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[2026] ZAGPJHC 1038
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BMW Financial Services (South Africa) (Pty) Ltd ta Alphera Financial Services v Mailula (220527/2025) [2026] ZAGPJHC 1038 (28 August 2026)
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Ltd a Alphera
Financial Services
Services
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case Number: 220527/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO
OTHER JUDGES: NO
(3) REVISED: YES
In the matter between:
BMW FINANCIAL SERVICES
(SOUTH AFRICA)
(PTY)LTD
T/A ALPHERA FINANCIAL SERVICES
Applicant
and
SEMITSI FRANS
MAILULA
First Respondent
JUDGMENT
WENTZEL -THOMPSON J
Introduction
[1] This is an
application for summary judgment arising from an instalment sale
agreement concluded between the plaintiff,
BMW Financial Services
(South Africa) (Pty) Ltd trading as Alphera Financial Services (“BMW
Finance”), and the defendant,
Mr Semitsi Frans Mailula. The
agreement concerns a Jaguar XF 2.0 D R Sport motor vehicle. BMW
Finance seeks cancellation of the
agreement, return of the vehicle,
postponement
sine die
of the determination of its damages
pending repossession, valuation and sale of the vehicle, interest on
the damages eventually
established and costs on the
attorney-and-client scale.
[2] The application
is opposed by the defendant, who appeared in person. His affidavit
resisting summary judgment was delivered
late and is accompanied by
an application for condonation.
[3] The defendant
has raised a number of defences, but the primary defence that in my
view establishes that he has disclosed
a bona fide defence and that
raises a triable issue is that the vehicle financed by the plaintiff
was not of the year model that
the dealership represented it to be,
and the agreement ought properly to have been cancelled by the BMW
Financial Services once
he drew this to their attention to this.
Condonation
[4] The defendant
explains that he is a lay litigant, that the summary judgment papers
were transmitted electronically in
circumstances in which he did not
appreciate their procedural significance, and that there was
confusion concerning service and
enrolment. The delay was
approximately 22 days.
[5]
It is now trite that in
considering an application for condonation, regard must be had to the
degree of lateness, the explanation
for the delay, the prospects of
success, the importance of the matter and prejudice, viewed
cumulatively.
[1]
In
circumstances where the defendant faces cancellation of a substantial
credit agreement and repossession of a motor vehicle,
has provided an
explanation consistent with his unrepresented status, and raises an
issue which, for reasons that follow, cannot
be characterised as
fanciful, condonation should be granted. This is particularly so as
the delay was relatively short and has
caused no prejudice.
The legal position
under amended Rule 32
[6]
The object of summary
judgment is not to deprive a defendant who has a genuine defence of a
trial. Rule 32 requires that the defendant
must disclose the nature
and grounds of his defence and the material facts upon which it rests
with sufficient particularity to
demonstrate that the defence is both
bona
fide
and
good in law. He is not required at this stage to prove the defence or
to persuade the Court upon a balance of probabilities
that it will
ultimately succeed at a trial in due course.
[2]
[7] The amendment
to Rule 32 has not substantively changed that substantive enquiry.
[8] The opposing
affidavit and the new Rule, however, must in terms of rule 32(3)(b)
disclose fully the nature and grounds
of the defence and the material
facts relied upon therefor with reference to the defence as set out
in the plea.
[9]
The legal position under
Uniform Rule 32 in its amended form has been set out in
Raumix
Aggregates (Pty) Ltd v Richter Sand CC GJ
[3]
as
follows
“
[16] The
purpose of a summary judgment application is to allow the court to
summarily
dispense with actions that ought not to proceed to trial because
they
do not raise a genuine triable issue
,
thereby conserving scarce judicial resources
and
improving
access
to
justice.
Once
an
application
for
summary judgment is brought, the applicant obtains a substantive
right for that application to be heard, and, bearing in mind
the
purpose of summary judgment, that hearing should be as soon as
possible.
That
right is protected under section 34 of the Constitution.
”
(own emphasis).
[10] In their
report the Superior Court’s Task Team of the Rules Board for
the Courts of Law which were tasked with
the amendments to rule 32
identified certain shortcomings in the former rule 32 and reported
the following in regard to the addressing
of the shortcomings:
“
8.2 The
best way of addressing these shortcomings would seem to be to require
the founding affidavit in support of summary
judgment to be filed at
a time when the defendant’s defence to the action is apparent,
by virtue of having been set out in
a plea. This course is better
than allowing a replying affidavit to be filed (as was suggested by a
report prepared a few decades
ago by the Galgut Commission). Merely
including provision for a replying affidavit would not address the
problems with the formulaic
nature of the founding affidavit, and the
speculation inevitably contained therein.
8.3 In the event
of a plaintiff applying for summary judgment after the delivery of a
defendant’s plea, the plaintiff
would be able to explain
briefly in its founding affidavit why the defences proffered by the
defendant do not raise a triable issue;
and should indeed be required
to do so in order that the question of whether there is a bona fide
defence which is capable of being
sustained could be considered by
the Court in a meaningful way. Requiring the plaintiff to set out
why, in its view, it has a valid
claim and why the defendant’s
defence is unsustainable, would also remove the criticism that the
defendant is being required
to commit itself to a version when the
plaintiff is not similarly burdened. Obliging the plaintiff to engage
meaningfully with
the case in its founding affidavit would moreover
have the added benefit of reducing the temptation for a plaintiff to
seek summary
judgment as a tactical move (and as a way of forcing the
defendant to commit to a version on oath, which can be subsequently
used
in cross-examination to discredit a witness of the defendant).
8.4 A
stipulation that a plaintiff can only apply for summary judgment
after delivery of a plea (rather than a notice of intention
to
defend) would also mean that the summary judgment application would
be adjudicated on the basis of the defendant’s pleaded
defence
and thus hopefully avoid a situation (such as not infrequently occurs
under the current rule) where a defendant’s
version in its
opposing summary judgment application diverges materially from its
subsequently-delivered plea. The summary judgment
debate will thus
hopefully be a more informed, and less, artificial, one, and engage
with the real issues in the matter.”
