IN THE IDGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
In the matter between:
BMW FINANCIAL SERVICES
(SOUTH AFRICA) (PTY) LTD
and
SERAAJ TOEFY
Coram: COOKE AJ
Heard: 13 and 31 October 2025
Judgment: 5 November 2025
Not Reportable
Case no: 2025-010685
APPLICANT
RESPONDENT
2
ORDER
[I] The summary judgment application is postponed sine die.
[2] The defendant is given leave to deliver a notice of intention to amend his
plea in terms of rule 28( 1) within ten days of this order.
[3] If the plea is duly amended, then:
a. the plaintiff is given leave (i) to supplement its affidavit m
support of the summary judgment application, limited to material
which is consequential on the amendment, within ten days of the
defendant perfecting the amendment to the plea, and (ii) to re
enrol the application on the papers, as so supplemented;
b. whereafter, the defendant may deliver a supplementary opposing
affidavit, limited to material which is consequential on the
plaintiffs supplementary affidavit, no later than five days before
the day on which the application is to be heard.
[4] If the notice of intention to amend is not delivered within ten days, or
if the plea is not successfully amended, then the plaintiff is given leave
to re-enrol the application for hearing in its current form.
3
[ 5] The defendant shall pay the wasted costs occasioned by the
postponement.
JUDGMENT
[I] This summary judgment application raises a procedural question. How
should a court approach such an application where a new defence is raised
in the affidavit opposing the application, in circumstances where the
defendant has not amended his plea or even delivered a notice of intention
to amend? The question arises in the following circumstances.
[2] On or about 30 June 2020, the parties concluded an instalment sale
agreement in terms of which the defendant, Mr Toefy, purchased a BMW
XI ('the vehicle') from the plaintiff, BMW, for some R610 000 ('the
agreement'). The purchase price was to be repaid by monthly payments
followed by one final balloon payment. In terms of the agreement BMW
would remain the owner of the vehicle until amounts payable in terms of
the agreement had been paid and Mr T oefy had complied with all his
obligations. The agreement also provided that in the event of default by
Mr Toefy, BMW would be entitled to cancel and/or terminate the
agreement and claim from Mr T oefy the full amount that would have been
paid had he fulfilled all his obligations in terms of the agreement. To this
end BMW would be entitled to claim the return and repossession of the
vehicle, sell the vehicle and, in addition, claim damages.
4
[3] It is common cause that Mr Toefy fell into arrears. Notice of default was
given to Mr Toefy in terms of section 129(1) of the National Credit Act
34 of 2005 by way of a letter dated 15 October 2024. As of 1 December
2024, he owed arrears of about R25 000. According to BMW, on this date
the balance owing by Mr Toefy under the agreement was about R320 000
(ie just over half the purchase price). BMW alleged further that it
cancelled and/or terminated the agreement due to Mr Toefy's breach,
alternatively the agreement was cancelled and/or terminated by the
summons. BMW claimed rectification in respect of the engine numb er,
confirmation of cancellation of the agreement, return of the vehicle, the
postponement of the claim for damages pending return and sale of the
vehicle, interest, and costs of suit on an attorney and client scale.
[4] In Mr Toefy's plea he alleged that on or about 27 March 2025 he settled
the arrears in full by paying an amount ofR33 117. He alleged further that
such payment was made prior to cancellation, and therefore the agreement
was revived by operation oflaw in terms of section 129(3) of the National
Credit Act. In this regard reliance was place on the Nkata judgment. 1 Mr
Toefy also denied that BMW had cancelled the agreement.
[5] BMW then launched a summary judgment application on 13 May 2025.
The deponent to the supporting affidavit pointed out that Mr T oefy had
not remedied the default prior to cancellation of the agreement as the
agreement had been cancelled, at the latest, when the summons was served
1 Nkata v FirstRand Bank Ltd 2016 (4) SA 257 (CC).
5
on 5 February 2025, more than a month before the last payment had been
made on 27 March 2025.
[ 6] The fact that the agreement had pmportedly been cancelled prior to the
default being remedied created a serious impediment for Mr Toefy. He
then shifted ground in his opposing affidavit and, while recognising that
he had been in arrears at the time the application for summary judgment
was brought, alleged that he had settled the arrears in full by two payments
ofRl 7 000 on 1 May 2025 and R7 000 on 27 May 2025. Mr Toefy alleged
that BMW's claim was thus no longer due or payable. He alleged further
that even if BMW suggested that some residual amount was still owing,
the issue would require the hearing of oral evidence and could not be
resolved on affidavit. In argument, Mr Toefy's counsel developed the
defence further, submitting that it would be contrary to public policy for
BMW to enforce its right to take possession of the vehicle. This defence
is fundamentally different to that set out in the plea. This notwithstanding,
Mr Toefy has not indicated that he intends to am end his plea, and BMW
has not had an opportunity to set out its response to the new defence in an
affidavit.
