In the matter between:
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 4523/23
1
STANDARD BANK OF SOUTH AFRICA LTD Plaintiff / Applicant
And
TERTIUS JOHANNES FRANZSEN Defendant I Respondent
Coram: YAKEAJ
Argument: 23 February 2026
Delivered: Electronically on 19 March 2026
Summary: Summary Judgment - Rule 32 (3) of the Uniform Rules-de fendant must
disclose a bona tide defence which raises triable issues.
Rule 28 (4) - Non-compliance with the prescribed time periods in the Rules of Court
is not a n excuse and cannot be tolerated without good cause - defendant failed to
lodge an application for leave to amend plea after receiving objection in terms of
subrule (3).
JUDGMENT
YAKEAJ
2
INTRODUCTION
[1] This is an opposed application for summary judgment. For convenience, I will
refer to the applicant and respondent as the plaintiff and defendant, respectively. The
plaintiff seeks summary judgment for the return of a 2015 Volkswagen Touran 2.0
Trendline ("the Touran"), alleging that the defendant breached the written instalment
sale agreement by failing to make the required monthly payments. The defendant
denies being in default and raised several defences.
BACKGROUND
[2] It is common cause that the plaintiff instituted action against the defendant
pursuant to a written instalment sale agreement ("instalment sale agreement")
concluded on 31 May 2018, for the purchase of a 2015 Volkswagen Touran 2.0
Trendline motor vehicle.
[3] The material terms of the instalment sale agreement as set out in the particulars
of claim are as follows:
a) The plaintiff sold a 2015 Volkswagen Touran to the defendant for a
b) principal debt of R292 2777.68.
c) The total cost of the sale agreement, inclusive of interest, costs and charges
was R415 563.84, payable in seventy-two consecutive monthly instalments,
with the final instalment due on 30 May 2024.
d) Ownership of the vehicle would remain with the plaintiff until the full
instalment sale amount has been paid, after which ownership would transfer
to the defendant.
[4] The plaintiff asserts that it fulfilled its obligations by delivering the vehicle to the
defendant. The defendant, however, breached the instalment sale agreement by
failing to meet his monthly payment obligations and fell into arrears. As at 13 March
2023, the arrears amounted to R34 297 .20 and the defendant was indebted to the
plaintiff in the amount of R182 908.47, plus interest at 12.54 from 6 January 2023 until
final date settlement, both dates inclusive.
3
[5] As a result of the defendant's breach, the plaintiff issued a section 129 (1) read
with section 130 of the National Credit Act 34 of 2005 ("NCA") default notice on 9
January 2023. The notice informed the defendant of his default and afforded him an
opportunity to remedy it, failing which the plaintiff would cancel the agreement and
claim the full outstanding balance. Notwithstanding the default notice, the defendant
failed to remedy the breach. The plaintiff accordingly cancelled the agreement, as it
was entitled to do, and demanded return of the Touran. Thereafter issued Summons,
which were served on the defendant on 27 March 2023.
[6] Pursuant to service of Summons, the defendant filed a Notice of Intention to
Defend on 12 April 2023, after which he was served with a Notice of Bar on 11 January
2024. Notwithstanding the Notice of Bar, the defendant delivered his Plea on 14 March
2024, admitting the conclusion of the instalment sale agreement but denying being in
default. In his Plea, he raised various defences inter a/ia force majeure, a dispute
regarding arrear amount and an alleged referral of the matter to the Ombudsman.
THE SUMMARY JUDGMENT APPLICATION
[7] Upon receipt of the defendant's Plea, the plaintiff launched a summary judgment
application dated 8 April 2024, supported by an affidavit in compliance with Rule 32 (2)
(a) and (b) of the Uniform Rules. In the application, the plaintiff seeks confirmation of
cancellation of the agreement, an order directing the defendant to return the 2015
Volkswagen Touran 2.0 Trendline with engine number [C ..... ] and chassis number [W ... ],
retention of all monies paid by the defendant to the plaintiff, leave to pursue damages if
any, as well as interest and costs. The supporting affidavit comprehensively addressed
each of the defences raised in the Plea and contended that none of them disclose a triable
issue.
[8] In turn, the defendant filed a Notice of Intention to Oppose the summary
issue.
