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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2025/049787
In the matter between:
In the matter between:
ABSA BANK LIMITED Plaintiff/Applicant
and
SIFISO JACOB MASINA Defendant/Respondent
JUDGMENT
WENTZEL -THOMPSON J
Introduction
[1] This is an application for summary judgment arising from a written instalment
sale agreement concluded between the plaintiff, Absa Bank Limited (“Absa”),
and the defendant, Mr Sifiso Jacob Masina (“Masina”), in respect of a 2020
Mercedes-Benz V250D Avantgarde motor vehicle. Absa seeks confirmation
that the agreement has been cancelled, delivery of the vehicle, leave thereafter
to pursue such damages as may arise after repossession and sale, and costs
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________ _________________________
DATE SIGNATURE
on the attorney and client scale. These costs are costs to which Absa is entitled
under the instalment sale agreement.
[2] The respondent appeared in person. I had regard to his status as a non-
represented litigant during the course of the hearing and have continued to do
so in evaluating the defences raised by him in this judgment. I have also had
regard to the statement reflecting the payments made by him sent to my
secretary at my instance on 29 July 2026.
[3] For convenience, I will refer to the applicant and the respondent in these
proceedings as the plaintiff and the defendant respectively.
The legal requirements under Rule 32
[4] Under the amended Rule 32, the plaintiff is entitled to apply for summary
judgment after delivery of the plea should it be of the view that it does not
disclose a defence. In its affidavit filed in support of its application, it is required
to engage with the defence disclosed in the plea and establish why no bona
fide defence has been disclosed.
[5] Correspondingly, the defendant resisting summary judgment must disclose fully
in his answering affidavit, the nature and grounds of the defence raised and the
material facts upon which it rests.
[6] The enquiry before the Court hearing the application is whether there is a bona
fide defence which, if established at trial, would constitute an answer to the
plaintiff’s claim. Tumileng Trading CC v National Security and Fire (Pty) Ltd; E
and D Security Systems CC v National Security and Fire (Pty) Ltd
1explains
that the amended rule did not alter that essential test, although the defendant is
now required to engage meaningfully with the plaintiff’s answer to the pleaded
defence. The authorities cited by Absa in their heads of argument confirm this
approach.
[7] Ultimately, t he question is whether the dispute is genuine and legally
cognisable. As the Supreme Court of Appeal emphasised in NPGS Protection
1 2020 (6) SA 624 (WCC)
and Security Services CC v FirstRand Bank Ltd, 2 bald assertions which do not
disclose facts capable of constituting a defence do not require a plaintiff with an
otherwise established claim to proceed to trial.
The agreement and the common-cause facts
[8] The instalment sale agreement of relevance in this case was concluded
electronically on 22 June 2020. In terms of this agreement, Absa sold the
vehicle to Masina and financed the transaction in respect of which the
respondent incurred a principal debt in the amount of R1 469 458.92, after
deduction of a deposit of R59 000. Ownership was expressly retained by Absa
pending fulfilment by Masina of all of his contractual obligations.
[9] Following the conclusion of the instalment sale agreement, Masina took
delivery of the financed vehicle and and remains in possession of it.
[10] The agreement required Masina to pay the prescribed monthly instalments
when due, without deduction, withholding or deferment. In the event of a failure
to pay amounts due, Absa was contractually entitled, subject to the National
Credit Act 34 of 2005 (“the NCA”), to cancel the agreement, recover possession
of the vehicle, sell it and thereafter , recover any damages or shortfall between
the amount then outstanding and the amount recovered pursuant to the sale of
the vehicle.
[11] Masina admits the agreement, its material terms, delivery, Absa’s ownership,
the principal debt and the sending and delivery of the notice contemplated in s
129 of the NCA. His defence raised in his plea and his affidavit resisting
summary judgment hinges upon his dispute of his default entitling Absa to
cancel the instalment sale agreement , the failure by Absa to allocate the
manual payments made by him , the correctness of the arrears and Absa’s
entitlement to terminate the agreement . Ancillary to this, the respondent
disputes the amount reflected as outstanding in the section 129 notice, his
entitlement to insist upon a restructuring of his debt and Absa’s entitlement to
entitlement to insist upon a restructuring of his debt and Absa’s entitlement to
2 2020 (1) SA 494 (SCA)
act upon its alleged cancellation of the agreement after it accepted his further
payments after its purported cancellation.