[11]
In the matter of
Tumileng
Trading CC
[4]
,
that was recently decided by the Hon. Mr Justice Binns-Ward the court
considered the nature of the amended rule and the test to
be applied
when deciding a summary judgment application under the amended rule
and held that the test remain that of a bona fide
defence:
“
[24] As to
(ii), rule 32(3)(b), which provides for what is required in a
Respondent’s opposing affidavit, remains as it was
before, save
that the affidavit must now be delivered at least five days before
the hearing of the application, instead of by noon
on the day but one
before the hearing, as had previously been the case. As has always
been the position, the opposing affidavit
must ‘disclose fully
the nature and grounds of the defence and the material facts relied
upon therefor’. The purpose
of the opposing affidavit also
remains, as historically the case, to demonstrate that the Respondent
‘has a bona fide defence
to the action’. There is thus no
substantive change in the nature of the ‘burden’, if that
is what it is, placed
on a Respondent in terms of the procedure.
However, the broader form of supporting affidavit that is
contemplated in terms of the
amended rule 32(2)(b), will in some
cases require more of a Respondent in respect of the content of its
opposing affidavit than
was the case in the pre-amendment regime, for
the Respondent will be expected to engage with the Applicant’s
averments concerning
the pleaded defence.”
…
[48] To borrow from
Navsa JA’s characterisation of the Respondent’s position
in Joob Joob Investments, ‘such defences
as were proffered
[were] cast in the most dubious terms’. The most probable
inference in the circumstances is that no particularity
has been
furnished because the defences and supposed counterclaim are not
genuinely advanced. This is especially so because the
Respondent not
only failed, quite dismally, to satisfy the requirements of rule
32(3)(b). It also failed to respond to the challenge
to it in the
Applicant’s supporting affidavit to back up its bald plea with
substantiating particularity. If a Respondent
fails to put up the
facts that it obviously should have been able to do were it advancing
a genuine defence, it cannot complain
if the court is left in in a
position in which it is unable to find a reasonable basis to doubt
that it does not have a bona fide
defence. There is, moreover,
nothing in the papers to justify the court exercising its overriding
discretion in favour of the Respondent.”
[12]
Meritless denials and
allegations are merely intended to delay the matters and is
ultimately infringing on the applicant’s
right to summary
judgment as stated by the Supreme Court of Appeal in NPGS Protection
& Security Services CC. v Firstrand Bank
Ltd:
[5]
“
[14] Indeed,
the court would be remiss in its duties of such defences, clearly
devoid of any bona fides, stand in the way of Applicants
who are
entitled to relief. The ever-increasing perception that bald
averments and sketchy propositions are sufficient to stave
off
summary judgment is misplaced and not supported by the trite
principles developed over many decades by our courts. See for
example, the well-known judgment of this court in Maharaj v Barclays
National Bank Ltd.
1976 (1) SA 418
(A) where the proper approach to
applications for summary judgment is stated.”
[13] In terms of
rule 32(3), the defendant may satisfy the court by affidavit or, with
leave of the court, by oral evidence
that he has a bona fide defence
to the action.
[1] In terms of
rule 32(3)(b), the word “satisfy” does not mean “prove”.
What the rule requires 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.
[14]
Tumileng
Trading CC
confirms that a defendant defeats summary judgment by
disclosing fully the nature and grounds of a bona fide defence and
the material
facts relied upon.
[15]
BMW Finance relies upon
Cellsecure
Monitoring and Response (Pty) Ltd and Others v South African
Securitisation Programme (RF) Ltd
[6]
for the proposition that bare denials and defences materially
inconsistent with a plea do not suffice. That proposition is
uncontroversial.
Cellsecure
,
however, concerned defendants who failed meaningfully to engage with
the material allegations supporting the plaintiff’s
case. The
present case must be considered on its own pleadings. The question is
whether the defendant’s complaint concerning
the identity and
model year of the vehicle is a defence manufactured for the first
time in opposition to summary judgment, or whether
the material facts
relating to this defence appears in his plea.
The terms of the
instalment sale agreement
[16] The juridical
structure of the agreement is of some relevance: The first page
identifies “
Alphera Financial Services, a division of BMW
Financial Services (South Africa) (Pty) Ltd” (the applicant),
as the credit
provider and the defendant as the consumer. The
document is expressly headed “Instalment Sale Agreement
”.
The goods are identified as a Jaguar XF 2.0 D R Sport and the “
Year
of First Registration
” is reflected as 2020.
[17] It is
important to note that the agreement is not framed as an independent
loan in which BMW Finance merely advances
money to enable the
defendant to conclude an unrelated sale with the dealer. Its standard
terms describe BMW Finance throughout
as the “Seller”.
[18] Clause 2 is
headed “
The Goods and Delivery
”. Clause 2.1
records that the consumer selected the goods from the supplier and
that the Seller has no knowledge of the purpose
for which the goods
are required. Clause 2.2 requires the consumer to procure and take
delivery from the Seller or supplier and
thereafter to hold the goods
on behalf of the Seller for the duration of the agreement. Clause 2.3
requires the consumer, before
taking delivery, to inspect the goods
on behalf of the Seller and to accept them on the Seller’s
behalf so that ownership
passes to the Seller.
[19] Clause 3.1
provides, in substance, that ownership of the goods remains with the
Seller until the expiry of the agreement
and until the consumer has
paid all amounts due and complied with his contractual obligations.
The proprietary structure is therefore
not incidental to the
financing: BMW Finance acquires and retains ownership of the very
goods which are the subject of the instalment
sale.