[8] In turn, the defendant filed a Notice of Intention to Oppose the summary
judgment, accompanied by an affidavit dated 3 June 2024. In it, he introduced
additional defences. These include the existence of an alleged Counterclaim, a
purported amendment of the original agreement through subsequent agreements, and
a denial of having received the section 129 notice. He further asserts that he has a
4
bona fide defence and sought dismissal of the application with costs. The matter was
thereafter set down for hearing on 23 February 2026.
[9] Pursuant thereto, on 8 January 2026, the defendant delivered a notice in terms
of Rule 28 ( 1) indicating his intention to amend his Plea and file a Counterclaim, stating
that a full draft amended Plea and Counterclaim would follow together with any
application for leave to amend, should the plaintiff object. The plaintiff duly objected to
the proposed amendments, arguing that the defendant's Rule 28 (1 ) notice did not
provide the required particulars of the amendment. Thereafter, the plaintiff filed its
heads of argument on 9 February 2026. The defendant subsequently filed a
supplementary opposing affidavit on 16 February 2026, followed by his heads of
argument on 17 February 2026.
[1 0] The Plaintiff naturally objected to the late filing of the supplementary affidavit,
noting that it was filed without obtaining the leave of the Court. The defendant
contended that the supplementary affidavit merely reiterated the contents of his Plea
and opposing affidavit, with the addition of damages, in dup/um rule and further
provisions of the NCA. As the supplementary affidavit introduced new facts, the Court
declined to grant leave for its filing due to non-compliance with the rules.
SUBMISSION BY PARTIES
[11] In support of the application, the plaintiff's counsel submitted that the
requirements of Rule 32 (2) were fully complied with. Counsel argued that the
defendant's opposition constitutes an attempt to delay the proceedings, noting that
although the defendant filed his Plea on 14 March 2024 and his opposing affidavit on
3 June 2024, he only sought to amend his Plea nearly two years later, without
presenting new information, and despite having been aware of the hearing date since
1 0 June 2025. This conduct, the plaintiff contends, demonstrates a deliberate attempt
to delay the matter and constitutes an abuse of process warranting punitive costs.
to delay the matter and constitutes an abuse of process warranting punitive costs.
[12] The plaintiff submitted that the defences advanced in both the Plea and the
opposing affidavit are neither bona fide nor indicative of raising any triable issue.
s
Relying on Belrex 95 CC v Barday1, counsel argued that the Court must assess only
the defences pleaded, not those introduced for the first time in an opposing affidavit.
On this basis, the plaintiff contended that the defences are merely dilatory, and that
summary judgment should be granted with costs.
[13] In opposing the summary judgment application, the defendant contends that
his opposing affidavit is not merely ancillary to the Plea, but a mechanism
contemplated in Rule 32 (3) (b) through which the Court must determine whether any
triable issues exist. He contends that limiting the enquiry to the Plea alone would
undermine the purpose of the amended Rule 32 and improperly elevate pleadings
above substantive enquiry. He maintains that both his opposing and supplementary
affidavits set out bona tide statutory and factual defences, rendering the matter
unsuitable for summary determination.
[14] The defendant further submits that the plaintiffs reliance on section 129 and
130 notices is flawed, noting that the notice is dated 3 January 2023 despite the
alleged default dating back to March 2020. In his view, he contends, this discrepancy
undermines the statutory objective of section 129, which is to afford a consumer with
a genuine opportunity to remedy the breach or pursue alternative dispute-resolution
mechanisms prior to litigation being instituted. He additionally described that the notice
is vague and inconsistent, alleging that it simultaneously sought cancellation of the
agreement and repossession of the vehicle.
[15] The defendant maintains that he has been engaging with the Ombudsman
since 11 October 2022, prior to the issuing of summons, and therefore denies that this
referral is an afterthought as the plaintiff wants this court to believe. He further alleges
that his non-payment was not solely due to force majeure but was exacerbated by the
plaintiffs conduct in unilaterally uplifting his overdraft facility. On this basis, he
plaintiffs conduct in unilaterally uplifting his overdraft facility. On this basis, he
contends that he has raised bona fide defences requiring ventilation at trial and the
application for summary judgment should be dismissed with costs.
