SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO. 2025-155053
Of Interest
In the matter between:
TOYOTA FINANCIAL SERVICES PLAINTIFF
and
DUDUZILE MAQUNGO DEFENDANT
JUDGMENT
Rugunanan J
[1] The plaintiff seeks summary judgment against the defendant claiming
return of a Toyota Fortuner motor vehicle. The vehicle is the subject of a
written instalment sale agreement concluded on 20 September 2018 (the
agreement) in default of which the defendant fa iled to pay the agreed monthly
instalments of R8 743.13 accumulating arrears amounting to R110 588.12 as at
the date of institution of the action out of this court on 1 September 2025.
[2] In defending the action the defendant delivered a special plea without
pleading to the merits, and following institution of the summary judgment
proceedings she delivered an opposing affidavit.
[3] The special plea alleges, in summary, that the High Court in Mthatha is
the court having ‘proper territorial jurisdiction’ – a conclu sion posited on
allegations that the defendant resides and carries on business in Mthatha, and it
is there that the agreement was concluded and performed.
[4] The main relief prayed for is that the ‘plaintiff’s claim be dismissed for
want of jurisdiction’. In the alternative, the matter be transferred to the High
Court in Mthatha.
[5] Outwardly, the special plea is attractive but in my view, it is unsound.
Jurisdiction
[6] The High Court of South Africa consists of the main divisions established
in s 6 of the Superior Courts Act 10 of 2013 (the Act). The Act did away with
provincial and local divisions and, in their stead, put in place nine divisions of
the High Court corresponding to the nine provinces of the Republic of South
Africa. The Act states that the Eastern C ape Division of the High Court has its
main seat in Grahamstown (now Makhanda).
[7] The former local seats in Bhisho, Mthatha, and Port Elizabeth (now
Gqeberha) are recognised as courts of the Eastern Cape Division, this in
accordance with the proclamation in the Judge President’s Directive on Change
of Names of the Court Seats: Eastern Cape Division of the High Court of South
Africa.1
[8] The persons over whom and matters in relation to which a division has
jurisdiction are dealt with in s 21 of the Act – stating in essential terms that a
division has jurisdiction over all persons residing or being in, and in relation to
all causes arising and all offences triable within its area of jurisdiction.2
[9] In Thembani Wholesalers (Pty) Ltd v September and Another 3
(Thembani), a full court judgment of this division, it was made clear that the
jurisdiction conferred by s 21 on the main seat of the Eastern Cape Division
(Makhanda) comprised the entire province of the Eastern Cape and that the
(former) local seats identi fied as the Eastern Cape High Courts, Bhisho,
Mthatha, and Port Elizabeth (now Gqeberha) are endowed with concurrent
jurisdiction over smaller territorial areas than that enjoyed by the main seat.4
[10] In practical terms the aforesaid means that the main seat has original and
province-wide territorial jurisdiction and is competent to entertain a matter even
if a person such, as the defendant, resides in Mthatha (or in any of the other
former local seats).
1 Directive on Change of Names of the Court Seats: Eastern Cape Division of the High Court of South Africa
issued by the Judge President the Honourable S M Mbenenge on 7 September 2022.
2 S21(1) of the Superior Courts Act 10 of 2013.
3 Thembani Wholesalers (Pty) Ltd v September and Another (Thembani) (47/2014) [2014] ZAECGHC 54; 2014
(5) SA 51 (ECG) at 56D.
4 Thembani paras 9 -13, cited with approval in Sikhosonke Trading and Investments (Pty) Ltd v ABSA Bank
Limited and Another (2388/2020) [2023] ZAECMKHC 36 (17 March 2023) para 19.
[11] Appositely, this court is not entitled to decline to he ar the matter properly
before it in the exercise of its jurisdiction vested by law. 5 Its doors should at all
times be open to litigants falling within its jurisdiction. 6 And it is bound to
approach the matter on the basis that the plaintiff has elected, as of right, to
choose the court in which it intended to institute the present action.
