IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 2025-121406
In the matter between:
STANDARD BANK OF SOUTH AFRICA LTD PLAINTIFF
(REGISTRATION NUMBER: 1962/000738/06)
and
TASHRIQ AHMED DEFENDANT
Coram: LEKHULENI J
Heard: 31 July 2026
Delivered: 27 August 2026
Summary: Application for summary judgment – Application filed late.
Condonation application - Defendant not raising a bona fide defence –
Application for summary judgment granted.
ORDER
1. The plaintiff’s application for summary judgment is hereby granted in the
following terms:
a. Confirmation of the cancellation of the agreement between the
parties.
b. The defendant is directed to restore to the plaintiff possession of
the vehicle, namely, 2020 Mercedes-Benz C200 A/T.
c. The claim for damages, if any, is postponed sine die.
d. Each party is ordered to pay its own costs of the summary
judgment application.
JUDGMENT
________________________________________________________________
LEKHULENI J:
Introduction
[1] This is an application for summary judgment in which the applicant (“the
plaintiff”) seeks summary judgment against the respondent (“the defendant”).
The plaintiff seeks an order directing the defendant to restore possession of the
goods, a 2020 Mercedes -Benz C200 A/T, to the plaintiff and to retain all
monies the defendant paid to the plaintiff. The plaintiff also seeks condonation
for the late filing of its summary judgment application. In addition, the plaintiff
seeks an order granting the plaintiff leav e to apply for damages, if any, in an
amount to be calculated by subtracting the vehicle's current market value and
any applicable rebate of finance charges from the outstanding balance. The
plaintiff also seeks the costs of the summary judgment application.
The facts
[2] The plaintiff’s claim against the defendant arises from a written
instalment sale agreement entered into between the plaintiff and the defendant
in August 2020, in which the plaintiff sold to the defendant a 2020 Mercedes -
Benz C200. The total costs of the agreement, including interest, costs, and
charges, were R1 175 863.70, payable to the plaintiff in 72 consecutive monthly
installments of R13 015.70, commencing on 01 October 2020, with the final
payment of R252 749.00 scheduled for March 2027. Under the agreement, the
plaintiff would remain the owner of the vehicle until the defendant had repaid
all amounts owed to the plaintiff in terms of the agreement, whereupon
ownership of the vehicle would pass to the defendant.
[3] The plaintiff issued summons against the defendant and pleaded that the
defendant failed to pay the instalment amount due under the agreement on the
due date. Th e plaintiff asserted that the defendant breached the terms and
conditions of the agreement and further failed to remedy that breach within the
time specified in the plaintiff's letter of demand to the defendant to do so. To
this end, the plaintiff issued summons against the defendant, claiming
cancellation of the instalment sale agreement and return of the vehicle. The
defendant filed a notice to defend and later filed his plea.
[4] Subsequently, the plaintiff applied for summary judgment against the
defendant to confirm the cancellation of the agreement and for the return of the
vehicle. The plaintiff brought its application for summary judgment out of time.
Accordingly, the plaintiff applied for condonation. In its application for
condonation, the plaintiff stated that the summary judgment application was
lodged out of time because the plaintiff gave the defendant time to remedy the
breach, which ultimately delayed filing the summary judgment application.
[5] The defendant represented himself and prepared all the pleadings
personally. However, at the hearing of this application , Mr K assel appeared on
behalf of the defendant and argued for the dismissal of the application on the
grounds that it was filed out of time. Mr Kassel also sought to introduce an
opposing affidavit resisting summary judgment signed by the respondent
without an application for condonation. Ms Hirst, counsel for the plaintiff,
opposed admission of the affidavit, contending that it would prejudice the
plaintiff because it was only brought to their attention on the day of the hearing.
[6] In terms of Rule 27(3) of the Uniform Rules, the court may, on good
cause shown, condone any non-compliance with the rules of court. Condonation
of non -observance of court rules is not a mere formality. A party seeking
condonation must satisfy the court that there is sufficient cause to excuse the
non-compliance. Whether condonation should be granted is a matter of
discretion that must be exercised in light of all the circumstances of the
particular case. Moreover, the application for condonation must be bona fide
and not made with the intention of delaying the other party’s claim. An
applicant for condonation should satisfy the court under oath that he has a bona
fide defence.
