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[2019] ZAGPJHC 136
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H2 Holdings (Pty) Ltd t/a H2 Auto and Another v Maoto (21522/2018) [2019] ZAGPJHC 136 (30 April 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
(
GAUTENG
LOCAL DIVISION, JOHANNESBURG
)
CASE
NO:
21522/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
IN
THE MATTER BETWEEN
H2
HOLDINGS (PTY) LTD t/a H2 AUTO
1
ST
APPLICANT/ 1
ST
RESPONDENT
IN THE MAIN
APPLICATION
OSUNDE
AMBROSE
2
ND
APPLICANT/ 2
ND
RESPONDENT
IN THE MAIN
APPLICATION
AND
REATILE
ADELAIDE MAOTO
RESPONDENT/APPLICANT
IN
THE MAIN APPLICATION
JUDGMENT
SENYATSI
AJ
[1]
This is an opposed application
for rescission of judgment granted by default against the
Applicants
on 10 July 2018.
[2]
The brief background is that the Respondent was surfing the internet
during January
2017 looking for a car and came across an
advertisement on
www.cars.co.za
.
She then called the second Applicant and obtained the details of the
business address where she would come view the car. The vehicle
she
was interested was an AUDI A3 1.4 TFSI stronic sunroof 2016(“the
vehicle”) model which was represented to her to
be in a good
condition.
[3]
She went to view the vehicle and became interested in the purchase
thereof. The vehicle
was presented to her as a 2016 model.
[4]
The vehicle was fully funded by ABSA and little did she know that the
vehicle had
serious defects and that it had been written off by ABSA
short term Insurance Company and hold by the latter to salvage
management
and Disposal (“the SMD”).
[5]
She obtained the AA report and vehicle check certificate from Audi
Bruma. The latter
confirmed that the vehicle was purchased on 30
November 2015 at Audi centre Pinetown. It is not clear from the
certificate what
the odometer reading of kilometres covered was.
[6]
The Respondent also averred that the vehicle was purchased as salvage
due to an accident
and sought and obtained default judgment against
the Applicants.
[7]
In their application for rescission of the judgment, the Applicants
contend that when
the vehicle was purchased, it was still under Audi
motor-plan and under warranty. They furthermore contend that the
vehicle had
travelled less than 17 000km and that since it had
been collected by the Respondent, it has accumulated 64 000km.
[8]
They contend that the alleged damage was solely caused by the
Respondent.
[9]
He contends furthermore that they have bona fide defence to the
claim. They contend
that they knew about the action brought against
them. The judgment came to their attention on 17 July 2018. They
contend that judgment
was obtained on the same date their legal
representatives were instructed to oppose the application brought by
the Respondent.
[10]
The Applicants claim that they never received any application
relating to this matter. The main
application, so contend, the Second
Applicant, was served on 48 Crozier street Town-view, Johannesburg
South whilst he alleges
that he resides at 46 Crozier Street, Town
view, Johannesburg South. I must state that from inspection of the
return of service
marked “R16” and annexed to the
Respondent’s opposing affidavit, and address of service is 46
Crozier street
Town View, Johannesburg and service was personal to
the Second Applicant. There can therefore not be any doubt that
service was
proper, contrary to what the Second Respondent contends.
[11]
The only defence raised by the Applicants is that the vehicle was
used for more than 15 months. The Applicants contend that
the
mechanical issues with the vehicle is due to what they call “warn
ont” which presumably means wear. They contend
that there was
no life time obligation on the Applicants to ensure the vehicle sold
to the Respondent shall not have mechanical
issues in future.
[12]
They further contend that the Respondent had incurred excessive
travel kilometres on the vehicle
for her own benefits.
[13]
The issues for determination is whether the Applicants were in wilful
default and whether they
have a bona fide defence to the claim.
[14]
Rule 31(5) (a) of the Uniform Rules of this Court provides as
follows:
“
(a) Whenever
a Defendant is in default of delivery of notice of intention to
defend or of a plea, the Plaintiff, if he or
she wishes to obtain
judgment by default shall where each of the claims is for a debt or
liquidated demand, file with the registrar
a written application for
judgment against such defendant: Provided that when a Defendant
is in default of delivery of plea,
the Plaintiff shall give such
Defendant not less than 5 days’ notice of his or her intention
to apply for default judgment.”
[15]
It is trite that the Applicant for rescission of judgment must show
good cause. One such element
of good cause is that the Applicant was
not in wilful default. (
See Maujean t?a Audio Video Agencies v
Standard Bank of S.A Ltd
1994 (3) SA 801
(c) at 803J
).
