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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024/143345
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
27 October 2025
In the matter between:
ABSA BANK LIMITED Plaintiff/Applicant
and
BUSISIWE EUTRICIA BALOYI Defendant/Respondent
JUDGMENT
DOMINGO, AJ
Introduction
[1] This is an application for summary judgment brought by the plaintiff against the
defendant for the cancellation of a credit agreement and the return of a motor
vehicle and that the quantum claim (subsequent to the sale of the motor vehicle
and quantification of the damages claim) be postponed sine die.
[2] The defendant opposed the summary judgement application and filed her plea
herself without legal representat ion. On the day of the hearing the defendant
appeared in person and informed the court that she had elected to represent
herself.
Background
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[3] It is common cause that the defendant entered into a vehicle finance
agreement with the defendant to purchase a vehicle from the motor dealership,
CHM Group, Midrand. The terms of the I nstalment S ale Agreement are
common cause between the parties ; it was entered into between the plaintiff
and defendant on 1 August 2023, with monthly instalments being in the amount
of R6 827.49, the first instalment being payable on 30 September 2023 and the
final instalment being payable on 30 August 2029.
[4] It is common cause between the parties that the defendant has made no
payment of the debt since its inception. The detailed bank statement provided
by the plaintiff shows that as from the inception, that is from the first payment
due on 30 September 2023, the defendant had failed to make payment of the
monthly instalments. To date, all instalment debit orders have been rejected.
[5] At the time of the institution of th e action in January 2025, the defendant was in
arrears in the amount of R127 195.05 and the total outstanding balance is in
the amount of R597 344.53 according to the certificate of balance.
Relief sought
[6] In or about December 2024 the plaintiff instituted action against the defendant ,
whereafter the Defendant in March 2025 filed a plea.
[7] The plaintiff averred that the plea does not comply with the presc ripts of Rule
22 of the Uniform Rules of Court, as it does not concisely address the material
allegations contained in the plaintiff’s particulars of claim and does not explicitly
admit or deny or confess and avoid. Thus, Rule 22(3) of the Uniform Rules of
Court becomes operative, which provides that “every allegation of fact in the
combined summons or declaration which is not stated in the plea to be denied
or to be admitted shall be deemed to be admitted.”
[8] The plaintiff subsequently applied for summary judgement in terms of Rule 32
of the Uniform Court rules and seeks the following relief:
8.1 Confirmation of cancellation of the agreement.
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8.2 An order for the return of the motor vehicle, 2021 Nisan Magnite 1. 0 T
Acentia Plus CVT.
8.3 An order whereby payment of the sum of R599 083.00, together with
interest thereon at the rate if 13.45%, less the salvage value in terms of
the aforementioned order, be postponed sine die.
8.4 Costs of the suit.
Defendant’s defence
[9] The cr ux of the defendant’s defence is found in the introduction of her plea
which states as follows:
“1.2 The Defendant pleads that she is not responsible for the outstanding
payments due to fraudulent misrepresentation, breach of contract, and failure
to disclose material facts by the dealership, CMH Group Midrand, which
directly resulted in the return of the financed vehicle within 3 (three) days of
purchase.”
[10] Furthermore, flowing from the above the defendant raises the following issues
as defences to the plaintiff’s claim for summary judgment:
10.1 The dealership, CMH Group violated multiple provisions of the
Consumer Protection Act 68 of 2006 (the “CPA”).
10.2 The defendant returned the vehicle to the dealership, CMH Group
within 3 (three) days of the purchase and the dealership refused to
refund the plaintiff.
10.3 The dealership had been unjustly enriched by keeping both the vehicle
and loan funds that the plaintiff paid for the vehicle.
10.4 That the plaintiff had a duty to mitigate its losses and should have
taken steps to recover the funds from the dealership. The defendant
here uses the exceptio non adimpleti contractus defence and states
that payment may be withheld where the supplier’s performance is
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defective; here it is averred by the plaintiff that the vehicle was
unfit/defective and misrepresentation occurred.
10.5 The defendant claims that the G auteng Consumer Protection Authority
informed her that the bank recovered the vehicle from the dealership
on the 27 February 2025, yet she claims that the plaintiff still persists to
demand full payment as if the vehicle was lost or retained by the
defendant.
10.6 The defendant lodged a complaint with the Motor Industry Ombudsman
of South Africa (“MO ISA”) and the National Consumer Commission
(“NCC”). The defendant w ants these proceedings to stay pending an
outcome from those bodies.
10.7 The defendant also claims that she was not served with the NCA s129
Notice and states that the plaintiff must give proper notice and act
fairly.
