REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-056955
DATE: 19 November 2025
In the matter between:
BMW FINANCIAL SERVICES (SOUTH AFRICA) (PTY) LIMITED Plaintiff
and
BHEKIFA SIMON NKOSI Defendant
Neutral Citation: BMW Financial Services (South Africa) v Nkosi (2024-
056955) [2025] ZAGPJHC --- (19 November 2025)
Coram: Adams J
Heard: 17 November 2025
Delivered: 19 November 2025 – This judgment was handed down
electronically by circulation to the par ties' representatives by
email, by being uploaded to CaseLines and by release to SAFLII.
The date and time for hand -down is deemed to be 14:30 on
19 November 2025.
(l) NOT REP O RTAB LE
(2) NOT O F INTERE ST TO OT HER JUDGE S
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Summary: Practice and Procedure – application for rescission of default
judgment – whether defence prima facie established – application for rescission
granted
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ORDER
(1) The defendant is granted condonation of the late filing of his application for
rescission.
(2) The defendant’s application for rescission succeeds.
(3) The judgment granted by default by this court on 9 July 2024 is rescinded
and set aside.
(4) The defendant shall deliver notice of appearance to defend within ten days
from date of this order.
(5) The costs of the application for rescission shall be in the course of the
main action.
JUDGMENT
Adams J:
[1]. I shall refer to the parties as referred to in the main action in which the
plaintiff sued the defendant , on the basis of an instal ment sale agreement
concluded between the parties during July 2014 (‘the agreement’), for damages
for breach of contract. The amount claimed by the plaintiff from the defendant in
the said action was the sum of R342 052.42, which amount, according to the
plaintiff, represented at the time of issue of the summons the balance
outstanding, owing, due and payable by the defendant to the plaintiff under the
agreement.
[2]. On 9 July 2024, this Court (per its registrar) granted judgment by default
in favour of the plaintiff against the defendant for payment of the sum of
R342 052.42, together with interest thereon and costs of suit on the scale as
between attorney and client.
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[3]. In this application, which came before me in the opposed motion court on
17 November 2025, the defendant applies for a rescission of the said default
judgment. The plaintiff is the respondent in this rescission application.
[4]. In terms of and pursuant to the agreement between the parties, the
plaintiff had sold to the defendant a 2014 BMW 320i motor vehicle (‘the vehicle’)
for the purchase price of R694 420.28, payable in 59 monthly instalments of
R8 430.58 each and a final instalment of R197 016.06 payable on 1 August
2019. During 2017 the defendant defaulted by falling into arrears with his
monthly instalments, prompting the plaintiff to ‘call up’ the agreement, cancel
the contract and to sell the vehicle for an amount of R224 580, leaving a
balance outstanding under the agreement of the sum of R209 002.92. In a
written letter of demand dated 10 August 2017, the plaintiff demanded payment
from the defendant of this outstanding balance.
[5]. It bears emphasising that, according to the particulars of his claim, the
plaintiff’s claim is based on the agreement between the parties. I revert to this
aspect of the matter later on in the judgment.
[6]. In his rescission application the defendant explains his default simply by
stating that service of the summons on his domicilium never came to his
attention. He also explains that he advised the plaintiff’s legal representatives
that he had moved from his domicilium address during 2017. The first time he
became aware of the default judgment obtained against him was during
September 2024, when enquiries were made on his behalf with a Credit
Bureau, who advised him that the said judgment was issued on 9 July 2024.
[7]. The aforegoing is not disputed by the plaintiff and I therefore accept, as a
fact, that the defendant did not receive notice of service of the summons despite
the fact that service was effected at the domicilium address nominated by him in
the fact that service was effected at the domicilium address nominated by him in
the agreement. This appears to be confirmed by the contents of the sheriff’s
return of service which reads as follows:
‘Mr Booth (occupant) refused to accept document as the defendant is unknown.’
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[8]. I accept, as reasonable, th e explanation proffered by the defendant for
his default, as I do his explanation for the delay in filing the rescission
application.
[9]. As regards his defence to the plaintiff’s claim, the defendant contends
that the judgment was erroneously applied for and granted because he had
never received the notice prescribed in terms of section 129 of the National
Credit Act 34 of 2005 (‘the NCA’ ). The said notice, so the defendant alleges,
was clearly sent to an incorrect address. He never received same and ,
accordingly, there has been non -compliance with the mandatory requirements
prescribed by section 129 of the NCA. The plaintiff’s summons was t herefore
premature and irregular , so the submission on behalf of the defendant is
concluded.
[10]. The defendant also alleges that by the time the plaintiff instituted legal
proceedings against him, the claim had already become prescribed.
[11]. The central issue in this application for rescission is whether the defendant
disclosed a bona fide defence to the plaintiff’s claim in the sense of setting out
averments, which, if established at trial, would entitle him to a dismissal of the
plaintiff’s claim. The question is this: has the defendant established such a
defence. If so, then the application should succeed and conversely, if not, then
the application stands to be dismissed.
[12]. The plaintiff disputes the defendant’s defence. It denies that its claim had
become prescribed. It alleges in its answering affidavit that up and until 28 July
2021 the defendant made payment in instalments on account of his
indebtedness to the plaintiff. So, by way of explanation, the plaintiff provides
proof of payment on 28 July 2021 of an amount of R500 by the defendant to the
plaintiff. This payment , so it is contended by the plaintiff, ‘is a clear and
unequivocal acknowledgement of indebtedness and as such, prescription would
begin to run afresh from 28 July 2021 ’. This means, so the contention is
begin to run afresh from 28 July 2021 ’. This means, so the contention is
concluded, that, with the s ummons having been served on 28 May 2024 –
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within the three-year prescription period , the claim had not become prescribed
by the time legal proceedings were instituted against the plaintiff.