[20] The
enforcement provisions follow the same structure. Clause 11
identifies events of default and provides for the Seller’s
remedies following default. In the circumstances contemplated by the
National Credit Act (“NCA”), the Seller may cancel
the
agreement, recover possession of the goods and claim damages. Clause
25 is itself headed “The Seller’s Right to
Terminate the
Agreement”.
[21] Clause 17.1
furthermore provides for a certificate signed by a manager of the
Seller to serve as
prima facie
proof of amounts owing. BMW
Finance relies on this clause in relation to its certificate of
balance and indebtedness.
[22] Of some
significance is clause 2.4. The exclusionary wording concerning
warranties and representations as to the state,
condition or fitness
of the goods is expressly framed to operate if the agreement is not
subject to the NCA. The present agreement
plainly is an NCA credit
agreement. Whatever other contractual protection BMW Finance may
possess, clause 2.4 cannot without more
be read as a comprehensive
exclusion of all the Seller’s responsibility in this
transaction.
The defendant’s
plea
[23] The plea is
plainly the work of a lay person. It is presented in affidavit form,
responds
ad
seriatim
to the particulars of claim, and
does not articulate the defendant’s defences with the legalese
or finesse that might be
expected of counsel. However, it discloses
several material facts sufficient to enable the court to discern the
legal basis of
the defence that he has postulated, albeit not
expressly formulated.
[24] From what I
have been able to discern from his plea, the defendant has raised a
number of defences that are dealt with
me below in turn:
[2]
First, the defendant
disputes BMW Finance’s reliance upon the unsigned version of
the instalment sale agreement (ie. the electronic
agreement) and
insists that an agreement was signed manually by him. During the
course of argument it occurred to me that what
the defendant might
have physically signed at his offices in the presence of a
representative from the dealership was an application
for finance
that was then forwarded to BMW Finance for approval. Be that as it
may, what is important is that the defendant links
the absence of the
agreement that he says he signed to the fact that the incorrect year
model of the vehicle is reflected in the
agreement. He expresses his
suspicions as to why the agreement he signed has not been presented.
This brings me to the defendant’s
second, and what I would
term, his main defence. In his plea ,the defendant explains that BMW
Finance had, in January 2022, represented
to him that the vehicle
information had been checked and that the registered year model,
contract, invoice and registration papers
corresponded. However,
after taking delivery of the vehicle, he realised that it was an
earlier model and that the newer model
that he believed he had
bought, was of a different shape to the one he had purchased.
[7]
On determining this, he repeatedly communicated with BMW Finance to
bring the model discrepancy to their attention, impressing
upon them
to take this up with the dealership and cancel the contract that BMW
Finance had concluded with them.
[25] After
repeatedly bringing the model-year issue to BMW Finance’s
attention from December 2021 through January and
March 2022, he
approached Jaguar Land Rover South Africa, which, according to him,
confirmed from the tenth character of the VIN
number that the vehicle
was in fact a 2019 model and not a 2020 model. This he had done after
trying to engage with the dealership
on several occasions to no
avail.
[26] It is thus
readily apparent that the defence raised by the defendant is not an
afterthought concocted to avoid summary
judgment; whatever the legal
significance of his contentions, what is clear is that they are
bona
fide
raised by the defendant and are genuine.
[27] In fact, in
BBW Finance’s counsel’s chronology of events, confirms
the defendant’s version that this
dispute was an issue that had
been raised by the defendant from September 2021 through to March
2022, as well as in further communications
from November 2021 to
February 2022.
[28] Apart from the
question of the incorrect year model being sold to him as a later
model, the defendant also disputes the
amount of the arrears alleged
by BMW Finance. He insists that he has paid approximately R1 million
under the agreement, says that
the true arrears were approximately
R54 905.51 rather than the higher amount of R81 0008.11 alleged by
BMW Finance, and says that
he continued paying and increased
instalment amount of R16 524.35 (above his stipulated instalment
amount of approximately R15
000) monthly in order to pay off the
arrears while attempting to resolve the model number dispute.
The certificate of balance
dated 23 September 2025 records the
outstanding balance to be R620 785.38. However, it is apparent
that after BMW Finance’s
cancellation of the agreement during
August 2025, the defendant continued to pay his instalments. Thus the
certificate of balance
in December 2025 reflected a balance of
R557 448.04.
[29] I also pause
to mention when considering the defendant’s main defence that
he has not pleaded with any clarity
that he sought to cancel the
instalment sale agreement upon discovering the misdescription of the
model number of the vehicle sold
to him. His plea rather conveys a
desire that the finance agreement be corrected or adjusted to reflect
the lower value of the
vehicle actually purchased by him, thereby
reducing his overall indebtedness) on the basis that he would
continue performing under
the agreement until the dispute regarding
the market value that had been sold to him and that which had been
misrepresented had
been sold to him had been resolved. The
significance of this will become more apparent when I deal with the
recent Supreme Court
of Appeal authority relied upon by the defendant
and the election, if any, made by the defendant.
[30] But is does
bear mentioning at this stage that in his communications with BMW
Financial Services, what he sought was
that they, as the Sellers,
cancel the purchase agreement between them and the dealership, that
he insists he was not party to.
It was on this basis that he rejected
BMW Finance’s disavowment of any responsibility for the
incorrect model number sold
to him and their insistence that this is
a matter that he should take up with the dealership. This appears
from the correspondence
attached to the defendant’s plea.
[31] The last
defence raised is the least convincing: This concerns the unilateral
debt review by BMW Finance and the breach
of the Consumer Protection
Act. BMW Finance has placed before the Court documentation relevant
to the debt review under section
86(1) of the CPA as well as its
termination of that process by way a section 86(10) notice.
The defendant’s
opposing affidavit
[32] In his
opposing affidavit, the defendant considerably developed his argument
regarding the incorrect description of the
model-year. It includes
reliance upon consumer-protection principles and the contention that
BMW Finance cannot simply distance
itself from the dealer as say it
merely financed whatever vehicle the defendant selected.
