IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO. 167/2025
Not reportable
In the matter between:
FIRSTRAND BANK LIMITED
t/a WESBANK
(Registration No. 1929/0001225/06) PLAINTIFF
and
ADGE INVESTMENTS (PTY) LTD DEFENDANT
Coram: Rugunanan J
ORDER
1. Condonation for the late delivery of the application for summary
judgment is refused.
2. The application for summary judgment is dismissed with costs.
3. The costs shall be on the scale as between attorney and client.
JUDGMENT
Rugunanan J
[1] Plaintiff, a registered credit provider under the National Credit Act 1 (the
Act) instituted action against defendant, a consumer defined as a juristic person
under the Act, allegedly for a repudiatio n and breach by defendant of its
obligations under a written instalment sale agreement concluded on 6 June 2024
(the agreement) in respect of a mobile self -loading cement mixer 2 which
plaintiff financed for construction purposes (the asset).
[2] Since the principal debt/cost for the asset inclusive of initiation and other
service-related fees amounted to R941 902.20, and is thus a large agreement,
the Act does not apply.
[3] The agreement expressly conferred upon plaintiff the right of cancellation
in the event defendant failed to comply with its terms, such failure, as is alleged
in the particulars of claim includes inter alia, failure to pay punctually the
agreed instalments when due. The agreement, in addition, obliged defendant to
keep the asset in its possession and control at all times.
[4] In circumstances in which defendant experienced operational challenges
with the asset, including failed attempts to resolve issues with plaintiff and the
supplier, Sino Plant (Sino), from whom the asset was purchased, d efendant
1 Act 34 of 2005.
2 Described in the particulars of claim as a 2024 Default Mixer 3000L OTR Self -loading (4x4) with serial
number CNU23008203.
notified plaintiff on 11 December 2024 that it repudiated the agreement.
Following the repudiation, plaintiff cancelled the agreement such as was
effected in writing on 13 December 2024, the letter stating unequivocally:
‘Our client … accepts the repudiation of the instalment sale agreement, which our client
regards as going to the root of the [agreement] and accordingly regards the [agreement] as
cancelled.
[5] Prior to the institution of the action on 23 January 2025, defendant
referred a dispute/complaint to the Office of the National Financial Ombud
Scheme (the Ombud), details of which are not immediately apparent on the
papers, but as far as can be gleaned, concern a number of ‘issues’ such as the
hydraulic malfunctioning of the asset a nd plaintiff’s alleged rebuff, as ‘legal
owner and titleholder’3 to be of assistance to the defendant.
[6] In a notice of motion delivered on 7 October 2025, plaintiff notified
defendant that application for summary judgment will be made, and orders will
be sought for: confirmation of cancellation of the agreement, return of the asset,
postponement of plaintiff’s claim for damages to be determined, plus interest,
attorney client costs of suit, and collection commission.
[7] Although no specific prayer is included in the notice of motion, plaintiff,
in addition, sought condonation for the late delivery of the application, such
relief being moved from the bar.
[8] The ostensible basis for condonation is that the ‘the late filing of the
application for summary judgment is in terms of an express agreement’ between
the parties.
3 Clause 4.2 of the installment sale agreement.
[9] Uniform rule 32(2)(a) stipulates that ‘within 15 days after the date of the
delivery of the plea, the plaintiff shall deliver a notice of application for
summary judgment, together with an affidavit m ade by the plaintiff or by any
other person who can swear positively to the facts.’
[10] Defendant delivered its plea on 25 March 2025. Same incorporated a
special plea, defendant contending that the institution of legal proceedings was
premature pending resolu tion of the dispute/complaint referred to the Ombud,
and that a third party ‘has possession of the asset through and by authorization
[sic] of the plaintiff.’