10.8 The defendant averred that the bank, as a credit provider financing
used vehicles, had a duty to conduct due diligence into the vehicle
history. Thus, failure to do so amounts to negligence, particularly for
pre-owned vehicles where undisclosed defects are common.
Plaintiff’s arguments for summary judgment
[11] Counsel for the plaintiff in argument emphasised that the defendant pleaded
that the dealership, CM H Group Midrand violated multiple provisions of the
CPA. Thus, a breach of the statutory provisions of the CPA is not alleged to
have been done by the plaintiff, but the dealership.
[12] The defendant in her affidavit resisting summary judgment, asserted that there
was fraudulent misrepresentation by the dealership in that the vehicle was
allegedly involved in a motor vehicle collision and that there was a violation of
sections 41, 25 and 48 of the CPA.
[13] Counsel for the plaintiff averred that section 40 of the CPA deals with
unconscionable conduct and inter alia, provides that:
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“[A] supplier or agent of the supplier must not use physical force against the consumer,
coercion, undue influence, pressure, duress or harassment, unfair tactics or any other
similar conduct, in connection with any-
(a) marketing of any goods or services,
(b) supply of goods or services to a consumer,
(c) negotiation, conclusion, execution or enforcement of an agreement to supply any
goods or services to a consumer,…”
[14] Counsel for the plaintiff further averred that section 41 of the CPA, continues to
deal with false, misleading or deceptive representations and provides that:
“(1) In relation to the marketing of any goods or services, the supplier must not, by
words or conduct –
(a) directly or indirectly, express or imply a false, misleading or
deceptive representation concerning a material fact to a consumer
commitment; and
(b) use exaggeration, innuendo or ambiguity as to a material fact, or
fail to disclose a material fact if that failure amounts to a deception;
or
(c) fail to correct an apparent misapprehension on the part of a
consumer, amounting to a false, misleading or deceptive
representation;
(d) or permit or require any other person to do so on behalf of of the
supplier.
(2) A person acting on behalf of the supplier of any goods or services must not:
(a) be falsely represented that the person has any sponsorship,
approval or affiliation; or
(b) engage in any conduct that the supplier is prohibited from
engaging in under subsection 1…”
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[15] The CPA defines “supplier” to mean a person who markets any goods or
services and “market” is defined in the CPA and means to promote or supply
any goods or services. The CPA defines “consumer” to include “a person to
whom those particular goods or services are marketed in the ordinary course of
the supplier's business.” In the present case, it is averred by the plaintiff that
the plaintiff did not market the vehicle but merely financed it.
[16] Counsel for the plaintiff directed the court to the case of M FC (a division of
Nedbank Ltd) v Botha ( “the MFC judgment)
1 where the court stated (my own
emphasis):
“The applicant had purchased the vehicle in question from a car dealership at the
instance of the respondent for the purpose of being able to sell it on to the respondent
in terms of the instalment sale agreement. The instalment sale agreement is a credit
agreement within the meaning of the NCA. The applicant’s real role in the sale of
the vehicle was thus one of credit provider, and not one of supplier of the goods
in question. It is therefore unsurprising that the agreement between the applicant and
respondent expressly excluded any warranty by the applicant as to the condition of the
vehicle selected by the respondent. The respondent had nevertheless returned the
vehicle to the applicant on or about 20 August 2012 because he had become
dissatisfied with it on account of its allegedly defective condition.”
[17] The facts in the MFC judgment are therefore similar as to those in the present
matter. In dealing with both of the defendant’s defences, as to the “fraudulent
misrepresentation by the dealership, CMH Group Midrand” and the “violation of
implied warranty of qual ity” counsel for the plaintiff directed the court to the
MFC judgement where the court succinctly summarised the position and held
that (my own emphasis):2
“Section 56(2) of the CPA provides:
Within six months, after the delivery of any goods to a consumer, the
Within six months, after the delivery of any goods to a consumer, the
consumer may return the goods to the supplier, without penalty and at the
supplier's risk and expense, if the goods fails to satisfy the requirements and
1 2013 (JDR 1975) (WCC); 6981/13 [2013] ZAWCHC 107 (15 August 2013) at para 2.
2 Supra at paras 5, 6, 7, 8 and 9.
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standards contemplated in section 55, and the supplier must, at the direction
of the consumer, either –
(a) repair or replace the failed, unsafe or defective goods; or
(b) refund to the consumer the price paid by the consumer, for the goods.