1 2021 (3) SA 11s wee
6
ISSUES FOR DETERMINATION
[16] On a proper conspectus of facts outlined above, the issues for determination
are: (a) whether, under the amended Rule 32, the defendant may amend his Plea and
introduce a Counterclaim, after summary judgment application has been launched; (b)
whether the proposed amendment, if allowed, would result in prejudice and injustice
to the plaintiff; (c) whether the defendant may rely on defences advanced for the first
time in his opposing affidavit; and (d) whether the defences advanced are bona fide
and disclose any triable issue.
LEGAL PRINCIPLES
[17] Rule 32 governs the applications for summary judgment, while Rule 28
regulates the amendments to pleadings and documents. The relevant provisions of
the amended Rule 32, which set out the procedural requirements to be followed for
such applications, are Rule 32 (1) to 32 (4), which provide as follows:
'1) The plaintiff may, after the defendant has delivered a plea. apply to court for
summary Judgment on each of such claims in the summons as is only
(a) on a liquid document;
(b) for a liquidated amount in money;
(c) for delivery of specified movable property; or
(d) for ejectment;
together with any claim for interest and costs.
(2)(a) Within 15 days after the date of delivery of the plea, the plaintiff shall def;ver a
notice of application for summary judgment, together with an affidavit made by the
plaintiff or by any other person who can swear positively to the facts:.
(b) The plaintiff shall, in the affidavit referred to in subrule (2)(a) verify the cause of
action and the amount, if any, claimed, and identify anv point of law relied upon and
the facts upon which the plaintiff's claim is based, and explain briefly whv the defence
as pleaded does not raise any issue for trial.
(c) ...
(3) The defendant may- (a) give security to the plaintiff to the satisfaction of the court
for any Judgment including costs which may be given; or (b) satisfy the court by affidavit
for any Judgment including costs which may be given; or (b) satisfy the court by affidavit
(which shall be delivered five days before the day on which the application is to be
7
heard), or with the leave of the court by oral evidence of such defendant or of any other
person who can swear positively to the fact that the defendant has a bona fide defence
to the action: such affidavit or evidence shall disclose f ullv the nature and grounds of
the defence and the material facts reffed upon therefor.
( 4) No evidence may be adduced by the plaintiff otherwise than by the affidavit referred
to in subrule f2), nor may either party cross-examine anv Person who gives evidence
orally or on affidavit: Provided that the court may put to any person who gives oral
evidence such questions as it considers mav elucidate the matter.' (My underlining and
further sections omitted.)
(18] Following amendments that took effect on 1 July 2019, the summary judgment
procedure was revised. Under the amended Rule 32 (2) (a), the plaintiff may now apply
for summary judgment only after the defendant has delivered a Plea. This promotes
procedural fairness by enabling the plaintiff to assess the defence before deciding
whether to proceed with summary judgment or not. However, Rule 32 ( 4) confines the
plaintiff to the affidavit filed in terms of subrule (2), no replying affidavit or further
evidence is to be adduced, nor is cross-examination permitted. Accordingly. the
plaintiff must present their best case in the initial application and, as required by Rule
32 (2) (b), briefly explain why the defences as pleaded do not raise any triable issue.
[19) Rule 28 provides that a party desiring to amend any pleadings may do so at
any stage before the judgment, provided that notice of intended amendment is given
to all other parties. The rule regulates the amendment of pleadings and documents,
and provides as follows:
'( 1) Any party desiring to amend a pleading or document other than a sworn
statement, filed in connection with any proceedings , shall notify all other parties of his
intention to amend and shall furnish particulars of the amendment.
intention to amend and shall furnish particulars of the amendment.
(2) The notice referred to in subrule (1) shall state that unless written objection to
the proposed amendment is delivered within 10 days of delivery of the notice, the
amendment will be effected.
(3) An objection to a proposed amendment shall clearly and concisely state the
grounds upon which the objection is founded.
(4) If an obiection which complies with subrule (3) is delivered within the period
referred to in subrule (2), the party wishing to amend mav, within 10 days. lodge an
application for leave to amend.
8
(5) If no objection is delivered as contemplated in subrule (4), every party who
received notice of the proposed amendment shall be deemed to have consented to the
amendment and the party who gave notice of the proposed amendment may, within
1 O days after the expiration of the period mentioned in subrule (2), effect the
amendment as contemplated in subrule.
6) Unless the court otherwise directs, an amendment authorized by an order of the
court may not be effected later than 10 days after such authorization.
