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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 071753/2023
(1) REPORTABLE:
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
DATE
SIGNATURE
In the matter between:
DOOR-O-MATIC CC t/a TIGHT FIT GARAGE DOORS Applicant
(Registration number: 1999/026668/23)
and
T D MOTOR MANIA PTY LTD First
Respondent
(Registration number: 2013/148278/07)
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INSPECTACAR FINANCE, a product of Wesbank,
a division of Firstrand Bank Limited Second
Respondent
(Registration number: 1929/001225/06)
________________________________________________________________
JUDGMENT
_____________________________________________________________
The matter was heard in open court and the judgment was prepared and
authored by the judge whose name is reflected herein and was handed down
electronically by circulation to the parties’ legal representatives by email and by
uploading it to the electronic file of this matter on Caselines. The date of
handing-down is deemed to be 8 April 2026.
WELGEMOED, AJ
[1] This is an opposed application that was set down for hearing on the
opposed motion roll for 24 November 2025 wherein I reserved judgment .
The applicant sought, inter alia, the following relief in its original notice of
motion:
“1. Confirmation of cancellation of the sale agreement entered into
between the applicant and the first respondent, in respect of the
motor vehicle known as HONDA CRV 2.2 DTEC ELEGANCE
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(ENGIN NUMBER: N[...], CHASSIS NUMBER: S[...]) ("the motor
vehicle");
2. Confirmation of the cancellation of the agreement entered into
between the applicant and second respondent, as financ ier of the
sale agreement.”
[2] The first respondent opposed the relief and the applicant filed a replying
affidavit. The matter proceeded on 16 May 2024.
[3] On 16 May 2024 the following order was made by the Court:
“1. The matter is referred for the hearing of oral evidence, at a time to
be arranged with the Registrar, on the following point only:
1.1 Whether or not there was a settlement reached between the
attorney acting on behalf of the applicant, Mr Johan Eksteen
and the attorney acting on behalf of the first respondent, Ms
Thelma Mphahlele which settlement intended to have
brought an end to the litigation between the parties.
2. The evidence shall be that of Mr Johan Eksteen and Ms Thelma
Mphahlele.
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3. Within 20 (twenty) days of the making of this or der, the applicant and
the first respondent shall make discovery , on oath, of any documents
relating to the issue referred to oral evidence, on which they wish to
rely at the hearing of such oral evidence, if the parties wish to do so.
4. Such discovery shall be made in accordance with Uniform Rule 35
and the provisions of that rule with regards to the inspection and
production of documents discovered shall be operative.”
BACKGROUND:
[4] The Court is therefore called to make a factual finding, on a balance of
probabilities, after hearing the oral evidence of the two witnesses , on
whether a settlement was reached between the parties.
[5] In essence , this would only decide the relief as sought against the first
respondent in the original notice of motion and would not affect the rights
of the second respondent if granted.
[6] At the outset of the hearing of the oral evidence, the parties agreed that
the existence or not of the alleged settlement, would not in law affect the
rights of the second respondent vis-a-vis the applicant.
[7] The applicant and first respondent further filed affidavits setting out their
version of events, which is set out hereunder.
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[8] This matter was set down for hearing on the opposed motion roll before
the Honourable Strydom AJ, for the week of 6 May 2024 and allocated for
hearing on 9 May 2024.
[9] The parties commenced with argument on Thursday 9 May 2026 and at
some stage during argument the parties w ere requested to see the
Honourable Strydom AJ in chambers.
[10] The consequence of that was that the legal representatives attempted to
settle the matter and to some extent the parties were proverbially "close to
each other" in respect of a settlement agreement.
[11] The application then stood down for possible settlement. On Saturday, 11
May 2024 at 12h18 , Mr. De Swardt from the applicant received a text
message from the first respondent requesting him to obtain settlement
figures from Wesbank as they wanted to settle. The message read as
follows:
“Mnr de Swart kan u asb ‘n
aflosbedrag trekby
Wesbank en stuur vir
Juan Inspectacar, ons
kyk na ‘n skikking soos
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voorgestel deur die hof.”
