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South Africa: North Gauteng High Court, Pretoria
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[2021] ZAGPPHC 265
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Makeke v Standard Bank of South Africa Ltd (11996/2018) [2021] ZAGPPHC 265 (13 April 2021)
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IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO. 11996/2018
In the matter between:-
NOZIPHO
PAULINA
TYOBEKA MAKEKE
APPLICANT
ID.[…]
and
STANDARD
BANK OF SOUTH AFRICA LTD
RESPONDENT
JUDGMENT
VORSTER,
LI AJ:-
1. This is an
application for rescission of a default judgment granted against the
Applicant and an order staying
the warrant of execution obtained the
Respondent pursuant to the granting of the default judgment.
2. The Respondent opposes
the application. It is common cause between the parties that the
Applicant bought a motor
vehicle from the Respondent in terms of a
written agreement providing for payment of monthly instalments with a
view to finally
liquidate the purchase price and interest. It is also
common cause that the Applicant breached the aforesaid
agreement, resulting
in a cancellation of the agreement by the
Respondent.
3. The case of the
Applicant is that it negotiated with a certain Mr Reddy in the
employment of the Respondent to vary
the provisions of the agreement
as far as payment of instalments are concerned in order to assist the
Applicant to retain the vehicle.
4. The Respondent
denies all knowledge of the Mr Reddy which the Applicant speaks of
and consequently denies the
arrangement which the Applicant relies on
allegedly into with Mr Reddy.
5. The Applicant’s
case is that the arrangement with Mr Reddy changed his obligations of
payment in terms
of the agreement and therefore that the cancellation
was unlawful and the resultant writ of execution issued by Respondent
pursuant
to the default judgment obtained.
6. Clause 23.3 of
the written agreement between the parties provides explicitly that
the provisions of the written
agreement can only be changed in
writing by both parties signing to such variation. Moreover, clause
23.5 explicitly provides that
the written agreement signed by the
parties is the whole agreement and nothing or no deviations thereof
would be of any force and
effect unless in writing and signed by the
parties. These clauses are customary in agreements between finance
houses and clients
buying all sorts of goods. The aforesaid
provisions of the agreement effectively puts an end to any possible
defence the Applicant
could have to the action instituted by the
Respondent for the relief it claimed. It follows that there is no
merit in the application
for rescission of judgment and consequently
that the writ of execution issued pursuant to the default judgment
must stand and cannot
be set-aside.
7. In the result of
the aforegoing, I make an order that the application for rescission
of judgment is dismissed
with costs.
L I VORSTER, AJ
13 April 2021
Coounsel: Appl unknown
Respondent Reece da Costa