(7) Unless the court otherwise directs, a party who is entitled to amend shalf effect
the amendment by delivering each relevant page in its amended form.
(8)
(9)
(10) The courl mav, notwithstanding anything to the contrary in this rule, at any stage
before fudgment grant leave to amend any pleading or document on such other terms
as to costs or other matters as it deems fit. ' (My underlining and some sections omitted)
[20] It is evident that Rule 28 establishes a clear, sequential procedure for amending
pleadings and documents . An amendment may only be effected through a notice
process prescribed in subrules (1) and (2), followed, where applicable, by the objection
mechanism in subrules (3) and (4). If no objection is lodged, sub-rule (5) permits the
amendment to proceed, after which it must be implemented in accordance with sub
rules (6) and (7). In addition, subrule (10) empowers the Court, in its discretion, to
grant leave to amend at any stage before judgment.
APPLICATION TO THE FACTS
[21] The defendant filed his Plea on 14 March 2024, whereafter the plaintiff in
compliance with subrule (2)(a) and (b) of Rule 32 filed its affidavit in support of
summary judgment application on 8 April 2024, where he extensively addresses the
defendant's Plea together with the defences raised thereto, explaining that they are
not bona fide and disclose no triable issues. On 3 June 2024, the defendant then filed
not bona fide and disclose no triable issues. On 3 June 2024, the defendant then filed
an opposing affidavit introducing for the first time a purported Counterclaim not
pleaded in his Plea. Despite this allegation, no Counterclaim was filed, nor was there
any Notice of Intention to Amend delivered before the matter was set down for hearing
on 10 June 2025. It is only six weeks before the date of hearing, that the defendant
indicated for the first time that he wished to amend his Plea.
9
[22] Allowing amendment after filing of summary judgment application would clearly
be disadvantageous and prejudicial to the plaintiff, as the plaintiff is not permitted to
deliver a replying affidavit or adduce further evidence. This would therefore deprive
the plaintiff of the opportunity, as required in terms of Rule 32 (2) (b), to address why
the newly introduced defences in the amended Plea or Counterclaim raise no triable
issue. Nevertheless, the mere launching of a summary judgment application does not
bar a defendant from seeking to amend his Plea. The defendant may still lodge an
application for leave to amend in terms of Rule 28 ( 4 ). The Court will then exercise its
discretion under Rule 28 (10) which permits it to grant leave to amend the pleading or
document at any stage before judgment. Of course, that discretion must be exercised
judicially, having due regard to all relevant circumstances of the case. However, as
articulated by Henny J in Belrex 95 CC v Barday 2 that "this is a lacuna, which can be
used as a stratagem by a defendant wishing to frustrate a plaintiff from proceeding
with summary judgment. It is also clearly something which the task team of the Rules
Board may not have considered." Put differently this lacuna, in the procedural
framework creates the potential abuse of the rules, enabling the defendant to employ
late amendment as a tactic to frustrate or delay summary judgment proceedings.
[23] Based on Rule 28 (10), it is clear that the defendant was entitled to amend his
Plea as the matter had not yet been heard, and no judgment had been delivered.
However, even if such amendment was permissible after the launch of the summary
judgment application, the defendant was still required to comply with Rule 28 (4).
Although the defendant delivered his Notice of Intention to Amend the plea and to file
Although the defendant delivered his Notice of Intention to Amend the plea and to file
a Counterclaim, the plaintiff objected. Once the objection was raised, the defendant
was obliged, within ten days, to bring an application in terms of Rule 28 (4) for leave
to amend, which he failed to do. No amended Plea or Counterclaim was filed. Instead,
he irregularly delivered a supplementary opposing affidavit without first obtaining leave
of the court.
[24] The defendant's explanation that he was engaged in other litigation matters is
unpersuasive. He had been aware since 3 June 2024 of his stated intention to pursue
2 See footnote one above
10
a Counterclaim, yet he took no steps until January 2026. Even then, he attempted to
introduce the proposed amendment through a supplementary affidavit rather than
following the prescribed procedure. This was clearly not in accordance with the rules.
Rule 28 is designed to prevent precisely such unilateral and irregular amendments
and to ensure that amendments address a genuine triable issue rather than being
employed in bad faith or at the last moment. In my view, the defendant's conduct was
both dilatory and ma/a tide. As no formal application for amendment was filed, save
for Notice of Intention, the Court had no proper basis on which to adjudicate the matter.
