IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN
Case No: 2025-131100
In the matter between:
TIREPOINT (PTY) LTD Plaintiff
and
TIMELINK CARGO (PTY) LTD Defendant
Reportable / Not reportable
Coram: Anderssen AJ
Heard: 19 May 2026
Delivered: Electronically on 21 May 2026
Summary: Summary judgment – claim admitted – damages claimed in
reconvention – written agreement expressly excludes right of set -off – summary
judgment granted
ORDER
1. Summary judgment is granted against the defendant in the following
terms:
1.1 Payment of the sum of R4 823 649.09;
1.2 Interest on the aforesaid amount at the prime interest rate plus
3% from due date until date of payment;
1.3 Costs of suit on the attorney and client scale.
JUDGMENT
Anderssen AJ:
Introduction
[1] The plaintiff (“Tirepoint”) applies for summary judgment for payment in the
amount of R4 823 649.09 together with costs and interest . The claim
arises from the alleged breach of a written credit facility agreement
concluded in March 2018. Tirepoint had sold and delivered to the
defendant (“ Timelink”) certain goods between December 2024 and April
2025 for which it was not paid.
[2] Timelink raised a point in limine claiming that the founding affidavit in
support of the summary judgment application went beyond the prescripts
of Rule 32(2)(b). This rule requires a plaintiff to verify the cause of action
and the amounts claimed in the particulars of claim but Tirepoint verified a
different claim – the capital amount originally claimed had reduced as
payments had been received pursuant to the issue of the summons.
Timelink did not persist with this point in limine at the hearing.
[3] Timelink initially disputed the amounts claimed and sought a debatement
of account. It later conceded that the amount claimed in the summary
judgment application is correct. The other defences raised arise from
Tirepoint’s alleged breach of the agreement:
[3.1] Firstly, Timelink complains that it deposited 107 tyre casings with
Tirepoint for retreading but that it has retained the tyre casings
purporting to exercise a lien over it . The counterclaim seeks
damages in an amount of R320 000 for the unlawful retention of
these casings.
[3.3] Secondly, Timelink claims that it is entitled to damages for breach
of contract, quantified at R3 500 000, arising from Tirepoint’s
delivery of defective tyres. Tirepoint persists with its claim for
summary judgment and relies on clause 2.3 of the agreement,
which expressly excludes the right of set-off.
APPLICABLE LEGAL PRINCIPLES AND CASE LAW
[4] The summary judgment procedure is not intended to deprive defendants
with a triable issue, or a sustainable defence, of their day in court. 1 What is
required of a court hearing a summary judgment application is, first, an
examination of whether there has been sufficient disclosure by a defendant
of the nature and grounds of the defence and the facts upon which it is
founded. Second, whether the defence so disclosed is both bona fide and
good in law. If these thresholds have been met, the court is bound to
refuse summary judgment.2
[5] Rule 32(5) affords the court hearing an application for summary judgment
1 Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1
(SCA) at 11G-12D.
2 See Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 425G-426E.
a discretion as to whether to enter summary judgment or not. Thus, even if
a defendant fails to comply with the provisions of rule 32(3)(b), which
requires a full disclosure of the nature and the grounds of the defence (or
counterclaim) as well as the material facts upon which it relies , it does not
mean that summary judgment will follow.3
The meaning of ‘fully’ and ‘bona fide’ as set out in case law
[6] The requirement that the defendant’s affidavit must disclose the nature and
the grounds of his defence, and the material facts relied upon therefor,
‘fully’, was discussed in the Breitenbach-matter.4 It is not necessary to set
out the full details of all the evidence which he proposes to rely upon in
resisting the plaintiff’s claim at the trial.
[7] All that is required is that the defendant’s defence be not set out so baldly,
vaguely or laconically that the Court, with due regard to all the
circumstances, receives the impression that the defendant has, or may
have, dishonestly sought to avoid the dangers inherent in the presentation
of a fuller or clearer version of the defence which he claims to have. 5 After
all, a dishonest deponent (if he is wise) will present as narrow a front as
possible, and, if it is practicable, a blurred one.6
[8] In Tumileng the Maharaj judgment was considered by Binns -Ward J after
Rule 32 was amended. 7 He concluded that the summary judgment
3 See in this regard Soil Fumigation Services Lowveld CC v Chemfit Technical Products
(Pty) Ltd (680/2002) [2004] ZASCA 31 (31 March 2004); [2004] 2 All SA 366 (SCA); 2004 (6) SA
29 (SCA) at para [10].
4 Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228B/C.