The quantification of the arrears owing by Absa
[12] Absa alleges that on 3 March 2025, Masina was in arrears in the amount of
R98 204.30. It delivered a s 129 notice recording that sum and demanding that
the default be remedied.
[13] Masina’s central defence raised in his plea is that Absa itself stopped the debit-
order mechanism during 2024, that he thereafter paid manually, and that those
manual payments were not properly captured by Absa or appropriately
allocated. On this basis, Masina disputes the amount contended to be in
arrears by Absa.
[14] In his affidavit opposing summary judgment, Masina supported his defence by
producing his own banking payment history, marked SJ -1 and, for comparative
purposes, the monthly statements furnished to him by Absa. His criticism is that
the contemporaneous customer statements do not appear to reflect his
payments. However, in the detailed ledger produced by Absa in support of its
application for summary judgment, these payments , according to Absa, are
indeed reflected.
[15] Masina argues that the detailed ledger produced by Absa is retrospective
reconstruction that does not accord with the monthly statements sent to him
and this discrepancy in and of itself exposes a dispute as to the arrear amount
owing by him worthy of trial.
[16] In this respect, Masina relies upon Nedbank Ltd v Pitt .
3 There the Court was
concerned with payment histories in which balances did not change in
consequence of identifiable debits or payments , which counsel could not
explain. The Court held that this cast doubt upon the credibility of the certified
arrears.
3 [2025] ZAGPJHC 699
[17] The case before me is materially different . This is because a reconciliation of
Absa’s reconciliation and the manual payments Masina made have indeed
been incorporated in the computation of the amount owing by Masina.
The payment reconciliation
[18] Masina’s SJ-1 is a payment history generated from his banking records. It
records the manual payments upon which his defence depends. Absa’s
detailed statement, in turn, records debit orders, rejected debit orders and
payments received by means other than the debit -order mechanism. Absa
specifically relies upon the columns recording “Payment -Debit Order” and
“Payment Rejection”, and states that the debit orders were not stopped by it but
were presented and rejected. This refutes Masina’s contention that Absa itself
stopped the debit order process.
[19] The reconciliation establishes that, with one immaterial qualification concerning
the payment made on the same date as the September 2025 ledger was
generated, the manual payments have all been accounted for in Absa’s
accounting records. I must disclose that the reconciliation that follows was
produced after my request from Chat GBT that it reconcile the payments said to
be made by Masina. I have interrogated this reconciliation and am satisfied that
it is accurate.
Schedule A: reconciliation of the manual payments and arrears
Date / period
Debit or contractual
position
Manual payment
appearing from
Masina’s records
Treatment
apparent from
Absa ledger
Effect on
arrears
March 2024 Historical arrears
substantially
cleared following a
large catch-up
payment
— Running
overdue
balance
reduced to
approximately
R725.77
Account
almost
brought up to
date
April 2024 Monthly debit
approximately R23
481.95; debit order
rejected
R758.00 on 29 April
2024
R758
reflected as a
payment
Existing
R725.77 plus
substantially
unpaid April
instalment
produces
arrears of
approximately
Date / period
Debit or contractual
position
Manual payment
appearing from
Masina’s records
Treatment
apparent from
Absa ledger
Effect on
arrears
R23 456.77
May 2024 Current instalment
accrues
No separate
instalment-sized
payment in SJ-1
Ledger does
not show the
addition of
another full
unpaid
instalment
Arrears
remain at
approximately
one
instalment,
subject to
interest/charg
es
11 June 2024 Debit order
presented/rejected
R23 605.41 Correspondin
g manual
payment
identifiable
Current June
obligation
substantially
serviced; prior
arrears
remain
July 2024 Monthly debit due No corresponding
manual payment
No
compensating
manual
instalment
identifiable
Arrears
increase to
approximately
two monthly
instalments
12 August
2024
Monthly debit
due/rejected
R23 610.00 Correspondin
g payment
identifiable
Current
obligation
serviced;
accumulated
arrears
remain
11 September
2024
Monthly debit
due/rejected
R23 607.00 Correspondin
g payment
identifiable
Current
obligation
serviced;
accumulated
arrears
remain
8 October
2024
Monthly debit
due/rejected
R23 607.00 Correspondin
g payment
identifiable
Current
obligation
serviced;
accumulated
arrears
remain
8 November
2024
Monthly debit
due/rejected