[16]
In consideration of the application for rescission, the Court looks
at the reasons for the Applicant’s
default as one of the
essential ingredient of the good cause to be shown (See
Harris v
Absa Bank Ltd t/a Volkskas
206 (4) SA 527
(T) at 529(E-F).
the
wilful default on the part of the Applicant is not a sustentative or
compulsory ground for refusal of an application for rescission.
[17]
The wilful or negligent nature of the Defendant’s default is
one of the considerations
which this Court takes into account in the
exercise of its discretion to determine whether or not good cause is
shown (See
De Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance
Co Ltd
1994 (4) SA 705
(E) at 708G).
[18]
In Brown v Chapman
1928 TPD 320
at 328, the Court held that the
reasons for the Applicant’s absence or default must, therefore,
be set out because it is
relevant to the question whether or not his
default was wilful. In Silber v Ozen Wholesalers (Pty) Ltd
1954 (2)
SA 345
(A) at 353A), it was held that the explanation for the default
must be sufficiently full to enable this Court to understand and
appreciate how it really came about, and to access the Applicant’s
conduct and motives. The application which fails to set
out these
reasons is not proper. (
See Marais v Mdowen
1919 OPD 34
).
Where the reasons appear clearly, the fact that they are not set out
in so many words will not disentitle the Applicant to the
relief
sought.
[19]
Before a person can be said to be in wilful default, the following
elements must be shown:
(a)
knowledge that action is being brought against him;
(b)
a deliberate refraining from entering
appearance, though free to do so; and
(c)
certain mental attitude towards the
consequences of default.
[20]
The Applicant was held to be in wilful default where he was unable to
instruct an attorney because
of lack of funds (See
Bowes v
Puinmick
1905 TS 156
), where he absented himself from trial after
he had been notified of the date of trial (See
Newman (Pty) Ltd v
Marks
1960 (2) SA 170
(SR)
; where he ignored summons served on
him, despite advice to consult an attorney (See
Naidoo v
Narainsamy
1956 (3) SA 223
(N)
).
[21]
In Silber v Ozew Wholesalers (Pty) Ltd (supra), the Appellate
Division held that “good
cause” includes, but not limited
to the existence of a substantial defence.
In Gaep v Saambon Bank
Ltd; Smith v Saambon Bank Ltd
2002 (6) SA 346
(SE) at 349B-E
it
was held that the requirements of good cause cannot be held to be
satisfied unless there is evidence not only of the existence
of a
substantial defence but, in addition of the bona fide presently held
desire on the part of the Applicant for the relief actually
to raise
the defence concerned in the event of the judgment being rescinded.
See
Gaep v Tansley NO
1966 (4) SA 555
(C) at 560).
[22]
The analysis of the Applicants papers is that they were aware of the
action against them. This
is borne out by the evidence of the Second
Applicant where he states that he was aware of the actions. He,
however, fails to provide
any evidence as to the reason why the
notice to oppose was not filed on time. The Second Applicant only
claims in his founding
affidavit that default judgment was entered on
the date that instructions was given to his attorney to oppose. He
offers not supporting
affidavit by his attorney.
[23]
Furthermore, the Second Applicant claims that the Notice of Motion
was not served on him but
at 48 Crozier Street, Town View,
Johannesburg South whereas he resides at 46 Crozier Street, Town
View, Johannesburg South. He
fails to attach any return of service in
support of his claim.
[24]
In her opposing affidavit, the Respondent contends that the service
was properly affected and
was done so personally on the Second
Applicant. In support of her contention, she annexed the sheriff’s
return of service
which confirms her claim.
[25]
The analysis of the alleges bona fide defence claimed by the
Applicants indicates, contrary to
the founding papers of the
Respondent in the main action, that it merely alleged that the claims
by the Respondent are verbal.
Further to this, the Applicants contend
that the motor vehicle has accumulated an additional 45 000km.
this contend the Applicants,
is the basis of their defence.
[26]
The Applicants fail in their attempt, to show good cause on both the
reasons for default well
as the bona fide defence to the main claim.
[27]
Serious averments were made against them in the main application that
this Court extracted to
have an answer to as a way of showing good
cause for the relief sought. The Applicants have, in my views, failed
dismally to show
such good cause.
[28]
Having regard to the evidence before me, I am not persuaded that a
good cause for the relief
sought has been shown. Consequently, the
application for rescission must fail.
ORDER
[29]
The following order is made:-
(a) The Application for
rescission of judgment is dismissed with costs.
__________________________
M.L.
SENYATSI
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
Appearances:
Date
of hearing
:
30 January 2019
Date
of Judgment
: 03 May 2019
For
the Applicant s
: Adv. M.S. Naude
Instructed
by
: Symes Inc Attorneys
For
first Respondent
: Adv Tsatsi
Instructed
by
: JL Raphiri Attorneys Inc