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[2023] ZAGPJHC 641
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Lumka v BMW Financial Services SA (Pty) Ltd and Another (5301/2021) [2023] ZAGPJHC 641 (5 June 2023)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case Number: 5301/2021
In
the matter between:
MZWANDILE
LUMKA
Applicant
and
BMW FINANCIAL
SERVICES SA (PTY)
First Respondent
SHERIFF
BENONI NO
Second
Respondent
Neutral
Citation:
Mzwandile Lumka vs BMW Financial Services SA (Pty)
Ltd and Another
(Case No. 5301/2021) [2023] ZAGPJHC 641 (5 June
2023)
JUDGMENT
STRYDOM, J
[1]
This is an application in which the first
respondent, BMW Financial Services South Africa (Pty) Ltd asks for a
rescission application
previously brought by the applicant to be
dismissed.
[2]
The reason why the first respondent set
this application down for hearing in the unopposed court is because
previously a court order
was granted in terms of which the applicant,
Mr. Lumka, was placed on terms to file a practice note and a list of
authorities within
a certain time period.
[3]
That time period has long gone. What then
transpired when this application was now heard for the dismissal of
the rescission application
due to failure to comply with a court
order some kind of practice note and list of authorities were filed
last night.
[4]
That is many days out of time. What the
applicant now request from this court is not to deal with the
dismissal of the rescission
application currently before me but to
allow the rescission application to be heard on an opposed basis. The
Court considered all
the circumstances and the lateness of the
practice note and list of authority filed late and concluded that
this is just a delaying
tactic to delay an order to be granted in
terms of the main application which is for the return of a motor
vehicle which was financed
by BMW Financial Services and in terms of
which payment of approximately R20 000.00 was to be made on a
monthly basis. Payment
was not made in terms of the agreement.
[5]
The Court is not going to let the matter be
postponed further by allowing it to be enrolled on the opposed roll
for hearing of the
opposed rescission application.
[6]
My view is that Mr Lumka, the applicant in
the rescission application, had ample opportunity to comply with the
previous court order
to file his practice note and list of
authorities and he failed to do so. The order the Court will make in
terms of the draft order
will come down to an order that the
rescission application is dismissed.
[7]
I make the order in terms of the draft
order as amended which I will mark with an X. That is the order of
the Court.
R STRYDOM, J
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
For the
Applicant:
Adv.
L. Pearce
Instructed by:
Thomson
Wilks Inc
For the First
Respondent:
Adv.
E.M. Tshole
Instructed by:
Tshepo
Mohapi Attorneys
For
the Second Respondent:
Unknown
Instructed by:
Unknown
Date
of hearing: 08 May 2023
Date
of Judgment: 08 May 202