[7] In terms of rule 32(3 )(b ), a defendant who elects to deliver an affidavit in
opposition to a summary judgment application mu st fully disclose the
nature and grounds of the defence and the material facts relied upon. The
facts should not be inherently and seriously unconvincing and should, if
true, constitute a valid defence.2 A defendant is, however, not required to
2 Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228D-E; Standard Bank of South Africa Ltd v
Friedman 1999 (2) SA 456 (C) at 461I-462G.
6
show that its defence is likely to prevail. If a defendant can show that it
has a legally cognisable defence on the face of it, and that the defence is
genuine or bona fide, summary judgment must be refused. The
defendant's prospects of success are irrelevant.3 The word 'may' in rule
32(5) confers a discretion on the court so that even if the defendant's
affidavit does not measure up fully to the requirements of subrule (3)( b ),
the court may nevertheless refuse to grant summary judgment if it thinks
fit.4 If, on the material before it, the court sees a reasonable possibility that
an injustice may be done if summary judgment is granted, that is a
sufficient basis on which to exercise its discretion in favour of the
defendant. 5
[8] At the hearing counsel for Mr Toefy relied upon the judgment of the
Kwazulu-Natal Division in BMW Financial Services v Ndlangisa Funeral
Services CC and Another (Ndlangisa).6 This was also an application for
summary judgment by BMW. In this matter it was common cause that at
the time the application for summary judgment was launched, the
respondents had brought their account up to date, although this was after
the default and the issuance of summons. In considering whether to grant
condonation for the late filing of the summary judgment application, the
court considered the merits of the claim. The court found that the
respondents had remedied the arrears by the time the summary judgment
application was filed. According to the court 'while it is true that default
occurred, the agreement was effectively reinstated through conduct, and
3 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) para 13.
4 First National Bank of South Africa Ltd v Myburgh and Another 2002 (4) SA 176 (C) (Myburgh) at 180D
E.
5 M yburgh at 184H.
6 [2025] ZAKZPHC 66 (9 July 2025).
7
the matter is not one deserving of this stringent remedy of summary
judgment'.7 The court observed that the continued pursuit of cancellation
and repossession in those circumstances raised serious concerns about
fairness and proportionality. 8 After referring to the judgment of the
Constitutional Court in Beadica 231 CC and Others v Trustees, Origin
Trust and Others9 (Beadica) the court held:
'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 (National Credit Act) 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.' 10
[9] The court had regard to the fact that BMW is a financial service provider
that serves vulnerable members of the public and held that it would be
contrary to public interest and policy considerations to permit it to enforce
its right strictly on the basis of past default, when the underlying
indebtedness has been cured.11 The court concluded by finding that
BMW's insistence on the return of the vehicle despite having received the
arrears is neither equitable nor in the public interest. According to the
court, this weighs decisively against the granting of summary judgment. 12
7 Para 8.
8 Para 9.
9 2020 (5) SA 247 (CC).
10 Para 14.
11 Para 15.
12 Para 17.
8
[ 1 0] The following passage in Beadica is relevant:
' ... a court may not refuse to enforce contractual terms on the basis that the enforcement
would, in its subjective view, be unfair, unreasonable or unduly harsh. These abstract
values have not been accorded autonomous, self-standing status as contractual
requirements. Their application is mediated through the rules of contract law including
the rule that a court may not enforce contractual terms where the terms or its
enforcement would be contrary to public policy. It is only where a contractual term. or
its enforcement. is so unfair. unreasonable or unjust that it is contrary to public policy
that a court ma v refuse to enforce it.'13 (Emphasis added.)
[11] In this matter, as in Ndlangisa, the evidence adduced in the opposing
affidavit suggests that the arrears have been paid. In these circumstances,
and having regard to the following factors, it may well be that the
repossession of the vehicle is contrary to public policy:
(a) Mr Toefy has already repaid about half of the total indebtedness.
(b) On the evidence adduced by Mr Toefy, the arrears have been paid in
full. Even if the arrears have not been completely paid, any amount
currently owing to BMW would be relatively small.
( c) The nature of the agreement is such that the parties were probably in
unequal bargaining positions when the agreement was concluded.
