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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2021/17712
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED: YES
DATE: 4 February 2026
SIGNATURE:
In the matter between:
FIRST RAND BANK LTD t/a WESBANK Applicant/Plaintiff
and
HONNETSWENG TRADING ENTERPRISES 1st Respondent/ Defendant
(PTY) LTD
KGADIMA NGOWA CHRISTOPH 2nd Respondent/ Defendant
KGADMIA MATSHWENYEGO LILLIAN 3rd Respondent/ Defendant
JUDGMENT
Klopper, AJ
INTRODUCTION:
[1] On 5 November 2025 I made the following order:
"1 The credit agreement is cancelled;
2 The First Defendant is directed to forthwith return to the Plaintiff a
certain 2013 To yota Quantum 2.5 D -4D 10 seat motor vehicle with engine
number 2 […] and chassis number J […] (hereinafter referred to as "the
vehicle”), failing which the Sheriff is authorised to attach the vehicle wherever
he may find same and hand the vehicle to the Plaintiff;
3 The remainder of the prayers contained in the particulars of claim are
postponed sine die; and
4 Cost of suit on attorney and own client scale."
[2] I undertook to furnish the reasons later. Here are the reasons.
BACKGROUND FACTS:
[3] On 10 June 2016, the Applicant/Plaintiff entered into an electronic sale
agreement in accordance with the provisions of the Electronic Communication and
Transactions Act, 25 of 2002, in terms of which the Plaintiff sold to the First
Defendant a 2013 model Toyota Quantum 2.5 D -4D ten-seater motor vehicle ("the
motor vehicle") subject to the following material terms and conditions:
2.1 The Plaintiff sold the motor vehicle to First Defendant, who purchased
same from Plaintiff;
2.2 The t otal amount payable amounts to R496 650.96 of which the first
instalment of R6 966.33 was payable on 10 June 2016 and thereafter 71
instalments of R6 966.33 each on the same day of each successive month
and a final instalment of R6 966.33 payable on 1 July 2022;
2.3 Plaintiff would remain the owner of the motor vehicle until First
Defendant had paid all amounts due under the agreement;
2.4 In the event of the First Defendant failing to comply with any of the
terms and conditions of the agreement or failing to pay any amount due under
the agreement, Plaintiff would be entitled, at its election and without prejudice
and in addition to any other rights which it may have under the agreement, to
inter alia, cancel the agreement, obtain return of the motor vehicle , retain all
payments already made in terms of the agreement and to claim as liquidated
damages, payment of the difference between the balance outstanding and the
market value of the motor vehicle, determined by a person nominated by the
Plaintiff, the First Defendant having agreed to be bound by such valuation;
2.5 The First Defendant would be liable for legal cost and collection
commission arising from its failure to comply with any of the terms and
conditions of the agreement, if the matter was referred to an external debt
collection company or attorney.
[4] On 15 June 2016, the Second and Third Defendants, acting personally, in
writing bound themselves as surety and co -principal debtor with the First Defendant
in favour of the Plaintiff for the repayment, on demand, of any amount which the First
Defendant owes or may thereafter owe to the Plaintiff from whatever cause arising
and for the due fulfilment of all obligations of the First Defendant to the Plaintiff in
respect of such indebtedness.
[5] The Plaintiff contended that the First Defendant breached the agreement by
falling into arrears with its monthly instalments, which amounted to R209 103.88 as
at 23 February 2021. Pursuant to the Defendant's failure to remedy the breach, the
Plaintiff served summons on the Defendants wherein it prayed for the cancellation of
the agreement and the return of the motor vehicle to Plaintiff forthwith.
CONTENTIONS BY THE FIRST DEFENDANT:
[6] The Defendants, having filed an amended plea resist the application for
summary judgment. In their plea and opposing affidavit against the summary
judgment, the Defendants raised two defences. The Defendants firstly contend that
the Plaintiff, First Rand B ank Ltd, failed to comply with section 129(1) and section
130 of the National Credit Act, No 33 of 2005, in that the notice calling up the loans
was not issued and delivered to the Second and Third Defendants, both of whom
was not issued and delivered to the Second and Third Defendants, both of whom
bound themselves as surety and co -principal debtor with the First Defendant in
favour of the Plaintiff.
