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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2025-059354
In the matter between:
BMW FINACIAL SERVICES (SOUTH AFRICA) PTY LIMITED Applicant
And
ARMANDT ERASMUS
[Identity Number: 9[… ]] Respondent
In re:
BMW FINANCIAL SERVICES (SOUTH AFRICA) (PTY) LIMITED Plaintiff
1. NOT REPORTABLE
2. NOT OF INTEREST TO OTHER JUDGES
Date: 23 March 2026
Signature: Khaba AJ
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And
ARMANDT ERASMUS
[Identity Number: 9[… ]] Defendant
Neutral Citation: BMW Financial Services (South Africa) Pty Limited v Armandt Erasmus
(059354-2025) [2026] ZAGPJHC ------ (23 March 2026)
Coram: Khaba AJ
Heard: 12 February 2026.
Delivered: 23 March 2026 – This judgment was handed down electronically by circulation
to the parties’ representatives by email, by being uploaded to CaseLines and by release
to SAFLII. The date for hand-down is deemed to be 23 March 2026.
Summary: Application for Summary Judgment – prescription and acceleration clauses:
The lingering ambiguity in instalment sale agreements - No facts pleaded to support
bona fide defence – application granted.
______________________________________________________________________
ORDER
1. The application for summary judgment is granted.
2. The instalment sale agreement concluded between the applicant and the
respondent on 12 August 2020 is hereby cancelled.
3. The respondent is hereby ordered to pay to the applicant an amount of R
849 623.85.
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4. Interest on the amount of R 849 623.85 referred to in paragraph 3 above at
variable rate of prime plus, 0.868% per annum as from 10 April 2025 to date of
final payment, such interest to be capitalised monthly in advance.
5. The respondent is ordered to pay the costs of this applicat ion on the scale as
between attorney and client scale, including cost of counsel on scale C , such
costs to be taxed on scale C.
______________________________________________________________________
JUDGMENT
KHABA AJ:
Introduction:
[1] This is an opposed application for summary judgment in terms of Rule 32 of the
Uniform Rules of Court. The applicant (plaintiff in the main action) seeks
confirmation of the cancellation of an instalment sale agreement, that was
concluded with the respondent, (defendant in the main action); payment of a
shortfall amount arising from the sale of a surrendered motor vehicle, interest
thereon, and costs on an attorney-and-client scale.
[2] The respondent (defendant) resists the application for summary judgment on
multiple grounds, including prescription, alleged non- compliance with sections
127(2), 127(3), and 127(5) of the National Credit Act 34 of 2005 ("the NCA"), a
challenge to the sale price achieved for the vehicle, and a dispute concerning
the quantum of the indebtedness.
[3] The application is brought in terms of Rule 32(1) and (2) of the Uniform Rules of
Court. The applicant contends that the respondent has not raised any bona fide
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defence and that there exist no triable issues which would preclude the grant of
summary judgment.
[4] The crisp issues for determination are:
[4.1] Whether the applicant has satisfied the requirements under Rule 32(1)
and (2) of the Uniform Rules of Court.
[4.2] Whether the respondent raises any triable issues to prevent the
applicant from seeking judgment.
[4.3] Whether the claim has become prescribed.
[4.4] Whether there was compliance with section 127(2) of the National
Credit Act 34 of 2005 ("the NCA").
[4.5] Whether the applicant may have sold the motor vehicle at public auction
for an amount less than the private offer received.
[4.6] Whether there was compliance with section 127(5) of the NCA.
[4.7] Whether the amount of indebtedness is correct and/or whether the
respondent is truly and lawfully indebted to the applicant for the amount
claimed, interest, and costs as between attorney and client.
The Factual Background:
[5] The material facts, which are either common cause or established on the
papers, are the following:
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[6] On 12 August 2020, the parties concluded a written instalment sale agreement
("the agreement") in terms of which the applicant financed the purchase by the
respondent of a 2020 BMW X3 xDRIVE20d M SPORT (G01) motor vehicle with
engine number 6[…] and chassis number W[…] .
[7] The total amount repayable under the agreement, inclusive of finance charges,
was R1,572,902.94, payable by way of 71 monthly instalments of R18,082.36
each, commencing on 1 November 2020, and a final balloon payment of
R288,986.40 due on 1 October 2026.