R23 440.00 Correspondin
g payment
identifiable
Current
obligation
serviced;
accumulated
arrears
remain
December
2024
Monthly debit due No corresponding
manual payment
No
compensating
instalment
identifiable
Arrears
increase to
approximately
three
instalments
Date / period
Debit or contractual
position
Manual payment
appearing from
Masina’s records
Treatment
apparent from
Absa ledger
Effect on
arrears
January 2025 Monthly debit due No corresponding
manual payment
No
compensating
instalment
identifiable
Arrears
increase to
approximately
four
instalments;
ledger reflects
approximately
R98 203.64
overdue
10 February
2025
Monthly debit
approximately R23
274
R23 274.00 Correspondin
g payment
identifiable
February
current
obligation
substantially
serviced; old
arrears
remain
3 March 2025 Date of s 129
arrears calculation
— Arrears stated
as R98
204.30
Difference
from the
preceding
running figure
is
approximately
66 cents
12 March
2025
Post-s 129 current
instalment
R24 000.00 Correspondin
g payment
identifiable
Does not
retrospectivel
y eliminate
the arrears
existing on 3
March
8 April 2025 Further current
payment
R23 500.00 Correspondin
g payment
identifiable
Current
payment;
historic
default
remains
12 May 2025 Further current
payment
R23 047.59 Correspondin
g payment
identifiable
Current
payment;
historic
default
remains
21 July 2025 Summons served;
cancellation at the
latest
communicated
— — Agreement
terminated at
latest on
service
11 August
2025
Post-cancellation
payment
R20 000.00 Payment
identifiable in
ledger
Falls to be
credited
against
indebtedness;
does not
revive
Date / period
Debit or contractual
position
Manual payment
appearing from
Masina’s records
Treatment
apparent from
Absa ledger
Effect on
arrears
agreement
10 September
2025
Post-cancellation
payment, made on
date of detailed
statement
R20 000.00 Not
independently
legible in the
statement
generated
that same day
Timing
explains why
it cannot
safely be
treated as
proof that
earlier
payments
were
unallocated;
irrelevant to
March default
[20] The schedule demonstrates several matters. First, Masina was correct in
saying that he made substantial manual payments. He was incorrect, however,
in asserting that Absa did not account for them. The supporting affidavit says
that the payments are contained in the detailed statement and that the account
remained in arrears notwithstanding them. Inspection of the underlying
documents substantially bears out that assertion out.
[21] Second, the payments do not establish a pattern of uninterrupted compliance.
Following the effective clearing of older arrears in March 2024, the account
again fell materially behind in April 2024. The June 2024 payment made
essentially only serviced the June 2024 instalment and did not account for the
arrears already incurred. The July 2024 instalment was then missed. The
payments from August 2024 to November 2024 maintained the current
instalments but did not extinguish the existing arrears. The December 2024 and
the January 2025 instalments were not paid.
[22] Accordingly, by January 2025, despite Masina substantially settling his arrears
in March 2024, by January 2025, the account was again in arrears in an
amount approximately equivalent to four months in arrears.
[23] Third, a debtor who owes an amount equivalent to four outstanding instalments
does not cure that default by thereafter paying only each newly accruing
instalment, without also paying towards the unpaid instalments . Those
payments prevent ed the arrears from increasing, but did not cure Masina’s
default.
[24] The strongest corroborative evidence against Masina’s contentions that his
payments were not accounted for appears from the fact that at the end of the
reconciliation, the overdue balance of R98 203.64 is reflected. These are the
arrears said to owing immediately before the section 129 notice was sent. The
section 129 notice demands payment of the amount of R98 204.30. The
difference is approximately 66 cents. Whatever minor accounting adjustments
may have occurred between the entries, the reconciliation establishes
incontrovertibly that the arrear amount of R98 204.30 recorded in the section
129 notice was substantially correct and that Masina has no bona fide basis to
dispute it.
[25] Accordingly the authority relied upon by Masina decided in Pitt is
distinguishable and of no assistance to him. In Pitt the court was faced with
facts which in and of themselves failed to explain the arrears figure appearing
in the ledger before the court . This is not the case in the matter before me. On
the contrary, the detailed ledger and the s 129 notice before me are
substantially reconcilable and serve to confirm the debt outstanding.
