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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 8319/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 7 April 2026
SIGNATURE
In the matter between:
BMW FINANCIAL SERVICES
(SOUTH AFRICA) (PTY) LIMITED Applicant/Plaintiff
and
LC VUMA Respondent/Defendant
Date of Hearing: 9 March 2026
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email. The time and date for
hand-down is deemed to be 7 April 2026.
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JUDGMENT
JANSE VAN RENSBURG AJ
INTRODUCTION AND FACTUAL BACKGROUND
[1] This is an application for summary judgment in terms of Uniform Rule of Court
32. The Applicant, a registered credit provider, seeks confirmation of the
cancellation of an instalment sale agreement concluded on or about 3
September 2021 at Oakdene, the return of the motor vehicle that was the
subject of the agreement, retention of all amounts already paid by the
Respondent, and ancillary relief. The balance of the relief (quantification of any
outstanding damages after return of the vehicle) is postponed sine die.
[2] The agreement was for the purchase by the Respondent of a 2019 BMW 320i
M Sport Launch Edition A/T (G20) with engine number F[...] and chassis
number W[...].
[3] The recoverable amount (capitalised cost) was R953 696.32. The Respondent
financed the purchase through the Applicant.
[4] It is common cause that the Respondent defaulted on his monthly obligations
from the outset (the first instalment due in November 2021 was not paid
timeously).
[5] The Applicant issued combined summons on 31 January 2023. The
Respondent delivered a plea on 6 December 2023 in which he admitted the
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conclusion of the agreement and the salient terms thereof, but contended that
the arrears had been ‘liquidated’ by subsequent payments.
[6] On 22 December 2023 the Applicant launched the present application for
summary judgment. The application was served on the Respondent’s attorneys
by email on the same day.
[7] The Respondent delivered his affidavit resisting summary judgment only on 7
February 2025, together with a request for condonation for the late filing.
LEGAL PRINCIPLES APPLICABLE TO SUMMARY JUDGMENT
[8] Summary judgment is an extraordinary and drastic remedy designed to enable
a plaintiff to obtain swift judgment where the defendant has no bona fide
defence and has entered an appearance to defend solely for the purpose of
delay1.
[9] Navsa JA 2 very appositely set out the nature of summary judgment
proceedings:
“The rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a triable issue or a
sustainable defence of her/his day in court. After almost a century of
successful application in our courts, summary judgment proceedings can
1 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 423G -H; Breitenbach v Fiat SA
(Edms) Bpk 1976 (2) SA 226 (T) at 228E-F;
2 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at para
[31] & [32];
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hardly continue to be described as extraordinary. Our courts, both of first
instance and at appellate level, have during that time rightly been trusted
to ensure that a defendant with a triable issue is not shut out. In
the Maharaj case at 425G–426E, Corbett JA was keen to ensure, first, an
examination of whether there has been sufficient disclosure by a
defendant of the nature and grounds of his defence and the facts upon
which it is founded. The second consideration is that the defence so
disclosed must be both bona fide and good in law. A court which is
satisfied that this threshold has been crossed is then bound to refuse
summary judgment. Corbett JA also warned against requiring of a
defendant the precision apposite to pleadings. However, the learned
judge was equally astute to ensure that recalcitrant debtors pay what is
due to a creditor.
Having regard to its purpose and its proper application, summary
judgment proceedings only hold terrors and are “drastic” for a defendant
who has no defence. Perhaps the time has come to discard these labels
and to concentrate rather on the proper application of the rule, as set out
with customary clarity and elegance by Corbett JA in the Maharaj case at
425G–426E.”
[10] Once the plaintiff has made out a prima facie case in the founding affidavit3, the
onus shifts to the defendant to satisfy the court that he has a bona fide defence
which is good in law and which is supported by facts that, if proved at trial,
would constitute a complete defence.
[11] The defence must be disclosed “fully” and with “sufficient particularity” so that
the court can assess whether it is a sham or raises a triable issue4.
3 Which the Applicant has done by annexing the agreement, confirming the default, the cancellation, and
the outstanding balance on the ledger;
4 Rule 32(3)(b); Maharaj supra at 426C-E;
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[12] Where the defendant’s version is so sketchy, improbable, or contradicted by the
documentary record that it cannot be believed, summary judgment must be
granted.
CONDONATION FOR THE LATE FILING OF THE OPPOSING AFFIDAVIT
[13] The opposing affidavit was filed some five court days late (the last permissible
date being 31 January 2025). The explanation proffered is that the
Respondent’s attorney was engaged in a trial and experienced difficulty in
contacting him. While the explanation is not particularly compelling, and falls
short of the “good cause” normally required, the court has decided, in the
interests of finality and to deal with the matter on the merits, to condone the late
filing.
[14] This does not, however, detract from the requirement that the defence raised
must still meet the Maharaj threshold.
THE DEFENCES RAISED
[15] The Respondent raises two main points. First, a general denial of NCA
compliance (sections 129 and 130) and second, and centrally, a point in limine
based on an alleged verbal “compromise” or variation agreement concluded on
14 June 2024 with the Applicant’s legal representative.
[16] The NCA defence can be disposed of briefly. The Applicant’s founding affidavit,
deposed to by Leoni du Plessis, Supervisor: Asset and Loss Recovery,
confirms compliance with the pre-litigation notice requirements of the NCA.
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[17] The Respondent’s bare denial, unsupported by any facts showing non -receipt
or non-compliance, is insufficient to raise a triable issue.