[8] The applicant remained the owner of the vehicle pending full payment of all
amounts due, a standard feature of instalment sale agreements.
[9] The respondent defaulted on his payment obligations from the very first
instalment due on 0 1 November 2020, and the account remained in continuous
arrears throughout the currency of the agreement.
[10] On 05 July 2022, the respondent voluntarily surrendered the vehicle to the
applicant in terms of section 127(1)(a) and (b) of the NCA. At the time of
surrender, the respondent's account was in arrears in the amount of
R212,286.61.
[11] On 20 July 2022, the vehicle was valued by TUV SUD, an independent
valuation company, at a forced sale value of R629,607.00.
[12] On 15 July 2022, a written notice in terms of section 127(2) of the NCA was
dispatched by pre- paid registered mail to the respondent at his chosen
domicilium citandi et executandi: […] Q[…] Street, N [… ], Krugersdorp. The
notice informed the respondent of the estimated value of the vehicle and his
right to withdraw the surrender within ten business days, provided he was not in
default. A copy of the notice and proof of dispatch are annexed to the amended
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particulars of claim. On 13 July 2022, the same notice was also transmitted to
the respondent via email to his nominated email address.
[13] The respondent acknowledges awareness of this email but claims the
attachment was encrypted and inaccessible. The respondent notified the
applicant of this difficulty on 14 July 2022 but did not pursue the matter further.
[14] On 24 August 2022, the vehicle was sold at public auction for R626,750.00. The
net proceeds of the sale, amounting to R625,623.41 after deduction of
permitted charges, were credited to the respondent's account.
[15] On 19 September 2022, a written notice in terms of section 127(5) of the NCA
was dispatched by pre -paid registered mail to the respondent at his domicilium
address, advising him of the sale, the gross amount realised, the net proceeds
credited, and the resulting shortfall. A track and trace report confirms that the
item (C V026220065ZA) arrived at the West Krugersdorp post office on 4
October 2022 and that a first notification was sent to the recipient.
[16] As of 10 April 2025, the outstanding shortfall balance stood at R849,623.85,
which amount is verified by a certificate of balance signed by a manager of the
applicant in accordance with clause 5.9 of the agreement.
[17] Summons was issued on 29 April 2025 and served personally on the
respondent on 01 June 2025.
[18] The respondent delivered a notice of intention to defend on 11 July 2025,
followed by a Rule 35(12) notice on the same date. The applicant replied
thereto on 25 July 2025, making available all requested documents.
[19] On 29 July 2025, the applicant gave notice of intention to amend its particulars
of claim, and the amended particulars were filed on 13 August 2025.
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[20] The respondent delivered his special pleas and plea on the merits on 18 August
2025.
[21] The application for summary judgment was issued and served on 08 September
2025, well within the 15-day period prescribed by Rule 32. The respondent filed
his opposing affidavit on 12 September 2025 and heads of argument on 18
November 2025, with amended heads filed on 11 February 2026.
The Applicant’s Submissions:
[22] The applicant's case may be summarised as follows:
[22.1] The respondent admits the existence of the agreement, its terms and
conditions, and the voluntary surrender of the vehicle.
[22.2] The respondent's special pleas and purported defences do not disclose
a bona fide defence or any triable issue.
[22.3] The claim has not prescribed because the debt only became due when
the applicant elected to enforce the agreement after the sale of the
vehicle on 24 August 2022. Summons was served on 1 June 2025, well
within the three- year prescriptive period. The applicant relies on the
principle enunciated in Standard Bank of South Africa Ltd v Miracle Mile
Investments 67 (Pty) Ltd and Another 2017 (1) SA 185 (SCA) 1 that
where an acceleration clause affords the creditor the right of election,
the debt only becomes due upon such election.
[22.4] There was proper compliance with section 127(2) of the NCA. The
notice was dispatched by registered mail to the respondent's chosen
domicilium address and also transmitted via email. The NCA does not
1 Standard Bank of South Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd and Another 2017 (1) SA 185 (SCA) at
para 15.
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require actual receipt; proof of dispatch to the correct address suffices,
particularly where, as here, the respondent was in arrears and thus
disentitled to withdraw the surrender in any event.
