IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION MAHIKENG
CASE NO: 2315/2024
Not Reportable
In the matter between:
DONOVANJOHANNJANSEVANVUUREN
And
APPLICANT
BMW FINANCIAL SERVICES
(SOUTH AFRICA) (PTY) LTD
Coram: Reddy J
Heard: 30 April 2026
RESPONDENT
Delivered: Judgment was handed down electronically by circulation to the
parties' legal representatives by email and released to SAFLII. The date and
time for handing down the judgment are deemed to be 16h00 on 13 May 2026.
Summary:
Application for leave to appeal against summary judgment - whether
prescription had run and whether the running thereof was interrupted by a tacit
acknowledgment ofliabil ity in terms of s 14 of the Prescription Act 68 of 1969
- whether the court impermissib ly resolved a dispute of fact on the papers and
whether annexure SB was admissible in summary judgment proceedings -
whether compliance with ss 127(2) and 127(5) of the Nationa l Credit Act 34
of 2005 is a jurisdictional precondition to enforcement - whether the
certificate of balance was contractually compliant - whether the vehicle was
sold for a fair market value - both requirements of s 17(1)(a) of the Superior
Courts Act 10 of 2013 considered - application dismissed.
ORDER
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
JUDGMENT
REDDY J
Introduction
[1] Before this court is an application for leave to appeal. The applicant, Mr
Donovan Johann Janse van Vuuren (van Vuuren) , seeks leave to appeal the
summary judgment entered against him by this court on 20 January 2026. The
respondent, BMW Financial Services South Africa (Pty) Ltd (BMW), has
filed a notice to abide. It follows that the application proceeds unopposed.
The test for leave to appeal
[2] The test for the grant of leave to appeal is prescribed by section 17(1) of
the Superior Courts Act. 1 It reads :
"(l) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that -
(a) (i) the appeal would have a reasonable prospect of success; or
(b) (ii) there is some other compelling reason why the appeal should be
heard, including confl icting judgment s on the matter under
consideration ;
(b) the decision sought on appeal does not fall within the ambit of section
16(2)(a); and
( c) where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and prompt resolution
of the real issues between the parties."
[3] In S v Smith 2 this test was described in the following way:
"What the test of reasonab le prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a court of appeal
could reasonably arrive at a conclusion different to that of the trial court. In
order to succeed, therefore, the appellant must convince this court on proper
grounds that he has prospects of success on appea l and that those prospects
are not remote, but have a realistic chance of succeeding. More is required
to be established than that there is a mere possibility of success, that the case
is arguab le on appeal or that the case cannot be categor ised as hopeless.
There must, in other words, be a sound rational basis for the conclusion that
there are prospects of success on appeal."
I. Superior Courts Act IO of20I 3.
2 S v Smith [20 11] ZASCA 15; 20 12 ( 1) SACR 567 (SCA) at para 7.
[4] The threshold is not whether the appeal will succeed, but whether it has
a realistic chance of succeeding . The question is whether another court would
reasonably reach a different conclusion.
The grounds of appeal
[5] The following grounds of appeal advanced by van Vuuren can be
broadly summarised as follows:
(i) Whether prescription had run, it being common cause on BMW' s
own version and on the facts accepted by the court that the cause of
action arose on 12 May 2021 and that summons was served on 13
May 2024, being a period of three years and one day.
(ii) Whether the running of prescription was inte1Tupted in terms of s 14
of the Prescription Act3, ( the PA) and in particular, whether the
conduct relied upon by the BMW constituted an acknowledgment of
liability .
(iii)Whether the alleged acknowledgment ofliability was established on
admissible evidence, regard being had to the evidentiary limits
applicable to summary judgment proceedings.
(iv)Whether the court impermissibly resolved a material dispute of fact
on the papers, van Vuuren having denied any acknowledgment of
liability in his affidavit resisting summary judgment.
(v) Whether BMW impermissibly supplemented its case by raising the
interruption of prescription for the first time in the summary
judgment affidavit , it not having been pleaded.
3 The Prescription Act 68 of 1969.
The lee:al principles governine: summary judgment
[6] The rationale and requirements for granting or denying summary
judgment are trite. The test is whether the defendant has satisfied the court that
they have a bona fide defence to the action4.This entails assessing whether the
facts pleaded by the defendant raise a triable issue and a sustainable defence
in law. The pleaded defence must not be bald, vague or sketchy.
[7] The question that engages this court is whether any of the five grounds
of appeal advanced by van Vuuren affords a reasonable prospect that another
court would come to a different conclusion on any of those grounds, or
whether there is some other compelling reason why the appeal should be
heard. I propose that each ground be dealt with in turn.