[12] On Monday, 13 May 2024, the attorney of record for the applicant, Mr
Eksteen, received a call from the first respondent's attorney of record , Ms.
Mphahlele in which she requested to obtain settlement figures from the
second respondent as well as a breakdown of all of the expenses the
applicant has paid in respect of the motor vehicle.
[13] The requested information was provided by WhatsApp to the first
respondent’s attorney of record at around 09h19 . These documents are
referred to as annexure “SA4” and “SA5” respectively. Annexure “SA4”
depicts the settlement amount of R 204 603.97 owing towards the second
respondent and the e xpenses as per annexure “SA5” amounting to R
139 088.02 that the applicant incurred to date thereof.
[14] The first respondent's attorney of record replied by acknowledging receipt
of the documentation and that she would forward same to the first
respondent at 09h30 of the same morning.
[15] At approximately 10h00, the applicant’s attorney of record received a call
from the first respondent's attorney of record by stating that the matter has
become settled. This is disputed by the first respondent’s attorney of
record.
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[16] At 13h42 the applicant’s attorney of record received the following
WhatsApp message from the first respondent's attorney of record:
"Good day
Now the client is not willing to settle.
Let's advise the Judge and argue the matter on Wednesday
M tired of their tantrums”
EVIDENCE OF EKSTEEN:
[17] Mr. Eksteen testified on behalf of the applicant as per the order as set out
above. Mr. Eksteen is an adult male attorney, duly admitted and practising
as such for a period of approximately 13 years.
[18] During or about 2023, Mr. Eksteen was contacted by the applicant to
render legal assistance in relation to the present dispute. Mr. Eksteen has
been involved in this matter from its inception and is accordingly fully
apprised of the relevant facts and procedural developments which are set
out above.
[19] Further, it was testified that the a pplicant purchased a motor vehicle in
Johannesburg from the first respondent . The said vehicle was thereafter
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transported to Pretoria and subsequently to Cape Town. Upon collection
of the vehicle in Cape Town by the applicant , and whilst travelling to
Strand, warning lights appeared on the vehicle. The applicant stopped the
vehicle and arranged for it to be inspected. The vehicle was thereafter
referred to a workshop, and further engagements took place with
technicians, including representatives associated with Honda in Strand.
[20] Additional investigations were conducted, including investigations by an
individual named Jimmy from Advanced Auto Electricians . Owing to
ongoing and abnormal issues with the vehicle , correspondence was sent
on behalf of the applicant calling upon the first respondent either to repair
the vehicle or to cancel the agreement. A letter of demand was
subsequently dispatched and at that stage, the applicant was no longer in
possession of the vehicle.
[21] The matter proceeded to litigation and was enrolled for hearing and heard
by the Honourable Strydom A J, on 9 May 2024 . During argument,
proceedings were interrupted and stood down. Discussions took place in
chambers, during which the issue of whether the applicant was in
possession of the vehicle arose. It was indicated that this aspect would be
withdrawn or clarified, with the position being that the applicant was not in
possession of the vehicle. The Honourable Strydom AJ indicated that the
matter should stand down to afford the parties an opportunity to explore
settlement.
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[22] A virtual consultation was accordingly arranged for 13 May 2024 between
the parties. The matter formally stood down to 16 May 2024.
[23] On the morning of 13 May 2024, Mr. Eksteen awaited a settlement
agreement. At approximately 09h19, documentation was forwarded to the
Respondent’s attorney of record being the settlemen t. A settlement
meeting was scheduled for 10h00.