[7] The defendant in this matter is not an ordinary unsophisticated person.
From the papers filed, he was a magistrate and subsequently an attorney. He
knew, or at least should have known, that he had to file a condonation
application for the late filing of his opposing affidavit. He did not do so . As
foreshadowed above, there is no application whatsoever for condonation for the
late filing of the opposing affidavit; as a result, the respondent’s opposing
affidavit cannot be accepted.
[8] Even if this finding is incorrect, the defence raised in the purported
affidavit is similar in substance to the defence presented in the plea. The
defendant did not raise any defence on the merits in the purported affidavit but
technical defences relating to non -compliance with s 129 of the N ational Credit
Act 34 of 2005 (“NCA”) which are contained in his plea.
The defendant’s defence as pleaded
[9] As I will further demonstrate hereunder, the defendant does not have a
bona fide defence. The defendant admits that he is in breach of the instalment
sale agreement and that he has not paid in accordance with the agreement. In his
plea, the defendant denies that the plaintiff is entitled to summary judgment or
to summarily terminate the agreement and repossess the vehicle . The defendant
asserts that the plaintiff failed to comply with the provisions of s 129 of the
NCA. The defendant further averred that proper notice was not given, or
alternatively, that the s 129 notice was defective because it was sent to the
wrong address. The defendant asserted that the plaintiff has not afforded him a
reasonable opportunity to bring the arrears up to date or to make suitable
repayment arrangements as envisaged by the NCA.
[10] In the alternative, the defendant pleaded that, should the court find that
the plaintiff is entitled to cancel the agreement, the defendant prayed that the
court exercise its equitable discretion under the NCA by granting him a 60-day
period to bring the arrears up to date instead of authorising repossession.
The plaintiff’s grounds for summary judgment
[11] The plaintiff refuted the defendant's defence and, in its affidavit in
support of its application for summary judgment, averred that the defendant was
in default, lacked a bona fide defence to the plaintiff's action, and had delivered
notice to defend the action instituted by the plaintiff solely for the purpose of
delay. The plaintiff denied that it failed to comply with s 129 of the NCA and
averred that proper notice in terms of s 129 was duly dispatched to the
defendant personally at the chosen domicilium address in accordance with the
provisions of the NCA. The notice was delivered on 4 July 2025 and served
upon the defendant. The plaintiff pleaded that the defendant did not pay for the
vehicle in terms of the agreement and was in breach thereof. The plaintiff
prayed for summary judgment.
Discussion
[12] Before I can address the merits of the summary judgment application, I
wish to pronounce on the condonation application for the late filing of the
summary judgment application. This preliminary point was the main defence
raised by the defendant at the hearing of this application . I deem it proper to
consider this preliminary point first.
[13] The defendant entered his appearance to defend on 15 June 2025. The
defendant subsequently failed to file its plea, and on 8 September 2025 , the
plaintiff served a notice of bar on the defendant. The defendant subsequently
served and filed its plea on 8 September 2025. On 18 June 2026, the plaintiff
proceeded to file its application for summary judgment against the defendant.
However, due to improper service, the matter was postponed to 31 July 2026.
[14] Rule 32 (2)(a) provides that within 15 days after the date of delivery of
the plea, the plaintiff shall deliver a notice of application for summary
judgment, together with an affidavit made by the plaintiff or by any other person
who can swear positively to the facts. In Pareto Ltd and Another v Kotze ,1
Cloete J noted that Rule 27(1) of the Uniform Rules of Court , which permits a
court to grant condonation on notice and good cause shown, specifically
provides that it applies to all the rules of the High Court (thus including Rule
32). The Court further noted that Rule 27(2) permits condonation to be granted
even if sought only after the expiry of a stipulated time period.