Background
[8] To place the grounds of appeal in proper perspective, the following
salient facts warrant repetition. On 20 December 2018, BMW and van Vuuren
entered into a written Instalment Sale Agreement for the purchase of a 2012
BMW K 1600 GTL for R247 521.52. On 24 February 2021, van Vuuren
elected to surrender the motor vehicle voluntarily in terms of s 127(l)(a) and
(b) of the National Credit Act5.
[9] The vehicle was valued at R89 840.00 by TUY SUD South Africa on
12 March 2021 and sold at public auction on 12 May 2021 for R51 750.00. A
notice in terms of s 127(5) was prepared on 11 April 2022, reflecting an
4 Maharaj v Barclays National Bank ltd 1976 (I) SA 418 (A)
5The National Credit Act 34 of 2005.
outstanding balance ofR128 087.52. As of24 April 2024, the amount due was
Rl58 073.51. Summons was served on van Vuuren on 13 May 2024.
[10] It is common cause, on BMW's own version and as accepted by this
court, that the cause of action arose on 12 May 2021 and that summons was
served on 13 May 2024, a period of three years and one day. The prescriptive
period under s l l(d) of the PA primafacie expired on 12 May 2024, the day
before service.
Prescription: whether the running thereof was interrupted
[11] Advocate Riley submitted that the cause of action arose on 12 May
2021, being the date the vehicle was sold at auction, and that the three-year
prescriptive period under s l l(d) of the PA accordingly expired on 12 May
2024. Summons was served on 13 May 2024, one day later.
[12] That contention was accepted in the judgment. In our law, breach of
contract is remediable through two mutually exclusive options; a claim for
specific performance, or cancellation of the contract and a claim for damages.
As this court found, following van Vuuren's voluntary surrender of the vehicle
on 24 February 2021, the agreement was cancelled. The cancellation put paid
to the first option. The claim that then lay open to BMW was a claim for
damages. Prescription of that claim ran from the date the debt became due,
which was 12 May 2021, the date on which the shortfall was crystallised by
the auction sale. BMW seems to concede that summons was served a day after
the three-year prescriptive period. The question that then engages this court is
whether the running of prescription had been interrupted. That is the question
to which I now tum.
[13] Advocate Riley contended that this court's rejection of the prescription
defence rested on a single finding, namely, that van Vuuren's request for a
statement of account and a reduced settlement offer in April 2022 constituted
a tacit acknowledgment of liability in terms of s 14 of the PA. That finding,
he submitted, cannot be sustained. Advocate Riley advanced that an
acknowledgment of liability, whether express or tacit, must be clear,
unequivocal, and inconsistent with any explanation other than an admission
of indebtedness. More fundamentally , Advocate Riley advanced that before
that legal enquiry can even arise, the factual foundation must first be
established. In this matter, that foundation is squarely disputed.
[14] Van Vuuren categorically denied in his opposing affidavit that any
request for a settlement offer was made, and further denied that any conduct
on his part constituted an acknowledgment of liability. Applying the Plascon
Evans 6ru1e, Advocate Riley submitted, the court was required to approach
the matter on van Vuuren's version and could not accept BMW's disputed
version unless it was so far-fetched or untenable that it could be rejected on
the papers.
[ 15] Advocate Riley further submitted that the only material placed before
the court by BMW was annexure SB, an internal email exchanged between
unidentified persons within BMW's own structures, in which it was noted that
"the client requests a detailed statement with possible settlement reduced
offer." Advocate Riley avers that this document was not authored by van
Vuuren. It was not a written acknowledgment emanating from him. It was not
a recording, transcript, signed note, or contemporaneous admission. For
6 Plascon-Evans Paints (TVl) ltd. v Van Riebeck Paints (Pty) ltd. (53/84) [ I 984] ZASCA 5 I; [ I 984] 2 All
SA 366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (21 May
BMW, it was, at best, the weakest kind of hearsay. It did not establish who
spoke to van Vuuren, whether any conversation took place, what words were
used, whether they were accurately conveyed, or the context in which the
alleged request arose.
[16] Advocate Riley reasons that there was accordingly no proper evidential
basis for the court to find, as a fact, that van V uuren had requested a settlement
offer, let alone that he had thereby acknowledged liability. Moreover,
Advocate Riley continues that the strict procedural limits governing summary
judgment proceedings preclude a plaintiff from supplementing its case with
evidentiary material annexed to the Uniform Rule 32(2) affidavit.
[ 17] To this end, Advocate Riley proposed that the interruption of
prescription was not pleaded. The email was accordingly improperly
introduced. Simply put, Advocate Riley concludes that even if the comt were
to accept that some engagement occurred, a request for a statement of account
or a settlement figure remains ambiguous and, by itself, does not meet the
threshold required by s 14 of the PA. At the very least, the dispute raised a
triable issue that ought to have been referred to trial.
