collection of the
vehicle.
5. The plaintiff commenced with the execution process against
the principal debtor, Northend Showroom CC (ln liquidation)
on 3 October 2019 and cannot claim the same amount from
the principal debtor and the surety.
6. The plaintiff failed to make the necessary averments to
sustain a cause of action against the defendant based on the
claimed amount of R1,020,039.13."
[8] In short, the excipient argues that the contract entered into with BMW,
makes provision in the instance of a breach, to firstly return the motor
vehicle, then to sell the motor vehicle and thereafter claim the
remaining amount outstanding from the excipient. The excipient signed
as surety.
[9] The respondent argues that it can elect how to execute the breach
procedure in terms of the contract.
[10] Despite being dominus litis in this interlocutory application, the
excipient failed to set down the application and it was duly set down by
BMW. The excipient failed to prosecute the exception, did not file
heads of argument and did not set down the exception for hearing. On
face value, BMW is taking all the steps necessary to bring the litigation
to finality.
Legal principles
[11] Exceptions is dealt with in terms of Rule 23 of the Uniform Rules of
Court, which reads as follows:
“23 Exceptions and applications to strike out
(1) Where any pleading is vague and embarrassing, or lacks
averments which are necessary to sustain an action or defence,
as the case may be, the opposing party may, within the period
allowed for filing any subsequent pleading, deliver an exception
thereto and may apply to the registrar to set it down for hearing
within 15 days after the delivery of such exception…”
[12] The test for exceptions has been confirmed i n Southernpoort
Developments (Pty) Ltd v Transnet 2003 (5) SA 665 (W) as follows:
12.1. For the exception to succeed, the excipient must establish that the
pleading is ex cipiable on every interpretation that can reasonably
be attached to it.
12.2. A charitable test is used on exception, especially in deciding
whether a cause of action is established, and pleader is entitled to
a benevolent interpretation.
12.3. The Court shall not look "with a magnifying glass of too high
power".
12.4. The pleadings must be read as a whole; no paragraph can be
read in isolation.
[13] A useful summary of principles applicable to exceptions in general was
set out in Nel and Others NNO v McArthur and Others 2003 (4) SA 142
(T) wherein it was held that another general principles that apply is that,
in order for an exception to succeed, it must be excipiable on every
interpretation that can reasonably be attached to it. Also s ee First
National Bank of Southern Africa Ltd v Perry N.O. and Others 2001 (3)
SA 960 (SCA) at 965D.
[14] Further, a charitable test is used on exception in deciding whether a
cause of action is established. The pleader is entitled to a benevolent
interpretation. The pleadings must be read as a whole; no paragraph
can be read in isolation. See: First National Bank of Southern Africa Ltd
v Perry N.O. and Others (supra at 9711 -J). Conclusions of law and
matters that form part of evidence that will be led, need not to be
pleaded.
Analysis
[15] This Court has to determine whether the excipient has made out a case
to uph old the exception on the following ground underpinning the
exception: The Respondent failed to follow the breach procedure as
pleaded in the particulars of claim and is not resorting to what was
pleaded in the particulars of claim by cancellation of the agreement,
claims damages and not specific performance of the agreement.
[16] The main ground of exception raised by the excipient is based thereon
that BMW failed to follow the breach procedure as pleaded in the
particulars of claim, which is BMW argues to be incorrect. BMW
opposes the application on the basis that BMW issued summons based
on a suretyship agreement to disclose a cause of action (facta
probanda) and is entitled to recover the damages portion of the claim
from the excipient.
[17] The second leg of the exception raised by the excipient is that BMW
cancelled the agreement and claims damages which does not form
specific performance of the agreement. It is submitted on behalf of
BMW that the second ground is based on incorrect averments
considering that BMW had an election to either claim for specific
performance or to cancel the agreement and to claim damages.
[18] It is the case of BMW that the excipient bound himself for all debts and
obligations which N orthend Showroom CC (in liquidation) may have in
the past owed or in the future owe to BMW and was entitled to cancel
the instalment sale agreement and to claim damages from the
excipient.
Conclusion
[19] Upon a plain reading of the particulars of claim, the claim is based
upon a personal suretyship agreement because of a shortfall amount
outstanding on an instalment sale agreement.
[20] In the present proceedings BMW contends that a written instalment
sale agreement was concluded between N orthend Showroom (in
liquidation) and BMW, which document is attached to the particulars of
claim as Annexure: "A"." The personal suretyship agreement
(Annexure: "E" to the particulars of claim) stands distinct and
separately from the instalment sale agreement.
[21] It is submitted by BMW that, u pon consideration of the pleaded case
holistically, the claim is structured as follows:
21.1. First a claim based against the excipient as surety considering
that N orthend Showroom CC (in liquidation) was placed under
voluntary liquidation; and
21.2. Second the excipient entered into the personal suretyship
agreement in terms whereof he bound himself as surety and co -
principal debtor for monies lent and advanced to N orthend
Showroom C C (in liquidation) for all debts and obligations of
whatsoever nature and howsoever arising.
[22] I hold the view that the precise nature of prescribed pleading that the
excipient expects from BMW, does not go to the heart of the claim. As
set out in paragraph [8] above, the excipient is excepting against the
fact that the remainder of the amount, after the value of the BMW
vehicle has been deducted from the total amount of R1,020,039.13, is
the basis of the claim against the excipient.
[23] The specific allegations that the excipient intends to have included in
the particulars of claim, and the nature of this exception, is evidence
that is to be led at the trial.
[24] Upon consideration of the nature of the claim the excipient is in a
position to plead to the particulars of claim and I find that he suffers no
prejudice as a consequence of what is alleged , or not alleged, in the
particulars of claim.
[25] The particulars of claim discloses the cause of action that BMW claims
against the excipient.
[26] In the premise, the exception is bound to fail.
Costs
[27] The general principle is that the successful party is entitled to have its
costs paid by the unsuccessful party. I find no reason to deviate from
this principle.
[28] In clause 3.9 of t he suretyship agreement , provision is made for costs
on a scale as between attorney and own client. The excipient is
contractually bound to pay a punitive fee for non -compliance of the
agreement.
[29] Based on the above, I find that the excipient should pay the costs of
BMW Financial Services on a scale as between attorney and own
client.
Order
[30] In the premise, the above order is made:
(i) The exception is dismissed.
(ii) The excipient is to file its plea within 20 days of this order in
terms of Rule 22 of the Uniform Rules of Court.
(iii) The excipient is to pay the costs of the respondent on a scale as
between attorney and own client.
FMM REID
JUDGE OF THE HIGH COURT
GAUGENG DIVISION PRETORIA
DATE RESERVED: 4 AUGUST 2025
DATE OF JUDGMENT: 22 OCTOBER 2025
APPEARANCES:
FOR THE EXCIPIENT: ADV ANDREWS
Office 18 Monument Office Park
23 Clew Street Monument
KRUGERSDORP
Tel No: 010 - 335 0999
E-MAIL: nel@cnel.co.za
FOR THE RESPONDENT: ADV FISHER-KLEIN
INSTRUCTED BY: VELILE TINTO & ASSOCIATES INC
Tinto House c/o Solomon Mahlangu Drive &
Disselboom Avenue
Pretoria East Gauteng
Tel: (012) 807-3366
Ref: M1720/B O ENGELBRECHT
Email: biancadb@tintolaw.co.za