REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2021-34646
DATE: 27 February 2026
In the matter between:
SUPERDRIVE INVESTMENTS (RF) LIMITED Plaintiff
and
Z G Defendant
Neutral Citation: Superdrive Investments (RF) v Z G (2021-34646) [2025]
ZAGPJHC --- (27 February 2026)
Coram: Adams J
Heard: 23 February 2026
Delivered: 27 February 2026 – 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 11:00 on
27 February 2026.
Summary: Practice and procedure – application for rescission of default
judgment – defendant sought to rescind a judgment relating to an instalment
2
sale agreement for a motor vehicle – whether defence prima facie established –
also application by the defendant for a postponement of the application –
Last-minute application for postponement – relied on legally untenable
arguments regarding Rule 35(3) discovery in motion proceedings to justify
postponement – a postponement is an indulgence, not a right – defendant was
required to show good cause and furnish a full and satisfactory explanation for
the delay – application for a postponement must always be bona fide and must
not be used as a tactical manoeuvre to obtain an advantage to which the
defendant is not legitimately entitled – postponement application refused –
The Court accepted, as reasonable, the explanation proffered by the defendant
for his default – the plaintiff did not know t hat the defendant was no longer at
the domicilium address – therefore, service not irregular –
However, no bona fide defence raised on the merits of plaintiff’s claim – debt is
admitted – there has been compliance with s 129 of the National Credit Act –
reliance on ignorance of cession agreement rejected – application itself also
found not to be bona fide –
Application for rescission dismissed with costs,
3
ORDER
(1) The defendant’s rescission application is dismissed with costs.
(2) The defendant shall pay the plaintiff’s costs of this opposed rescission
application on the attorney and client scale, including Counsel’s charges
as contemplated in Uniform Rule of Court 67A(3), read with rule 69, on
scale ‘C’.
JUDGMENT
Adams J:
[1]. I shall refer to the parties as referred to in the main action in which the
plaintiff sued the defendant , as cessionary, on the basis of a written instalment
sale agreement (‘the agreement’) concluded on 11 August 2016 between BMW
Financial Services (Pty) Ltd (the Cedent) and the defendant , for inter alia the
termination of the agreement and the return of a 2014 BMW X6 M5 .0d motor
vehicle (‘the motor vehicle’).
[2]. On 5 October 2021, this Court (per its registrar) granted judgment by
default in favour of the plaintiff against the defendant and ordered:
(a) cancellation of the agreement; and (b) the defendant to return to the plaintiff
the said motor vehicle.
[3]. In this application, which came before me in the opposed motion court on
23 February 2026, the defendant applies , in terms of Uniform Rule of
Court 42(1)(a), alleging the judgment was erroneously sought or erroneously
granted, alternatively in terms of the common law , for a rescission of the said
default judgment . The plaintiff is the respondent in this rescission application
and opposes the application on the basis inter alia that the defendant has not
4
met the requirements to have the default judgment set aside or rescinded.
[4]. The issue to be decided by me is simply whether the defendant has
made out a case for rescission.
[5]. In terms of and pursuant to the agreement , the cedent had financed the
motor vehicle for the sum of R1 125 350, with the principal debt payable by the
defendant in 71 monthly instalments of R18 854.05, commencing on 1 October
2016, and one final balloon payment of R337 673.72 on 1 September 2022.
[6]. During June 2021 the defendant defaulted by falling into arrears with his
monthly instalments, prompting the plaintiff to ‘call up’ the agreement, cancel
the contract and to institute legal proceedings against the defendant . The
arrears, at that point in time, amounted to R34 431.51 and the outstanding
balance due by the defendant to the plaintiff in terms of the agreement was the
total sum of R629 581.54. There was still more than a year to run on the
contract at that stage.
[7]. At the commencement of the hearing of the rescission application on
Monday, 23 February 2026, the defendant applied for a postponement of the
application, which application was refused. The reasons for the dismissal of the
postponement application are briefly set out in the paragraphs which follows.
[8]. The defendant’s application for a postponement rest ed on a purported
need for discovery. He contends that he served a notice in terms of Rule 35(3)
on the plaintiff, which remains unanswered. The plaintiff opposed the
postponement application and submitted that same was a dilatory tactic,
correctly pointing out that Rule 35(3) finds no application in motion proceedings
without leave of the court.
[9]. On 5 August 2025, the plaintiff served a notice of set down on the
defendant, indicating the hearing date of 23 February 2026. Despite having
more than six months’ notice, the defendant remained entirely passive until the
5
eleventh hour.
[10]. The principles governing postponements are trite. In the locus classicus
of Myburgh Transport v Botha t/a SA Truck Bodies 1, a precedent firmly
endorsed by the Supreme Court of Appeal, it was held that a postponement is
an indulgence, not a right. A defendant must show good cause and furnish a full
and satisfactory explanation for the delay. An application for a postponement
must always be bona fide and must not be used as a tactical manoeuvre to
obtain an advantage to which the defendant is not legitimately entitled.
[11]. The defendant’s reliance on the plaintiff's failure to answer a Rule 35(3)
notice as a basis for postponement is fundamentally flawed. Discovery under
Rule 35 applies to trial actions, not motion proceedings, unless a court directs
otherwise under Rule 35(13). The invocation of this rule is legally untenable and
points inescapably to a tactical contrivance aimed at delaying the proceedings.
[12]. The prejudice to the plaintiff is manifest. The judgment was granted in
2021. The defendant, whilst admittedly making no payments, remains in
possession of a rapidly depreciating asset. The postponement application was,
in my view, an abuse of process and must fail.