[12] The power to refuse to entertain a claim can only arise if the institution of
the action amounted to an abuse of the process of court. This can be said to take
place when the procedure used by a party is for a purpose for which it was not
intended or designed, and is invoked to the prejudice or potential prejudice of
the other party to the proceedings.7
[13] The preceding analysis indicates that there is no basis in law suggesting
that this court does not have jurisdiction and that it is, in consequence,
precluded from entertaining the matter. The extant jurisdictional concurrency of
the High Court in Mthatha does not invalidate the proceedings in this court – it
bars the dismissal relief.
[14] The main relief, therefore, is not competent and the jurisdictional
challenge must fail.
Removal
[15] The removal of a matter from one division to another, or fro m one seat to
another in the same division is dealt with in section 27(1) of the Act. It directs
that the court may, upon application by any party, order the removal of
proceedings.
5 Agri Wire (Pty) Ltd and Another v Commissioner of the Competition Commission and Others 2013 (5) SA 484
(SCA) para 19.
6 Standard Credit Corporation Ltd v Bester and Others 1987 (1) SA 812 (W) at 820I.
7 Sealandair Shipping and Forwarding v Slash Clothing Co (Pty) Ltd 1987 (2) 635 (W) at 642A-C.
[16] The section is drawn to the defendant’s attention in the summons, the
plaintiff as a result contending that the special plea is ineffective without the
defendant having initiated an application for transfer. Contrary to the plaintiff’s
contention, the application procedure is not mandatory. As was said in
Thembani:
‘Although the section provides the machinery for the removal of a matter to another court on
application, there is … nothing to preclude a judge, sitting as a court of first instance in the
Eastern Cape High Court, [Makhanda], from mero motu concluding that, notwithsta nding the
court having original territorial jurisdiction, the balance of convenience clearly dictates that
the matter properly be heard at a particular local seat, and order that it be so removed.’
[17] The balance of convenience is an inquiry that relates to p rejudice. It
postulates that the court considers which of the two parties will suffer greater
from the granting or refusal of temporary relief pending a decision on the
merits. Put another way, there is usually in matters of this kind, something to be
said on both sides but because the court cannot decide in favour of both parties
it must go by the ordinary rule, which is looking at the circumstances on the one
side and then on the other.8
[18] Referring to authority preceding the Act, Thembani exemplified
circumstances such as the inconvenience to a litigant hauled before a far -flung
court, the places where witnesses were residing, and the expense to which the
parties would be put. The defendant did not, in any of these respects, contend
for prejudice or raise an abuse of process. Abuse of process is not a
discretionary matter but rather, a factual issue that must be considered in the
light of all relevant facts and circumstances. 9 No factual substrate has been laid
in the special plea, nor have specific averme nts been made by the defendant in
her affidavit.
her affidavit.
8 An approach endorsed by Kotze JP in Morgan v Erskine 1913 EDL 94 at 95 and supported in Thembani supra
at 56A.
9 Mofokeng v General Accident Versekering Bpk 1990 (2) SA 712 (W) at 713E.
A bona fide defence
[19] The delivery of a plea is a prerequisite to an application for summary
judgment. The rules of pleading require a defendant to either admit or to deny,
or to confess and avoid all the mate rial facts alleged in the combined summons,
or to state which of the facts are not admitted and to what extent, and to clearly
and concisely state all the material facts upon which reliance is placed. Every
allegation of fact in the combined summons which is not stated in the plea to be
denied or to be admitted, shall be deemed to be admitted.10
[20] Whether ill-advisedly or misguidedly, the defendant did not plead to the
material facts alleged in the combined summons but incorporated matter
purportedly as defen ces in her affidavit. Taking into consideration that the
plaintiff is not entitled to deliver a further affidavit, it has no opportunity to
reply.
[21] A defendant who elects to deliver an affidavit 11 is obliged to satisfy
the court that he/she has a bona fide defence to the action. This is a legal
requirement – the gist of which is that a defendant is required to present a
defence valid in law with sufficient particularity setting out its nature and
grounds to enable a court to assess whether there is a reasona ble possibility that
the defence advanced may succeed on trial.12
[22] The defence ought not to be raised orally from the bar – it must be put on
affidavit with reference to the plea.13
10 Uniform rule 22(2) and (3).
11 Uniform rule 32(3)(b).
12 See generally Van Loggerenberg Erasmus Superior Court Practice Vol 2 at D1 -410E, D1-411, and D1 -413
[Service 21, 2023].