[24] At approximately 09h30, receipt of the documentation was acknowledged
by Ms. Mphahlele. Shortly before the scheduled meeting, at approximately
09h55, Mr. Eksteen received a telephone call during which he was
informed that the matter had been settled by Ms. Mphahlele. It was
conveyed to me that an agreement had been reached on the documents
then before the parties. The issue of costs remained unresolved and was
to follow the result, alternatively to be determined by the Court.
[25] At approximately 13h41 on 13 May 2024, further documents were
forwarded by the first respondent’s attorney of record stating that the first
respondent does not want to settle.
[26] There was no real version put to this witness by counsel for the first
respondent. Under cross examination , the only matter that was dealt with
is the issue of costs that was not dealt with in any detail by the parties
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according to Mr. Eksteen. In this respect Mr. Eksteen stated that the
parties agreed that costs would be argued and for the court to decide.
EVIDENCE OF MPHAHLELE:
[27] Ms Mphahlele testified that, on or about 9 May 2024, the matter was
discussed in the context of possible settlement. Ms. Mphahlele at that
stage, conveyed that the matter could potentially be settled and requested
the relevant settlement documentation. However, the matter could not
immediately be settled as she required further instructions, including
consultation with other directors.
[28] On 13 May 2024 a t approximately 09h55, she indicated that she would
consider the documents and revert once proper instructions had been
obtained. Referring to the documents received regarding the settlement
figures. Ms. Mphahlele further testified that any proposal remained subject
to final instructions, that the issue of costs had not been addressed and no
written or signed settlement agreement came into existence. Mention was
also made of further communication later in the day, including via
WhatsApp.
[29] I must pause to state that the evidence in chief of this witness failed to
address pertinent factual issues raised by the applicant, and that the
majority of the evidence of Mr. Eksteen was left uncontested.
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[30] Under cross-examination, Ms Mphahlele confirmed that she was actively
involved in settlement discussions during May 2024. It was accepted that
on 9 May 2024, the first r espondent was not willing to settle and that
settlement figures were only requested at a later stage, including on or
about 13 May 2024 . She testified that the client required further
instructions before any agreement could be concluded. It was also
testified that communications were exchanged, including via WhatsApp on
13 May 2024 , a meeting had been scheduled for purposes of settlement
discussions and that documents would be considered and that she would
revert regarding possible settlement.
[31] It was further testified that Ms. Mpha hlele contacted Mr Eksteen at
approximately 09h55 and indicated that she would revert after considering
the documentation. It was put to her that the parties were in the process of
settling and she accepted that discussions were ongoing but maintained
that no agreement was concluded.
[32] Another issue emerged in her testimony regarding Ms. Mphahlele not
being authorised to settle the matter on her own , which issue was never
put to Mr. Eksteen nor raised previously. As such evidence does not form
part of the dispute and is not considered by the Court. Ms. Mphahlele in
any event, was the attorney of record, engaged in settlement negotiations
and requested settlement figures and communicated the settlement
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outcome. Even if this defence is considered, the probabilities establish
authority to bind the first respondent.
[33] The content of the annexures was not disputed and confirmed by the
witness. In response to questions from the Court, Ms Mphahlele indicated
that the parties had discussed that costs might stand over and the issue of
costs remained unresolved at the time of the discussions . However,
settlement had not been finalised pending further instructions. It was also
testified that her mandate was to act on instructions, and she did not have
authority to conclude a settlement without such instructions.
THE DISPUTE:
[34] In civil proceedings, proof is furnished upon a balance of probabilit ies. For
the applicant to succeed , the probabilities must be substantially in his
favour, see Eversmyer v Walker 1963 (3) SA386 (T); Blyth v Van Den
Heever 1980 (1) SA 220 (A).
[35] The central issue in dispute arises from a telephone call which took place
at approximately 09h55 on 13 May 2024, shortly before the scheduled
meeting. Mr Eksteen testified that he received a call from Ms Mphahlele
during which she conveyed words to the effect that she had “good news”
and that the matter had been settled on the documents then before the
parties. According to Mr Eksteen, it was further indicated that the issue of
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costs remained outstanding and would either follow the result or be
determined by the Court.
