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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case number: 2024/136477
[1] REPORTABLE: NO
[2] OF INTEREST TO OTHER JUDGES: NO
[3] REVISED: NO
SIGNATURE
DATE: 20 NOVEMBER 2025
In the matter between:
NEDBANK LIMITED Plaintiff
and
BENNIS MOKOENA Defendant
JUDGMENT
DALRYMPLE AJ:
[1] The plaintiff applies for summary judgment against the defendant. The
plaintiff’s cause of action is founded upon an instalment sale agreement
concluded between the parties in terms of which the plaintiff financed the
purchase of the defendant’s motor vehicle, being a 2014 Land Rover Evoque
Si4 Dynamic motor vehicle with engine number 1[...] and chassis number
S[...] (“the vehicle”).
[2] In terms of the agreement, the defendant was liable to pay the plaintiff
monthly instalments in reduction of her indebtedness to the plaintiff. In the
event the defendant breached the agreement by, inter alia , failing to make
payments due to the plaintiff, the plaintiff would be entitled to cancel the
agreement, take possession of the vehicle and claim payment of the
outstanding balance.
[3] In its particulars of claim, the plaintiff alleged that the defendant had breached
the agreement in failing to make the monthly instalments to it and was in
arrears in the amount of R41 488,21 as at the time of the issue of the
plaintiff’s summons in November 2024. After giving notice to the defendant in
terms of the National Credit Act 1 the defendant remained in breach of the
agreement which entitled the plaintiff to cancel the agreement, which it duly
did.
[4] The plaintiff then instituted action against the defendant seeking judgment for
orders confirming cancellation of the agreement, for return of the vehicle to
the plaintiff and costs. The plaintiff does not seek any monetary relief and
asks that the damages component of its claim be postponed sine die.
[5] The defendant filed her plea on 1 April 2025. The plaintiff took the view that
the defendant’s plea did not raise any triable issues, did not appear to be
bona fide , had been delivered to delay the plaintiff’s claim and applied for
summary judgment for the relief set out above.
[6] A defendant is required, in an affidavit opposing summary judgment to
disclose fully the nature and grounds of the defence and the material facts
relied upon.2
[7] In Breitenbach v Fiat SA (Edms) Bpk 3 the court held that bald, vague and
sketchy defences should not be countenanced. In Joob Joob Investments
1 34 of 2005
2 Rule 32(3)(b); PCL Consulting (Pty) Limited t/a Philips Consulting SA v Tresso Trading 119 (Pty)
Limited 2009 (4) SA 68 (SCA) at para [8]
(Pty) Limited v Stocks Mavundla Zek Joint Venture 4 the Supreme Court of
Appeal explained that summary judgment procedure is not intended to
deprive a defendant with a triable issue or a sustainable defence or of his or
her day in court. In considering whether a defendant does indeed have a
triable issue or sustainable defence, the court should first consider whether
there was a sufficient disclosure by the defendant of the defence sought to be
relied upon. Second, it should be considered whether the defence so
disclosed is bona fide and good in law.
[8] In NPGS Protection and Security Services CC and Another v First Rand Bank
Limited5 the Supreme Court of Appeal confirmed again that summary
judgment applications require an opposing affidavit to disclose fully the nature
and grounds of the defence and the material facts relied upon therefore. To
stave off summary judgment, a defendant cannot conten t him or herself with
bald denials, for example, that it is not clear how the amount claimed was
made up. Something more is required. If a defendant disputes the amount
claimed, he or she should say so and set out a factual basis for such denial.6
[9] In her plea, the defendant put the plaintiff to the proof of the allegation that
she had failed to pay monthly instalments and was indebted to the plaintiff in
an amount of R41 488,21 as at the time of issue of summons. She did not
proffer any countervailing facts to suggest that she was not so indebted. In
addition, she did not dispute that as at 23 October 2024, the total outstanding
amount due to the plaintiff was R325 038,31 plus interest from the aforesaid
date at a rate of 14.95% per annum, calculated and capitalised from 24
October 2024 to the date of payment as evidenced by a certificate of balance.
[10] In her affidavit opposing summary judgment, the defendant contended that
she had a bona fide defence premised on there being a material dispute of
fact. The dispute of fact pertained to the amount of her indebtedness . This
fact. The dispute of fact pertained to the amount of her indebtedness . This
was premised on her having made payments to the plaintiff before receipt of
3 1976 (2) SA 226 (T) at 229 F to H
4 2009 (5) SA 1 (SCA) at paras [31] and [32]
5 2020 (1) SA 494 (SCA)
6 NPGS at para [11]
the summary judgment application. The defendant also did not dispute being
in default with her obligations under the agreement but averred that she was
attempting to rectify the default by making various payments towards the
arrear amount. She attached proof of three payments to her affidavit in
support of this. Despite the fact that two of the proofs of payment reflect ed
that payments were made before the filing of her plea, they were not referred
to in her plea nor were they attached to her plea. The defendant made no
allegations in the plea as to any payment being made to the plaintiff at all.