[26] I must, however, make one qualification. Absa’s assertion that “11 out of the
11” manual payments had been allocated in the detailed statement is not
entirely accurate. The final R20 000 payment made by Masina was made on 10
September 2025, the date upon which the statement itself was generated, is
not reflected in the reconciliation before me. However, this does not materially
affect the issues in dispute before me as the payment was made approximately
seven months after the s 129 notice was issued and after cancellation by
service of summons. It cannot cast doubt upon the correctness of the amount
of R98 204.30 said to be in default on 3 March 2025.
[27] In the matter before me, Absa only seeks repossession of the vehicle provided
[27] In the matter before me, Absa only seeks repossession of the vehicle provided
to Masina pursuant to an instalment sale agreement that it has been
established has been breached entitling Absa to repossession.
[28] As no money judgment is sought at this stage, Masina’s disputes regarding the
total accelerated outstanding balance of R1 121 356.02 and Masina’s argument
concerning the balloon payment, are defences that can be raised when Absa
seeks a money judgment . Absa presently only seeks return of its vehicle
consequent upon cancellation, not summary judgment for the entire
accelerated balance. Its certificate dated 4 September 2025 records an
outstanding balance of R1 121 356.02 and arrears then of R153 488.17. The
precise damages claim is expressl y reserved until after repossession and sale.
A dispute about the ultimate shortfall does not answer an established default
justifying cancellation.
The dispute regarding the cessation of the debit order for payment of the instalments
[29] Masina claims that Absa “stopped” his debit order, which forced him to pay
manually. Absa denies doing so and points to the ledger reflecting the
continued presentation and rejection of the debit orders set up for payment of
the monthly instalments.
[30] It appears from Absa’s reconciliation that the debit orders were duly presented
but reversed due to non- payment. Even assuming in Masina’s favour that he
was required through no fault of his own to resort to manual payments, that
does answer why he did not settle his arrears by means of these manual
payments.
Absa’s entitlement to cancellation of the instalment sale agreement
[31] Masina argues that Absa could not unilaterally cancel the instalment sale
agreement and that its cancellation required judicial endorsement. This is not a
proposition with any legal foundat ion. A cancelation of a contract for breach
constitutes a unilateral act by a contractual party under the contract; it requires
no court sanction. The fact of breach itself entitles the other party to cancel the
contract. This right is prefaced by its election either to hold the defaulting party
to the contract and claim specific performance or to seek cancellation and claim
to the contract and claim specific performance or to seek cancellation and claim
damages. Absa elected to exercise its rights to seek the second mentioned
remedy for the breach of the contract by Masina.
[32] That this is so is now trite; c ancellation for breach is an election belonging to
the innocent contracting party once the right to cancel has accrued. The
innocent party may elect either to uphold the agreement and insist upon
performance, or to cancel. The Court need not endorse that election.
4
The National Credit Act
[33] In terms of the National Credit Act (“NCA”), the innocent party exercises the
right to cancel by words or conduct manifesting a clear election to do so, which
election must be communicated to the defaulting party. Unless the agreement
prescribes a formality, no special form is required.
[34] The NCA regulates the exercise of that contractual remedy but does not
convert cancellation into a judicial act. Section 123 recognises contractual
termination subject to the requirements of the Act. In the context of instalment
sales, Standard Bank of South Africa Ltd v Botes t/a JHLS Botes Vervoer
5
confirms that a lex commissoria remains permissible, although ss 129 and 130
must be complied with before the right is exercised.
[35] The agreement before me expressly confers the right to cancel . Clause 15
provides, in substance, that after the stipulated period of default and not less
than ten business days after delivery of the default notice, Absa may cancel
and issue proceedings to recover the debt, including repossession of the asset.
Clause 28 provides that the agreement continues until Masina fulfils his
obligations or Absa cancels because he is in default.
[36] The distinction between cancellation and repossession is important. While Absa
may cancel by exercising and communicating its contractual election, it still
cannot, howev without a Ccourt Order, forcibly repossess the vehicle through
self-help. If Masina does not surrender it, Absa requires an order directing its
return.
[37] That being said, t he need for judicial enforcement of the consequence of
cancellation does not mean that the unilateral act of cancellation itself requires
cancellation does not mean that the unilateral act of cancellation itself requires
4Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd 2001 (2) SA 284 (SCA)
5 Standard Bank of South Africa Limited v Botes t/a JHLS Botes Vervoer (M85/15) [2015] ZANWHC 49 (3 September 2015) ; [2015] ZANWHC 49
judicial confirmation; it does not and the case law has authoritatively decided
this.