[13]. There are two difficulties with the plaintiff’s case in that regard.
[14]. Firstly, that is not the case pleaded in the particulars of plaintiff’s claim,
which is based on the instalment sale agreement, which, according to the
particulars of claim, was cancelled by the plaintiff during 2017. This means that
the plaintiff’s cause of action arose during 2017, which means, in turn, that the
plaintiff’s claim would have become prescribed during 2020.
[15]. Secondly, payment of an amount on account of supposed indebtedness
cannot possibly in and of itself amount to an unequivocal acknowledgement of
indebtedness which translates into prescription running afresh. At the very least,
this is a triable issue, which should be ventilated by evidence.
[16]. The defendant’s application for rescission of the default judgment
granted against him, is in terms of Uniform Rule of Court 31(2)(b) and the
common law.
[17]. Rule 31 (2) provides as follows: -
‘(2) (a) Whenever in an action the claim or, if there is more than one claim, any
of the claims is not for a debt or liquidated demand and a defendant is in default
of delivery of notice of intention to defend or of a plea, the plaintiff may set the
action down as provided in subrule (4) for default judgment and the court may,
after hearing evidence, grant judgment against the defendant or make such order
as it deems fit.
(b) A defendant may within 20 days after acquiring knowledge of such
judgment apply to court upon notice to the plaintiff to set aside such judgment
and the court may, upon good cause shown, set aside the default judgment on
such terms as it deems fit.’
[18]. In terms of Rule 31(2)(b) and the common law, the court has a discretion,
upon good cause shown, to set aside a default judgment. ‘On good cause
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shown’, and the requirements for an application for rescission have been stated
to be as follows:
(a). The applicant must give a reasonable explanation for his default. If it
appears that his default was wilful or that it was due to gross negligence,
the court should not come to his assistance.
(b). His application must be bona fide and not made with the intention of
merely delaying plaintiff’s claim.
(c). He must show that he has a bona fide defence to plaintiff’s claim. It is
sufficient if he makes out a prima facie defence in the sense of setting out
averments which, if established at the trial, would entitle him to the relief
asked for. He needs not deal fully with the merits of the case, and produce
evidence that the probabilities are actually in his favour.
[19]. The authority for the aforegoing trite legal principle is Grant v Plumbers
(Pty) Ltd 1, which has been confirmed by numerous subsequent cases.
[20]. Generally, an applicant will establish good cause by giving a reasonable
explanation for his default and by showing that he has a bona fide defence to
the claim of the respondent which prima facie has some prospect of success.
[21]. As regards the defendant’s explanation for his default, I have already
indicated, for the reasons alluded to supra, that I am of the view that such an
explanation is reasonable, in addition to being satisfactory. Factually, service of
the summons never came to his attention. It therefore follows that he could
hardly have been expected to deliver notice of appearance to defend if he did
not know of the service of the summons.
[22]. The defendant also applie s for condonation of the late filing of the
application for rescission, which was lodged during November 2024, when he
had become aware of the judgment against him during September 2024. As
indicated above, I accept the defendant’s explanation for the late filing of the
1 Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (0).
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said application. In any event, the delay was not excessive at all. I am of the
view that the defendant did not delay, more than was reasonable, the launching
of the application for rescission following the granting of the judgment.
Furthermore, in view of my findings relating to the prospects of success of the
main application for rescission, I am of the view that the condonation should be
granted.
[23]. That brings me back to the most important issue before me, that being
whether or not a triable issue has been raised by the defendant. I have already
answered this question in the affirmative. As indicated above, at the very least
and all things considered, the prescription issue the defendant has raised is a
triable one. It cannot be said, with any conviction, that the defendant’s version
on that aspect can and should be rejected out of hand.
[24]. I am therefore of the view that the defendant has complied with all of the
requirements for the granting of an order for the rescission of the default
judgment. The application for rescission should therefore succeed.
Costs
[25]. The general rule in matters of costs is that the successful party should be
given his costs, and this rule should not be departed from except where there
are good grounds for doing so, such as misconduct on the part of the
successful party or other exceptional circumstances. See: Myers v Abramson2.
[26]. In applications for rescission, like the one presently before me, it would
only become clear whether the application was justified once the issues are
finally ventilated at trial. The answer to the question whether the defendant has
a defence to the plaintiff’s claim will only definitively be answered after all of the
evidence have been heard and a judgment given on the merits of plaintiff’s
claim.
2 Myers v Abramson, 1951(3) SA 438 (C) at 455.
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[27]. In the exercise of my discretion, I therefore intend ordering the costs of
this application for rescission to be in the course of the main action. Such an
order, in my view, is just, fair and in the interest of justice.
Order
[28]. In the result, I make the following order:
(1) The defendant is granted condonation of the late filing of his application for
rescission.
(2) The defendant’s application for rescission succeeds.
(3) The judgment granted by default by this court on 9 July 2024 is rescinded
and set aside.
(4) The defendant shall deliver notice of appearance to defend within ten days
from date of this order.
(5) The costs of the application for rescission shall be in the course of the
main action.
________________________ ____
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
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HEARD ON: 17 November 2025
JUDGMENT DATE: 19 November 2025 – Judgment
handed down electronically
FOR THE PLAINTIFF: S McTurk
INSTRUCTED BY: DRSM Attorneys Incorporated,
Illovo, Sandton
FOR THE DEFENDANT: L Sebako
INSTRUCTED BY: Sebako Attorneys Incorporate,
Ferndale, Randburg