[22.5] The vehicle was sold for the best price reasonably obtainable at a public
auction. The respondent's reliance on a WeBuyCars "offer" dated
December 2021 is misplaced, as it predates the surrender by seven
months and does not constitute a binding offer. In any event, the
respondent, being in arrears, had no right to dictate the method of sale.
[22.6] There was proper compliance with section 127(5) of the NCA. The
notice was dispatched by registered mail to the domicilium address, and
the track and trace report confirms that it reached the collecting post
office. Actual receipt is not required; the consumer bears the
responsibility to collect registered mail.
[22.7] The amount claimed is correctly reflected in the certificate of balance,
which constitutes prima facie proof of the debt in terms of clause 5.9 of
the agreement. The respondent has produced no countervailing
evidence to rebut this proof.
Whether the Respondent has raised a bona fide defence:
[23] The respondent raises the following defences in his special pleas, plea, and
opposing affidavit:
[24] Prescription: The respondent contends that any part of the claim which became
due more than three years before service of summons (i.e., before 0 1 June
2022) has prescribed. The respondent points to his first default on 01 November
2020 and the arrears of R212,286.61 by July 2022. Relying on Trinity Asset
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Management (Pty) Ltd v Grindstone Investments (Pty ) Ltd [2016] ZASCA 135 2,
The respondent argues that a debt repayable on demand becomes due
immediately upon lending.
[25] The Non-compliance with section 127(2): The respondent avers that he never
received a legible section 127(2) notice. The email attachment of 13 July 2022
was encrypted and inaccessible, and despite notifying the applicant on 14 July
2022, no legible notice was ever provided. The respondent denies receiving any
notice by registered post and invokes BMW Financial Services (SA) (Pty) Ltd v
Donkin (which he cites as [2021] ZASCA 115, which appears to refer to a
different judgment) for the proposition that mere dispatch is insufficient without
actual delivery. It seems peculiar to refer to a non- existent case in the argument
of one’s case, as correctly pointed out by the applicant’s heads of argument.
[26] The failure to obtain best price section 127(3): The respondent contends that
the applicant failed to sell the vehicle for the best price reasonably obtainable.
The respondent points to a WeBuyCars offer of R750,000.00 which he allegedly
provided at the time of surrender, yet the vehicle was sold for only R626,750.00.
The respondent relies on Firstrand Bank Ltd v Petersen [2011] ZAWCHC for the
proposition that failure to achieve a proper market -related price undermines the
enforceability of any shortfall claim. I note once again that this is a non- existent
piece of case law- as correctly confirmed by the applicant.
[27] The non-compliance with section 127(5) : The respondent avers that he never
received a section 127(5) post -sale notice. The respondent denies that mere
dispatch by registered post constitutes compliance without proof of actual
delivery.
[28] The dispute as to quantum: The respondent disputes the correctness of the
claimed amount, contending that the certificate of balance is inadmissible, that
claimed amount, contending that the certificate of balance is inadmissible, that
2 Trinity Asset Management (Pty) Ltd v Grindstone Investments (Pty) Ltd [2016] ZASCA 135 at para 18-20.
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the calculation of interest is unexplained and excessive given that the
agreement was cancelled after only two years, and that the applicant has failed
to provide a proper post-sale reconciliation. ²⁸
[29] The defects in the applicant's affidavit: The respondent argues that the
deponent to the applicant's affidavit lacks personal knowledge of the facts, that
the affidavit is formulaic and based on hearsay, and that it fails to satisfy the
requirements of Rule 32(2)(b). The respondent relies on Absa Bank Ltd v De
Villiers and Another 2009 (5) SA 40 (C) 3 for the proposition that an affidavit
which merely reproduces computer -generated figures without identifying the
underlying source does not meet the Rule 32 standard.
[30] Rule 35(12) non- compliance: The respondent complains that the applicant
failed to comply with his Rule 35(12) notice, thereby depriving him of documents
necessary to assess his defence.