The supplementary affidavit was irregular for non-compliaflce with the rules and
permitting its admission would prejudice the plaintiff. Given the defendant's non
compliance with Rule 28( 4 ), the remaining question is whether the plaintiff has
established a proper case or the defendant's stated defences are bona tide and raised
triable issues.
DISCUSSION OF DEFENCES
[25] It is well established that the granting or refusal of summary judgment falls
within the court's discretion. In exercising this discretion, the court must ensure that
the procedure is not used to deprive a defendant of the opportunity to defend the
action where he has a genuine defence. This principle was reaffirmed in Joob Joob
Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture3, where the Supreme
Court of Appeal emphasised that summary judgment should not be used to bar the
defendant from presenting a bona tide defence. At paragraph 31, Joob Joob stated:
'So too in South Africa, the summary judgement procedure was not intended to
'shut (a defendant) out from defending ', unless it was very clear indeed that he had
no case in the action. It was intended to prevent sham defenses from defeating the
rights of parties by delay, and at the same time causing great loss to plaintiffs who
were endeavoring to enforce their rights. '
were endeavoring to enforce their rights. '
[26) The defendant may, however, resist summary judgment by filing an affidavit
that discloses a bona fide defence capable of satisfying the Court. Such defence must
be set out with sufficient particularity to demonstrate substance; a mere or bald denials
3 2009 (5) SA 1 (SCA) at para 31
11
are inadequate. In terms of Rule 32(3), a defendant must fully disclose the nature and
grounds of the defence as well as the material facts relied upon. To successfully
oppose summary judgment, he must show that a bona tide defence exists which
raises a triable issue and not merely allege such in his affidavit. As it was held in
Breitenbach v Fiat SA (Edms) Bpk', that bald, vague and sketchy defences should
not be tolerated. Similarly in Maharaj v Barclays National Bank Ltcf>, the Court
emphasised that a defendant must provide a clear and complete disclosure of the
defence and the material facts supporting it. The Court went further to state that:
"[O]ne of the ways in which a defendant may successfully oppose a claim for summary
judgement is by satisfying the court 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 there is a balance of probabilities in favour of the one party or the other. All that
the court enquires into is:
(a) whether the defendant has 'fully' disclosed the nature and grounds of his defence
and the material facts upon which it is founded,
(b) whether on the facts so disclosed the defendant appears to have, as to either the
whole or part of the claim, and
(c) a defence which is bona fide and good in law. If satisfied on these matters the Court
must refuse summary judgement, either wholly or in part, as the case may be".
[27] It is common cause that the parties concluded an instalment sale agreement in
terms of which the defendant was required to make payments upon delivery of the
vehicle. From the outset, the defendant does not dispute his failure to make payments
or that he is in arrears. Upon careful consideration of the papers filed and oral
or that he is in arrears. Upon careful consideration of the papers filed and oral
submissions, it is evident that the defendant is in breach of the agreement. This
position is supported by the certificate of balance marked SJ2 of the bundle and the
bank statements marked SJ3 in the bundle, notwithstanding his denial of being in
default.
4 1976 (2) SA 226 (T) at 229F-H
5 1976 (1) SA 418 (A) at 426
12
[28] The defendant's contention, which relates to his uncertainty regarding the precise
arrear amount and his assertion that non-payment was due to circumstances beyond
his control, is without merit. These proceedings concern the return of the vehicle, not
the recovery of arrear instalments. Any dispute about the arrear balance is a matter
for determination in a different and appropriate forum, as this Court is not seized with
such issues. Accordingly, the defendant cannot rely on arrear-related issues to resist
summary judgment. With that being said, I turn to the defences raised, starting with
the defence of force majeure .
Force majeure
[29] In relying on force majeure, the defendant contends that his non-compliance with
the instalment sale agreement was due to circumstances beyond his control,
attributing his default to the Covid-19 pandemic. He further alleges that the plaintiffs
unilateral decision to uplift his overdraft facility amid this period worsened his financial
difficulties. On this basis, he seeks to indirectly rely on force majeure to suspend his
contractual obligations. The plaintiff disputes this defence, submitting that the
defendant failed to demonstrate how the pandemic impacted on his ability to meet his
monthly instalments and that he provided no financial records or supporting
documentation. Accordingly, the plaintiff submits that the alleged force majeure
amounts to a bare denial and an unsubstantiated allegation .