Assessment of the
defences raised
a.
The
electronic signature defence
[33] Mailula does
not deny that he entered into an instalment sale transaction with
BMW, took delivery of the Jaguar and thereafter
performed under the
agreement for years. His case is instead that he physically signed
another version and BMW should produce it.
[34] Both section
2(3) of the National Credit Act 34 of 2005 (NCA) and section 13 of
the Electronic Communications Transactions
Act 25 of 2002 (ECTA)
makes provision for the use of an electronic signature.
[35]
BMW relies upon
FirstRand
Bank Ltd t/a WesBank and Suzuki Mobility Finance v Farrar
,
[8]
where an electronic
instalment agreement was upheld by reference to the ECTA and where it
was found that the defendant’s bare
denial of the electronic
signature was insufficient. BMW accordingly submits that, absent
production by Mailula of the supposedly
different manually signed
agreement, the electronic document constitutes the best available
evidence of the transaction.
[36]
Standing alone, I do not
think the assertion that the defendant had manually signed the
agreement establishes a defence to BMW’s
substantive claim.
Mailula would need to identify
what
material contractual term in the physically signed agreement differs
from BMW's electronic version
.
He does not appear to do
so.
[37] The
significance of the point is therefore evidential rather than
dispositive. It becomes relevant only insofar as the
alleged original
agreement might bear upon the description of the vehicle.
b. The arrears
defence
[38]
The mere difference
between R81 008.11 and R54 905.51 probably does
not
,
by itself, constitute a defence to cancellation if the contractual
entitlement to cancel arises upon material arrears in the defendant’s
account and the requisite NCA processes haing been complied with.
[39] The defendant
concedes substantial arrears. His assertion that he was paying R16
524.35 per month-more than the contractual
monthly instalment-does
not establish that the account had been brought up to date. In his
opposing affidavit, the defendant expresses
s his willingness to pay
the corrected balance and continue with his contractual obligations.
[40]
BMW relies upon the
contractual certificate-of-balance provision in the instalment sale
agreement and
Cellsecure
Monitoring and Response (Pty) Ltd v South African Securitisation
Programme (RF) Ltd
,
[9]
contending that the certificate constitutes
prima
facie
evidence
and that Mailula has not produced a proper accounting demonstrating
why it is wrong.
[3]
I
therefore regard the quantum dispute as
weak
as a defence to cancellation and repossession
,
although it may ultimately matter to the monetary accounting.
c. The defence
based on the CPA and debt review
[41] BMW Finance
contends that the CPA point was introduced only in the
summary-judgment opposition and is inconsistent with
the plea. It
also says the CPA does not apply to BMW in the capacity alleged
because BMW was the financier rather than the supplier
of the
vehicle.
[42] This is
inextricably tied up with the defence concerning BMW Finance
responsibility for the incorrect model year being
reflected in the
instalment sale agreement.
[43] In any event,
his defence based on the CPA alone are vague and pleaded with
insufficient particularity; reliance upon
broad notions of consumer
fairness do not in and of themselves answer BMW Finance’s
contractual claim for repossession.
[44] I have already
alluded to the defendant’s defence based upon his alleged
entitlement to have continued with the
debt review proceedings.
Suffice to say that BMW Finance engaged with the process and was well
within its rights to terminate the
process as it did.
d. The 2019/2020
model discrepancy
[45] I have dealt
with this defence last as it requires the greatest attention.
[4]
BMW’s answer is
essentially that it is the
financier
,
not the dealer or supplier which selected or sold the vehicle. It
says that the defendant received the vehicle he selected, signed
the
release documentation and, if the dealer misrepresented the model
year or value, his remedy lies against the dealer.
[46] BMW Finance
submits that the year-model dispute does not provide a defence to its
contractual right to cancel and repossess
the vehicle. It says that
it did not market or supply the vehicle, that the defendant selected
it from the dealership, and that
any misrepresentation by the
dealership concerning the model year is a matter between the
defendant and the dealer.
[47]
In this respect, reliance
is placed in particular, upon
ABSA
Bank Ltd v Baloyi,
[10]
where the High Court held that the financier was not the supplier and
that alleged misrepresentations by a dealership concerning
a vehicle
fell to be pursued against that dealership. In essence, BMW Finance
says that the model-year discrepancy is not its problem
and the
defendant may sue the dealer for misrepresentation or for the
difference in value attributable to the incorrect model year.
[48]
It also relies upon
Mutual &
Federal Insurance Co Ltd v Da Costa
[11]
concerning representations as to a vehicle’s age, model and
value, and submits that any difference in value attributable
to the
model-year discrepancy may be pursued against the dealer.
[49] Finally, BMW
Finance submits that the defendant admits arrears and that a dispute
about the precise balance cannot prevent
repossession where default
is otherwise established.
[5] There is
considerable force in that last submission considered in isolation.
However, as will be demonstrated later in
this judgment, should the
reduction in the value of the vehicle as a 2019 model as a 2020 model
have the result that the arrears
would have been extinguished, would
call into question BMW Finance’s right to cancel the agreement
and seek repossession.
The contemporaneous
correspondence and its significance
[50] The
defendant’s complaint concerning the model year was not
formulated for the first time in response to the present
proceedings.
The correspondence annexed to the plea demonstrates that the dispute
arose years earlier and was pursued persistently
with both Jaguar
Land Rover South Africa and BMW Finance. That history is relevant not
merely to the defendant’s
bona fides
, but also to the
substance of the defence now advanced.
[51] On 21
September 2021, Jaguar Land Rover South Africa, through its Customer
Relationship Centre, informed the defendant
in writing that the year
model reflected on its system for the vehicle was 2019. This is
important because the defendant’s
allegation that the vehicle
was not a 2020 model was thus supported, at an early stage, by
information emanating from the manufacturer
itself.