5 Breitenbach at 229A.
6 Ibid at 228H.
7 Tumileng Trading CC v National Security and Fire (Pty) Ltd (3670/2019) [2020] ZAWCHC 28
(30 April 2020); 2020 (6) SA 624 (WCC) at para [13].
procedure, even in its amended form, remains true to its origin. Rule 32(3),
which regulates what is required from a defendant in its opposing affidavit,
has been left sub stantively unamended in the overhauled procedure,
which means that the test remains what it always was: has the defendant
disclosed a bona fide (i.e. an apparently genuinely advanced, as distinct
from sham) defence? There is no indication in the amended rule that the
method of determining that has changed.
[9] The court is not obliged to search for a defence among loosely made
allegations.8 The defendant must set out facts with sufficient particularity
and detail to enable the court to assess whether the defence is bona fide.
The use of the word ‘satisfy’ in Subrule (3)(b) does not mean ‘prove’. What
is required is that the defendant set out in his affidavit facts which, if
proved at the trial, will constitute an answer to the plaintiff’s claim. The sub-
rule was not intended to demand the impossible.9
[10] Bona fides is not given its literal meaning in the Subrule. It is the defence
that must be bona fide, and whether it is bona fide or not depends upon
the merits of that defence as raised in the defendant’s affidavit. It is
sufficient if the defendant swears to a defence, valid in law, and the
affidavit shows that there is a reasonable possibility that the defence he
advances may succeed on trial. If the defendant, however, omits facts
upon which a defence can be based, the defendant will fail. 10 Similarly, if
the defendant is not bona fide , the defendant must fail as the defence
8 Breitenbach supra.
9 Breitenbach supra at 228B.
10 Border Concrete Engineering Co (Pty) Ltd v Knickelbein 1982 (2 SA 648 (E) at 651.
would then also not be bona fide.11
Raising a claim in reconvention as a bona fide defence
[11] Spilhaus & Co Ltd v Coreejees 12 was one of two judgments by
Watermeyer J in which he resolved the issue whether, as a matter of
principle, the requirement of a bona fide defence in summary judgment
proceedings can be satisfied by the defendant raising an unliquidated
claim for damages which exceeds the sum of the plaintiff's claim. In this
case, as in the earlier case of Weinkove v Botha ,13 Watermeyer J held
that, if, as a matter of pleading a defendant is allowed to raise the
existence of an unliquidated counterclaim , which exceeds the amount of
the claim as a defence to the plaintiff's claim, it must also be permissible to
raise that same defence in answer to an application for summary
judgment.
[12] The Supreme Court of Appeal considered the issue of when and whether a
claim in reconvention can constitute a bona fide defence in a summary
judgment application in the Soil Fumigation case. With reference to an
earlier judgment in this division,14 it held:
[8] … If the counterclaim put up by the defendant is less than the plaintiff's claim,
the defendant cannot be said, in this manner, to have put up a defence to
the whole of the plaintiff's claim. If, however, the balance is covered by a payment
into court, a defendant succeeds, in the words of Corbett J:
'[om] op dié wyse 'n bona fide verweer teen die hele hoofeis op te werp'.
[9] What Corbett J did not deal with explicitly, was the question in the present
11 Van Eeden v Sasol Pensioenfonds 1975 (2) SA 167 (O) at 173H and 179F-180B.
12 1966 (1) SA 525 (C) at 529E-H.
13 1952 (3) SA 178 (C) at 183A-D.
14 Stassen v Stoffberg 1973 (3) SA 725 (C).
case, namely whether as a matter of pr inciple a counterclaim for a lesser amount
could be regarded as constituting a 'bona fide defence' to that part of the plaintiff's
claim which the counterclaim, if successful, would extinguish. The dictates of logic
referred to by Watermeyer J in Weinkove and Spillhaus & Co. Ltd., in my view,
indicate that it could. The reasoning adopted by Watermeyer J was that if it is
permissible for a defendant, by way of a plea, to raise the existence of an
unliquidated counterclaim as a defence to the plaintiff's clai m, then, it should be
equally permissible to raise that defence by way of affidavit in summary judgment
proceedings. Rule 22(4), and particularly the second part thereof, specifically
allows the defendant to put up a counterclaim for a lesser amount as a defence to
the extent of that amount. In the light of these provisions I can, as a matter of
principle, see no reason why a defendant should not be allowed to raise the same
partial defence by means of a counterclaim for a lesser amount in summary
judgment proceedings. A defendant who fails to pay the balance into court runs
the risk that summary judgment may be granted for the balance together with the
costs resulting from the summary judgment application. In order to avoid this risk
a defendant may therefore be well advised to follow the example of Kroonklip
Beleggings (Edms) Bpk by paying the balance into court.
