BMW Financial Services SA (Pty) Ltd v Selamolela Incorporated (2024/117320) [2025] ZAGPJHC 1117 (3 November 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1117 | Noteup | LawCite sino index ## BMW Financial Services SA (Pty) Ltd v Selamolela Incorporated (2024/117320) [2025] ZAGPJHC 1117 (3 November 2025) BMW Financial Services SA (Pty) Ltd v Selamolela Incorporated (2024/117320) [2025] ZAGPJHC 1117 (3 November 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1117.html sino date 3 November 2025 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG CASE NO: 2024-117320 (1) REPORTABLE: No (2) OF INTEREST TO OTHER JUDGES: No (3) REVISED: 3/11 2025 In the matter between: BMW FINANCIAL SERVICES SA (PTY) LTD Applicant/Plaintiff and SELAMOLELA INCORPORATED Respondent/First Defendant JUDGMENT Maier-Frawley J: Introduction [1] This is an opposed summary judgment application in which the applicant seeks the return of a certain BMW X4 xDRIVE A/T SPORT motor vehicle (‘the vehicle’) from the respondent, together with ancillary relief. [2] The applicant (as plaintiff) alleged in the particulars of claim that on 31 January 2024, the Plaintiff (duly represented) and the first defendant (represented by Donald Selamolela) had entered into a written instalment sale agreement, electronically, (‘the agreement’) in terms of which the applicant had sold and delivered the vehicle to the respondent. The principal debt of R1,456,989.72 was payable by the respondent in monthly instalments, over 72 months, of R25,008.04 with a final payment of R422,517.76. Ownership of the vehicle remained vested in the plaintiff until the respondent had paid all amounts due by it. [3] The respondent breached the agreement by failing to make certain monthly payments, as reflected in annexure ‘B’ to the particulars of claim. This gave the applicant the right, in terms of clause 16, to cancel the agreement and, among other things, take the vehicle back. [4] After having sent a letter of demand to the respondent to its domicilium as it was reflected in the agreement, and following the respondent’s failure to respond thereto, the applicant issued summons in which it cancelled the agreement. [1] [5] The respondent, together with the second defendant (Donald Selamolela), opposed the action and filed a combined plea and counterclaim. The counterclaim was not said to be conditional. The principal defence raised in the plea was a disavowal of the conclusion of the agreement, whether as alleged or at all. In the counterclaim, the defendants repeated, relied on and thereby avowed all the averments made by the plaintiff in its particulars of claim, however, alleging in claim 1 thereof that the agreement concluded between the parties was void on the basis that the plaintiff was not a registered credit provider at the time of the conclusion of the agreement. [6] The defendants’ plea was tantamount to a bare denial of the material facts averred in support of the plaintiff’s claim. Thus, averments relating to the conclusion of the agreement; its terms, its breach, the plaintiff’s demand for payment of arrears, defendants failure to rectify the breach, and the consequent cancellation of the agreement, were baldly denied. Certain averments in the particulars of claim were however “noted” in the plea. In terms of uniform rule 22(3) of ‘ every allegation of fact … which is not stated in the plea to be denied or to be not admitted, shall be deemed to be admitted ’ . The allegations that were ‘noted’, and thus deemed to be admitted, concerned the court’s jurisdiction, that the vehicle was delivered by the plaintiff to the first defendant, that the plaintiff’s retained ownership of the vehicle; the first defendant’s payment history contained in annexure “B” to the particulars of claim and which reflects payments made by the first defendant and arrears accumulated between the period 1 April 2024 and 1 September 2024; and that the National Credit Act 34 of 2005 (the NCA) did not apply to the agreement. [7] As at 1 September 2024, the respondent was in arrears in the amount of R50,762.97. By the time that the summons was issued, and as at 1 October 2024, the arrears had increased to R76, 064.16. [8] In terms of clause 16 of the agreement, if the Respondent, amongst others, failed to pay any amounts payable under the agreement on due date, the applicant was entitled to cancel the agreement, obtain return of the vehicle, and claim damages. [9] In its opposing affidavit, the respondent denied that the deponent to the affidavit in support of summary judgment had the requisite knowledge to enable her to depose thereto, as is required by Rule 32(2(a). The following further defences were raised in the opposing affidavit: (i) A purported dispute of fact in respect of the registration of the plaintiff as a registered credit provider when the agreement was concluded; (ii) That clause 16 purportedly provides that “ in the event of a breach by the Respondent, such breach would be treated as a default and that the parties could thereafter enter into a repayment plan. These are the express terms of the agreement, which the Applicant now refuses to honour. ”; (iii) A denial of being indebted to the Applicant in the amount claimed as the applicant “ has failed to explain, with