[52] Thereafter, on
2 December 2021, the defendant addressed the matter squarely with BMW
Finance’s Head of Complaints.
He complained that the vehicle
had been sold to him as a 2020 model, that the dealer’s
description was inconsistent with
the manufacturer’s
information, and that a 2020 pricing schedule had apparently been
used. He went further and alleged that
an “
old (stock)
vehicle was sold as if it was a new (stock) vehicle
”, that
a 2020 pricing schedule had been used in pricing the vehicle rather
than a 2019 schedule, and that the dealer had
consequently benefited
financially from the transaction.
[53] The defendant
therefor placed responsibility squarely at BMW Finance’s door
and expressly requested that BMW Finance
investigate the dealer’s
conduct.
[54] BMW Finance
did not at that stage respond that the matter lay exclusively between
the defendant and the dealership. On
14 December 2021 it informed the
defendant that the complaint remained under investigation and that
the Regional Manager associated
with the dealer had been notified.
That response is significant because it shows that BMW Finance
initially treated the complaint
as one requiring investigation within
the transactional framework in which it and the dealership had
participated. This sits somewhat
uneasily with BMW Finance’s
present submission that the matter was simply between the defendant
and the dealership.
[55] On 14 January
2022 the defendant again wrote to BMW Finance. He referred to Jaguar
Land Rover South Africa’s confirmation
that the vehicle was a
2019 model and stated expressly that the instalment sale agreement
concluded between himself and BMW Finance
contained incorrect vehicle
information. He further contended that he had suffered financial loss
as a result. In substance, therefore,
the defendant linked the
alleged misdescription to BMW Finance’s own instalment sale
agreement long before litigation commenced.
[56] BMW Finance’s
response of 26 January 2022 is particularly important. It stated that
its team had reviewed the complaint
and that the supporting
documents, including the invoice and registration documents,
reflected a 2020 year model. BMW Finance further
stated that, in
South Africa, it worked according to the registered year model and
that the contract, invoice and registration
papers all matched. It
therefore concluded that nothing had been sold under false pretences.
[57] That response
demonstrates that BMW Finance itself initially engaged with the
correctness of the description of the vehicle
and relied upon the
contents of the contract, invoice and registration documents in
rejecting the complaint. It did not at this
stage characterise itself
merely as a financier that had nothing to do with the description of
the vehicle and did not maintain
that the description of the model
year was exclusively a matter between Mailula and the dealer.
[58] The defendant
immediately challenged BMW Finance’s conclusion in a detailed
response sent to BMW Finance the following
day. He again relied upon
Jaguar Land Rover South Africa’s information, explained his
understanding of the VIN coding, and
challenged BMW Finance’s
reliance upon the dealership’s documents in the face of
contrary information from the manufacturer.
H directly challenged
BMW's proposition that registration documents could alter the
manufacturer’s model year. He argued
that neither the dealer
nor BMW Finance could “flip” or alter the manufacturer’s
model-year information.
[59] Significantly
the defendant also requested a comparison with the monthly instalment
that would have applied to a comparable
2019 Jaguar XF, contending
that if the vehicle was indeed a 2019 model the sale agreement was
incorrect and unfair to him.
[60] This part of
the correspondence is relevant to the remedy ultimately asserted. The
defendant did not at that stage unequivocally
purport to cancel the
agreement. His approach was instead to seek investigation, correction
of the transaction and an adjustment
of its financial consequences.
That is consistent with an election to pursue a affirmatory remedy,
such as a reduction in price
or other monetary adjustment, rather
than rescission.
[61] The dispute
continued through February 2022. On 10, 16 February 2026 and on 24
February, the defendant complained that
BMW Finance had not properly
engaged with the manufacturer’s information, sought escalation
to more senior personnel and
eventually requested the contact details
of BMW Finance’s legal department. The sequence confirms that
the issue was persistent
and genuine, not contrived in order to
resist repossession after he had fallen into arrears on the
agreement.
[62] BMW Finance’s
final substantive response, dated 24 March 2022, marked a change in
stance. It stated that the matter
had been referred to its Regional
Manager and the dealership, that the information and documents
gathered had been reviewed, but
that the complaint was not
finance-related and could not be resolved by BMW Finance. It advised
the defendant to pursue the matter
with the dealership, stating that
BMW Finance could resolve only finance-related matters and that it
merely provided finance and
paid out on the documentation agreed
between dealer and customer. It advised the defendant that he was
free to seek further legal
assistance.
[63]
That formulation is of
particular significance in light of the recent Supreme Court of
Appeal authority in
NiekeNiekerk
v FirstRand Bank Limited
.
[12]
The position adopted by BMW Finance in March 2022 - that it was
concerned only with finance and that complaints relating to the
vehicle itself belonged to the dealer - is substantially the same
type of distinction which the Supreme Court of Appeal rejected.
It
was held that where the terms of an instalment sale agreement
established that an instalment-sale financier whose contractual
position makes it owner and seller cannot necessarily adopt that
characterisation; it may simultaneously “
wear
two hats
”
,
as credit provider and supplier.
[64] The
correspondence dealt with above has significance on several levels.
First, it strongly supports the
bona fides
of the defendant’s
defence, because the model-year dispute was raised and pursued years
before summons was issued. Second,
it shows that the defendant
expressly connected the alleged misdescription to BMW Finance’s
own instalment sale agreement.
Third, it shows that BMW Finance
initially investigated the complaint substantively and only later
adopted the position that the
issue lay exclusively with the
dealership. Fourth, it supports the defendant’s contention that
he sought a correction or
financial adjustment rather than treating
the transaction as cancelled.