13 Van Loggerenberg supra at D1-410A [Service 21, 2023].
[23] Holding a defendant to a properly drafted plea is not pedantry. It fosters
legal certainty as an element of the rule of law and it directs an opponent to the
case it is expected to meet.14
[24] To pardon the defendant’s approach would fuel speculation and
conjecture and put in place an unpredictably porous regime setting a standard of
disquieting neglect that augments dysfunction of the rules of court.
[25] When considering a defendant’s affidavit a court does not attempt to
decide the issues or to determine whether or not there is a balance of
probabilities in favour of the one party or the other. 15 The standard is that when
an affidavit advances contentions in resistance to a plaintiff’s claim for
summary judgment, they must be done with a sufficient degree of clarity to
enable the court to ascertain whether the defendant has de posed to a defence
which, if proved at trial, will constitute a good defence to the action. 16 What is
required is that the character or essential qualities of the defence be set out. 17 If
contentions are advanced in a manner which appears to be needlessly bald,
vague or sketchy, that will constitute material for the court to consider in
relation to the requirement of bona fides.18
[26] The tangled and incoherent composition of the defendant’s affidavit does
not measure up to the legal requirement and standards a forementioned and
presents a challenge in assessing whether there is a reasonable possibility of
success on trial, particularly when time is very often at a premium on a heavily
laden roll in motion court.
14 South African Transport and Allied Workers Union and another v Garvas and others 2013 (1) SA 83 (CC)
para 114.
15 Van Loggerenberg supra at D1-410A [Service 21, 2023].
16 Van Loggerenberg supra at D1-410B [Service 21, 2023].
17 Van Loggerenberg supra at D1-416 [Service 21, 2023].
18 Van Loggerenberg supra at D1-410B, also at D1-416A [Service 21, 2023].
[27] By not having pleaded to the combined summons the defendant must be
regarded has having admitted all the allegations therein and in effect, has no
bona fide defence.
[28] If wrong in that regard, I consider nonetheless the matters raised in the
defendant’s affidavit.19 My inclination must not be construed as o ne that should
uniformly be propagated in all other cases similarly circumstanced and
presented.
Non-compliance with notice requirement in s 129 of the National Credit
Act 34 of 2005 (NCA)
[29] Contending that the notice was not delivered to her designated/chos en
domicilium address, the defendant denies that she received it. The agreement
records her designated address as Corana Location, Libode, and her cellphone
number as 0[...].
[30] Annexed to the combined summons is: (a) a notice in terms of s 129
addressed by the plaintiff’s attorneys to the defendant in which notice the
defendant’s designated address appears; (b) a proof of delivery certificate,
indicating that on 15 August 2025 at 19h00 the defendant was notified via SMS
of a registered item awaiting colle ction by her; (c) a notice dated 18 August
2025 from the post office notifying the defendant (at her designated address)
that a registered item is awaiting her collection; and (d) a parcel tracking report
indicating that as at 27 August 2025 the registered item was still at the Libode
post office awaiting collection.
[31] There is no general requirement that the notice be brought to the
defendant’s subjective attention, or that personal service is necessary for a valid
delivery under the NCA. The annexures in th e plaintiff’s papers evince clear
19 Which matters, counsel for plaintiff addressed succinctly in argument.
indications that notification for collection was sent to the defendant at the
correct post office. Beyond ensuring that the s 129 notice was sent to the correct
post office for collection, there was no further obligation o n the plaintiff and it
was at all times entirely up to the defendant to collect the registered item.
Accordingly, the onus was on the defendant, as a reasonable consumer, to
ensure retrieval from the post office.20
Waiver/election
[32] The combined summons indi cates that the agreement was cancelled by
the plaintiff upon institution of the action. Parenthetically, there is no difference
in law whether cancellation of an agreement is conveyed to a defendant prior to
the institution of an action or subsequent there to.21 I am satisfied, in any event,
that the necessary averments in respect of cancellation are present and that the
cancellation of the agreement was conveyed to the defendant, at least when the
combined summons was served on her.