[13] The law is thus settled that an unliquidated counterclaim for an amount
exceeding the claim in convention could, if bona fide in the sense
contemplated by Rule 32(3)(b) amount to a defence in summary judgment
proceedings. Even if the unliquidated counterclaim is for a lesser amount a
defendant could still defeat the summary judgment application, but runs
the risk that summary judgment may be granted for the balance together
with the costs resulting from the summary judgment application. In order to
avoid this risk a defendant may therefore be well advised to pay the
avoid this risk a defendant may therefore be well advised to pay the
balance into court thereby providing security in terms of Rule 32(3)(a).
THE DEFENCES RAISED BY THE DEFENDANT
[14] In its plea, Timelink admitted the citation of the parties, the jurisdiction of
the court, the existence and conclusion of a written agreement between
the parties, the identity of the persons that represented the parties and the
terms of the agreement. It also admitted that Tirepoint sold and delivered
to it certain goods in terms of the agreement for which invoices were
rendered. It , however, denied the outstanding balance due or that the
amount was owing, averring that additional payments had been made that
had not been allocated to its account.
[15] Tirepoint subsequently allocated additional payments to the account and
reduced the amount claimed in the summons from R5 837 042.28 to
R4 823 649.09 in the summary judgment application . Updated account
statements showing the allocation of additional payment receipts were
annexed to the summary judgment founding affidavit.
[16] Although Timelink initially sought a debatement of account, it subsequently
(at the hearing) abandoned the defence in light of the provision in the
written agreement that the amount due and payable by it may be
determined and proven by a certificate issued and signed by a director of
Tirepoint. As recorded above, I was informed at the hearing that Timelink
is no longer disputing the amount claimed from it. It persisted with its other
two defences.
[17] Timelink pleads firstly that it delivered to Tirepoint tyre casings for
retreading but that the latter has refused to return the 107 tyre casings to it.
This despite admitting that the tyre casings remained the property of
Timelink. No facts were averred by Tirepoint that would substantiate a lien-
claim and therefore their unlawful retention of the tyre casings caused
Timelink damages in the amount of R320 000 as each tyre casing is worth
R3 000. Neither the plea nor the counterclaim, however, incorporates the
averment that it was an express, tacit or implied term of the agreement that
Tirepoint may not withhold Timelink’s property. Mr MacKenzie conceded
that this may mean that the defence has not been explained ‘fully’ but he
countered to say that Tirepoint has not provided any justification for
withholding Timelink’s property and that it has resorted to impermissible
self-help. If that is so, Timelink has a remedy available to him, other than a
claim in reconvention in which it seeks damages.
[18] It seems to me that Timelink seeks damages (instead of a return of its
property) because, if the damages are proved and quantified it would be
able to set -off its liquidated claim against the claim in convention. This is,
however, not permissible in terms of the credit agreement as I discuss
below.
[19] The second defence raised is that Tirepoint has caused Timelink damages
by delivering defective tyres. The quantum of damages relates not only to
the value of the defective tyres but also to the cost of replacement thereof
and damages sustained to the wheels, the wheel arch structure and the
undercarriage of Timelink’s trucks. An implied term was specifically
pleaded. When Timelink learned about the defective tyres it notified
Tirepoint who refused to conduct a scrap analysis on the defective tyres
and the relationship between the parties broke down. Timelink decided not
to make payment of its account with Tirepoint as a result of the
abovementioned breaches in contract and the resultant damages it
suffered.
DISCUSSION
[20] Neither defence, however, is a bona fide defence within the meaning of
Subrule (3)(b). Set-off can only take place if both debts are liquidated in
the sense that they are capable of speedy and easy proof, and, as a result,
suppliers often exclude the operation of set -off in credit agreements of this
sort. This was the case in casu. The credit agreement between Tirepoint
and Timelink expressly excludes the operation of set-off.
[21] It is settled law that t he operation of set -off may be excluded by
agreement.15 I am not persuaded by the argument from Mr MacKenzie that
the court is not faced with a claim for set -off but rather with a claim for
damages. After all, the purpose of seeking a delay in judgment on the
plaintiff’s claim – because a defendant wants the court to determine its
counterclaim first – is because that defendant wants to set-off its damages,
once liquidated, against the plaintiff’s claim.
[22] In this I take guidance from an earlier decision in this court where it was
faced with a similar set of facts in Collotype Labels.16 The plaintiff and the
first defendant in that matter had entered into an agreement in September
2009 in terms of which the plaintiff undertook to sell certain products and
deliver related services on an on-going basis to the first defendant, subject
to the terms of an overarching agreement of trade. The first defendant
made an application for credit facilities and for the opening of an account
on the same day . The credit agreement expressly provided that the first
defendant was not entitled to set off any amount due to the plaintiff.