[7] Secondly, the Defendant state that the Covid -19 pandemic constituted a vis
major and that it was an implied term where vis major circumstances interrupted the
Defendants payment obligations, the Defendants would be afforded an opportunity to
make arrangements to pay any arrears, premised on an alleged implied term in the
written agreement to the effect that any vis major event would pause the arrear
payment from accumulating by affo rding the Defendants the opportunity to re -
arrange their payments in favour of the Plaintiff.
[8] It is not in dispute that the parties entered into an instalment agreement for
the purchase of a Toyota Quantum Minibus motor vehicle on 10 June 2016 and tha t
the Defendants failed to make prompt monthly payments in terms of the agreement.
It is also not in dispute that the National Credito Act ("NCA") is not applicable to the
First Defendant.
ISSUES FOR DETERMINATION:
[9] The issues for determination are fi rstly whether there is a triable issue based
on the defence of impossibility of performance due to Covid -19 and secondly,
whether the alleged non -delivery of section 129(1) notice to the Second and Third
Defendants offer refuge to the First and Second Defendants and thus a triable issue.
THE LEGAL PRINCIPLES:
Summary judgment:
[10] The summary judgment application is regulated by rule 32 of the Uniform
Rules of Court, which states:
"Summary judgment
(1) The Plaintiff may, after the Defendant has delivered a plea, apply to
court for summary judgment on each of such claims in the sum mons as is
only -
(a) On a liquid document;
(b) For a liquidated amount in money;
(c) For delivery of a specified movable property; or
(d) For ejectment."
[11] The objective of the rule is to prevent a plaintiff ’s claim, based upon certain
causes of actio n, from being delayed by what amounts to abuse of the process of
court.1 The procedure is not to shut down a defendant that can show that there is a
triable issue applicable to the claim from laying its defence before the court.2
[12] In Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
the court stated the following regarding the procedure:
"[32] The rationale for summary judgment proceedings is impeccable. The
procedure is not intended to depriv e a defendant with a friable issue or a
sustainable defence of her/his day in court. After almost a century of
successful application in our courts, summary judgment proceedings can
hardly continue to be described as extraordinary. Our courts, both of firs t
instance and at appellate level, have during that time rightly been trusted to
ensure that a defendant with a friable issue is not shut out. In the Maharaj
case at 425G -426E, Corbett JA, was keen to ensure first, an examination of
whether there has been sufficient disclosure by a defendant of the nature and
grounds of his defence and the facts upon which it is founded. The second
consideration is that the defence so disclosed must be both bona fide and
good in law. A court which is satisfied that this thr eshold has been crossed is
then bound to refuse summary judgment. Corbett JA also warned against
requiring of a defendant the precision apposite to pleadings. However, the
learned judge was equally astute to ensure that recalcitrant debtors pay what
is due to a creditor.
[33] Having regard to its purpose and its proper application, summary
judgment proceedings only hold terrors and are 'drastic' for a defendant who
has no defence. Perhaps the time has come to discard these labels and to
has no defence. Perhaps the time has come to discard these labels and to
1 See: Meek v Kruger 1958 (3) SA 154 (T) at 159 - 160; Joob Joob Investments (Pty} Ltd v Stocks
Mavundla Zek Joint Venture 2000 (5) SA 1 (SCA) at 11 C - G
2 Majola v Nitro Securitization 1 (Pty) Ltd 2012 (1) SA 226 (SCA) at 232 F - G
concentrate rather o n the proper application of the rule, as set out with
customary clarity and elegance by Corbett JA in the Maharaj case at 425G -
426E."
[13] The principles applicable to summary judgment proceedings have been
succinctly summarised by the Supreme Court of Ap peal in South African Land
Arrangements CC v Nedbank Ltd3
"[13] The legal principles governing summary judgment proceedings are we/1-
established. In Maharaj v Barclays National Bank Ltd, [3]Corbett JA outlined
the principles and what is required from a defendant in order to successfully
oppose a claim for summary judgment as follows:
' … [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 plaintiff 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 probabili ties in favour of the one party or the other. All
that the Court enquires into is: (a) whether the defendant had "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 disclo sed the defendant appears to
have, as to either the whole or part of the claim, a defence which is both 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 relied upon to sub stantiate them, he must at least disclose his
defence and the material facts upon which it is based with sufficient
defence and the 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 defence."'