The date of cancellation
[38] The particulars of claim allege that Masina failed to make payment as
demanded and that Absa “cancelled alternatively hereby cancels the
agreement”. There is no satisfactory evidence identifying the precise date or
mode of communication of an anterior cancellation. Had Absa relied exclusively
on some pre- summons cancellation, that omission might have required closer
consideration.
[39] However, t he alternative pleaded election that it, in terms of the summons,
“hereby cancels” the agreement is unequivocal and is not disputable by the
respondent. There can be no doubt that service of the summons communicated
Absa’s election to cancel to Masina. The summons was served on 21 July
2025. At the latest, therefore, cancellation became effective on 21 July 2025.
[40] A cancellation expressly pleaded in and communicated through summons is
capable of constituting the required contractual election. The recent judgment in
Mushasha v Mercedes -Benz Financial Services South Africa (Pty) Ltd
6 dealt
with particulars of claim in which cancellation was pleaded, but in which it was
alternatively pleaded tht by service of summons cancellation had been
effected. It was held that, even if there were an anterior dispute regarding
cancellation, it occurred at the latest when the summons was served on the
defendant.
[41] It being demonstrated that Masina was in arrear at the date of the summons,
Absa was entitled to cancel the instalment sale agreement and claim
repossession.
[42] By that date the statutory periods afforded to the respondent to cure his defect
under section 129 had long expired. The section 129 notice was dated 3 March
2025. The notice and its delivery are admitted. The default had not by that date
6 [2026] ZAGPJHC 614
been cured; nor had the arrears been paid by the date of the service of the
summons.
[43] Thus, Absa had both a contractual right to cancel and had also complied with
the statutory prerequisites for its cancellation stipulated in the NCA.
Masina’s proposal to restructure the agreement
[44] Masina claims that he approached Absa seeking a restructuring of the arrears
admittedly owing by him . His proposal was, in substance, that the existing
arrears, once correctly determined, be spread over the remaining period of the
agreement while he continued to pay his stipulated monthly instalment s.
Masina points out that the majority of the term of the agreement has run its
course and that only approximately 21 months remain before the termination of
the agree ment; and he says he is willing and able to pay all the instalments
owing for the remainer of the agreement.
[45] That proposal may have been commercially sensible from Masina’s
perspective. However, it did not create a legal right to compel Absa to accept it.
[46] Section 129(1)(a) of the Act seeks to facilitate non-litigious resolution of default.
It contemplates referral to a debt counsellor, alternative dispute resolution
agent, consumer court or ombud with the object, among other things, of
developing and agreeing on a plan to bring the account up to date. But a
proposal for consensual restructuring is precisely that: a proposal. Unless
accepted, it does not amend the contract or suspend the creditor’s accrued
rights to cancellation and repossession.
[47] But this does not preclude Masina from exercising his rights under section
129(3) of the NCA. In Nkata v FirstRand Bank Ltd,
7 the Constitutional Court
held that a consumer may, before cancellation and subject to s ection 129(4),
reinstate an agreement by paying all overdue amounts together with the
applicable permitted default charges and reasonable enforcement costs.
Reinstatement occurs by operation of law once the statutory requirements are
Reinstatement occurs by operation of law once the statutory requirements are
satisfied; the consumer does not require the creditor’s agreement.
7 2016 (4) SA 257 (CC)
[48] Masina had not availed himself of this opportunity to keep his credit agreement
alive. Masina did not pay the accumulated arrears of approximately R98 000
before cancellation. He largely paid the instalments falling due thereafter and
proposed to amortise the historic default into the future. That is not statutory
reinstatement.
[49] Botes is particularly instructive. It recognises the distinction between a
payment-plan agreement and the remedial action contemplated by s 129(3). A
consensual payment plan may regulate the parties if concluded, but the
proposal of one does not itself cure the default or destroy an accrued right of
cancellation.
[50] No binding restructuring agreement has been established by Masina; all he
has done is allege that he requested this . He certainly has not established an
“existing payment arrangement” as alleged.