[33] The plaintiff’s right to terminate by cancellation arose from the
agreement in the event of failure by the defendant to pay the agreed instalments.
The detailed statement of account attached to the plaintiff’s affidavit reflects, as
credit entries, uneven payments made by the defendant subsequent to the date of
institution of the action. By accepting payments, the defendant contended that
the plaintiff ‘elected to affirm the agreement’. The appropriation of such
payments is specifically provided for in the agreement that the plain tiff may, at
any time before or after termination, in its discretion, appropriate or re -
appropriate monies received towards the reduction of any amounts owed by the
defendant.
20 See generally Sebola and Another v Standard Bank of SA Ltd and Another 2012 (5) SA 142 (CC), and
Kubyana v Standard Bank of SA Ltd 2014 (4) BCLR 400 (CC).
21 FirstRand Bank Ltd t/a Wesbank v Weltman -Shmaryanhu, FirstRand Bank Ltd t/a McCarthy Finance a
division of Wesbank v Weltman-Shmaryanthu [2010] ZAWCHC 512 (25 October 2010) para 11.
[34] Waiver is a matter of intention. Whether it implicates a right or remedy,
the st arting point is invariably the will of the party said to have waived it.
Because no one is presumed to waive their rights, the onus is on the party
alleging it. The test is objective – the intention is adjudged by its outward
manifestations which can consist of words or some form of conduct from which
an inference may be drawn. 22 Once a party has elected to cancel a contract, it is
bound by that election.23
[35] The defendant’s affidavit evinces no indication that by accepting
payments after cancelling the agree ment, the plaintiff ‘elected to affirm the
agreement’. On the contrary the plaintiff’s acceptance of payments is not
anything inconsistent with the provisions in the agreement such as were
expressly agreed upon by the parties.
Dispute on amount owed
[36] At the time of dispatching the s 129 notice the defendant’s arrears
amounted to R110 863.13. The statement of account bares this amount as at
1 August 2025, and exhibits the mix of the defendant’s earlier mentioned
payments. The defendant contends that her arrea rs amounted to ‘approximately
R65 000’. She does not do so by engaging with the entries in the statement, nor
does she indicate by way of a counter-calculation or documentary evidence how
the approximation is computed.
[37] In each of the above aspects the defendant’s averments, contextualised in
their totality, are needlessly bald, vague and sketchy, and does not satisfy this
court that she has advanced a bona fide defence. Her initial protestation that
more than the prescribed 15 days had lapsed before del ivery of the notice of
application for summary judgment, is confounding, and is, evidently, based on a
22 Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA) at paras 15, 16, 18, and 19.
23 Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd 1996 (2) SA 537 (C) at 542E-F.
misconception that court days and not calendar days are factored in calculating
the timeframe.
[38] On a concluding note it is salutary to remind the practiti oner who drafted
the special plea of his/her obligation to ensure that his/her status is properly
reflected in accordance with the requirements in uniform rule 18 relating to the
manner in which a pleading must be signed.24
[39] In the premises the following order issues:
1. Summary judgment is granted against the defendant for return by
the defendant to the plaintiff of a 2018 Toyota Fortuner 2.4GD -6
R/B motor vehicle with engine number 2[...] and chassis number
A[...].
2. The defendant shall pay the plaintiff’s costs of suit on the
Magistrates’ Courts tariff.
____________________________
S RUGUNANAN
JUDGE OF THE HIGH COURT
24 The commentary to rule 18(1) in Van Loggerenberg supra is instructive.
Appearances:
For the Plaintiff: M Somandi, Huxtable Attorneys, Makhanda
Tel: 046-622 2694, (Ref. O Huxtable)
For the Defendant: A N Gxagxisa, Siya Maqungu Inc, Mthatha,
Tel: 067-720 1704
Date heard: 24 March 2026.
Date delivered: 07 April 2026.