The term “supplier” is defined in s1 of the CPA. It means ‘a person who markets any
goods or services.’ The word ‘market ’ is also defined in s1 of the CPA. When used as
a verb, it means ‘to promote or supply any goods or services.” In the current case it
is clear that the applicant did not market the vehicle; it merely financed it.
Keitzman Finance is the entity identified in the contract documentation as the
‘supplier’ or ‘dealer’ in respect of the vehicle a nd it is apparent from the
“Acknowledgement of Delivery” document signed by the respondent that he took
delivery of the vehicle from Keitzman Finance. The word ‘consumer’ is also defined in
the CPA. It includes ‘a person to whom those particular goods or services are
marketed in the ordinary course of the supplier’s business.’ By reason of the defined
meanings of the words ‘promote’ and ‘supply’, the applicant and the respondent
both qualify as ‘consumers’ under the CPA in respect of the motor vehicle
concerned.
Section 5(2) of the CPA provides that the Act does not apply to any transaction
‘that constitutes a credit agreement under the National Credit Act, but the goods
or services that are subject of the credit agreement are not excluded from the
ambit of this Act.’ However, the practical import of s5(2)(d) of the CPA in the context
of a case like the current matter is far from clear. While it is plain that the instalment
sale agreement between the applicant and the respondent is excluded from the
operation of the CPA, the effect of the qualification retaining the subject matter
of the contract (i.e. the vehicle) within the ambit of the Act is far from obvious.
The apparent object of s5(2)(d) of the CPA is to distinguish the position of a
The apparent object of s5(2)(d) of the CPA is to distinguish the position of a
credit provider from that of a supplier and to protect the contractual rights of a
credit provider which has financed the supply of goods by a supplier to a
consumer, while seeking at the same time to preserve the consumer’s statutory
protection against the supplier. However, I have been unable to identify (an nor
could counsel) any provision in the Act that facilitates the achievement of the second
of the aforementioned apparent objectives in the readily conceivable context of the
facts of the current case.
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It is not plainly evident how a consumer in the position of the respondent would be able
to avail of the protection offered to consumers in terms of s 56(2) of the CPA. He could
not return the vehicle to the supplier against a refund of the purchase price
because ownership of the car vested in the credit provider; and it was the credit
provider, and not he, that had paid the purchase price. Counsel appeared agreed
in the circumstances that the only practical manner in which effect could be given
to the evident legislative object would be either for the bank to cede its rights as
‘consumer’ against the supplier in ter ms of the CPA to the respondent, thus
permitting the latter to return the vehicle to the dealer against a refund of the
purchase price, or for the bank, at the instance and request of the respondent, to
exercise its rights as ‘consumer’ directly against the supplier and to give the
respondent the benefit of the refund of the purchase price in satisfaction or
reduction of the latter’s liability to it under the instalment sale agreement.”
[18] Attached to the plaintiff’s particulars of claim , and forming part of the instalment
sale agreement, is “release note and acknowledgment of deliver” whereby the
defendant took deliver y of the vehicle from the dealership, which was also
signed by the defendant. An invoice is also attached to the plaintiff’s particulars
of claim issued by the dealership confirming delivery of the vehicle to the
defendant.
[19] It is averred by the plainti ff that similarly to the MFC judgment
3, the common
cause sale agreement excluded any warranty by the plaintiff as to the condition
of the vehicle selected by the defendant . The instalment sale agreement states
that:
“4 Delivery and acceptance
Before you accept delivery of the asset from the supplier you will check that it
is:
• what you want, or ordered
• fit for purposes for which you intend to use it; and
• in good working order.
3 Supra.
9
We will pay the supplier for the asset when you have accepted delivery of i t
and ownership of the asset will pass to us . Any claims or potential claims that
you may have in relation to the asset including but not limited to, claims for:
• Defects;
• Incompleteness;
• Fitness for purpose;
• Late delivery or non-delivery;
are for you to pursue against the supplier and we shall have no liability
whatsoever.
[20] Thus, the plaintiff averred that any potential claim that the defendant may have
lies against the dealership and not against the plaintiff. The common cause
instalment agreement specifically records that the plaintiff remains the owner of
the vehicle until such time that the defendant has paid all the instalments under
the agreement, provided that the defendant is not in default.
[21] In regard to the defendant’s defence that she had lodged a complaint with
MOISA, counsel for the plaintiff pointed out that MOISA dismissed the
complaints of the defendant on two occasions. In a MOISA letter dated , 9
November 2023, MOIS A found inter alia that the vehicle met the standard of
the CPA and the Standar ds Act 29 of 1993 and that the sale was not
conditional on the vehicle being “accident or collision free.”