13 Para 80.
9
(d) Mr Toefy would be prejudiced if the vehicle were to be the subject of
a forced sale. The proceeds of such a sale would probably not reflect the
actual value of the vehicle.
[12] I am mindful, however, that BMW has not had an opportunity to deliver
an affidavit in relation to Mr Toefy's new defence. A similar conundrum
arose in Belrex 95 CC v Barday (Belrex)14 where, as in the matter before
me, an initial plea had been filed and the plaintiff sought summary
judgment with reference to this initial plea. Subsequent thereto, but before
the application was heard, the defendant filed a notice of intention to
amend his plea and raised a special plea, and a few days later he filed his
opposing affidavit. The plaintiff had not had occasion to file an additional
affidavit because, so the court considered, it was prohibited from doing so
in terms of subrule ( 4).15 Belrex is different to this matter in that the
defendant had filed a notice of intention to amend his plea. Here, Mr T oefy
has not signalled an intention to amend his plea. In my view, however, if
Mr Toefy is given leave to defend, it is inevitable that he will amend his
plea.
[13] In Belrex, Henney J held that given the way the application unfolded, it
would be difficult, if not impossible, to deal with the application in terms
of the amended rule for the following reasons:16
a. First, the amended plea was not ripe to be adjudicated upon, for
want of compliance with the provisions of rule 28(2).
14 2021 (3) SA 178 (WCC ).
15 Para 34.
16 Para 35 .
10
b. Second, even if the amended plea were properly before court, the
plaintiff did not deliver a supporting affidavit to deal with any of
the issues, especially in relation to whether the defence as
pleaded therein raised any triable issue.
c. Third, again, even if the amended plea were properly before the
court, in the court's view the plaintiff would be prohibited from
delivering any further evidence, in the form of an affidavit, to
address the question whether the defence as pleaded raises a
triable issue.
d. Fourth, should the court ignore the amended plea and ignore the
opposing affidavit, because the opposing affidavit was not in
harmony with the initial plea, it would defeat the purpose of the
amended rule, which requires that the nature and grounds of the
defence and the material facts relied upon in the affidavit should
be in harmony with the allegations in the plea.
e. Fifth, it would be manifestly unfair and unjust to the defendant,
who has a right to amend his plea at any stage of the proceedings
before judgment; even more so if summary judgment should be
granted in favour of the plaintiff.
[ 14] It seems to me that materially the same considerations arise in the matter
before me. Henney J made no order in relation to the summary judgment
application, but directed that the defendant's notice of amendment shall
take effect in terms of rule 28(2) as of the date of the judgment, for the
11
plaintiff to exercise its rights in terms of the rule, and the plaintiff was
given leave to bring a fresh summary judgment application on the
amended plea, should such an application for amendment be allowed.
Costs stood over for later determination. 17
[15] A different remedial approach was adopted in City Square Trading 522
(Pty) Ltd v Gunzenhauser Attorneys (Pty) Ltd and Another (City
Square).18 In this case an affidavit had been delivered for the purposes of
supplementing the plaintiffs supporting affidavit consequent upon an
amendment of the defendant's plea effected after the filing of the
application for summary judgment. The defendant objected to the
supplementary affidavit by way of a notice in terms of rule 30. The court
found that rule 32( 4) does not deprive the plaintiff of its rights under rule
28(8) to make consequential adjustments to its affidavit filed in terms of
rule 32(2) pursuant to the amendment of a plea. The court thus allowed
the plaintiff to deliver the supplementary affidavit.
[16] These cases were considered by Farlam AJ in Redefine Properties Limited
v Masiqhame Trading 224 CC and Another (Redefine).19 In the view of
Farlam AJ, the order granted in Belrex to deal with the defendant's late
amendment of its plea - namely, granting the plaintiff leave to bring a
fresh application on the amended plea, should such an application for
amendment be allowed - seemed unnecessary ( albeit a potential way of
regulating the development in a particular case, should the court consider
it appropriate in the circumstances). This was because, in terms of rule
17 Paras 36-9.
18 2022 (3) SA 458 (GJ).
19 (4851/2022) (2024] ZAWCHC 214 (20 August 2024).
12
28(8), the plaintiff would be able to amend its supporting affidavit in the
summary judgment application consequentially (by way of filing a
supplementary affidavit) and the existing summary judgment application
could therefore continue in amended form. 20
[17] In Redefine, the court pointed out that:21
' ... an amendment by a defendant faced with a summary judgment application will
preclude the summary judgment application proceeding in the form in which it was
issued. The summary judgment application would be directed at the initial plea, not
the plea as amended. The plaintiff would therefore not have engaged with all the
defences that the defendant has, subsequent to the launching of the summary judgment
application, indicated that it wants to advance; and it might also have addressed
defences which were no longer being persisted with. In the circumstances, the
summary judgment application as issued would, at least to some extent, become moot.'