Deliberation
[18] What needs to be underscored is that an acknowledgment ofliability for
purposes of s 14 of the PA is a matter of fact, not oflaw. This was affirmed in
KLD Residential v Empire Earth Investments7 and Madibeng Local
7 KLD Residential CC v Empire Earth Investments 17 (Pty) Ltd ( 11 35/2016) [201 7] ZASCA 98; [201 7] 3
All SA 739 (SCA); 2017 (6) SA 55 (SCA) (6 July 2017)
Municipality v Public Investment Corporation Ltcf. Advocate Riley submitted
that a request for a settlement figure is as consistent with a debtor who disputes
the claim as with one who admits it. That submission is too broad. The conduct
on 12 April 2022 was not a mere enquiry about a disputed amount. Van
Vuuren, through his own external debt collector, sought a reduced settlement
offer on the specific debt. The implicit concession that something is owed
inheres in the very act of seeking a reduced figure on that debt. As I see it, that
conduct constitutes a tacit acknowledgment of liability.
[19] I tum to the factual dispute. Van Vuuren contends that he categorically
denied the April 2022 contact in his opposing affidavit and that the court was
accordingly required to accept his version. The question that engages this
court is whether that denial raised a genuine triable issue. In my view, it did
not. The defence must not be bald, vague or sketchy. Van Vuuren's opposing
affidavit did no more than deny, in the most general terms, that any
acknowledgment of liability was made. Van Vuuren offered no account of
what occurred or did not occur on 12 April 2022. He identified no inaccuracy
in the evidence placed before the court. He provided no alternative explanation
for the content of annexure SJ3. In these circumstances, there was nothing of
substance to resolve. The denial was bare. A bare denial is not a bona fide
defence.
[20] I am also unpersuaded that the Plascon-Evans 9 rule assists van Vuuren.
That rule governs application proceedings where a court is required to evaluate
two competing versions on affidavit. Summary judgment under Rule 32 is a
8 Madibeng l ocal Municipality v Public Investment Corporation ltd (603/20 17) [2018) ZASCA 93; 2018
(6) SA 55 (SCA) (1 June 20 18)
9 Plascon-Evans Paints v Van Riebeeck Paints ( Pty) Ltd 1984 (3) SA 623 (A).
different and more confined procedure. The court is not called upon to
determine which version prevails. The enquiry is the narrower one of whether
the defendant has placed sufficient facts before the court, with adequate
particularity, to show that the defence is bona fide and good in law. Van
Vuuren's bare denial did not meet that standard.
[21] I turn to the admissibility of annexure SJ3 and the supplementation
argument. It is correct, as a general principle, that a plaintiff in summary
judgment proceedings may not use the founding affidavit to place before the
court evidence that goes beyond what is necessary to verify the pleaded cause
of action. Advocate Riley contended that the interruption of prescription was
not pleaded and that SB was improperly introduced. He further submitted that
SJ3 is an internal email between unidentified persons within BMW's own
structures and that it constitutes the weakest form of hearsay.
[22] As I see it, the supplementation objection does not arise on the facts of
this matter. Van Vuuren first raised prescription as a special defence in his
affidavit resisting summary judgment. BMW placed the evidence of the April
2022 contact before the court in direct response to that defence. A plaintiff is
entitled to answer a defence once it is raised. The introduction of SJ3 was not
a supplementation of BMW's cause of action. It was a rebuttal of a defence.
[23] Insofar as the hearsay objection is concerned, it is significant that van
Vuuren did not, in his opposing affidavit, challenge the authenticity of the
document. He did not deny that it was generated within BMW's systems. He
did not challenge the accuracy of its contents. He did not depose to the fact
that no such request was ever conveyed. Van Vuuren's denial was directed at
the legal conclusion sought to be drawn from the document, not at the facts
recorded in it.
[24] In those circumstances, the document remained before the court on its
contents, unchallenged in substance. Given van Vuuren's litigating conduct,
the inevitable conclusion was that there was a proper evidential basis for this
court to find, as a fact, that the request had been made. Accordingly, this point
must fail.
Non-compliance with sections 127(2) and 127(5) of the National Credit
Act 34 of 2005
[25] Advocate Riley avows that these provisions are peremptory and that
compliance with them is a jurisdictional precondition to enforcing the credit
agreement. He contended that BMW has not presented sufficient documentary
proof that the s 127(2) notice was sent by prepaid registered mail to van
Vuuren's chosen domicilium , and that no track-and-trace slip, postal receipt,
or affidavit from the person responsible for dispatch was furnished.
[26] Advocate Riley further claims that the reliance by BMW on Edwards
v FirstRand Bank Ltd t/a Wes bank 10 is misplaced . In that matter, documentary
proof was furnished that the notices were generated and sent. In this matter,
he submitted, no such proof of dispatch exists for the s 127(2) notice, and the
track-and-trace receipt relied upon for the s 127(5) notice does not, on its own,
establish delivery to van Vuuren's domicilium .
