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[2023] ZAECMKHC 67
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Bulowayo Construction (Pty) Ltd v Firstrand Auto Receivables (RF) Limited (375/2021) [2023] ZAECMKHC 67 (19 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
CASE NO: 375/2021
In the matter between:
BULOWAYO
CONSTRUCTION (PTY) LTD
Applicant
/ Defendant
And
FIRSTRAND
AUTO RECEIVABLES
Respondent
/ Plaintiff
(RF)
LIMITED
JUDGMENT
BESHE J:
[1]
This is an application for the rescission of an order that was
granted by
Bloem J
on the 29 March 2022 in the following
terms:
IT IS ORDERED THAT:
Judgment by default be
and is hereby granted in favour of the Plaintiff against the
Defendant in the following terms:
1.
the Agreement
with account number 8[…] entered into between the Plaintiff
and Defendant relating to the vehicle, being a
2017
ISUZU KB 250D LEED P/U S/C,
with
Engine Number
4[…]
,
Chassis number
A[…]
be and is hereby cancelled;
2.
the
Defendant shall return the vehicle, described above, to the
Plaintiff;
3.
the
Defendant shall pay the Plaintiff costs of suit on the Magistrate’s
Court Tariff.
[2]
Mr Vizard Mandla
who is the Managing Director of the
applicant, Bulawayo Construction appeared in person.
[3]
Needless to say that no replying affidavit had been filed. No heads
of argument were filed on behalf
of the applicant. Respondent took
the initiative to have the matter set down for hearing.
[4]
Preceding the issuance of the order mentioned herein above,
respondent issued summons against applicant
on the basis that it had
breached the terms of the contract that was concluded between the
parties regarding the sale of the motor
vehicle that is the subject
of these proceedings.
[5]
The summons was served at the
domicilium citandi
chosen by the
applicant, on 14 October 2021. Prior to that, it appears to be common
cause that applicant’s payments were made
erratically.
Applicant failed to file a notice of intention to defend. This
resulted in the default judgment in respect of which
the rescission
is sought.
[6]
Applicant does not deny that he has not kept up with the terms of the
agreement, as well as those of
subsequent payment arrangements or
that an amount in excess of R100 000.00 is still owing to the
respondent. There is no explanation
in
Mr Mandla’s
affidavit as to why an appearance to defend was not entered. The
answer is however not far to locate. The applicant does not have
a
defence to respondent’s claim, apart from claiming that
payments are still being made and that there is a payment agreement
in place. Applicant does not seem to have a
bona fide
defence
to the claim. Applicant’s failure to enter an appearance to
defend is not explained in the founding affidavit. In
argument,
Mr
Mandla
explained that he was not always at home but could not
explain when he became aware of the summons or what he did upon
becoming
aware that action had been instituted against the applicant
in this regard.
Mr Mandla
does not state when he became aware
of the judgment that was granted against applicant.
[7]
The applicant does not allege that the judgment was erroneously
sought or erroneously granted. As was
correctly pointed out by
Mr
Somandi
for the respondent, the applicant does not seem to have a
bona fide
defence. In other words,
Mr Mandla
did not
put forward any facts that applicant intends to place before court
which if they are true will amount to a defence to respondent’s
claim.
Mr Mandla
has not given a reasonable explanation for
the default in filing an appearance to defend, applicant’s
failure to defend the
matter. The applicant has not succeeded in
making out a case for the default judgment that was entered against
it on 29 March 2022
to be rescinded.
[8]
Accordingly, the application for the rescission of the order granted
against the applicant on the 29
March 2022 is dismissed with costs.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicants / Defendant:
Mr
Vizard Mandla
Instructed
by:
In
Person
Tel.:
073 140 1920 / 066 558 1833
Email:
Bulowayo64@gmail.com
For
the 1
st
Respondent / Plaintiff:
Adv:
Somandi
Instructed
by:
SCHNEIDER
GALLOON REEF & CO.
C/o
HUXTABLE ATTORNEYS
26
New Street
MAKHANDA
Ref:
01S076023
Tel.:
046 – 622 2692
Date
Heard:
05/18/23
Date
Reserved:
05/18/23
Date
Delivered:
05/19/23