[30) It is well established that a party invoking force majeure bears the onus of
proving that the impossibility was not self-created. As such, it is upon the defendant to
show the Court that circumstances beyond his control rendered performance
objectively impossible. In this matter, the defendant asserts that the Covid- 19
pandemic prevented him from fulfilling his obligation, yet he provides no explanation
of how the pandemic specifically impacted his ability to pay, nor does he identify any
of how the pandemic specifically impacted his ability to pay, nor does he identify any
clause in the agreement entitling him to rely on force majeure. If such a clause exists,
it was not placed before Court. While not denying that Covid-19 may have some impact
on his finances, the bank statement shows that he remained able to make payments,
albeit not in full. By his own admission , he elected to stop paying upon receipt of
summons in 2023 and redirected the funds earmarked for this vehicle towards his
bond repayments. This demonstrate that his non-payment was therefore a matter of
13
choice rather than incapacity. He therefore cannot rely on force majeure to justify a
deliberate decision not to honour his contractual obligations.
[31] Accepting that the agreement contains no force majeure clause, the defendant
may nevertheless invoke the common law doctrine of supervening impossibility.
This doctrine suspends contractual obligations only where performance has become
oblectively impossible due to an unforeseeable or unavoidable event. Importantly,
not every circumstance labelled as force majeure excuse performance. A party's
personal financial difficulties or deterioration in financial position does not
constitute a force majeure and does not relieve a party form his contractual obligations.
(My Underlining)
[32] In MV Snow Crystal Transnet tla National Ports Authority v Owner of MV
Snow Crystal 6 the Court said the following:
''As a general rule impossibility of performance brought about by vis major or casus
fortuitus 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 relation of the parties, the
circumstances of the case, and the nature of the impossibility invoked bv the defendant ,
to see whether the general rule ought, in the particular circumstances of the case, to be
applied". The rule will not avail a defendant if the impossibility is self-created; nor will it
avail the defendant if the impossibility is due to his or her fault. Save possibly in
circumstances where a plaintiff seeks specific performance, the onus of proving the
impossibility will lie upon the defendant." (Emphasis added)
[33] In the present matter, the defendant cannot successfully rely on supervening
impossibility. Although the bank statements may suggest some financial strain during
the Covid-19 period, no factual facts were placed before the Court to substantiate this
defence. The established facts further show that the defendant contributed to his own
defence. The established facts further show that the defendant contributed to his own
predicament by deliberately electing to stop payments under the instalment sale
agreement in order to prioritise his bond obligations .
'Applying these principles to the facts, it cannot be concluded that the defendant has
established impossibility of performance as a legally cognizable defense. First, the
defendant put up no cogent documentary evidence in support of its contentions. Second
6 2008 (4) SA 111 (SCA) para 28
14
and more importantly, the impossibility on which the defendant relies is subjective and
specific to itself. The change in the defendant's financial position is not, as required by
law, absolute. The obligation to render performance even during lockdown can, in
general, be performed by parties in the position of the defendant. The defendant's
personal incapability does not render the instalment sale agreement void. '7
Ombudsman and Counterclalm
[341 The defendant asserts that the matter was referred to the Ombudsman on 11
October 2022, prior to the issuing of summons, and he is still awaiting an outcome.
Similarly to the force majeure, the plaintiff disputes this, noting that the defendant has
produced no evidence confirming that such a referral was made. The plaintiff further
submits that, given that nearly four years have passed without any reported progress,
the alleged referral appears to be a dilatory tactic. I agree with the plaintiffs submission
that, in the absence of any supporting documents that the matter was in fact, referred
to the Ombudsman, this defence cannot be sustained. A mere reference to a case
number is inadequate. The defendant was aware that this formed part of his defence,
yet he failed to place sufficient evidence before the Court. The actions of the defendant
mirror what the court in Breitenbach v Flat SA (Edms) Bpk8, referred to as bald,
vague and sketchy defences which the court warned must not be tolerated.