The Legal Framework:
[31] The nature of summary judgment proceedings is well -settled in our law. It is a
drastic remedy that closes the doors of the court to a defendant who has
entered appearance to defend without a bona fide defence. As the
Constitutional Court observed in Maharaj v Barclays National Bank Ltd 1976 (1)
SA 418 (A)4, summary judgment may only be granted where the plaintiff's claim
is unanswerable.
[32] However, the notion that summary judgment is "extraordinary" in the sense of
being rarely granted has evolved. In Tumileng Trading CC v National Security
and Fire (Pty) Ltd 2020 (6) SA 624 (WCC)5 , Binns-Ward J stated:
3 Absa Bank Ltd v De Villiers and Another 2009 (5) SA 40 (C) at 46E-G.
4 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426 at 426.
5 Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC) at para 13.
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"Rule 32(3), which regulates what is required from a defendant in its opposing affidavit,
has been left substantially unamended... 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?"
[33] The requirements for a defendant to successfully resist summary judgment are
firmly established in our jurisprudence. In the seminal case of Maharaj v
Barclays National Bank Ltd 1976 (1) SA 418 (A) 6, Corbett JA held that a
defendant must:
"Disclose the nature and grounds of his defence and the material facts upon which it is
founded, and that he do so with sufficient particularity and completeness to enable the
Court to decide whether the affidavit discloses a bona fide defence. The defendant is
not required to deal exhaustively with the facts and the issues raised and to satisfy the
Court that he would inevitably succeed at the trial; it is sufficient if he sets out facts
which, if established at the trial, would constitute a good defence."
[34] Vague or speculative allegations will not suffice. The court is not obliged to
search for a defence among loosely made allegations ( Breitenbach v Fiat SA
(Edms) Bpk 1976 (2) SA 226 (T) 7). The defendant must set out facts with
sufficient particularity and detail to enable the court to assess whether the
defence is bona fide.
[35] In deciding whether to grant summary judgment, the court looks at the matter
"at the end of the day" on all the documents properly before it ( Joob Joob
Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1
(SCA)8 ).
The Evaluation of the Respondent’s bona fide Defences:
6 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426A-C.
7 Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228
8 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at para 32
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The Compliance with Rule 32(2)(b):
[36] The respondent's attack on the applicant's founding affidavit is without
substance. Ms. Leoni du Plessis, the deponent, states clearly that she is the
supervisor: Asset and Loss Recoveries of the applicant; that all records of the
respondent's account are under her control; that she has personally inspected
them in the ordinary course of her duties; and that she has acquainted herself
with the outstanding balance, interest, costs, and payment history. Ms. Du
Plessis further confirms that she has access to the applicant's ledgers, books of
account, and documents, and that she has familiarised herself with the history
of the litigation.
[37] In Absa Bank Ltd v De Villiers and Another 2009 (5) SA 40 (C) 9, the court held
that an affidavit in support of summary judgment must set out facts which would
be admissible in evidence and demonstrate that the deponent has personal
knowledge. Ms. Du Plessis has done precisely that. She has identified the
source documents, attached them, and verified their contents. The affidavit is
not formulaic; it is detailed, specific, and complies fully with Rule 32(2)(b).
[38] The respondent's reliance on Absa Bank Ltd v De Villiers is inapposite. In that
case, the affidavit merely reproduced computer -generated figures without
identifying the underlying source. Here, Ms. Du Plessis has done considerably
more. The criticism fails.
The Prescription:
[39] The respondent's prescription defence is fundamentally misconceived. Sections
10, 11(d) and 12 of the Prescription Act 68 of 1969 provide that a debt is
9 Absa Bank Ltd v De Villiers and Another 2009 (5) SA 40 (C) at para 20-21.
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extinguished after three years from the date upon which it becomes due. The
critical inquiry is: when did the debt become due?
[40] In Standard Bank of South Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd
and Another 2017 (1) SA 185 (SCA)10, the Supreme Court of Appeal held:
"Contrary to the provisions of the old Act, s 12(1) of the current Act provides that
prescription begins to run when the debt becomes 'due' and not when it first accrued.
Thus, where an acceleration clause affords the creditor the right of election to enforce
the clause upon default by the debtor, the debt in terms of the acceleration clause only
becomes due when the creditor has elected to enforce the clause. Before an election
by the creditor, prescription does not begin to run."