[23] The following dictum is of application:
[67] The suggestion that the defendants would not be seeking to set -off the debt
owed by the plaintiff against its claim does not make sense to me. The
defendants are asking for a counter -claim to be determined so that they can set -
off their debt, as determined at a later stage against the plaintiff’s claim. The fact
is, the contract does not allow them to do that. Arguments attempting to get
15 See Blakes Maphanga Inc v Outsurance Insurance Company Ltd (144/2009) [2010] ZASCA
19 (19 March 2010); 2010 (4) SA 232 (SCA); [2010] 3 All SA 383 (SCA) at para [15] and the
authorities relied thereon in footnotes 4,5 and 6.
authorities relied thereon in footnotes 4,5 and 6.
16 Collotype Labels RSA (Pty) Ltd v Prinspark CC and Others (6722/2016) [2016] ZAWCHC
159 (9 November 2016).
around clause 40 are, in my view, unconvincing. For reasons set out above the
defendants are precluded from invoking the operation of set -off, which is
effectively what the counterclaim would seek to do at the end of the day. It further
appears from the correspondence between the parties, that the extent of the
claim itself is yet to be quantified. The outstanding tooling is still to be checked
and verified for quality. Some may need to be remade. Under those
circumstances, it cannot be said that the actual counterclaim is liquidated and I
have not understood the defendants to suggest that it is.
[68] Furthermore, in Spilhaus & Co. Ltd v Coreejees, 17 the court held that, the fact
that the defendant has a counterclaim for damages is not a ‘defence’ to plaintiff’s
action on its claim within the meaning of Rule 32(3)(b). The summary judgment
was therefore granted in favour of the plaintiff with costs.
[69] In any event, nothing prevents the first defendant from instituting action
against the plaintiff should it wish to do so. The door is not ‘shut’ to the
defendants so to speak. Furthermore, both parties through their correspondences
and in court have conveyed that the matter at hand is capable of settlement.
[24] The point was also made in Altech Data (Pty) Ltd v M B Technologies
(Pty) Ltd18, where the court stated the following:
‘(f) The right to set off the damages to be claimed in the counterclaim
It seems to me that, on a proper construction of the structure and nature of
this agreement, the remarks of Lichtenberg J in the case of Herrigel NO v Bon
Roads Construction Co (Pty) Ltd and Another 19 are apposite. The learned Judge
there stated at 676G-677A:
‘… (I)f a party to an action wants to obtain the benefit of set -off, he must
claim to be entitled to set -off; see Hardy NO and Mostert v Harsant 1913 TPD
433; Bain v Barclays Bank (DC & O) Ltd 1937 SR 191.’
Clause 4.2 of the agreement scrutinised in that case stated that ‘ the
Clause 4.2 of the agreement scrutinised in that case stated that ‘ the
purchaser shall pay the seller the purchase price … without deduction or
set-off …’ The court found that the express wording of the relevant clause
precluded the respondent from relying on set -off to avoid payment of the
portion of the purchase price which fell due on 5 December 1997 . The
court decided that if the applicant’s claim for payment of the purchase price
was undisputed and the counterclaim for damages was in dispute it could
17 Reference removed: 1966 (1) SA 525 (C) at 529G-H.
18 1998 (3) SA 748 (W) at 761B-G.
19 Reference removed: 1980 (4) SA 669 (SWA) at 676.
not be set-off against the applicant’s claim.
[25] In light of what I have set out above I am persuaded that Timelink’s
indebtedness to Tirepoint, in terms of the written agreement, has been
admitted. I am of the view that, with due regard to the terms of the written
agreement (particularly the bar to set -off), Timelink cannot avoid judgment
being taken against them simply on the basis of their counterclaim as the
latter cannot be used to set-off the debt against Tirepoint.
CONCLUSION
[26] My decision does not close the doors of the court to Timelink. It is s till able
to pursue its claim for damages against Tirepoint. My order does not
prevent Timelink from pursuing its claim, should it wish to do so.
[27] Costs must follow the cause . The parties agreed, in clause 9.6 of the
agreement that Tirepoint would be entitled to attorney and client costs
should it have to incur legal costs to recover monies owing to it.
[28] The order is recorded above.
__________________________
ANDERSSEN J S
Acting Judge of the High Court
Appearances:
For the plaintiff: Adv U Mahilall
Instructed by: Harris Billings Attorneys
For the defendant: Adv P Mackenzie
Instructed by: Van der Spuy Attorneys