[11] Counsel for the defendant submitted , both in her heads of argument and in
oral argument, that the subsequent payments made by the defendant to the
plaintiff after receipt of the plaintiff’s summons (but before receipt of the
application for summary judgment) altered the quantum of the arrears . This,
so it was argued, introduced a genuine dispute of fact rendering the matter
incapable of resolution on paper and justifying refusal of summary judgment.
[12] In summary judgment proceedings, a defendant cannot raise a defence in her
affidavit that is not raised in her plea without amending the plea. 7 This is
because the summary judgment is adjudicated upon the defendant’s pleaded
defence. But leaving aside that the payments referred to in her affidavit were
not referred to in her plea, the defendant’s difficulty is that the facts relied
upon by he r in seeking to stave off summary judgment do not disclose a
defence to the plaintiff’s claim for cancellation of the agreement and
repossession of the vehicle. The plaintiff’s right to cancel the agreement
accrued once the defendant was in breach and had failed to remedy her
breach after notice of thereof had been given to the defendant pursuant to the
terms of the agreement and sections 129 and 130 of the National Credit Act.
[13] The plaintiff exercised its right of cancellation, at the very latest upon service
[13] The plaintiff exercised its right of cancellation, at the very latest upon service
of its summons on the defendant. The defendant does not suggest that she
had made payment in respect of the arrears and remedied her default before
cancellation of the agreement. On the contrary, she admits to being in default
7 AHMR Hospitality v Da Silva 2024 (3) SA 100 (WCC) at para [14]
and her case is that she made payments in reduction of her indebtedness
after the issue of summons and cancellation. She conceded this was an
attempt to rectify her default.
[14] There is thus no dispute raised by the defendant that she failed to comply with
the instalment obligations under the agreement nor is there a dispute as to the
plaintiff’s entitlement to cancel the agreement. The defendant’s suggestion
that there is a genuine dispute of fact in relation to the extent of her arrears
does not assist her. On her own version, the payments in reduction of her
indebtedness were made after cancellation of the agreement by the plaintiff
and after issue of summons and without her ch allenging her indebtedness
before then. Counsel for the plaintiff argued that the subsequent payments in
any e vent amounted to admissions of indebtedness, and even if taken into
account, the plaintiff did not extinguish the extent of her arrears. These
submissions are sound.
[15] The precise quantification of the plaintiff’s indebtedness is not in issue at
present. The plaintiff does not seek a money judgment but seeks only
confirmation of cancellation of the agreement and return of the vehicle to it. It
is the defendant’s indebtedness per se, and not the quantum thereof that
entitles the plaintiff to the relief it seeks. Factual disputes as to the extent of
the quantum are thus not relevant at this stage. The subsequent payments
the plaintiff made will have the effect of reducing he r overall indebtedness but
that is a matter for another day.
[16] The defendant was in breach of her obligations under the instalment sale
agreement and did not remedy her breach timeously. The plaintiff was entitled
to cancel the agreement which it did. The defendant’s plea does not disclose
any bona fide defences nor raise any triable issues. A proper case for
summary judgment has been made out.
[17] The plaintiff did not rely on any contractual right to costs but asked for costs of
counsel.
[18] The following order is made:
[1] Summary judgment is granted in favour of the plaintiff against the defendant
for return to the plaintiff of a 2014 Land Rover Evoque Si 4 Dynamic motor
vehicle with engine number 1[...] and chassis number S[...].
[2] The defendant is to pay the plaintiff’s costs on Scale A.
[3] The damages component of the plaintiff’s claim is postpone sine die.
T DALRYMPLE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
This judgment was handed down electronically by circulation to the parties’ and/or
parties’ representatives by email and by being uploaded to CaseLines. The date for
hand-down is deemed to be 20 November 2025.
DATE OF HEARING: 14 OCTOBER 2025
DATE OF JUDGMENT: 20 NOVEMBER 2025
APPEARANCES:
COUNSEL FOR THE PLAINTIFF: N JONGANI
INSTRUCED BY: VAN DEVENTER DLAMINI
INC
COUNSEL FOR THE DEFENDANT: K MAIMANE
INSTRUCTED BY: RHULANI BALOYI INC