[41] The respondent seeks to rely on Trinity Asset Management (Pty) Ltd v
Grindstone Investments (Pty) Ltd [2016] ZASCA 135 11. That case is
distinguishable. It concerned a loan repayable on demand, where the debt
becomes due immediately upon lending. The present matter concerns an
instalment sale agreement with an acceleration clause. The distinction is critical
and was expressly recognised in Trinity12 itself at para 18:
"Miracle Mile dealt with the right to enforce an acceleration clause in a agreement. It
also dealt with a long- term loan that had been secured by mortgage bonds registered
over immovable property. Very different considerations apply in such a situation; as the
judgment points out, prescription runs against arrear instalments, as from dates when
payment thereof was due, which differs from future instalments, which become due as
a result of the requisite election by the creditor to accelerate payments of these future
instalments, by reason of the debtor's breach."
[42] The respondent defaulted on individual instalments as they fell due. Those
instalments prescribed three years after each due date. But the applicant does
instalments prescribed three years after each due date. But the applicant does
10 Bank of South Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd and Another 2017 (1) SA 185 (SCA) at para 25.
11 Supra note 2.
12 Ibid at para 18.
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not claim those arrears. The applicant claims the shortfall after sale of the
vehicle – a debt that could only become due when the applicant elected to
enforce the agreement following the sale and the quantum could be
ascertained.
[43] The vehicle was sold on 24 August 2022. Only then could the applicant quantify
its damages and demand payment of the shortfall. Summons was served on 1
June 2025 – within three years of the sale. The debt has not prescribed.
[44] Even if one were to consider the arrears component, the respondent's own
chronology shows that the arrears accumulated during 2022. Summons was
served in June 2025, which would still be within three years for any arrears
arising after June 2022. The respondent has not identified which specific
components of the claim he contends have prescribed. The onus is on the party
invoking prescription to allege and prove the date of inception. The respondent
has failed to discharge this onus. The special plea of prescription must therefore
fail.
The Section 127(2) Compliance:
[45] The respondent's complaint that he did not receive a legible section 127(2)
notice does not raise a triable issue.
[46] Section 127(2) of the NCA provides: "If the consumer surrenders goods under
subsection (1), the credit provider must – within 10 business days after receiving the
goods give the consumer written notice setting out the estimated value of the goods."
[47] The provision requires the credit provider to "give" notice. It does not require
actual receipt by the consumer.
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[48] In Williams v Shackleton Credit Management [2023] ZAWCHC 246 13, the court
held that
“The law does not require that the notice in fact come to the consumer's knowledge.
What is required is that the credit provider establish that the notice was delivered by
registered post to the post office that would send a delivery notice to the consumer.”
[49] The Constitutional Court in Sebola and Another v Standard Bank of South
Africa Ltd and Another [2012] ZACC 11; 2012 (5) SA 142 (CC)14 and Kubyana v
Standard Bank of South Africa Ltd [2014] ZACC 1; 2014 (3) SA 56 (CC) 15, the
Constitutional Court held that:
“While the credit provider must take reasonable steps to bring the notice to the
consumer's attention, proof of dispatch to the correct address, together with a track and
trace report confirming delivery to the relevant post office, is sufficient.”
[50] The applicant has provided the proof that the section 127(2) notice was
dispatched by registered mail to the respondent's chosen domicilium address. ³ ³
A copy of the notice itself. The is evidence that the same notice was also
transmitted via email to the respondent on 13 July 2022. ³⁵
[51] The respondent acknowledges receiving the email and being aware of the
notice. The respondent’s complaint is that the attachment was encrypted and
inaccessible. This complaint is unpersuasive. The email itself stated that the
attachment was password- protected and could be opened using the
respondent's identity number – a standard security measure to protect personal
information, mandated by section 69 of the Protection of Personal Information
13 Williams v Shackleton Credit Management [2023] ZAWCHC 246 at para 38.
14 Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC) at para 87.
15 Kubyana v Standard Bank of South Africa Ltd [2014] ZACC 1; 2014 (3) SA 56 (CC) para 39.
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Act 4 of 2013. The respondent does not say that he attempted to use his
identity number and failed. The respondent merely assumed inaccessibility.
[52] More fundamentally, the respondent was in arrears at the time of surrender.