[18] One of the objects of the amendment to rule 32 is to allow the plaintiff an
opportunity to address the defendant's grounds of defence in the affidavit
supporting the summary judgment application.22 Generally, a defendant
may not raise defences in the affidavit resisting summary judgment that
are not pleaded.23 The rule-maker contemplated a proper engagement by
the parties with the pleadings.24 To this end, sub-rule 2(b) provides that
the supporting affidavit must 'explain briefly why the defence as pleaded
does not raise any issue for trial' (Emphasis added). It follows that the
20 Para 21.
21 Para 14.
22 See in this regard Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC)
para 8.
23 Vukile Property F und Limited v True Ruby Trading 1002 (CC) trading as PostNet (unreported GJ case
no 2020/9705 dated 21 May 2021) para 10; Nedbank Ltd v Uphuhliso Investments and Projects (Pty) Ltd
[2022] 4 All SA 827 (GJ) (Uphuhliso ).
24 City Square para 27.
13
defence ultimately argued at a summary judgment hearing must be in
harmony with the defence pleaded. In circumstances where the defendant
introduces a new defence in the affidavit opposing summary judgment,
this purpose is subverted, and the court is placed in a position akin to that
under the previous form of the rule, where the defendant asks the court to
decide the application merely on the defence articulated in the opposing
affidavit.
[19] To my mind, if I were to have regard to Mr Toefy's opposing affidavit
that would be prejudicial to BMW, as the matter would then be decided
without it having had an opportunity to respond to the new defence. On
the other hand, if I were to disregard the opposing affidavit, judgment may
be given against Mr Toefy in the face of a potentially valid defence. In so
far as the new defence only became available to Mr Toefy after the plea
was delivered, in my view the mere fact that the plea and the opposing
affidavit are at odds, does not mean that the new defence is not genuine
and summary judgment should be granted.
[20] To resolve these twin difficulties, I think Mr Toefy should be given leave
to deliver a notice of intention to amend his plea in terms of rule 28(1)
within ten days of this order. Although l\.1r Toefy should have delivered a
notice of intention to amend his plea as soon as it became evident that a
new defence would be advanced,25 in the particular circumstances of this
matter I do not think that the failure to do so is demonstrative of a lack of
good faith. If the plea is successfully amended then BMW should be given
leave to supplement its affidavit in support of summary judgment,
25 Up huhliso para 30.
14
whereafter BMW may set the application down for hearing on the revised
papers and Mr Toefy may deliver a supplementary opposing affidavit. If
the notice to amend is not delivered timeously, or if the claim is not
successfully amended, then BMW may re-enrol the existing application
in its current forrn.26 The supplementary supporting affidavit should only
contain evidence and argument which is consequential on the amendment,
and likewise the supplementary opposing affidavit should only contain
evidence and argument which is consequential on the material in the
supplementary supporting affidavit.
[21] I invited the parties to make submissions in relation to the Belrex line of
cases, and to this end a hearing was convened on 31 October 2025. Mr
Toefy's counsel submitted that I should decide the matter on the papers as
they stand. For the reasons given above, I think this would not only
undermine the purpose of the rule but, if I had regard to the opposing
affidavit, this would also be prejudicial to BMW . Both counsel agreed that
if the application were to be postponed, BMW should be given leave to
supplement its papers pursuant to any amendment, rather than having to
bring a fresh application. I consider that this would be the most practical
remedy.
[22] The wasted costs occasioned by the postponement have been caused by
Mr Toefy. The initial plea did not disclose a genuine defence. BMW was
therefore justified in seeking summary judgment. The prospect of a new
defence, based on public policy concerns, arose after the two payments
were allegedly made in May 2025. But the second such payment wa s only
26 See in this regard Redefine para 22.1.
15
made after the summary judgment application was launched. Thus, Mr
Toefy's new defence, based as it is on the arrears having been finally
settled by the two payments, only became complete after the application
had been filed. In these circumstances I consider that Mr Toefy should be
liable for the wasted costs.27
[23] For these reasons I grant the order set out above.
Cooke AJ:
Appearances
For applicant:
Instructed by:
For respondent:
Instructed by:
27 See Redefine paras 4-6.
....
DJCOOKE
ACTING JUDGE OF THE HIGH COURT
MAlexander
V elile Tinto & Associates
M Garces
Sayeen & Co Attorneys