[11] Adverting to the rule, and reckoned in accordance with the prescribed
interval, defendant maintai ns that the period for delivery of the application
would have lapsed on 16 April 2025. On 14 April 2025, some two days before
expiry of the interval, plaintiff, presumably having considered the special plea,
communicated to defendant as follows:
‘Our office is prepared to continue to pend the litigation herein to allow an opportunity for
the Ombud to make a ruling … We are only prepared to hold over litigation subject thereto
that [the] dies be put on hold, specifically the right of the plaintiff to bring a n application for
summary judgment in future …’
[12] In its response, defendant stated:
‘[W]e have obtained instructions herein, and holding off the dies in the aforementioned
litigious proceedings is in order, pending the adjudication of the matter at the offi ce of the
Ombud.’
[13] On the papers, indubitably, the request to ‘hold over’ was at plaintiff’s
instance, there being no indication to the contrary. The request interceded two
days before expiry of the interval prescribed in the rule leaving it open to infer
only that the remaining two days would be held over for delivery of the
application. Put otherwise, the indication is that the application would be
delivered no later than two days of the Ombud ruling. If this construct is
incorrect, it is of greater conseq uence to point out that plaintiff did not seek
agreement that the prescribed interval in its entirety would commence afresh
once the ruling became available. Nor can it be suggested that defendant
(tacitly) acquiesced to ‘holding off the dies’ indefinitely.
[14] Incumbent on seeking the indulgence, it was plaintiff’s duty to
unambiguously clarify the extent thereof.
[15] It is common cause that defendant’s complaint was dismissed on 11 June
2025. The decision was communicated in a terse email advising, in summary,
that the institution of the action precludes intervention by the Ombud. It is also
common cause that the summary judgment application was delivered on
7 October 2025, some four months after 11 June 2025. This is well beyond the
assumed two days of the prescribed period, or the entire period itself – the delay
baldly ascribed to an agreement between the parties, which explanation
plaintiff’s counsel correctly conceded is poor on the condonation issue.
[16] Condonation will not be had for the mere asking. It is an i ndulgence. The
party seeking it must furnish a reasonable explanation sufficiently full4 covering
the entire period5 to enable the court to understand their conduct and motives for
the delay occasioning non-compliance. The task is fact specific. Plaintiff has not
done this. Its affidavit does not detail reasons traversing the length of delay until
delivery of the application and inspires no confidence that plaintiff litigates
responsibly. The rationale for summary judgment proceedings is impeccable.
Because it is intended to prevent delay in adjudicating certain causes of action,
4 Silber v Ozen Wholesalers (Pty) Ltd 1954 SA 345 (A) at 353A; see also the commentary in Van Loggerenberg,
Superior Court Practice Vol 2 at D1-323 to D1-324 [Service 21, 2023] and the cases referred to.
5 Van Dyk v Unitas H ospital (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC) at
477E-F and Van Loggerenberg supra at D1-324.
it requires a high degree of strict compliance. Plaintiff’s affidavit bears no
semblance of an appreciation thereof.
[17] The length of the delay is by no means insignificant and the scant
explanation falls short of the requirements of rule 27 which enjoins an applicant
for condonation to show good cause for its failure to comply with the rules
of court. In determining good cause the court has a wide discretion which, seen
as a whole, must, in principle, be exercised with regard to the merits of the
matter,6 or prospects of success (summarily dealt with in what follows
hereafter).
[18] Tritely, summary judgment is a remedy that should be resorted to and
accorded only where a plaintiff can e stablish its claim clearly and the defendant
fails to set up a bona fide defence.7
[19] A condition precedent to an application for summary judgment is that the
application shall be based on one or more of the claims listed in rule 32(1),
namely: a liquid document, a liquidated amount in money, delivery of specified
movable property, or ejectment.
[20] Rule 32(1) (c) read with sub -rule (2) (a) permits a plaintiff, within the
prescribed period after the defendant has delivered a plea, to apply for summary
judgment for delivery of specified movable property. Applied to the present
case, the principle is that summary judgment should be granted if plaintiff has
clearly demonstrated that it has a claim for delivery of the asset.