3 2015 JDR 2364 (SCA)
[14] The full court in Raumix Aggregates (Pty) Ltd v Richter Sand CC 4 explains
what is required of a respondent in summary judgment:
"[15] Under the amended Rule the applicant is required, 15 days after the
date of delivery of a plea or an exception, to deliver a notice of application for
summary judgment, together with an affidavit identifying any point of law
relied upon and the facts underpinning the claim, briefly explaining why the
defence, as pleaded, does not raise any friable issue. Under the old Rule, the
plaintiff was required to file a brief affidavit 'verifying a cause of action' and
opining that the defendant has no bona fide defence. These requirements are
no longer applicable under the new procedure. The question is whether this
change in pr ocedure would, if applied retrospectively, adversely affect
substantive rights.
[16] The purpose of a summary judgment application is to allow the court to
summarily dispense with actions that ought not to proceed to trial because
they do not raise a genui ne friable issue, thereby conserving scarce judicial
resources and improving access to justice. Once an application for summary
judgment is brought, the applicant obtains a substantive right for that
application to be heard, and, bearing in mind the purpos e of summary
judgment, that hearing should be as soon as possible. That right is protected
under section 34 of the Constitution."
[15] In the matter of Jily v First Rand Bank Ltd5, Willis JA held:
"....It is indeed trite that a court has a discretion as to whether to grant or
refuse an application for summary judgment. It is a different matter where the
liability of the defendant is undisputed: the discretion should not be exercised
against a plaintiff so as to deprive it of the relief to which it is entitled. Where it
is clear from the defendant's affidavit resisting summary judgment that the
defence which has been advanced carries no reasonable possibility of
defence which has been advanced carries no reasonable possibility of
succeeding in the trial action, a discr etion should not be exercised against
4 2020 (1) SA 532 (GJ)
5 [2014] ZASCA 183 (26 November 2014)
granting summary judgment. The discretion should also not be exercised
against a plaintiff on the basis of mere conjecture or speculation. …"
Applicability of the National Credit Act 34 of 2005 ("NCA"):
[16] The NCA defines a credit guarantee in section 8(5) as follows:
"An agreement, irrespective of its form but not including an agreement
contemplated in subsection (2), constitutes a credit guarantee if, in terms of
that agreement, a person undertakes or promises to satisfy upon demand any
obligation of another consumer in terms of a credit facility or a credit
transaction to which this Act 20 applies."
[17] In terms of subsection 2, referred to in the definition, no agreement is a credit
agreement if it is a policy of insurance or credit extended by an insurer solely to
maintain the payments of premiums on a policy of insurance, if it is a lease of
immovable property, or if it is a specific stokvel transaction.
[18] A suretyship agreement therefore qualifies as a credit guarantee under the
NCA, provided the underlying principal credit agreement (concluded in the name of
the First Defendant), is itself regulated by th e NCA. Section 4(2)(c) further specifies
that the NCA applies to a credit guarantee only to the extent that it applies to the
underlying credit agreement. Section 4(2)(c) of the NCA reads as follows:
"(c) this Act applies to a credit guarantee only to the extent that this Act
applies to a credit facility or credit transaction in respect of which the credit
guarantee is granted; ... "
[19] The applicability to the principal agreement (and thus the suretyship) depends
on section 4 of the NCA. If the princip al agreement is exempt, the suretyship does
not constitute a credit guarantee under the NCA, and the Act does not apply to it -
common law governs instead.
[20] In First Rand Bank Ltd v Carl Beck Estates (Pty) Ltd and Another 6,
Satchwell J stated the following:
"22. The authorities on this point are clear. A surety who has bound himself
as surety and co -principal debtor remains a surety whose liability arises
wholly from the contract of suretyship. Signing as surety and co -principal
debtor does not render a surety liable in any capacity other than a surety who
has renounced the benefits of excussion and division. As De Villiers CJ stated,
"the use of the words 'co -principal debtor' does not transform the co ntract into
any other than suretyship.
23. Second respondent could not be and was not sued in his capacity as
co-principal debtor since his liability to the Bank remains that of surety who
has renounced certain rights. This position is correctly referred t o by the
applicant in its summons.
24. In the result, the second respondent is sued as a guarantor to the
obligations of the first respondent in terms of a credit transaction to which the
NCA does not apply. He cannot claim that he is entitled to have rece ived a
notice in terms of section 129 of the NCA."