Section 127(3) of the NCA provides that a consumer may only withdraw the
surrender if he is not in default. The respondent's arrears of R212,286.61 meant
he had no right to withdraw in any event. Any defect in the notice therefore
caused him no prejudice. Our courts do not grant relief for technical non-
compliance where no prejudice is shown ( African National Congress v Chief
Electoral Officer 2020 (4) SA 1 (CC)16 ).
[53] The respondent's reliance on BMW Financial Services (SA) (Pty) Ltd v
Donkin is misplaced. First ly, the case cited by the respondent does not exist.
There is no reported SCA decision under that name and citation. The closest
is Padayachee v The State (679/2020) [2021] ZASCA 115 17, which is entirely
unrelated. The KwaZulu- Natal decision in BMW Financial Services (SA) (Pty)
Ltd v Donkin [2009] ZAKZDHC 17; 2009 (6) SA 63 (KZD) 18 involved a
defendant who failed to disclose any defence at all – the opposite of the present
situation. This defence does not raise a triable issue.
The Section 127(3) – Best Price Reasonably Obtainable:
[54] The respondent's contention that the vehicle should have been sold to
WeBuyCars for R750,000.00 rather than at auction for R626,750.00 is
unsustainable for multiple reasons.
16 African National Congress v Chief Electoral Officer 2020 (4) SA 1 (CC) at para 39.
17 Padayachee v The State (679/2020) [2021] ZASCA 115.
18 BMW Financial Services (SA) (Pty) Ltd v Donkin [2009] ZAKZDHC 17; 2009 (6) SA 63 (KZD) at para 34.
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[55] Firstly, the WeBuyCars document relied upon by the respondent is dated 0 9
December 2021 – some seven months before the voluntary surrender on 0 5
July 2022. Vehicle values fluctuate; an "offer" from December 2021 cannot be
equated to market value in July/August 2022. Moreover, the document is an
"inspection summary," not a binding purchase offer. It contains no acceptance
period, no terms, and no evidence that WeBuyCars would have honoured that
price seven months later.
[56] Secondly, section 127( 4)(b) of the NCA requires the credit provider to sell the
goods "as soon as reasonably practicable" for "the best price reasonably
obtainable." This does not mean the highest possible price in the abstract, but
the best price achievable in the circumstances, having regard to the need for a
prompt sale. The duty is one of reasonable care, not strict liability
[57] Thirdly, the applicant obtained an independent valuation from T UV SU D, a
reputable valuation company, which assessed the forced sale value at
R629,607.00. The vehicle sold for R626,750.00 – within 0.45% of the valuation.
This strongly suggests that the price achieved was indeed the best reasonably
obtainable.
[58] Fourthly, the respondent, being in arrears, had no right to dictate the method of
sale. The applicant, as owner, was entitled to dispose of the vehicle in its
discretion after the appraised value was determined.
[59] Fifthly, nothing prevented the respondent from approaching the National
Consumer Tribunal under section 128 of the NCA to review the sale if he
genuinely believed the price was inadequate. He did not do so. This court may
infer that he did not do so because he knew the challenge would be meritless.
[60] The respondent's reliance on Firstrand Bank Ltd v Petersen [2011] ZAWCHC is
unhelpful. That unreported judgment (which the respondent has not provided) is
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not binding authority, and in any event, the facts are distinguishable.
In Petersen, the credit provider sold the vehicle privately for a low price without
attempting to obtain a market -related valuation. Here, the applicant obtained an
independent valuation and sold at public auction. This defence does not raise a
triable issue.
The Section 127(5) Compliance:
[61] The respondent's defence that he did not receive the section 127(5) notice is
equally without merit.
[62] Section 127(5) of the NCA requires the credit provider, after selling the goods,
to:
“credit or debit the consumer with a payment or charge equivalent to the proceeds of
the sale, less any expenses reasonably incurred by the credit provider in connection
with the sale of the goods; and
(b) deliver to the consumer a written notice stating –
(i) the settlement value of the agreement immediately before the sale;
(ii) the gross amount realised on the sale;
(iii) the net proceeds of the sale after deducting any expenses allowed under paragraph
(a); and
(iv) the amount credited or debited to the consumer's account.”