[65] In my view,
this documentary history is inconsistent with the suggestion made by
BMW Finance that the model-year defence
is an afterthought raised
merely to delay repossession. It is instead a long-standing dispute
concerning the contractual description
and value of the very goods
sold under the instalment sale agreement. Whether that dispute
ultimately entitles the defendant to
rescission, a reduction in
price, damages or no relief at all is a matter for trial. But the
defence raised requires at least that
the defendant should be
permitted to have it adjudicated fully at a trial in due course.
[6] I say this
primarily because the defendant has recent Supreme Court of Appeal
(SCA )authority supporting his position.
Van Niekerk v
FirstRand Bank
[66]
The defendant relies upon
a decision of the Supreme Court of Appeal that in my view is
decisive. This is the recent decision of
Van
Niekerk v FirstRand Bank Limited
.
[13]
In
Van
Niekerk
the
bank had instituted action upon an instalment sale agreement and
sought cancellation and damages. The purchaser resisted the
claim on
the basis of latent defects in the motor vehicle, alleged that she
had validly cancelled the agreement and counterclaimed
for
restitution.
[67] The High Court
held that the bank merely financed the vehicle and was not the
supplier. That is substantially the characterisation
advanced by BMW
Finance in the present matter. The SCA, however rejected this
characterisation. It interpreted the instalment sale
agreement as a
whole and gave particular weight to provisions under which the bank
sold the goods, remained their owner until payment
and was registered
as titleholder. It held at para 24 that the bank “
most
certainly wore two hats
”, namely that of supplier and that
of credit provider. At para 25 it held that the bank, as owner of the
vehicle, was both
supplier and credit provider.
[68]
The SCA expressly
rejected the narrow approach adopted in
MFC
(a division of Nedbank Ltd) v JAJ Botha
,
[14]
according to which the credit provider’s role is simply to
provide credit and not to fulfil the role of supplier. The SCA
reasoned that while the NCA excludes the credit transaction itself
from the operation of the CPA, section 5(2)(d) of the CPA does
not
exclude the goods which are the subject of that transaction.
[69] Four
contractual terms in the First Rand Bank instalment sale agreement
were decided as decisive. The first was that
the agreement defined
the supplier as the party from whom the goods had been procured. The
second was that it was stated:
“
We Sell the
Goods to you on the terms and conditions of this Agreement
.”
[70] The other two
terms provided that the bank would remain the owner until all amounts
had been paid and required the bank
to be registered as title owner.
[7] The contractual
terms in the agreement before the SCA which led it to the conclusion
that “
the bank most certainly wore two hats when it entered
into the agreement, namely, as that of supplier and that of credit
provider
,” are equally present in the matter before me;
indeed, the provisions in the instalment sale agreement in the matter
before
me are more extensive and serve to heighten the conclusion
that was reached by the SCA in
Van Niekerk
.
[71] In the clauses
quoted by me at the beginning of this judgment in the instalment sale
agreement before me, BMW Finance
calls itself the “Seller”,
it is provided that the defendant takes delivery on its behalf, that
ownership passes from
the dealer to BMW Finance and remains with it,
and demonstrate that BMW Finance invokes precisely the proprietary
rights of a seller
when it seeks cancellation and repossession.
[72] In my view
Van
Niekerk
prevents BMW Finance from disposing of the model-year
defence on the simple basis that “
BMW Finance was only the
financier and the defendant must sue the dealer
.” The legal
relationship created by the agreement is more complex and may in fact
indicate that BMW is the seller vis-a-vis
the defendant and that it
has a separate relationship between it and the dealer that means that
the defendant’s port of call
is indeed BMW Services.
[73] This does not
mean that the dealer is necessarily immune from liability, nor that
the separate juristic personality of
companies within the BMW group
may be ignored. The fact that the dealership operated under the BMW
brand and that BMW Finance is
another BMW entity does not, without
more, merge their corporate identities or make every representation
by one attributable to
the other. But that they are entities under
the BMW umbrella does make BMW Finance’s insistence that it is
not responsible
and that the defendant’s remedy is against the
dealer a little artificial and serves to elevate form over substance,
even
if it does not necessarily warrant the piercing of the corporate
veil.
[74] Indeed, the
agreement itself contemplates the participation of authorised
dealers, agents and business partners in the
transaction. Whether the
dealership acted independently, as supplier to BMW Finance, as BMW
Finance’s authorised intermediary
for particular purposes, or
in some combination of those capacities, and who supplied the
information which resulted in the vehicle
being described in BMW
Finance’s contract as a 2020 vehicle, are questions which
cannot appropriately be determined on these
papers. But they are
issues that could and should properly be fleshed out at a trial.
[75]
Nor does
Da
Costa
[15]
answer that enquiry. That
case concerned the materiality and valuation consequences of
descriptions of a motor vehicle in an insurance
context. It may
ultimately assist in assessing whether the difference between a 2019
and 2020 model was material and what financial
consequence followed;
it does not determine whether BMW Finance, as contractual seller and
owner, may disclaim responsibility for
the description of the merx in
its own instalment sale agreement.
[76] Likewise,
after
Van Niekerk
,
Baloyi
cannot be treated as
establishing an absolute proposition that a credit provider under an
instalment sale is merely a financier.
The contractual arrangements
must be examined. To the extent that
Baloyi
rests upon a
proposition inconsistent with the later SCA authority, I am bound by
Van Niekerk
.
The limits of the Van
Niekerk defence and the remedy elected by the defendant
[77]
Van Niekerk
does not, however, determine this application automatically in the
defendant’s favour. There are a number of further issues
concerning the defendant’s elected remedy that require
consideration.
[78] Mrs Van
Niekerk proved serious latent defects at trial, had cancelled her
agreement and counterclaimed for restitution
under the
actio
redhibitoria
. The SCA held that she was entitled to do so and
confirmed the cancellation.