[21] In the matter of Nedbank v Wizard Asset Holdings (Pty) Ltd and Others 7
Van der Merwe AJ stated the following:
"10. This conclusion is also confirmed by the provisions of sect ion 8(5) of the
National Credit Act, to the effect that a credit guarantee constitutes a credit
agreement for purposes of the Act, only if in terms of the credit guarantee a
person undertakes or promises to satisfy an obligation of another consumer in
terms of a credit facility or a credit transaction to which the Act applies. Since
the National Credit Act does not apply to the credit transaction which gave
rise to the principal debt, the suretyships in the present matter do not
constitute credit agreements for purposes of the Act. (See also Firstrand Bank
Ltd v Carl Beck Estates (Pty) Ltd 2009 (3) SA 384 (T). para 18.) The plaintiff
Ltd v Carl Beck Estates (Pty) Ltd 2009 (3) SA 384 (T). para 18.) The plaintiff
was accordingly not obliged to give notice to the defendants as required by
6 2009 (3) SA 384 (T)
7 2010 (5) SA 523 (GSJ)
section 129 of the Act in respect of credit agreements which are subject to the
National Credit Act."
[22] The Constitutional Court in Shabangu v Land and Agricultural
Development Bank of South Africa and Others 8 emphasised the necessity nature
of suretyships, reinforcing that their validity and regulation depend on the principal
obligation.
[23] In summary the NCA applies to both the entity (as principal debtor) and the
sureties where the principal credit agreement falls within its scope. If the entity is a
juristic person exempt under section 4, the Act applies to neither.
[24] The first defence relied upon by the Respondents in the opposing affidavit
consequently do not constitute a defence to the Plaintiff's claim.
Implied term in a written contract:
[25] In the Defendants' combined amended plea, the principal defence of vis major
raised by the Defendants is premised on a purported implied term in the written
instalment sale agreement entered into by and between the parties on 10 June 2016.
But for the two points in limine , the remainder of the Defendants' plea was
tantamount of a bare denial of the material facts averred in support of the Plaintiff's
claim. Thus, averments relating to certain terms and conditions of the agreement, its
breach, the Plaintiff's demand for payment of arrears, Defendants failure to rectify
the brea ch and consequent cancelation of the agreement, were baldly denied.
Certain averments in the particulars of claim were not stated in the plea to be denied
or to be admitted. Uniform rule 22(3) reads as follows:
"(3) Every allegation of fact in the combin ed summons or declaration which is
not stated in the plea to be denied or to be admitted, shall be deemed to be
admitted. If any explanation or qualification of any denial is necessary, it shall
be stated in the plea."
8 2020 (1) SA 305 (CC)
[26] The allegations that were not s tated in the plea to be denied ought to be
admitted and thus deemed to be admitted, concerned the identity and details of the
parties, the written instalment sale agreement entered into by and between the
parties on 10 June 2016 and a copy of which is anne xed to the particulars of claim
marked annexure "A".
[27] The opposing affidavit filed by the Defendants was tantamount to a bare
denial of the material facts averred in support of the summary judgment, but for the
points in limine relating to the applica bility of the NCA, and the purported implied
term in the instalment sale agreement.
[28] A defendant seeking to rely on the existence of an implied term as a defence
in a claim for payment of arrear instalments under a written instalment agreement
must es tablish, on a balance of probabilities, that such term forms part of the
contract.
[29] The Defendants failed to submit any evidence in support of the notion that the
written instalment sale agreement contained an implied term that under the
circumstances of Covid-19 restrictions, the Defendants are entitled to be afforded the
opportunity to restructure their debts.
[30] In Liquidator of Booysens Race Club, Ltd v Burton 9 Wessels J stated the
following:
"The court must be very slow to imply a term into a contract which the parties
did not place there. It must not make contracts for people; it must only imply a
term when it is quite clear that the parties intended that term to be understood
in the contract; and that they would not have contracted otherwise than on the
basis of the term."
9 1910 TPD 597
[31] Wessels J also referred to the British judgment of Hamlyn & Co v Wood &
Co10 where the Learned Lord Esher stated the following:
"I have fo r a long time understood that the rule to be that the court has no
right to imply in a written contract any such stipulation, unless, on considering
the terms of the contract in a reasonable and business manner, an implication
necessarily arises that the p arties must have intended that the suggested
stipulation should exist. It is not enough to say that it would be a reasonable
thing to make such an implication. It must be a necessary implication in the
sense that I have mentioned."