[36] Ms Mphahlele, on the other hand, testified that she communicated that
she would consider the documents and revert once proper instructions
had been obtained.
[37] The Court is required to determine, on a balance of probabilities, whether
the parties had reached an agreement on the material terms of settlement
at that stage, notwithstanding that certain aspects, including costs,
remained unresolved and no written agreement had been signed. These
terms are reflected in annexure “SA4” and SA5” being the cancellation of
the agreement, the payment of the settlement amount and that of
expenses.
[38] Upon, evaluating the probabilities and credibility of the witness’s testimony
I am of the view that Mr. Eksteen version is clear , time -specific and
commercially sensible. I am also reminded that the majority of the
evidence of Mr. Eksteen was left uncontradicted and as stated by
Claassen J in Small v Smith 1954 (3) SA 434 (SWA) at 348:
"It is, in my opinion, elementary and standard practice for a party to put to
each opposing witness so much of his own case or defence as concerns
that witness, and if need be, to inform him, if he has not been given notice
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thereof, that other witnesses will contradict him, so as to give him fair
warning and an opportunity of explaining the contradiction and defending
his own character. It is grossly unfair and improper to let a witness's
evidence go unchallenged in cross - examination and afterwards argue
that he must be disbelieved.
Once a witness's evidence on a point in dispute has been deliberately left
unchallenged in cross-examination and particularly by a legal practitioner,
the party calling that witness is normally entitled to assume, in the
absence of notice to the contrary, that the witness's testimony is accepted
as correct. More practically, if this is the case the witness is corroborated
by several others, unless the testimony is so manifestly absurd, fantastic
or of so romantic a character that no reasonable person can attach any
credence to it whatsoever."
[39] The evidence of Ms. Mphahlele was however, always qualified by
retrospective explanations and internally inconsistent , for example
engaging in settlement discussions while denying authority to do so. It was
also not seriously denied that Ms. Mphahlele used the words “ Johan I
have good news” and the subsequent conduct of the parties indicated that
there was then no need to proceed with the meeting to be held at 10h00 .
The later WhatsApp stated that “Now the client is not willing to settle..” that
was only sent at 1 3h41. A party cannot unilaterally resile once an
agreement is reached. These uncontested facts demonstrate that as at
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9:55 there was in fact an agreement reached. There was a clear
acceptance of the material terms with authority to act by Ms. Mphahlele.
The version of Mphahlele does not directly deny these material aspects of
the parties conduct.
[40] Both parties also agreed that costs remained unresolved and costs are not
always a material term. Courts often accepts terms such as “ costs to
follow the result” or that costs are left to the Court.
[41] I am of the view that costs should follow the result in the matter.
ORDER:
[42] Consequently, I make the following order:
1. A settlement was reached and is made an order of Court in terms of
which the parties agreed , in order to end the litigation in respect of
the vehicle, as follows:
1.1 Confirmation of cancellation of the sale agreement entered
into between the applicant and the first respondent, in respect
of the motor vehicle known as HONDA CRV 2.2 DTEC
ELEGANCE (ENGIN E NUMBER: N[...], CHASSIS NUMBER:
S[...]) ("the motor vehicle");
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1.2 The first respondent shall pay the amount of R 204 603.97
towards the settlement of the finance agreement with the
second respondent;
1.3 The first respondent shall pay to the applicant the amount of R
139 088.02 in respect of expenses incurred in respect of the
motor vehicle.
1.4 Costs to be reserved for adjudication by the Court.
2. The first respondent is ordered to pay the costs o f the application on
Scale B.
WELGEMOED CJ
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Date of Hearing: 24.11.2025
Date of Judgment: 8.04.2026
Counsel for Applicant: Adv A Van Der Merwe
Counsel for Respondents: Adv Mello
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