10 Edwards v FirstRand Bank Ltd tl a Wesbank [2016) ZASCA 144; 20 17 ( I) SA 316 .
Deliberation
[27] On 8 March 2021, a written notice in terms of s 127(2) was sent by
prepaid registered mail to van Vuuren. The contents thereof informed van
Vuuren that the vehicle had been valued in the amount of R89 840.00. On 12
May 2021, the vehicle was sold at auction for R51 750.00. A notice under s
127(5), dated 11 April 2022, was delivered via registered email on 25 March
2024.
[28] In the final analysis, this court must be satisfied that BMW has placed
before it facts demonstrating that, on a balance of probabilities, the notices as
set out in s 127(2) and (5) have been sent to van Vuuren. In my view,
consistent with Edwards, the use of a track-and-trace receipt satisfies the
requirements of delivery, particularly where van Vuuren has not rebutted it.
[29] On the s 127(2) notice, the uncontested averment in the founding
affidavit that the notice was dispatched by prepaid registered mail to van
Vuuren's chosen domicilium, in the absence of any denial of receipt or
challenge to the averment in the opposing affidavit, is sufficient to establish
dispatch on a balance of probabilities. Van Vuuren's bare denial that the
notices comply with the NCA does not constitute a bona fide defence.
Resultantly, there is no merit in this point, and it falls to be dismissed.
The certificate of balance
[30] Advocate Riley maintains that the certificate of balance (COB) was
signed by a supervisor, not a person designated as 'manager', as required by
clause 1 7 .1 of the agreement. It is common cause that the COB was signed by
Leonie Du Plessis, Supervisor, Asset and Loss Recovery. Advocate Riley
submitted that the COB was accordingly not compliant with clause 17 .1 and
cannot constitute prima facie proof of indebtedness. BMW concedes the
designation of the signatory but contends that on a proper construction of
clause 17.1, and having regard to the resolution dated 25 May 2021
authorising the Supervisor Loss and Recovery to sign COBs on behalf of
BMW, the COB is compliant.
Deliberation
[31] In Senekal v Trust Bank of Africa Ltd 11 the court considered the
purpose of a certificate of balance clause and held that its primary purpose is
to facilitate proof of the amount of the principal debtor's indebtedness at any
given time, and that a certificate shall be sufficient or primafacie proof of the
amount due. The certificate of balance fulfils its primary purpose of providing
prima facie proof of van Vuuren's indebtedness and is compliant with the
underlying agreement. Van Vuuren takes no issue with the amount of the debt
or the applicable interest as reflected in the COB. The challenge is directed
solely at the signatory's designation.
[32] On a proper construction of clause 17.1 of the agreement, a supervisor
in the relevant division is sufficiently senior to satisfy the requirements of the
certificate clause, particularly where the authority to sign is confirmed by a
board resolution. It follows that this point falls to be dismissed.
11 Senekal v Trust Bank of Africa ltd 1978(3) SA 375 (A)
The dispute regarding the sale price
[31] Advocate Riley argues that BMW's assertion that the vehicle was sold
for the highest price reasonably obtainable as required by s 127( 4)(b) of the
NCA is questionable. He advances that the substantive facts underpinning the
realised amount are undisclosed by BMW, and that pertinent facts inter alia
the auction conditions, the advertising process, the number of bidders, the
reserve price, and the market valuation of the vehicle at the time of sale have
not been furnished.
Deliberation
[32] Van Vuuren misses the significance of the provisions of s 128 of the
NCA and the potential remedy it subsumes. What is more, van Vuuren has not
adduced any extrinsic evidence to bolster his contention that the vehicle was
not sold for a fair market value. Consequently, this point suffers a similar fate
as the previous grounds and is dismissed. It is accordingly dismissed.
Conclusion
[33] I have considered each of the five grounds of appeal advanced on
behalf of van Vuuren and found that none provides a reasonable prospect
that another court would reach a different conclusion. That disposes of the
first part of s 17(l)(a) of the Superior Courts Act. As to the second part, no
compelling reason has been advanced for the appeal to be heard in any event.
The matter does not raise a novel point of law, does not affect a broad class
of litigants, and does not otherwise warrant the attention of a higher court. In
the premises, there is no basis for leave to appeal to be granted. The
application must be dismissed.
Costs
[34] BMW has filed a notice to abide and has not particip ated in the
application. In the circumstances, there is no order as to costs.
Order
[35] Resultantly, I make the following order:
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
A REDDY
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
NORTH WEST DIVISION
APPEARANCES
For the applicant: Advocate B Riley
Instructed by: Willie Jordaan Attorneys
C/O Van Rooyen Thlapi & Wessels
Attorneys
Respondent: DRSM Attorneys (Notice to Abide)