sufficient particularity, how the amount allegedly owed was calculated .” The accuracy of the amount of the arrears as at 1 October 2024 and the total indebtedness claimed was thus in contention; (iv) Reliance on a counterclaim to resist summary judgment. Relevant legal principles [10] In terms of rule 32(2)(a), “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.” This requirement relates to who may make the affidavit. A deponent’s knowledge of the facts enabling him or her to swear positively thereto is what qualifies or entitles the deponent to make the affidavit. [11] I n President of the RSA [2] the Constitutional Court endorsed the view that a deponent's assertion that information is within his or her personal knowledge is of little value without some indication, at least from the context, of how that knowledge was acquired. The court further stated that the key question is whether the deponent would, in the ordinary course of his or her duties or as a result of some other capacity described in the affidavit, have the opportunity to acquire the information or knowledge alleged. [3] Later on in the judgment, the court held that a witness who claims personal knowledge of a cause of action in summary judgment proceedings must either set out the circumstances from which the Court would be justified in coming to the conclusion that the facts are within his knowledge, or it must appear from the nature of his evidence that the facts are within his knowledge. [4] [12] In Rees [5] the Supreme Court of Appeal held that first-hand knowledge of every fact which goes to make up the applicant’s cause of action is not required, and that where the applicant is a corporate entity, the deponent may well legitimately rely on records in the company’s possession for their personal knowledge of at least certain of the relevant facts and the ability to swear positively to such facts. [6] The point was reiterated in paragraph 15 of the judgment, where the court stated that “ First-hand knowledge of every fact cannot and should not be required of the official who deposes to the affidavit on behalf of ... large corporations. To insist on first-hand knowledge is not consistent with the principles espoused in Maharaj.” [7] [13] In terms of rule 32(3)(b), the  defendant may, amongst others, “satisfy the court by affidavit... that the defendant has a bona fide defence to the action and such affidavit shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.” [14] The court must consider whether the opposing affidavit complies with the provisions of rule 32(3)(b) and, in this regard, whether it accords with the respondent’s plea. In other words, whether the respondent has, with reference to its plea, disclosed a bona fide defence to the action. Regarding the content of the opposing affidavit, in Tumileng, [8] Binns-Ward J explained the position (both prior to the recent amendments to rule 32 and subsequent thereto) thus: “ ...rule 32(3)(b) which provides for what is required in a defendant’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 defendant ‘ 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 defendant 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 defendant in respect of the content of its opposing affidavit than was the case in the pre-amendment regime, for the defendant will be expected to engage with the plaintiff’s averments concerning the pleaded defence . [9] In par 48 of the judgment, the court went on to caution as follows: “ To borrow from Navsa JA’s characterisation of the defendant’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 defendant 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 plaintiff’s supporting affidavit to back up its bald plea with substantiating particularity.  If a defendant 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 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 defendant. [10] (emphasis added, footnotes omitted) [15] In Raumix , [11] a full court considered the amended Rule 32 and held that 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. It has also been said that t he purpose of summary judgment is to ‘enable a plaintiff with a clear case to obtain swift enforcement of a claim against a defendant who has no real defence to that claim’. [12] It is a procedure that is intended ‘to prevent sham defences from defeating the rights of parties by delay, and at the same time causing great loss to plaintiffs who are endeavouring to enforce their rights. [13] [16] As held in Breitenbach v Fiat, [14] the court must be satisfied that there is a bona fide defence. A defendant is required to swear to a defence, valid in law, in a manner which is not inherently and seriously unconvincing. The defendant must set out in his affidavit the nature and grounds of his defence and the material facts relied upon therefore are to be fully disclosed. The statement of material facts must be sufficiently full to persuade the court that what the defendant has alleged, if proved at trial, will constitute a defence to the plaintiff’s claim.  The court further explained that if the defence is averred in a manner which appears in the circumstances to be needlessly bald, vague or sketchy, this would impact on the requirement of bona fides . Discussion Lack of sufficient knowledge [17] The test is whether the deponent can swear positively to the facts.  