[15] Cloete J observed further that given the amendment to Rule 32 on 31
May 2019 (some 10 years after Joob Joob) to provide for summary judgment
after delivery of a plea as opposed to a notice to defend, there seems to be a
compelling argument to be made that a plaintiff should not be ousted on
technicalities, particularly where a defendant fails to raise a triable issue in a
plea, provided that the requirements of Rule 27 are met. The learned justice
noted that this is consistent with the very purpose of the summary judgment
procedure, namely, to avoid the delay and cost of going to trial where a defence
lacking in substance ( i.e., one which does not raise a triable issue) can be
disposed of at an earlier stage.
[16] From the above dictum, it seems to me that the plaintiff must satisfy the
requirements of Rule 27 (3) before the late filing of a summary judgment
application can be condoned. In terms of Rule 27(3), the court may, on good
cause shown, condone any non -compliance with these rules. The requirement
for good cause requires that an applicant provide an acceptable explanation and
that, on the merits, the defendant show a bona fide defence that prima facie
carries prospects of success.
[17] In the present matter, the plaintiff filed its application for summary
judgment almost 9 months late. In the affidavit supporting the application for
1 [2025] 4 All SA 450 (WCC) para 11.
summary judgment, the plaintiff incorporated a praye r for condonation for the
late filing of the application. In support of its praye r for condonation, the
plaintiff explained its en gagement with the defendant before the summons was
issued. The plaintiff did not explain what happened between the filing of the
plea on 8 September 2025 and the filing of its application for summary
judgment on 18 June 2026. The plaintiff is completely silent on the delay and
only states that the defendant did not raise a bona fide defence.
[18] Rule 27(3) of the Uniform Rule s gives the court a wide discretion. I t is
trite that courts should not encourage formalism in the application of the Rules
of Court . An application for condonation is a procedural matter , and there is
clear authority for the view that our courts lean in favour of the flexible rather
than the rigid application of the Rules of Court. 2 The Rules are not an end in
themselves to be observed for their own sake. They are provided to secure the
inexpensive and expeditious completion of litigation before the courts.
However, the Rule s of Court must be observed. Slackness and indolence must
not be encouraged.
[19] In this case, the plaintiff did not aver as to what happened in the
intervening period from the time the plea was filed until summary judgment was
applied for in June 2026. This, in my view, shows tardiness on the part of the
plaintiff. It appears the plaintiff did not take the application for summary
judgment seriously. This application was filed and uploaded on court online in
June 2026. No impediment was raised in the affidavit in support of the summary
judgment application which might have prevented the plaintiff from filing its
application on time.
2 Federated Trust Ltd v Botha 1978 (3) SA 645 (A) at 654D.
[20] As stated in paragraph 6 above, in an application for condonation the
applicant has the burden of showing (as opposed to merely alleging) the good
cause that is required as a jurisdictional prerequisite to the exercise of the court's
discretion.3 The person seeking condonation must at least furnish an explanation
of the default sufficiently for the court to understand how it came about and to
assess the conduct and motives. 4 Where there has been an inordinate delay, the
court requires the defaulting party to satisfy the court that condonation should
be granted.5
[21] However, the inquiry into whether to grant or refuse condonation does
not end there. It must be emphasised that the prospect of success, which is
invariably linked to the merits of the matter, must also be considered when
determining whether to grant condonation for noncompliance with court
rules. In Gumede v Road Accident Fund , Van Reneen J, as he then was, found
that whether condonation should be granted or not is a matter of discretion that
must be exercised having regard to all the circumstances of the particular case.6
[22] The court considered the following factors identified by Holmes JA
in United Plant Hire (Pty) Ltd v Hills and Others 1976 (1) SA 717 (A) at 720E -
G which are to be taken into account in the exercise of such a discretion: (a) the
degree of non -compliance; (b) the adequacy of the explanation for such
failure; (c) the prospects of success; (d) the importance of the case; (e) the
respondent's interest in the finality of the judgment; (f) the convenience of the
Court; and (g) the avoidance of delays in the administration of justice. The court
further noted that the list is not exhaustive.
