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agreement (the agreement) concluded between the parties. In the action, t he
plaintiff seeks confirmation of the cancellation of the agreement , t hat the
defendant returns to the plaintiff a 2018 MAZDA 3 1.6 DYNAMIC 5DR (the
motor vehicle) alternatively the Sherrif should attach and return the motor
vehicle to the Plaintiff. It also seeks other ancillary relief.
[2] The defendant has defended the action by filing a notice of intention to defend,
and subsequently a plea. The plaintiff contends that the defendant has failed to
raise a bona fide defence or no defences at all and filed a plea for the sole
purpose of delaying the proceedings. Further, it contends that the defendants’
defences do not raise any triable issues. It seeks summary judgment against
the defendant for the relief prayed for in its particulars of claim.
[3] On 24 February 2021, the parties concluded the agreement by way of a written
instrument. The plaintiff alleges that the defendant fell behind on his monthly
instalments due in terms of the agreement and is thus in breach. On 15
November 2023, the defendant was in arrears in the amount of R16 603.14. As
a result of the breach, it cancelled the agreement and accelerated the
outstanding balance as entitled to do so in terms of the agreement, and issued
summons on 16 November 2023.
[4] The defendant filed a plea, raising several defences. This prompted the plaintiff
to apply for summary judgment. It contends that the defendants’ plea fails to
disclose a bona fide or any defences at all. The defendant opposes the
application for summary judgment on several grounds. I consider these below.
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[5] The defendant must satisfy the court that he has a bona fide defence. To satisfy
the court in this regard, he must disclose his defence and the material facts
upon which it is based with sufficient particularity and completeness to enable
the Court to make that determination. 1 He is not required to show that his
defence is likely to prevail. If he can show that he 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.2
[6] The defendant disputes that he breached the agreement. He pleaded that he
honoured the monthly instalments. His main defence is that he did not know
that he was obliged to insure the motor vehicle for the duration of the
agreement. Accordingly, he denies liability to the plaintiff for the amounts
charged to his account in respect of the monthly premiums as they are not part
of the agreement. He further contends that the plaintiff failed to advise him when
it insured the motor vehicle. It also did not give him the policy documents. As a
result, on two occasions when the motor vehicle was involved in a collision, he
did not claim from the insurance.
[7] The plaintiff relies on clause 16(ii) of the agreement, in terms of which a duly
signed certificate of balance establishes the amount owing . The defendant
takes issue with the balance allegedly owed. He contends that the certificate of
balance is not enough to sustain the plaintiff’s claim in the absence of a
1 Maharaj V Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426A-C.
2 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) paragraph [13].
4
statement of account. He also denies that the plaintiff duly cancelled the
agreement and dispatched the s 129 notice to him.
[8] It is worth mentioning that the plaintiff’s case as pleaded is based on the
defendant’s failure to pay the monthly instalments. It merely alleged that in
terms of the agreement, the defendant was required to insure the motor vehicle
but failed to do so. Although it is common cause between the parties that the
alleged arrears are made up of the insurance premiums the plaintiff charged to
the defendant’s account, the basis on which they were charged is not pleaded.
While I disregard averments made from the b ar to fill this vacuum, I make no
adverse finding against the plaintiff in this regard because, if this application
fails, it will have an opportunity to file a replication or even to amend its
particulars of claim.
[9] The defendant does not dispute that the agreement was concluded between
the parties. According to the defendant, it was the first time he bought a motor
vehicle financed by the bank. He previously owned three motor vehicle s for
which he had paid cash. The sale consultant at the dealership from which he
bought the motor vehicle applied for finance on his behalf. He had no
interactions with the plaintiff. The sales consultant did inform him of the
requirement to insure the motor vehicle but said to him that he could cancel it if
he did not afford it. He did not read the agreement. He understood that it dealt
with the purchase of the motor vehicle and the instalments towards the
purchase price. He requested that the premiums should be debited on a
different date from the instalments, to avoid the debit order being put through
when he did not have funds. He cancelled the insurance because he did not
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afford it. At no point did the bank inform him that it had insured the motor vehicle
on his behalf.
[10] Although a party who signed an agreement is presumed to have the
animus (intention) to enter into the transaction contained in it and that he bears
the onus to establish that he in fact had not concluded the agreement as he is
bound by the ordinary meaning and effect of the words which appear over his
signature,3 the defendant has put up a version regarding the circumstances
under which the agreement was signed to rebut this presumption.
[11] On the authority in Sebola, the plaintiff has dispatched his obligations in
terms of s 129. It is under no obligation to ensure that the notice has come to
the attention of the defendant as that would ordinarily be impossible.4 However,
for reasons set out below, this alone does not support a conclusion that the
defendant lacks a bona fide defence.
[12] If the defendant was not aware of the obligation to insure the motor
vehicle, he has a bona fide defence regarding his liability for the premiums
charged to his account, particularly if the plaintiff failed to advise him that it has
taken out insurance in respect of the motor vehicle and as a result of this
omission, he suffered prejudice as he could not claim from the insurance when
he could have done so. This defence also traverses the plaintiff’s reliance on
the certificate of b alance as the defendant ’s version is that he was never
informed of the amount of the premiums he had to pay towards the insurance
3 Langeveld v Union Finance Holdings (Pty) Ltd 2007 (4) SA 572 (W) at paragraph 12-13.
4 Sebola and Another v Standard Bank of South Africa Ltd and Another (CCT 98/11) [2012] ZACC
11 2012 (5) SA 142 (CC) at 74.
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Appearances
For the Plaintiff: Ms Madi
Instructed by: Smit Sewgoolam Incorporated
For the defendant: Mr Keka
Instructed by: Legal Aid South Africa
Date of hearing: 09 February 2026
Date of judgment: 16 February 2026
This Judgment is handed down electronically by circulation to the parties’ legal
representatives by email and publication on Case Lines and SAFLII. The date for the
handing down is deemed 10am on 16 February 2026.