[21] Turning to the agreement, defendant was obliged during its tenure to keep
the asset in its possession and under its control at all times. The agreement has
6 Van Loggerenberg supra at D1-322
7 See Van Loggerenberg supra at D1-383 [Service 21, 2023] and the cases referred to.
been cancelled and the asset is no longer in defendant’s possession. It was
returned to Sino (the exact date not mentioned but osten sibly before institution
of the action, as far as can be ascertained on defendant’s version). According to
plaintiff, the return of the asset to Sino conflicted with the express terms of the
agreement, and constituted an alienation by defendant. This is co mpounded by
the circumstance that defendant previously refused to sign a notice of voluntary
surrender that would have enabled plaintiff to retrieve the asset. To the contrary,
in its plea and in its answering affidavit, defendant avers that the return of the
asset to Sino occurred ‘through and by authorization [sic] of the plaintiff’, and
on plaintiff’s ‘instruction’. Absent a deviation in the answering affidavit to the
pleaded defence, defendant’s stance is not a manifestation of a lack of bona
fides.8 It is evident that there is an extant dispute of fact that cannot be resolved
solely on the affidavits.
[22] Plaintiff’s counsel submitted that summary judgment is competent for the
reason that the agreement was cancelled, and had defendant signed off on the
notice, the extant proceedings would have been unnecessary. Unless summary
judgment is granted, so the argument went, plaintiff would suffer a potential
financial loss. The interests of justice therefore necessitated overlooking
plaintiff’s indiscretion on the condonation issue and to grant summary judgment
to avoid its exposure to such loss.9
[23] On both parties’ versions the agreement has come to an end in
circumstances where plaintiff remains the owner of the asset. The prayer for
confirmation of cancellation of the agreement is unnecessary since judicial
cancellation is not in issue. Such a prayer, in any event, amounts to seeking a
8 See Firstrand Bank Limited t/a Wesbank v Sayelo (Pty) Ltd t/a Giani Dy Cleaners and Laundry [2024]
ZAGPPHC 1282 (29 November 2024) para 27.
ZAGPPHC 1282 (29 November 2024) para 27.
9 Firstrand Bank Limited t/a Wesbank v Sayelo (Pty) Ltd t/a Giani Dy Cleaners and Laundry supra paras 31-32.
declaratory order which is not permissible in terms of rule 32. 10 The matter,
however, turns essentially on the status quo regar ding possession of the asset.
That is the only lis at this stage between plaintiff and defendant.
[24] The hard facts are that the agreement has been cancelled extra -judicially
and defendant does not have possession or control of the asset. An order
directing defendant to restore possession to plaintiff may not have practical
effect since it is a well -known principle that a court will only grant relief that is
capable of enforcement, and where relief cannot be enforced that is good reason
for refusing it.11 Elemental to this is a dispute of fact on whether defendant
unilaterally alienated the asset, or whether possession was rendered to Sino at
plaintiff’s instance.
[25] The absence of defendant’s possession of the asset and the dispute of fact
raises doub t – more specifically a triable issue about whether plaintiff has
clearly established its claim for return or delivery and diminishes prospects of
success for obtaining summary judgment.
[26] In the circumstances the discretion to refuse summary judgment is
invoked.12
[27] Defendant sought costs on a punitive scale. Plaintiff’s laggard handling of
the matter is ample justification.
[28] In the result the following order issues:
1. Condonation for the late delivery of the application for summary
judgment is refused.
10 Alphera Financial Services v Kolanisi (11947/2020) [2021] ZAWCHC 78 (29 April 2021) para 5.
11 Mansell v Mansell 1953 (3) SA 716 NPD at 721E.
12 Alphera Financial Services v Kolanisi para 7.
2. The application for summary judgment is dismissed with costs.
3. The costs shall be on the scale as between attorney and client.
____________________________
S RUGUNANAN
JUDGE OF THE HIGH COURT
Appearances:
For the Plaintiff: M Somandi , Owen Huxtable Attorneys, Makhanda
Tel: 046-622 2694, (Ref. D J vd Merwe)
For the Defendant: C Van Douw , Cheyenne Van Douw Attorneys,
Rosebank Tel: 011 -759 4215, c/o AG Law Attorneys
Inc., Makhanda, Tel: 046-004 0025 (Ref. AG/004/25)
Date heard: 13 November 2025.
Date delivered: 17 March 2026.