3 Dreyer v Norval & others [2006] JOL 18574 (T) para 7.
4 Standard General Insurance Co Ltd v Eversafe (Pty) Ltd & Others 2000 (3) SA 87 (W) at 93E-F para 12.
5 Gool v Policansky 1939 CPD 386 at 390.
6 Torwood Properties (Pty) Ltd v South African Reserve Bank 1996 (1) SA 215 (W) at 228B - F.
[23] Van Reenen J stressed that these factors are not individually decisive but
are interrelated, and the one is weighted against the other so that the strength of
one or more may compensate for the weakness of one or more of the others .
Importantly, the court highlighted that the fate of the condonation application
will depend on the applicant's chances of success in the main application. I
agree with this proposition.
[24] In the present matter, i t is common cause that t he delay in filing the
application for summary judgment is inordinate . However, the plaintiff has
reasonable prospects of success on th e merits of the summary judgment
application. The defendant did not at all raise a bona fide defence to the
plaintiff’s claim . The defendant does not deny that he is indebted to the
plaintiff as claimed in the summons. The defendant admitted that he fell into
arrears with certain instalments and stated that such arrears were occasioned
by circumstances beyond his control, including a loss of income due to not
practicing as an attorney.
[25] The defendant pleaded that the plaintiff has not afforded him a
reasonable opportunity to bring arrears up to date or to make suitable
repayment arrangements as envisaged by the NCA. Simply, t he defendant
admits that he has breached the agreement and merely indicates that he
requires more time to meet his obligations. Th e defendant made the last
payment in December 2023. The defendant filed his plea in September 2025,
and since then the defendant has been afforded several months to reinstate the
agreement but has failed to do so. He was given ample opportunity to bring his
arrears up to date.
[26] In the circumstances, the argument that the plaintiff failed to comply
with the requirements of s 129 of the NCA is immaterial. The notice was duly
dispatched to the defendant. Moreover, the defendant is not a layperson. He
was fully aware that he could refer the matter to a debt counselor or seek
assistance to restructure his indebtedness. In my view, the mechanism
envisioned in the NCA must protect a consumer but is not intended to scupper
or frustrate a credit provider’s efforts to enforce a legitimate claim when a
defendant has remained in default for an egregiously long period and owes the
plaintiff a substantial amount, with no effort made to settle the debt or arrears.
[27] The defendant is driving a Mercedes -Benz C200 that he is presently
unable to afford. He has not paid the monthly instalments due under the credit
agreement since 2023. To dismiss the plaintiff’s application solely because it
failed to comply with the Rules of Court by filing the application out of time,
despite the absence of any bona fide defence, would, in my view, result in a
gross injustice to the plaintiff and offend the interests of justice .
Conclusion
[28] The technical defence raised by the defendant does not constitute a bona
fide defence. Consequently, the defendant has failed to raise any defence that
meets the threshold required to resist summary judgment. I am satisfied that
the defendant entered an appearance to defend solely for the purpose of delay.
In the circumstances of this case, I consider it to be in the interests of justice to
condone the late filing of the summary -judgment application. This approach,
in my view, will serve to curb unnecessary costs that may otherwise be
incurred in prosecuting a matter to trial where no triable issues exist and where
the defence advanced by the defendant is devoid of merit .
[29] Finally, the plaintiff brought its application very late . In these
circumstances, I hold that each party should bear its own costs in respect of the
summary judgment application.
Order
[30] In the result, the following order is made:
(a) The plaintiff’s application for summary judgment is hereby granted in the
following terms:
(i) Confirmation of the cancel lation of the agreement between the
parties.
(ii) The defendant is directed to restore to the plaintiff possession of
the vehicle, namely, 2020 Mercedes-Benz C200 A/T.
(iii) The claim for damages, if any, is postponed sine die.
(iv) Each party is ordered to pay its own costs in the summary
judgment application.
___________________________
LEKHULENI JD
JUDGE OF THE HIGH
COURT
APPEARANCES
For the Plaintiff: Adv Hirst
Instructed by: Ismail & Dahya Attorneys
For the Defendant: Mr Kassel
Instructed by: Mr Kassel Sklaar & Cohen