THE ALLEGED VERBAL COMPROMISE AGREEMENT OF 14 JUNE 2024
[18] The Respondent alleges that on 14 June 2024 he concluded a verbal
agreement with the Applicant’s legal representative in terms of which he would
continue to make monthly payments of R12,794.06 into the account, and that
such payments would settle the arrears.
[19] He attaches a written version of the agreement marked “V1” which, he says,
the Applicant drafted but which contained additional clauses never discussed or
agreed to. Because of those clauses the document was never signed by the
Applicant.
[20] He nevertheless contends that the verbal agreement remains binding, that the
Applicant has never approached the court to cancel the verbal agreement, that
he has continued to make the agreed payments, and that the arrears have now
been settled. He annexes proof of various payments (annexures “V2(a) to (t)”)
totalling approximately R141 150.00.
[21] This defence fails on multiple levels and does not meet the Maharaj test.
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[22] First, the original instalment sale agreement contains a classic non -variation
clause. Such clauses are enforceable in South African law 5. Any variation,
suspension or waiver of rights under the agreement must be in writing and
signed by both parties.
[23] A purely verbal agreement concluded more than a year -and-a-half after the
summons was issued, and long after the Applicant had elected to cancel the
agreement, cannot override that clause in the absence of special
circumstances (fraud or public policy considerations) which are neither alleged
nor present.
[24] Second, even on the Respondent’s own version there was no consensus. He
expressly states that the written draft (“V1”) contained additional terms not
discussed or agreed to, and that he therefore refused to sign it.
[25] That admission is fatal to any claim of a binding compromise. A compromise (or
transaction) requires a meeting of the minds on all material terms. Here the
parties never reached such consensus and the core, foundational requirement
for forming a valid, legally binding agreement, consensus ad idem, is absent on
the Respondent’s own version.
[26] Third, the Respondent has furnished no additional evidence that any such
verbal agreement was in fact concluded and the Respondent asserts that due
to him making payments of the amount into the account it constituted an
acceptance by conduct.
5 SA Sentrale Ko-op Graanmaatskappy Bpk v Shifren 1964 (4) SA 760 (A); Brisley v Drotsky 2002
(4) SA 1 (SCA);
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[27] Even if the assertion of oral variation could be accepted 6, the Respondent on
his own documents relied on did not pay a monthly amount of R12,794.06 and
payment was erratic, sometimes skipped, and were made in fluctuating
amounts. The Respondent’s own conduct did not signify that the agreement
was varied.
[28] It is therefore not possible for me to find, that even if the agreement could be
varied by conduct, that the Respondent acted as if the ‘compromise agreement’
was a foregone conclusion when on his own version it did not make consistent
payments in the amount agreed and was on his own version was in areas with
the varied agreement and did not act in accordance with the ‘compromise
agreement’.
[29] In the absence of credible evidence the allegation remains a bare, self -serving
assertion.
[30] Fourth, the payments relied upon by the Respondent do not extinguish the
arrears or bring the account up to date. The Applicant’s deponent, who has
personal knowledge of the account records, confirms that the account remains
in arrears. Post -summons payments, even if accepted, do not automatically
reinstate a cancelled agreement or preclude the granting of summary judgment
where the underlying breach has not been cured.
[31] Finally, the alleged compromise was concluded long after the Applicant had
cancelled the agreement and issued summons. It cannot retroactively undo the
cancellation or deprive the Applicant of the relief to which it is entitled under the
agreement.
6 that the agreement could be varied by mere conduct in express violation of the non-variation clause and
the Respondent refusing to sign the ‘comprise’ agreement;
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[32] In all the circumstances the defence based on the alleged verbal agreement is
not bona fide. It is sketchy, contradicted by the documentary record, and does
not disclose facts which, if proved at trial, would constitute a complete defence.
It therefore does not pass the *Maharaj* threshold.
CONCLUSION
[33] The Applicant has made out a clear case for summary judgment. No bona fide
defence has been raised. The application must succeed.
[34] The following order is made:
1. The cancellation of the instalment sale agreement concluded between
the parties on or about 3 September 2021 is confirmed.
2. The Respondent is ordered to return the following goods to the
Applicant forthwith:
Vehicle description: 2019 BMW 320i M Sport Launch Edition A/T
(G20)
Engine number: F[...]
Chassis number: W[...]
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3. The Applicant is authorised to retain all monies already paid by the
Respondent in terms of the agreement.
4. Upon return of the vehicle referred to in paragraph 2 above, the
Applicant is granted leave to institute an application against the
Respondent for any outstanding damages, in compliance with section
127 of the National Credit Act 34 of 2005.
5. The rate and date of interest on the damages , if any , referred to in
paragraph 4 to be determined by the Court determining outstanding
damages.
6. The Respondent is ordered to pay the costs of the application
(including the costs of the action) on an attorney and client scale, scale
B.
___________________________
JANSE VAN RENSBURG AJ
JUDGE OF THE HIGH COURT
PRETORIA
For the Applicant: Adv. S Fischer-Klein
VELILE TINTO & ASSOCIATES INC.
Attorneys for Applicant
Tel No: 012 807 3366
Email: Biancadb@tintolaw.co.za
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Ref: M2599/DBS/B ENGELBRECHT/RP
For the Respondent: Adv A Seshoka
MAKHAFOLA & VERSTER INC.
Attorneys for Respondent
Tel No: 012 342 4435/4511
Email: sello@makhafolav.co.za
Ref: S MAKHAFOLA/SM02027
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