[13]. For all of these reasons, I refused the defendant’s application for a
postponement of his rescission application.
[14]. That brings me back to the application for rescission.
[15]. Under the common law, a defendant must establish ‘good cause’, which
entails adducing a reasonable explanation for the default and demonstrating a
bona fide defence which carries some prospect of success (see Colyn v Tiger
Food Industries Ltd t/a Meadow Feed Mills (Cape)2).
1 Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NmS).
2 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA).
6
[16]. In his rescission application the defendant explains his default simply by
stating that service of the summons on 11 August 2021 on his domicilium never
came to his attention. In that regard, the Sheriff’s return is to the effect that the
summons and the annexures thereto were served the defendant’s chosen
domicilium citandi et executandi , being an address in Mapleton, Boksburg , by
‘affixing to the gate ’ seemingly in terms of Rule 4(1) (a)(iv). He also explains
that t he first time he became aware of the default judgment obtained against
him was when the sheriff arrived at his offices with a court order and an warrant
of execution.
[17]. 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 agreement. This , as I have already indicated, appears to be confirmed by
the contents of the sheriff’s return of service.
[18]. I accept, as reasonable, the explanation proffered by the defendant for
his default. There is, however, no suggestion on the part of the defendant that
the plaintiff knew or ought to have known that he was no longer at the
domicilium address. It therefore cannot be said with any conviction that the
service of the summons was irregular or that the judgment was erroneously
sought or erroneously granted. On that basis, this matter is therefore
distinguishable from Sekoati v Standard Bank of South Africa Ltd and Others 3
and the authorities referred to therein, notably The Master of the High Court
(Northern Gauteng High Court, Pretoria) v Motala NO and Others4 and Richards
v Meyers5.
[19]. As regards his defence to the plaintiff’s claim, the defendant contends
that the judgment was erroneously applied for and granted because he had
3 Sekoati v Standard Bank of South Africa Ltd and Others 2025 (5) SA 581 (GP).
3 Sekoati v Standard Bank of South Africa Ltd and Others 2025 (5) SA 581 (GP).
4 The Master of the High Court (Northern Gauteng High Court, Pretoria) v Motala NO and Others 2012 (3)
SA 325 (SCA) ([2011] ZASCA 238).
5 Richards v Meyers 1909 TS 158.
7
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 therefore
premature and irregular , so the submission on behalf of the defendant is
concluded.
[20]. The defendant also questions – and I put it no higher than that – the
plaintiff’s locus standi in iudicio . He has never been notified of the cession in
favour of the plaintiff by the cedent.
[21]. As regards the statutory notice in terms of section 129 of the NCA, the
plaintiff introduced into evidence a registered post track -and-trace report
demonstrating delivery to the relevant Post Office, with a ‘First Notification to
recipient’ issued on 25 June 2021. In Sebola and Another v Standard Bank of
South Africa Ltd and Another 6, the Constitutional Court held that proof of
delivery to the correct post office constitutes sufficient compliance with the Act.
The defendant’s bald denial of receipt does not trump the objective
documentary evidence.
[22]. There is therefore no merit in this defence which the defendant intends
raising in the event of the judgment against him being rescinded.
[23]. As for the merits of the defence to the plaintiff’s claim for cancellation of
the agreement, t he defendant concedes concluding the agreement, taking
delivery of the vehicle and falling into arrears. His sole defence – that his privity
of contract lies with the cedent and not with the plaintiff – is decisively defeated
by the written cession agreement produced by the plaintiff. Moreover, the
original finance agreement expressly authorised such cession without notice to
the consumer. The defence raised is contrived and bad in law.
6 In Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC).
8
[24]. The defendant’s complaint that the plaintiff refuses to engage in
discussions with him with a view to finding a solution to the impasse between
them, is of no moment. A desire to ‘negotiate’ does not constitute a valid
defence to a claim for cancellation based on an admitted breach.
[25]. Therefore, the question 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 , can
and should be answered in the negative . The simple fact of this matter is that
the defendant failed to establish that he has such a bona fide defence to
plaintiff’s claim . For that reason alone, the defendant’s application falls to be
dismissed.
[26]. What is more is that ‘on good cause shown’, as a requirement for an
application for rescission , includes a prerequisite that the application must be
bona fide and not made with the intention of merely delaying plaintiff’s claim.
The authority for the aforegoing trite legal principle is Grant v Plumbers (Pty)
Ltd7, which has been confirmed by numerous subsequent cases.
[27]. In my view, the defendant’s application for rescission in casu cannot
possibly be said to be bona fide. The agreement was cancelled by order of this
court as far back as 5 October 2021. At that stage, the outstanding balance due
by the defendant to the plaintiff in terms of the agreement was the total sum of
R629 581.54. The defendant has not made any further payment s on account of
his indebtedness to the plaintiff since 2021, although he has had the benefit of
the use of a vehicle owned by the plaintiff . In this circumstances, how can it
possibly be suggested, I ask rhetorically, that the defendant’s application is
bona fide . If anything, the ineluctable conclusion to be drawn is that the
defendant’s intention is merely to delay the plaintiff’s claim.
7 Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (0).
10
HEARD ON: 23 February 2026
JUDGMENT DATE: 27 February 2026 – Judgment handed
down electronically
FOR THE PLAINTIFF /
RESPONDENT: S McTurk
INSTRUCTED BY: DRSM Attorneys Incorporated,
Illovo, Sandton
FOR THE DEFENDANT /
APPLICANT: Z Gqwede
INSTRUCTED BY: Gqwede Attorneys,
Allen’s Neck, Roodepoort