[35J Similarly, the reliance on a purported Counterclaim is without merit. The
defendant provided no documentary proof that any Counterclaim was filed in the
George Circuit Court, despite being aware that these proceedings are before this
Court in Cape Town. Moreover, it emerged that the alleged Counterclaim, was
not a Counterclaim at all, but new set of Summons , which explains why no documents
were transferred to this file. As the matter stands, no Counterclaim exists in relation to
were transferred to this file. As the matter stands, no Counterclaim exists in relation to
these proceedings. In my view, the defences concerning the Ombudsman referral and
the alleged Counterclaim are neither bona tide nor substantive; they serve only to
delay the matter and constitute abuse of process.
7 Wesbank , a Division of FirstRand Bank Limited v PSG Haulers CC [2022] ZAGPJHC 603
(25 August 2022) para 21 .
8Supra - See fn 2 above
,.
15
Section 129 notice
[36] The defendant initially alleged that he never received the section 129 notice, he
then shifted to claiming that the notice was vague and contradictory, noting that it is
dated 9 January 2023 while the plaintiff alleges that the default occurred in March
2020. He contends that this discrepancy creates uncertainty regarding the basis of
enforcement. In response, the plaintiff asserted that the notice was sent by registered
mail and personally served by sheriff on 10 January 2023. Proof of postage and track
and trace report were filed on record. Clearly the defendant assertion that he was
never served with section 129 is therefore incorrect and misleading.
[37] Upon consideration of section 129 notice, it is clear that, the notice adequately
informed the defendant of his default and the remedies that are available to him. The
mere fact that the default arose in March 2020 while the notice was issued in January
2023 does not create any inconsistency. Instead, the delay demonstrates the plaintiffs
willingness to afford the defendant ample opportunity to remedy the breach, as
evidenced by the reduced payments he made during Covid-19 period. The defendant's
contention that these indulgences constituted an amendment of the original
agreement is unfounded and without merit. There is no vagueness or contradiction in
the section 129 notice. I agree with the plaintiff, that the defences advanced by the
defendant are merely dilatory and fail to disclose any bona tide defence or triable
issue.
[38J Rule 32 is designed to prevent delays caused by abuse of court process and
enables the plaintiff to obtain judgment swiftly, thereby avoiding unnecessary costs of
a trial. In considering the now amended Rule 32, the Court in Tumilenq Trading CC v
National Securitv and Fire {Pty) Ltd9 held that
' ... Rule 32(3), which regulates what is required from a defendant in its opposing
affidavit, has been left substantively unamended in the overhauled procedure. That
affidavit, has been left substantively unamended in the overhauled procedure. That
means that the test remains what it always was: has the defendant disclosed a bona
fide (i.e. an apparently genuinely advanced, as distinct from sham) defence? There is
no indication in the amended rule that the method of determining that has
9 [2020) ZAWCHC 28 (30 April 2020).
16
changed. The classical formulations in Maharai and Breitenbach v Fiat SA as to what
is expected of a defendant seeking to successfullv oppose an application for summary
fudgment. therefore remain of application. A defendant is not required to show that its
defence is likely to prevail. If a defendant can show that it has a leaallv cognizable
defense on the face of it. and that the defense is genuine or bona tide. summary
iudgment must be refused. The defendant's prospects of success are irrelevant'.
CONCLUSION
[39] I am satisfied that the defences advanced by the defendant fell short in meeting
the requirements of Rule 32 (3) read with Rule 28 ( 4 ), in that they are not bona fide
and disclosed no triable issues. The plaintiff has made out a proper case, the
application for a summary judgment must accordingly succeed. Regarding costs, I find
no basis to depart from the general rule that costs follow the successful party.
ORDER
1. The application for summary judgment is granted.
2. The instalment sale agreement concluded by the parties is cancelled.
3. The 2015 Volkswagen Touran 2.0 Trendline with engine number C [ ..... ] and
chassis number W [ .... ] be returned to the plaintiff forthwith.
4. Retention of all monies paid by the defendant to the plaintiff.
5. Plaintiff is granted leave to apply to the Court for damages, if any, against the
defendant in the amount to be calculated by subtracting the current market
value of the vehicle.
6. The defendant is ordered to pay costs of the applic
YAKE S.
Acting Judge of the High Court
Western Cape
17
APPEARANCES
For the Plaintiff: Adv C. Francis
Instructed by: T. Du Toit & Co Inc.
For the Defendant: Mr T. Franzsen