As indicated in in Rees, this does not mean that the deponent must, from personal knowledge, be able to give evidence of each and every fact which the plaintiff would be required to prove at trial. In the present case, the deponent testified that she is employed as the ‘Supervisor for Asset and Loss Recoveries’ at the applicant. In such capacity, she has been involved in the applicant's claim against the respondent. She has in her possession and under her control, inter alia , the Applicant's files, documents, statement of account and the like relating to this action. She further testified that, from her own personal knowledge of the matter and the Applicant's operation of business as well as having perused and examined the documents and records, she can and does swear positively to the fact that the Respondent is liable to the Applicant for the relief claimed as set forth in the particulars of claim and more specifically the prayers in the application for summary judgment. [18] According to the deponent, she not only had due regard to all records and information in the possession of the plaintiff in relation to the account in question, but also had some personal involvement in the applicant’s claim against the respondent. The respondent has not countered these allegations. The respondent avers that the deponent did not sign the instalment sale agreement on behalf of the applicant and therefore lacks personal knowledge. It is correct that the deponent did not sign the agreement that was electronically concluded. Ultimately, however, the material facts pertaining to the action as outlined in the particulars of claim could easily be ascertained from the records. A perusal of the relevant records would have provided the deponent with the opportunity to acquire the information or knowledge alleged. Whether paper-based or computer generated, the information of the respondent’s financial standing with the applicant that was available to the deponent, was sufficient to equip or allow her to depose to a valid and adequate verifying affidavit. Accordingly, the point in limine must fail. Applicant not a registered credit provider [19] In par 1.2 of the particulars of claim, the plaintiff pleaded that “The Plaintiff is a registered Credit provider and duly registered Section 40 of the National Credit Act 34 of 2005 ('the Act") with registration number NCRCP2341. A copy of the Credit Provider Certificate is attached hereto as Annexure ‘N1’”. N1 is a certificate that certifies the Plaintiff’s status for the period 1 August 2024 to 31 July 2025. At the time of the conclusion of the instalment sale agreement on 31 January 2024, the certificate attached to the particulars of claim did not support the averments in made in par 1.2. [20] The correct certificate was however presented in the supporting affidavit, which reflected the applicant’s status from 1 August 2023 to 31 July 2024. [15] The certificate revealed that the plaintiff was indeed registered at the relevant time. The respondent opportunistically objected to such certificate, ostensibly because it put paid to the controversy surrounding the applicant’s status when the contract was concluded. The defence in the plea was, however, that the respondent did not conclude the instalment sale agreement relied on by the plaintiff in the particulars of claim. Yet the respondent raised a counterclaim in which, in Claim 1, it relied on all the allegations made by the plaintiff in its particulars of claim, to assert, disingenuously so, that such agreement, as concluded, was void for failure to register as a credit provider in terms of the NCA. [21] The disingenuity of the defence/counterclaim is not only apparent from the respondent’s defence in the plea, being in contra-distinction to its counterclaim, but also from its admission that the NCA was not applicable to the applicant’s claim. The ‘voidness defence’ - premised on the applicant not being registered at the relevant time - was not pleaded in the alternative to the denial of the conclusion or existence of the agreement, nor was a conditional counterclaim brought. [22] In any event, whether or not the plaintiff was registered at the relevant time, would easily be proven at trial by reference to the relevant certificate of registration. The respondent has not asserted the material facts it relies on in support of its denial that the applicant was not registered at the relevant time. It has not engaged with the allegations made by the applicant in its supporting affidavit as to its status at the relevant time  Since the correct certificate in fact been provided, no genuine triable issue or sustainable defence can be said to exist. Purported contractual obligation to exhaust less drastic remedies [23] The respondent averred that the applicant was contractually obliged to exhaust less drastic alternatives, such as ‘collection strategies and attempts to rehabilitate the account’, before deciding to litigate. It also averred that clause 16 expressly provides that in the event of a breach by the Respondent, such breach would be treated as a default and that the parties could thereafter enter into a repayment plan. This point only has to be stated to be