[63] The applicant has provided:
[62.1] The section 127(5) notice dated 19 September 2022, which contains all
the required information.
[62.2] Proof of dispatch by registered mail to the respondent's domicilium
address.
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[62.3] A track and trace report confirming that the item (C V026220065ZA)
arrived at the West Krugersdorp post office on 4 October 2022 and that
a first notification was sent to the recipient.
[64] In Sebola19 , the Constitutional Court held that proof of dispatch and a track and
trace report confirming arrival at the relevant post office constitutes sufficient
compliance. Actual receipt by the consumer is not required. The consumer must
collect the registered item; if he fails to do so, he cannot complain.
[65] The respondent still resides at the same address. The notice was sent to the
correct address and reached the correct post office. The applicant did all that
was required of it.
[66] The respondent's repeated invocation of Donkin20 cannot salvage this defence.
In Donkin21, the credit provider could not prove that the notice had even
reached the post office. Here, the track and trace report provides that proof
conclusively. This defence does not raise a triable issue.
The Quantum and Certificate of Balance:
[67] The respondent's challenge to the quantum claimed is unavailing. Clause 5.9 of
the agreement provides:
"A certificate issued by a Manager of the Plaintiff (whose appointment need not be
proved by the Plaintiff) would be regarded as prima facie proof of the amount that the
Defendant is indebted to the Plaintiff, and same may be used for any purposes, which
includes, but not limited to, obtaining a judgment or any other order or relief that the
Plaintiff is entitled to in law against the Defendant."
19 Supra note 14 at para 76
20 Supra note 18.
21 Ibid
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[68] In Absa Bank Ltd v Le Roux and Others 2014 (1) SA 475 (SCA)22, the Supreme
Court of Appeal held:
"The purpose of the certificate is to create an evidential onus on the surety to negate
the bank's allegations as to the quantum and the cause of any debt... The certificate
stands as prima facie proof of the substance of its contents in any litigation... It has that
effect not as an incident of any law of general application, but only because the parties
have agreed in their contract that it should do so."
[69] The respondent has not provided any countervailing evidence to negate the
certificate. The respondent merely denies the amount. A bare denial does not
rebut prima facie proof. The certificate of balance (annexure "I") reflects the
amount of R849,623.85 as at 10 April 2025. An updated certificate (annexure
"BMW5") reflects R889,020.02 as at 0 2 September 2025. The applicant,
however, persists with the original amount claimed – a concession in the
respondent's favour that the court is not obliged to accept but may in its
discretion.
[70] The statement of account (annexure "H1" and "H2") provides a detailed
breakdown of how the shortfall was calculated, including original finance
charges, payments received, sale proceeds credited, and interest. There is no
mystery in the calculation. The respondent's suggestion that the calculation is
"unexplained" is simply incorrect. This defence does not raise a triable issue.
The Rule 35(12) Point:
[71] The respondent's complaint about alleged non- compliance with his Rule 35(12)
notice is factually incorrect.
22 Absa Bank Ltd v Le Roux and Others 2014 (1) SA 475 (SCA) at para 16.
21
[72] Rule 35(12) provides that any party may require any other party to make
available for inspection any document referred to in the pleadings or particulars.
The respondent served his notice on 11 July 2025. The applicant served its
reply on 25 July 2025, making available all requested documents, including the
section 127 notices, proof of dispatch, track and trace reports, and statements
of account.
[73] If the respondent was dissatisfied with the reply, he should have brought an
application to compel in terms of Rule 35(13). The respondent did not do so.
Instead, he filed his plea on 18 August 2025 – an election to proceed that
waived any further complaint about discovery.
[74] In any event, the documents sought go to the merits of the respondent's
defences. Having found those defences to be without substance, any complaint
about discovery is moot. This point has no merit.
The Respondent’s mis reliance on Authority:
[75] Before concluding, it is necessary to comment on the respondent's citation of
authority. The respondent's heads of argument refer to several cases,
including BMW Financial Services (SA) (Pty) Ltd v Donkin [2021] ZASCA 115
and Firstrand Bank Ltd v Petersen [2011] ZAWCHC. As the applicant correctly
points out, these cases do not exist. The citation of fictitious authorities, whether
through negligence or design, is unacceptable and undermines the proper
administration of justice.