Payments accepted after cancellation
[51] Summons was served on 21 July 2025. In the face of this summons, Masina
continued to make payments. In his papers before me has shown that he
made a payment of R20 000 on 11 August 2025 and another of R20 000 on 10
September 2025. Both of these payments were made after the issue of
summons. Masina argues that Absa accepted theses payments, and in so
doing, revived the cancelled instalment sale agreement.
[52] However, the acceptance of those payments does not, without more, amount to
an election by Absa to revive the cancelled agreement.
Waiver of the right to cancel the agreement
[53] Once a contract has been validly cancelled, the question is no longer whether
conduct inconsistent with cancellation occurred before an election was made,
but whether the parties thereafter concluded a new agreement or otherwise
lawfully revived their relationship. Receipt of money which remains owing is not
in itself such an agreement. The creditor may receive the payment and credit it
against the debtor’s outstanding indebtedness, as Absa says it has done.
[54] This point was recently considered in this division in Mushasha v Mercedes
Benz Financial Services South Africa (Pty) Ltd and Another.8
[55] The debtor there similarly relied on paym ents accepted after cancellation. The
Court held that acceptance after cancellation did not, without more, revive or
reinstate the agreement, and that such payments could be credited in reduction
of the outstanding indebtedness. It further held that a court could not make a
new agreement for the parties by restructuring their payment obligations after
cancellation.
[56] That reasoning applies here. There is nothing in Masina’s papers from which an
agreement to revive the instalment sale agreement after acceptance of
payments from Masina after cancellation. Absa has throughout the litigation
persisted with its contention that the agreement was cancelled and the vehicle
must consequently be returned to it. Its receipt of sums capable of reducing the
eventual indebtedness is not irreconcilable with that position.
[57] Nor can the post -cancellation payments operate as statutory reinstatement.
Section 129(3) makes reinstatement available only before cancellation. Nkata
makes the temporal limitation clear ; once cancellation had occurred, later
payments can reduce the arrears owing, but cannot unilaterally restore the
contractual entitlement to possession of the vehicle that is the subject of an
instalment sale agreement.
The remaining defences
[58] Masina’s assertion that Absa has suffered no prejudice is no answer to the
claim. The right to return follows from valid contractual cancellation and Absa’ s
retained ownership. It is not conditional upon proof that the vehicle has already
depreciated by a particular amount.
8 (2025/040031) [2026] ZAGPJHC 614 (2 June 2026)
[59] Masina’s willingness and apparent ability to continue paying are equally not
defences. They are relevant to explaining why he sought indulgence, but
contractual performance is measured by performance when due, not by a later
willingness to perform on different terms selected by him.
[60] The contention that the total balance includes a balloon payment also does not
defeat the return claim. The balloon forms part of the financing structure.
Whether the eventual damages or shortfall is correctly calculated after resale
remains open because Absa expressly asks that damages be determined only
after possession and sale. The Court is not presently entering summary
judgment for R1 121 356.02.
[61] I have also considered whether there is nevertheless some residual
uncertainty in the accounts sufficient to justify an exercise of discretion against
summary judgment. In my view there is not. The alleged accounting
discrepancy was the central factual defence. Once the detailed ledger has been
tested against Masina’s own payment record, it does not reveal a genuine
dispute requiring oral evidence.
Application of Rule 32
[62] A defendant is not required at this stage to prove his defence. But there must
be facts which, if proved at trial, would answer the plaintiff’s claim. The principle
appearing in Maharaj v Barclays National Bank Ltd,
9 and Breitenbach v Fiat
SA (Edms) Bpk10, and the later authorities remains that the nature and grounds
of the defence must be disclosed with sufficient completeness to demonstrate
its bona fides.
[63] Masina has put up more than bald denials. He produced actual payment
records and raised a specific accounting challenge. For that reason his defence
required substantive examination rather than summary rejection. But
examination of his evidence reveals that the premise upon which the defence
rests is wrong: the payments are substantially reflected and the missed
instalments owing explain the arrears.
9 1976 (1) SA 418 (A
10 1976 (2) SA 226 (T)
[64] The same is true of cancellation. Masina’s pleaded proposition is not that Absa
had waived an accrued right to cancel or that all arrears had been cured before
the election; it is that Absa could not cancel without the Court doing so. That is
not a defence recognised in our law as had been demonstrated above.
[65] Masina’s for a restructuring of his debt establishes a request for an indulgence,
not an accepted variation, statutory rearrangement or reinstatement. The
subsequent payments establish amounts to be credited, not a revival of the
instalment sale agreement.