rejected. The contract, which the respondent denies it entered into but yet relies on in support of this contention, says no such thing in clause 16. [16] [24] In any event, it is notable that that the respondent does not assert that it had approached the Plaintiff to agree on an affordable repayment plan. Instead, the representative of the respondent (second defendant in the action) appears to be content to continue using the motor vehicle, however, without paying for the use of the vehicle in accordance with the payment terms set out in the agreement. Counterclaim – Claim B [25] In claim 2 of the counterclaim, the respondent seeks a statement and debatement of account. [17] [26] The contract itself does not contain any express term obliging the applicant to render accounts as alleged by the respondent or at all. Claim 2 is premised on an implied contractual term. An implied term is one which the law imports into the contract. [27] In the context of a debtor creditor relationship, the implied term contended for is not one which the common law would import into their contract. [18] I was not furnished with any authority by the respondent’s counsel during the course of oral argument that suggests otherwise. In Moila, [19] the Supreme Court of Appeal held that the right to debate an account is not to be confused with the right to receive same. The two are not coextensive. The respondent has failed to disclose the material facts in support of its claim for a statement or a debatement of account in its opposing affidavit. More significantly, it has failed to disclose any factual or legal basis for any entitlement to a debatement of account. As such, apropos this claim, the the opposing affidavit does not meet the required threshold for resisting summary judgment. Denial of being indebted in the amount claimed [28] The alleged dispute concerning the correctness of the applicant’s calculations of the amount owing is not relevant within the context of the present proceedings, which are aimed at securing the return of the vehicle pursuant to a valid cancellation of the agreement. Conclusion [29] It stands out starkly that the appellant has not raised a legally cognizable defence on the merits. The respondent did not aver in its opposing affidavit that it was not in breach of the agreement. Quite the opposite. In par 12.1.2 of the plea, it averred that “ upon receipt of formal statements as dispatched by the Plaintiff's representatives, the Defendant appears to be in arrears to the sum of only R 41 266.67” as opposed to the amount of R76 064.16 as averred by the applicant. Given the respondent’s denial of the conclusion of the written credit agreement annexed to the particulars of claim, the respondent also failed to state on what basis it legally acquired possession of the vehicle. The respondent also did not aver in its opposing affidavit that it is entitled to retain possession of the vehicle. In fact, the respondent asserted no legal right to retain possession and nothing averred in the opposing affidavit either warrants a conclusion that the respondent is legally entitled to retain possession. [30] For all the reasons given, I am of the view that the applicant/plaintiff has established its entitlement to the grant of summary judgment. [31] The general rule is that costs follow the result. I see no reason to depart therefrom. Although the applicant sought a punitive cost order at the hearing of the matter, I am not persuaded that such an order is warranted solely because the respondent was mala fide in unsuccessfully resisting summary judgment. [32] Accordingly, I grant an order in terms of the draft order attached hereto. A. MAIER-FRAWLEY JUDGE OF THE HIGH COURT GAUTENG LOCAL DIVISION, JOHANNESBURG This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines.  The date for hand-down is deemed to be 4 November 2025. APPEARANCES For the applicant/plaintiff:                        Adv. M Arroyo Instructed by:                                          Strauss Daly Incorporated For the respondent/first defendant:         Adv. V Mapholi Instructed by:                                          Phajane Attorneys Inc Date of hearing:                                      29 October 2025 Date of judgment:                                   4 November 2025 [1] The relief sought in the particulars of claim was for an order confirming of the termination of the agreement; an order for the return of the vehicle; and an order authorizing the Plaintiff to apply to the court on the same papers, supplemented insofar as may be necessary, for judgment in respect of any damages and further expenses incurred by the Plaintiff in the repossession of the said vehicle, which amount can only be determined once the vehicle has been repossessed by the Plaintiff and has been sold, together with an order for costs on scale B. [2] President of the RSA and Others v M & G Media Ltd 2012 (2) SA 50 ( CC) [3] Id, par 25. [4] Id, par 111. [5] Rees and Another v Investec Bank Limited 2014 (4) SA 220 (SCA) [6] Id, par 13. [7] Id, par 15, where the case of Maharaj v Barclays National B an k Ltd 1976 (1) SA 418 (A) was referenced. [8] Tumileng Trading CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC). [9] Id, par 24. [10] See too: NPGS Protection & Security Services CC & Another vc Firstrand Bank Ltd 2020 (1) SA 494 (SCA) at par 14, where a similar caution was sounded: “ Indeed, the court would be remiss in its duties if ... defences, clearly devoid of any bona fides, stand in the way of plaintiffs 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 general 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 judgments is stated.” (emphasis added) [11] Raumix Aggregates (Pty) Ltd v Richter Sand CC and Another and similar matters 2020 (1) SA 623 (GJ) at  par 16. [12] Andries Charl Cilliers, Cheryl Loots and Hendrik Christoffel Nel Herbstein and Van Winsen: The Civil Practice of the High Courts of South Africa (5ed) Vol 1 (2009) at 516-517. [13] See: Majola v Nitro Securitisation 1 (Pty) Ltd 2012 (1) SA 226 (SCA) at par 25. [14] Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 at at 228 B-H. See too: Tumileng Trading CC v National Security and Fire (Pty) Ltd; E and D Security Systems CC v National Security and Fire (Pty) Ltd 2020 (6) SA 624 (WCC), par 41 where Binns-Ward J cautioned that “ The effect of the amended requirements for a supporting affidavit is, however, to require the defendant to deal with the argumentative material in its opposing affidavit. A defendant that fails to do that, does so at its peril .” (emphasis added) [15] There is dissensus in the case law about whether or not any documents can be attached to the supporting affidavit. In Nissan Finance, a product of Wesbank, of FirstRand Bank Limited v Gusha Holdings and Enterprises (Pty) Ltd and Another (2022/9914) [2023] ZAGPJHC 303 (5 April 2023), I held that this was not permissible, relying on certain authorities mentioned in the judgment, I have since had the opportunity to consider the judgment by Q Leech AJ in FirstRand Bank Limited v Badenhorst NO and Others (2022/5936) [2023] ZAGPJHC 779 (10 July 2023). The learned acting Judge embarked on a thorough discussion of the subject, having regard to various authorities, in particular, that of ABSA Bank Limited v Mashinini N.O and Another (32016/2019;32014/2019) [2019] ZAGPPHC 978 (22 November 2019) (which I was not referred to at the time I penned the Nissan Finance judgment) and which judgment Leech AJ preferred to that of Absa Bank Limited v Mphahlele N.O and Others (45323/2019, 42121/2019) [2020] ZAGPPHC 257 (26 March 2020) on which I had, amongst others, relied in the Nissan Finance judgement. In par 27, Leech AJ concluded that “ As noted in Nissan supra, rule 32 (4) does provide that, “[n]o evidence may be adduced by the plaintiff otherwise than by the affidavit referred to in subrule (2)”. The rule nevertheless contemplates some evidence. The limits of the permissible evidence must be determined by interpreting rule 32(2)(b) . ” For example, where a purported defence can easily be disproved by means of a certificate of balance or another document reflecting on the lack of bona fides of the alleged defence, it ought to be permitted. I see the value in such an approach. I am unable to find that Leech AJ’s reasoning is wrong. [16] Clause 16.2 provides as follows: "If you are in default and this Agreement is subject to the NCA we may - 16.2.1 give you written notice of such default and may propose that you refer this Agreement to a debt counsellor, an alternative dispute resolution agent or ombud with jurisdiction, with the intent that the parties resolve any dispute under this agreement or develop and agree on a plan to bring repayments up to date. [17] Claim 2 is premised on the following allegations: “ At all material times and in terms of the alleged instalment sale agreement entered into with the Defendant on 31 January 2024, whereby a debtor and creditor relationship exist (sic) the plaintiff would render regular accounts of all the monthly payments and statements. It was an implied term of the agreement that the Plaintiff would render monthly accounts to the Defendant of all the payments made and of the remaining balances and possible arrears . Such accounts as rendered by the Plaintiff are erroneous and / or defective and / or inadequate and that the Plaintiff has ultimately erred in calculations of the accounts, as traversed in the Defendant's plea. ” (underlining own emphasis) [18] In Victor Products (SA) (Pty) Ltd v Lateulere Manufacturing (Pty) Ltd 1975 (1) SA 961 (W) at 963, the court held as follows: “The right at common law to claim a statement of account is, of course, recognized in our law, provided the allegations in support thereof make it clear that the said claim is funded upon a fiduciary relationship between the parties or upon some statute or contract which has imposed upon the party sued the duty to give an account. Allegations which do no more than to indicate a debtor and creditor relationship would not justify a claim for a statement of account .” [19] Moila v Tshwane Metropolitan Municipality (249/16) [2017]ZASCA 15 (22 March 2017), at par 10. See too: Absa Bank Beperk v Janse Van Rensburg 2002 (3) SA 701 (SCA) at paras 15 & 16 where the court held that the debatement of an account is not merely there for the asking. To be successful with such a claim, the party must have shown that it is entitled to the said delivery of documents and the debatement thereof. sino noindex make_database footer start