[79] I might
mention that BMW Finance sought to distinguish
Van Niekerk
on
the basis that the vehicle contained serious latent defects. I do not
agree. The fact that the vehicle was a 2019 model and not
a 2020
model as represented to the defendant, equally constitutes a latent
defect. It was not something readily discernible prior
to
confirmation of the VIN number by BMW South Africa. The defect was
thus certainly latent. And the fact that it was a 2019 model
and not
a 2020 model was, without doubt, a defect.
[80] However, the
defendant has not pleaded its case on the basis of the
actio
redhibitoria
as Ms Van Niekerk had done. But does that
distinguish his case from that relied upon by the defendant?
[81] The
defendant’s plea does not contain an unequivocal election
cancelling the agreement between him and BMW Finance.
His continued
payments and expressed desire to regularise his account and negotiate
a reduced purchase price in view of the reduced
market value of the
model that he was provided with may ultimately amount to affirmation
rather than rescission of the instalment
sale agreement between the
defendant and BMW Financial Services.
[82] It is
consequently possible that the defendant’s ultimate remedy is
not cancellation, but a reduction of the purchase
price, damages, or
some other monetary adjustment flowing from the misdescription. That
question is a matter for determination
by a trial court in due
course.
[83] That being
said, I should mention that the defendant has consistently stated
that he has no relationship with the dealer
and that his relationship
is with BMW Financial Services, who in fact purchased the vehicle
from the dealer and not him. He thus
argues that it is BMW Financial
Services that ought to have cancelled the contract with the dealer
due to misrepresentation and
released him from his financial
obligations under the subsequent instalment sale agreement concluded
with him. Thus, although he
did not cancel the agreement with BMW
Financial Services themselves, as the defendant had done in
Van
Niekerk
, cancellation of the sale had been his ultimate
objective.
[84] It was only
after BMW Financial Services had refused to do so and had indicated
that his recourse was against the dealer
and not them, that he,
attempted to negotiate with BMW Financial Services to reduce the
purchase price payable in terms of the
Instalment Sale Agreement in
line with the market value of a 2019 model of the vehicle that he had
purchased. I do not understand
why BMW Financial Services were not
amenable to this; they were not dealing with a recalcitrant debtor
seeking to avoid payment;
all he wanted was to pay off the vehicle at
the value of a 2019 and not a 2020 model that had been purportedly
sold to him.
[85] But I must
also mention that in his heads of argument, the defendant contends
that should be treated as cancelled, with
the parties effectively
restored to their positions prior to the agreement; in the
alternative, the defendant seeks that the outstanding
balance should
be adjusted to reflect the true value of the vehicle as a 2019 model.
[86] What is
important is that Rule 32 does not require that the defendant plead a
perfect cause of action for
restitutio in integram
or
quanti
minoris
; all that it requires is that the defendant disclose a
bona fide
defence. A court is not bound by a party’s
erroneous characterisation of his/her/its defence where the facts
pleaded disclose
a defence in law. The principle
iura novit curia
permits the court to apply the correct legal rule, provided that
doing so does not prejudice the parties by deciding the case upon
facts that they were never called upon to meet.
[87] This is not
the case here; cancellation of the agreement, alternatively a
reduction in the purchase price was expressly
raised in the
correspondence attached to the plea and in the heads of argument. BMW
Finance can hardly be surprised by the allegations
that it was the
seller under the instalments sale agreement when its own terms
unequivocally state this.
[88] And the
analysis of the defendant’s correspondence to its plea serves
to indicate that the relief sought by the
defendant is that based
upon the
actio quanti minoris
.
[89]
If the defendant has
affirmed
the sale
notwithstanding
the misdescription and his remedy is therefore effectively one for
reduction of price rather than rescission, the
conceptual consequence
is that the agreement remains in existence. The
actio
quanti minoris
proceeds
on the basis that the purchaser
keeps
the contract and the goods
,
but obtains a reduction representing the difference between the value
contracted for and the actual value of the goods supplied.
[90] Should the
defendant affirm the sale, this leaves it open to BMW Finance to
argue that the model-year dispute is relevant
to the accounting
between the parties after the vehicle has been repossessed and sold,
but does not deprive it of its contractual
right to repossess the
vehicle following the defendant’s admitted default in the
payments due under the agreement.
[91] However, if
the defendant can show that the proper reduction in price would have
meant that he was not in arrears at
the date that BMW Finance elected
to cancel the agreement, this would go directly to BMW Finance’s
accrued right of cancellation,
and consequently its right to
repossession.
[92] This
possibility, in and of itself, to mind establishes that the defendant
should be granted the opportunity to have
his defence properly
interrogated at a trial in due course.
[93] I thus reject
BMW Finance’s contention that the defendant will, at that later
stage, be able to raise any properly
pleaded reduction in the
purchase price, damages or set-off which may reduce the ultimate
balance outstanding at that stage of
the proceedings.
Conclusion
[94] Were the
defendant represented and his plea professionally drafted, the Court
might legitimately expect the distinction
between rescission,
reduction of price, damages and set-off to have been pleaded with
greater clarity. It might also expect an
express allegation whether
any reduction in price would have extinguished the arrears existing
when BMW Finance purported to cancel
the agreement.
[95] But the
defendant is a lay litigant who, years before these proceedings,
identified and persistently pursued the very
factual problem which
has now assumed legal significance following
Van Niekerk
. He
cannot reasonably be expected to have appreciated the juridical
distinction between BMW Finance as credit provider, owner,
seller and
supplier, or the separate common-law remedies of rescission (
actio
redhibitoria
) and reduction of price (
actio quanti minoris
).
[96] But what he
did keenly appreciate was that it was BMW Finance that was the seller
in their contract with him and that
he had no contract with the
dealer and that thus, his recourse was through them and not the
dealer. The contractual provisions
of the instalment sale agreement
that he concluded with BMW Financial Services bear him out on this
interpretation and he has Supreme
Court of Appeal authority in
Van
Nielerk
supporting him.
[97] Pleadings
serve to identify the material facts in dispute. It is for the court
to apply the law to the facts so presented.