[22] The defendant suggested that National Consumer Commission’s investigation
of the matter is tantamount to the legal merit thereof. The plaintiff in response
asserted that this is patently incorrect as the governing jurisprudence
establishes the correct legal position. The pla intiff averred that by virtue of the
current application the plaintiff seeks return of the motor vehicle, as owner of
the vehicle. The complaints lodged by the defendant with MOISA or the NC C
are irrelevant to the adjudication of the pre sent proceedings. Furthermore, the
plaintiff is not in possession of the vehicle and has no knowledge of the alleged
information provided to the defendant by the Gauteng Consumer Pro tection
10
Authority, that the plaintiff recovered the vehicle from the dealership on 27
February 2025.
[23] It is also averred by the plaintiff that the defendant’s suggestion that the plaintiff
mitigate its losses, loses sight of the factual and legal position that the
contractual nexus lies as between the plaintiff and defendant , as per the MFC
judgment4 and that any conceivable claim that the defendant might have lies
against the dealership.
Legal considerations
[24] The Supreme Court of Appeal in Majola v N itro Securitisation 1 (Pty) Ltd 5 held
the following in regard to the purpose of summary judgments:
“The purpose of summary judgment is to ‘enable a plaintiff with a clear case to obtain
swift enforcement of a claim against a defendant who has no real defence to that
claim.’ It is a procedure that is inte nded ‘to prevent sham defences from defeating the
rights of parties by dela y, and at the same time causing great loss to plaintiff’s who
were endeavouring to enforce their rights.’ If a court hearing an application for
summary judgment is satisfied that a defendant has no bona fide defence to a
plaintiff’s claim and grants summary judgment as a consequence, it should be slow
thereafter to grant leave to appeal, lest it undermine the very p urpose of the
procedure.”
[25] It is trite law that the well-know judgment of Maharaj v Barclays National Bank
Ltd6 succinctly summarises the position relating to the defendant’s onus in
summary judgment proceedings as follows:
“Accordingly, one of the ways in which a defendant may successfully oppose a claim
for summary judgment is by satisfying the Court by affidavit that he has a bona fide
defence to the claim. Where the defence is based upon facts, in the sense that
material facts alleged by the plainti ff in his summons, or combined summons, are
disputed or new facts are alleged constituting a defence, the Court does not attempt to
decide these issues or to determine whether or not there is a balance of probabilities in
4 Supra.
4 Supra.
5 2012 (1) SA 226 (SCA) at para 25. See also Joob Joob Investments (Pty) Ltd v Stocks
Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at paras 31, 32 and 33.
6 (151/75) [1975] ZASCA 102 (18 November 1975) at pages 18 and 19.
11
favour of the one party or the other. All that the Court enquires into is: (a) whether the
defendant has ‘fully’ disclosed the nature and grounds of his defence and the material
facts upon which it is founded, and (b) whether on the facts so disclosed the defendant
appears to have, as to either the whole or part of the claim, a defence which is bona
fide and good in law . If satisfied on these matters the Court must refuse summary
judgment, either wholly or in part, as the case may be. The word ‘fully’, as used in the
context of the Rule (and its predecessors), has been the cause of some Judicial
controversy in the past. It connotes , in my view, that, while the defendant need not
deal exhaustively with the facts and the evidence rel ied upon to substantiate them, he
must at least disclose his defence and material facts upon which it is based with
sufficient particularity and completeness to enable the Court to decide whether the
affidavit discloses a bona fide defenc e…At the same time the defendant is not
expected to formulate his opposition to the claim with precision that would be required
of a plea; nor does the Court examine it by the standards of pleading.”
[26] Counsel for the plaintiff also directed the court’s attention to the Tumileng
Trading CC v National Sec urity and Fire (Pty) Ltd; E & D Security Systems CC
v National Security and Fire (Pty) Ltd 7 wherein the court dealt with the
amended Rule 32 and the current test to be applied as follows:
“However, does the fact that the bones of a triable defence have been made out in the
plea mean that summary judgment must be refused? The answer is clear ly ‘no’! The
reason for the negative answer is that the enquiry is not whether the plea discloses ‘an
issue for trial’ in the literal sense of those words, it is whether the ostensible defence
that has been pleaded is bona fide or not. As discussed earlier, that is the relevant
enquiry in a summary application follows from the rule maker’s decision to leave sub
enquiry in a summary application follows from the rule maker’s decision to leave sub
rule 32(3) substantively unamended. If one were to apply the amended rule differently,
it would be impossible to marry the requirement of a plaintiff apparently posited by sub
rule 32(2)(b) ( viz. showing that the ‘defence as pleaded does not raise any issue for
trial’) with what is demanded of a defendant in terms of subrule 32(3)(b) (viz. showing
that its defence to the action is bona fide; i.e that its ostensible defence is not a sham).