[32] In South African Forestry Co Ltd v York Timbers Ltd 11 Brand JA dealt at
some length with the concept of an implied term explaining, like tacit terms, which
are based on the inferred intention of the party, implied terms are " imported in to
contracts by law from without ". He pointed out that the courts have the inherent
power to develop new implied terms stating as follows:
"Once an implied term has been recognised, however, it is incorporated into
all contracts, if it is of general appli cation, or into contracts of a specific class,
unless it is specifically excluded by the parties .... It follows, in my view, that a
term cannot be implied merely because it is reasonable or to promote fairness
and justice between the parties in a particul ar case. It can be implied only if it
is considered good law in general. The particular parties and set of facts can
serve only as catalysts in the process of legal development."
[33] The Defendants failed to furnished any authority in support of the
interpretation contended for by the Defendants.
Vis major- supervening impossibility defence:
[34] The plea delivered by and on beha lf of the Defendants, inter alia, raised the
defence founded in the principles of supervening impossibility/ vis major. In their
10 (1891) 2 QBD 488 at p 491
11 2005 (3) SA 323 (SCA)
amended plea and opposing affidavit, the Defendants, relying on a purported implied
term of the agreement, claimed to have suffered a fundamental blow due to Covid-19
restrictions which resulted in the arrears accumulated. The Defendants further
alleged that " during the time when people were locked in their places without being
allowed to freely move, there was no business for the First Respondent and is
implied in the contract that in the event of natural disasters, then the applicant will
afford the respondents the opportunity to re-arrange payment of arrears."
The applicable legal principles:
[35] The principles underpinning t he defence of supervening impossibility is
adequately explained by Meyer J in Unlocked Properties 4 (Pty) Ltd v A
Commercial Properties CC12 as follows:
"[6] ... 'The legal rules relating to initial a nd supervening impossibility of
performance, with their consequence, in certain circumstances, of the
voidness of an agreement or the extinction of the obligations created by an
agreement, relate to the initial or supervening impossibility of performance o f
the obligations purported to be created or created by the agreement.' (Per
Cilliers AJ in Rosebank Mall (Pty) Ltd and another v Cradock heights (Pty) Ltd
2004 (2) SA 353 (W), para 64.) In MV Snow Crystal Transnet Ltd t/a National
Ports Authority v Owner of MV Snow Crystal {2008] ZASCA 27; 2008 (4) SA
111 (SCA), para 28, Scott JA said the following about the defence:
“As a general rule impossibility of performance brought about by vis major or
casus fortuitous will excuse performance of a contract. But it will not always
do so. In each case it is necessary to 'look to the nature of the contract, the
relationship of the parties, the circumstances of the case, and the nature of
the impossibility invoked by the de fendant, to see whether the general rule
ought, in the particular circumstances of the case, to be applied'. The rule will
ought, in the particular circumstances of the case, to be applied'. The rule will
not avail a defendant if the impossibility is s elf-created; nor will it avail the
defendant if the impossibility is due to his or her fault. Save possibly in
12 (18549/2015) [2016] ZAGPJHC 373 (29 July 2016) at [6]
circumstances where a plaintiff seeks specific performance, the onus of
proving impossibility will lie upon the defendant."' (footnotes omitted)
[36] The impossibility must be absolute or objective as opposed to relative or
subjective. In Scoin Trading (Pty) Ltd v Bernstein N.O. 13 Pillay JA stated the
following:
"… The law does not regard mere personal incapability to perform as
constituting impossibility. [A Ramsden Supervening Impossibility of
Performance in the South African law of Contract (1985) p 17]. The payment
of the debt is not rendered impossible by the death of the deceased; as
performance of a personal nature like singing in an opera would have been."
[37] Subjective impossibility to receive or to make performance does not terminate
the contract or extinguish the obligation.14
[38] LAWSA Vol 5 (1st issue) par 160 states:
"The contract is void on the ground of impossibility of performance only if the
impossibility is absolute (objective). This means, in principle, that it must not
be possible for anyone to make that performance. If the impossibility is
peculiar to a particular contracting party because of his personal situation, that
is if the impossibility is merely relative (subjective), the contract is valid and
the party who finds it impossible to render performance will be held liable for
breach of contract. [D4513375 a nd C Frye's (Pty) Ltd v Ries 1957 (3) SA 575
(A)]."