[66] In th ese circumstances there is no factual issue which, if tried, could defeat
Absa’s present claim to confirm its cancellation of the instalment sale
agreement and return of its vehicle.
[67] But this is said acknowledging that Masina is not the typical recalcitrant debtor;
he has tried as he might to settle his arrears and to enter into a payment
arrangement. Although the law does not strictly afford him an indulgence, and
notwithstanding the Order I will make in Absa’s favour, I would like to impress
upon them to engage with Masina to determine whether there is not a way
forward in which he can be afforded an opportunity to pay off his arrears and
thus stave off the repossession of the vehicle that I must inevitably order in my
judgment.
Costs and consequential damages
[68] The agreement provi des for attorney and client costs in the event of
enforcement consequent upon default. Masina has not advanced any basis
upon which the contractual costs provision should not be enforced.
[69] Absa does not at this stage seek an order for payment of the amount
outstanding after sale of the vehicle it seeks to repossess. Absa accordingly
seeks leave to approach the Court thereafter on the same papers, suitably
supplemented, to seek the outstanding balance after the price for the sale of
the vehicle has been determined. That relief preserves Masina’s right to contest
the vehicle has been determined. That relief preserves Masina’s right to contest
the quantification of any eventual shortfall owing by him.
Conclusion
[70] Absa has established that Masina fell materially into arrears. His manual
payments were not ignored by Absa; on the contrary, they were recorded and
credited.
[71] The history of the respondent’s payments i demonstrates intermittent payment
which serviced a number of current instalments without extinguishing arrears
generated by substantially unpaid instalments in April and July 2024 and
December 2024 and January 2025.
[72] By the beginning of 2025 those arrears had accumulated to approximately R98
203.64. The section 129 notice reflected arrears of R98 204.30. The difference
is negligible and the notified arrears were substantially, indeed almost exactly,
corroborated by the accounts ledger attached to the applicant’s founding
papers.
[73] Masina did not cure that default before cancellation. Instead, he sought an
indulgence and requested that Absa agree to spread the arrears over the
remaining term.
[74] Moreover, Absa was not legally obliged to accept that proposal. Masina did not
achieve statutory reinstatement under s 129(3), nor did he establish an agreed
variation or restructuring.
[75] Absa possessed an express contractual right to cancel the instalment sale
agreement after default and compliance with the statutory notice requirements.
Cancellation was its contractual election and did not require a court order.
Whatever uncertainty may exist concerning an earlier communication of
cancellation, the particulars of claim expressly cancelled in the alternative, and
service of summons on 21 July 2025 communicated that election. The
agreement was therefore terminated at the latest on that date.
[76] Payments accepted thereafter did not restore the agreement. They fall to be
credited to Masina’s outstanding indebtedness . There is no evidence of any
new agreement or other juridical basis upon which the cancelled instalment -
sale agreement revived.
[77] As such, the defences raised by Masina do not constitute bona fide triable
issues that would justify my referring the matter to trial. Summary judgment
must accordingly be granted and costs should follow that result.
Order
[64] The following order is made:
(1) It is declared that the written instalment sale agreement concluded between the
plaintiff and the defendant on 22 June 2020 in respect of the 2020 Mercedes -
Benz V250D Avantgarde A/T motor vehicle has been validly cancelled.
(2) The defendant, and any person in possession of the vehicle through him, is
directed forthwith to deliver to the plaintiff the 2020 Mercedes -Benz V250D
Avantgarde A/T motor vehicle with engine number 6[…] and chassis number
W[…] .
(3) The plaintiff is granted leave, after repossession and sale of the vehicle, to
approach this Court on the same papers, supplemented insofar as may be
necessary, for judgment in respect of any damages, shortfall and reasonable
expenses arising from the defendant’s breach and the repossession and sale of
the vehicle.
(4) All payments received by the plaintiff from the defendant after cancellation are
to be credited in the calculation of any indebtedness or damages ultimately
claimed.
(5) The defendant is ordered to pay the costs of the action and the application for
summary judgment on the scale as between attorney and client , in accordance
with the terms of the instalment sale agreement.
_________________________
WENTZEL-THOMPSON J
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant:
For the Respondent:
Date of the hearing: 28 July 2026
Date of the judgment : 26 August 2026
Adv. M Arroyo instructed by Straus
Daly Inc
In person