The respective supporting and opposing affidavits would pass each other like ships in
the night if one were to understand the notion of ‘issue for trial’ in sub rule 32(2)(b) as
denoting something different from a ‘bona fidelity within the meaning of sub rule
32(3)(b).”
7 (3670/2019) [2020] ZAWCHC 28; 2020 (6) SA 624 (WCC) (30 April 2020) at para 40.
12
[27] In the present matter, simply put the legal question is whether the defendant ’s
defence is bona fide and good in law.8
Discussion
[28] In this matter as in the MFC judgment9 cited extensively above it is c lear from
the evidence that the applicant did not market the vehicle to the defendant, it
merely financed it . The plaintiff in this matter is not the supplier of the vehicle
and together with defendant the plaintiff is also regarded as a consumer. Thus,
the defence raised by the defendant of the non- disclosure of the vehicle being
in a motor vehicle collision and the fraudulent misrepresentation by the
dealership thereof are issues which lie between the defendant and the
dealership and not the plaintiff. Furthermore, the instalment agreement contract
between the parties clearly sets out that the agreement excludes any warranty
by the plaintiff as to the condition of the vehicle selected by the defendant.
Thus, any claims or potential claims that the defendant may have in relation to
the vehicle are for the defendant to pursue against the supplier as the plaintiff
will have no liability whatsoever.
[29] The defendant is not precluded from pursuing legal action against the
dealership for the alleged misrepresentation she claims that took place, as the
triggering of the CPA remedies fall within the ambit of the relationship between
the defendant the dealership.
[30] In addressing the question whether the defendant lawfully returned the vehicle,
I draw on the MFC judgment10 where in terms of s52 of th e CPA, the only way
in which the return of the vehicle would have been lawful would be where either
the the plaintiff ceded its rights as “consumer” against the supplier in terms of
the CPA to the defendant, thus permitting the defendant to return the vehicle to
the dealer against a refund of the purchase price or for the plaintiff at the
instance and request of the defendant to exercise it s rights as “consumer”
instance and request of the defendant to exercise it s rights as “consumer”
directly against the supplier and give the defendant the benefit of the refund of
8 See supra note 5.
9 Supra note 1.
10 Supra.
13
the purchase price in satisfaction or reduction of the defendant's liability to the
plaintiff under the Instalment Sale Agreement.
[31] In regard to the NCA s129 Notice, counsel for the plaintiff directed the court to
the summons where evidence is provided that the defendant was served with a
NCA s129 Notice and she was duly advised of all her rights.
Conclusion
[32] I am of the view that the plaintiff has demonstrated a clear and enforceable
claim founded on a written credit agreement between the plaintiff and the
defendant. The defendant’s plea is void of any legal foundation and bona fide
defence capable of sustaining a triable defence. Furthermore, the defendan t’s
defence is not good in law against the plaintiff because the crux of the
defendant’s defence lay against the dealership and not the plaintiff. It therefore
follows that the plaintiff is entitled to summary judgment against the defendant.
Order
[33] In the premises, having heard counsel for the plainti ff an d having heard the
defendant; and having considered the matter, I hereby make the following
order:
33.1 The application for summary judgment is granted
against the respondent.
33.2 The agreement concluded between the applicant
and the respondent is declared cancelled.
33.3 The applicant is authorised to retake possession
and ownership of the following goods,
wheresoever it may be located:
33.3.1 2021 Nissan Magnite 1.0.T Acenta
Plus CVT ; Engine number: H[…];
Chassis number: M[…].
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33.4 The applicant’s claim for payment of the sum R599
083.00 together with interest thereon at a rate of
13,45%, less the salvage value in terms of the
aforementioned order, is postponed sine die.
33.5 Costs of the application for summary judgment on
the attorney client scale.
___________________________
W DOMINGO
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Delivered: The judgment was prepared and authored by the Judge whose name
reflected and is handed down electronically by circulation to the parties’ legal
representatives by email and by uploading it to the electronic file of this matter
on CaseLines. This matter was heard in open court on the 12 August 2025. The
date of hand-down is deemed to be 27 October 2025.
APPEARANCES
For the Plaintiff/Applicant: ADVOCATE Z KHAN instructed by BHAM &
DAHYA ATTORNEYS
For the Defendant/Respondent: BUSISIWE EUTRICIA BALOYI in person/self-
represented
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