The overall Assessment:
22
[76] Standing back and considering the matter as a whole, I am satisfied that the
respondent has not disclosed a bona fide defence to the applicant's claim. The
defences raised are without substance and do not give rise to any triable issue.
[77] The respondent's case is built on a series of misconceptions and
misstatements. The respondent conflates arrears of instalments with the
shortfall debt, leading to an erroneous prescription argument.
[78] The respondent demands actual receipt of statutory notices where the law
requires only proper dispatch to the chosen address. The respondent relies on
a stale document from December 2021 as if it were a binding offer in August
2022.
[79] The respondent ignores the fact that his own arrears deprived him of any right
to withdraw the surrender. The respondent disputes quantum without producing
any countervailing evidence. The applicant has established a clear and
unanswerable case. The respondent's notice of intention to defend was
delivered solely for the purpose of delay. In these circumstances, summary
judgment is not only appropriate but necessary to prevent the abuse of Court
process.
[80] Having examined each of the respondent's alleged defences, I am compelled to
conclude that none of them meets the requirements set out
in Maharaj and Breitenbach. The respondent has not disclosed a bona fide
defence. The respondent has not raised any triable issue.
[81] In Tshwane City v Blair Atholl Homeowners Association 2019 (3) SA 398
(SCA)23, the Supreme Court of Appeal reiterated that summary judgment may
be granted if the defendant fails to set out a defence that is both bona fide and
good in law. The respondent has failed to do so.
23 Tshwane City v Blair Atholl Homeowners Association 2019 (3) SA 398 (SCA) at paragraph 32.
23
[82] The application for summary judgment must, accordingly, succeeds.
Costs:
[83] The applicant seeks costs on the scale as between attorney and client,
including the costs of counsel on Scale C.
[84] Clause 5.10 of the agreement provides: " In the event of any legal action being
instated by the Plaintiff, the Defendant would be responsible for costs on an attorney
and client scale."
[85] Such contractual provisions are enforceable, provided they are not
unconscionable or contrary to public policy (Barkhuizen v Napier 2007 (7) BCLR
691 (CC)24). There is nothing unconscionable about this provision. It was freely
negotiated between the parties, and the respondent, a major male, is presumed
to have understood its import.
[86] The respondent has opposed this application without merit, necessitating the
employment of counsel. The issues raised were substantial, requiring detailed
analysis of the NCA, the Prescription Act, and the Uniform Rules. Scale C is
appropriate given the complexity of the issues, the volume of documentation.
There is no basis for the punitive costs order de bonis propriis sought by the
respondent against the applicant's attorneys. The applicant has at all times
conducted itself properly and complied with all statutory and procedural
requirements. The suggestion that the attorneys should be personally liable for
costs is entirely without foundation.
24 Barkhuizen v Napier 2007 (7) BCLR 691 (CC) at para 22.
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[87] In the circumstances, and in accordance with the terms of the agreement, I am
satisfied that a costs order on the attorney and client scale is appropriate.
Order:
[88] In the circumstances, the following order is made:
1. The application for summary judgment is granted.
2. The instalment sale agreement concluded between the applicant and
the respondent on 12 August 2020 is hereby cancelled.
3. The respondent is ordered to pay the applicant an amount of R
849 623.85.
4. The interest on the amount of R 849 623.85 referred to in paragraph 3
above at a variable rate of 0.868% per annum above the prime
overdraft rate as from 10 April 2025 to date of final payment, such
interest to be capitalised monthly in advance.
5. The respondent is ordered to pay the costs of this application on the
scale as between the attorney and client scale, including costs counsel
on scale C, such costs to be taxed on scale C.
__________________________________
KHABA AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Appearances:
25
Counsel for the Applicant: Adv. SF Fisher- Klein
Instructed by: Velile Tinto & Associates Inc
Tel: 012 807 3366
Email: service@tintolaw.co.za
Attorney for the Respondent R Erasmus
Instructed by: Riekie Erasmus Attorneys
Tel: 011 472 1804
Email: office@riekieerasmus.co.za
Date of Hearing: 12 February 2026
Date of Judgment: 23 March 2026