The defendant’s
plea states, in substance, that BMW Finance contracted with him in
respect of what the contractual documentation
identified as a 2020
Jaguar, that the vehicle was in fact a 2019 model, that BMW Finance
was repeatedly informed of the discrepancy,
that BMW Finance itself
initially maintained that the contractual, invoice and registration
information was correct, description
o and that the manufacturer
thereafter allegedly confirmed that the vehicle he had purchased was
a 2019 model and not a 2020 model
as he had been told was being
purchased by him.
[98] These
allegations require an answer at trial. They are supported by
contemporaneous correspondence predating the litigation
by several
years. They are not bare denials of the kind considered in
Cellsecure
and more than meet the threshold required in the amended Rule.
[99]
A fortiori
,
BMW Financial Servies itself pleads that the written agreement
contained an incorrect description of the vehicle sold that it
seeks
to rectify as a common or
bona fide
error. That feature
reinforces the conclusion that the description of the vehicle in the
instalment sale agreement did not relate
to the vehicle that the
defendant had purchased.
[100] Whether the
model-year discrepancy was material, whether it induced the
transaction, whether BMW Finance or the dealer was
responsible for
it, whether the relevant representation may legally be attributed to
BMW Finance, whether the defendant affirmed
the agreement after
acquiring knowledge of the true model year, whether he retained a
right to rescind the agreement, whether he
instead possesses a right
to claim a reduction in the purchase price under the
actio quanti
minoris
or damages claim, and whether any such claim would affect
the existence or extent of the default upon which BMW Finance relied,
are all matters that ought properly be determined at a trial.
[101] Even where a
defence is imperfectly articulated, the court faced with an
application for summary judgment retains a discretion
where the
papers disclose a genuine issue requiring trial.
Joob v Joob
emphasises that summary judgment is intended to prevent recalcitrant
debtors from delaying claims to which they have no answer,
but
equally to afford a litigant who has crossed the threshold of
disclosing a
bona fide
defence valid in law the opportunity of
ventilating the dispute at a trial.
[102] The defendant
complained about the model-year discrepancy long before summons. The
manufacturer is alleged to have confirmed
his contention by reference
to the VIN number. BMW Finance’s own contract identifies the
vehicle purchased by the defendant
as a 2020 model.
[103] Much of BMW
Finance’s arguments have been rebuked by
Van Niekerk
.
[104] It is thus utterly
appropriate that the matter should proceed to trial, where the
parties may amend their pleadings if necessary,
discover the relevant
dealer and manufacturer documentation, lead evidence concerning the
VIN and model year, explain the contractual
chain and dealership
relationship, and address expressly the defendant’s election
and the monetary consequences, if any,
of the alleged misdescription.
[105] I thus conclude
that the defendant has disclosed sufficient material facts to
establish a
bona fide
defence and a genuine issue for trial.
Summary judgment must therefore be refused.
Costs
[8] The defendant
has succeeded in resisting summary judgment, but the merits of the
action remain unresolved. The issues
which resulted in refusal of
summary judgment are closely connected to matters which the trial
court will ultimately determine.
In those circumstances it is
appropriate that the costs of the summary judgment application be
costs in the cause.
Order
[71] The following order
is made:
a. The defendant’s
late delivery of his affidavit resisting summary judgment is
condoned.
b. The plaintiff’s
application for summary judgment is refused.
c. The defendant is
granted leave to defend the action.
d. The costs of the
summary judgment application shall be costs in the cause.
e. No separate
order as to the costs of the condonation application is made.
WENTZEL-THOMPSON J
JUDGE OF THE HIGH
COURT
JOHANNESBURG
For the Applicant: Adv.
R.V Mudau instructed by Velile Tinto Associates Inc
For the Respondent: In
person
Date of the hearing: 28
July 2026
Date of the judgment: 28
August 2026
[1]
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A) at 532B-E.
[2]
Maharaj
v Barclays National Bank Ltd
1976
(1) SA 418
(A), as subsequently explained in
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1 (SCA)
[3]
Case number 2109/8153, a decision of the full court dated 4 October
2019.
[4]
Tumileng
Trading CC v National Security and Fire (Pty) Ltd; E and D Security
Systems CC v National Security and Fire(Pty) Ltd
(3670/2019)
[2020] ZAWCHC 28
;
2020 (6) SA 624
(WCC) (30 April 2020).
[5]
2020 (1) SA 494 (SCA)
[6]
Cellsecure
Monitoring and Response (Pty) Ltd and Others v South African
Securitisation Programme (RF) Limited
(A201_2023;
21647_2021) [2025] ZAGPPHC 98 (31 January 2025)
[7]
This
is an issue that had been expanded upon by the defendant during
argument, the defendant not quite appreciating the difference
between argument and tendering evidence from the bar that was not
under oath. This background nevertheless serves to elucidate
his
pleaded version and is not relied upon me in reaching my ultimate
conclusion regarding the defendant’s pleaded defence
in this
judgment.
[8]
Firstrand
Bank Limited t/a Wesbank and Suzuki Mobility Finance v Farrar
(19950/2022) [2023]
ZAGPJHC 954 (25 August 2023),
[9]
supra
[10]
ABSA
Bank Limited v Baloyi
(2024/143345)
[2025] ZAGPJHC 1095 (27 October 2025),
[11]
2008
(3) SA 439 (SCA)
[12]
2026
(2) SA 516 (SCA)
[13]
2026
(2) SA 516 (SCA)
[14]
MFC
(a division of Nedbank Ltd) v Botha
(6981/13)
[2013] ZAWCHC 107 (15 August 2013)
[15]
Mutual
& Federal Insurance Co Ltd v Da Costa
(243/06)
[2007] ZASCA 89
; [2007] SCA 89 (RSA);
2008 (3) SA 439
(SCA) (6 June
2007),