[39] In Johannesburg Consolidated Investment Co v Mendelsohn and Bruce
Ltd15 rejected a claim for omission of rental because of a decline in custom rising
from the outbreak of wa r and which rendered it no longer profitable to operate a
stationer's shop. The court posited the following particularity relevant analogy:
13 2011 (2) SA 118 (SCA), par 22
14 Unibank Savings and Loans Ltd ( formerly Community Bank) v Absa Bank Ltd 2000 (4) SA
191 (W) at 198 B - C
15 1903 TH 286 at 295, 296
"The consequence of holding that the defendants in this case are entitled to a
remission of rent appears to be to b e far reaching. It would involve this, that
on the happening of any event amounting to vis major, which caused a
temporary diminution of the population of a town, every tradesman who could
show that he had sustained a temporary loss, or considerable diminu tion of
profit might be entitled to a remission of rent. Supposed, for instance, that in
consequence of the outbreak of an epidemic disease a large portion of the
inhabitants fled, with the result that owing to the absence of their usual
customers the trad esmen were temporarily carrying on business at a loss,
and closed their shops, it would come as an unpleasant surprise to the
lessors to find that the whole of the loss is to fall upon them, and that they
occupy in effect the position of insurers of the lessees custom."
[40] In the matter of Wesbank Ltd v PSG Haulers CC16 the following was stated:
"[14] As held in Glencore Grain Africa (Pty) Ltd v Du Plessis NO and Others,
if provision is not made contractually by way of a force majeure clause, a
party will only be able to rely on the very stringent provisions of the common
law doctrine of supervening impossibility of performance, for which objective
impossibility is a requirement. Performance is not excused in all cases of
force majeure.
[15] The instalment sale agreement does not make provision for force
majeure. …"
[41] It is noteworthy that the agreement between the Plaintiff and the Defendants
do not make provision for force majeure. The agreement rather defines a material
adverse effect.
[42] In paragraph 10.3 of the agreement, it is recorded that the Plaintiff may at its
election, if an event of series of events occurs, which has a material adverse effect
on the performance by the Defendants of their obligations under the agreement,
16 Unreported judgment in Gauteng Local Division: Case no: 38511/2020 by Dippenaar J dated 25
August 2022
changed the terms of the agreement and/or regard such material adverse effect as
being an event of default of the agreement. However, the discretion in terms of the
agreement to assess the merits of such change in circumstances and the decision
as to whether or not such changed circumstances justify a change in the terms of the
agreement, remains with the Plaintiff.
CONCLUSION:
[43] Applying the above principles to the facts, it is clear that the Defendants failed
to establish impossibility of performance as a lega lly cognisable defence. the
Defendants failed to disclose cogent documentary evidence in support of their
contentions. In addition, the impossibility upon which the Defendants rely is clearly
subjective and the change in the Defendants financial position i s not, as required by
law, absolute.
[44] In the circumstances, I am not persuaded that the Defendants have illustrated
a bona fide defence or that they have raised a triable issue in respect of any of the
defences raised by them.
[45] For all these reasons I made an order referred to in paragraph [1] supra:
45.1. The credit agreement is cancelled;
45.2 The First Defendant is directed to forthwith return to the Plaintiff the
Toyota Quantum 2.5 D -4D 10-seater motor vehicle with engine number 2 […]
and chas sis number J […] (hereinafter referred to as "the vehicle"), failing
which the Sheriff is authorised to attach the vehicle wherever he may find
same and hand the vehicle to the Plaintiff;
45.3 The Plaintiff is granted leave to return to this court on the same papers,
duly supplemented to obtain judgment in respect of damages suffered by the
Plaintiff once the vehicle has been sold; and
45.4 The Defendants are ordered to pay the cost of suit, including the cost
of the opposed summary judgment application, jointly and severally, the
JA KLOPPER
ACTING JUDGE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
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 and
time for the hand down is deemed to be on 4 February 2026
Appearances
Counsel for the Plaintiff: Adv I Ochman
Instructed by: Attorneys CF van Coller Inc
Ref.:
Appearance for Defendants: No appearance for Defendants
Defendants' attorneys: Noveni Eddy Kubayi Inc
Date of Hearing: 5 November 2025
Date of Judgment: 4 February 2026