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[2019] ZAGPPHC 84
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Ramosebudi v Mercedes Benz Financial Services South Africa (Pty) Ltd (51196/2017) [2019] ZAGPPHC 84 (20 March 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED
Case No. 51196/2017
20/3/2019
In
the matter between:
MOLATELO
DOREEN RAMOSEBUDI
APPLICANT
And
MERCEDES
BENZ FINANCIAL SERVICES
SOUTH
AFRICA (PTY)
LTD
RESPONDENT
JUDGMENT
MILLAR, A J
1.
On
25 January 2018, the respondent was granted judgment by default
against the applicant. The terms of the order were for the
cancellation
of an agreement that had been entered into between the
parties for the financing of a Mercedes Benz motor vehicle, the
return of
the motor vehicle, leave to apply for judgment for damages
if any and costs.
2.
A
warrant was thereafter issued on 10 May 2018 for the recovery of the
vehicle and this was executed on 4 June 2018 when the respondent
retook possession of the vehicle.
3.
On
7 September 2018, the applicant brought the present application
seeking the rescission of the judgement granted on 25 January
2018
and the return of the vehicle.
4.
The
applicant set out in some detail in her founding affidavit the
reasons why the application was brought when it was some 3 months
later.
5.
The
grounds upon which the application was brought are that the judgment
ought not to have been granted because this court does
not have
jurisdiction
[1]
, that the spirit of the National Credit Act was not followed and
that the respondent's particulars of claim did not comply with
rule
18(6) of the Uniform Rules of Court. It was advanced on behalf of the
applicant that the judgment had been erroneously sought
or granted as
contemplated in Rule 42(1)(a) of the Uniform Rules.
6.
The
crux of the applicant's contention is that the entire agreement
between her and the respondent and performance in terms thereof
occurred within the jurisdiction of the Limpopo Division of the High
Court and furthermore she resides, and the vehicle was kept
within
that courts area of jurisdiction. For these reasons this court had no
jurisdiction and the judgment should not have been
granted.
7.
That
the written agreement between the parties was signed in Limpopo, the
applicant resides there, delivery of the vehicle was effected
there
and it was kept there is not in dispute. The dispute in this matter
turns on where performance on the part of the applicant
in respect of
payment of what was due in terms of the agreement to the respondent
occurred.
8.
The
written agreement between the parties provided that the applicant
would make payment of the instalments due by her to the respondent
by
debit order. It was argued that a debit order, in the circumstances
of the present matter, entailed the respondent "fetching
payment" from the bank account of the applicant which it was
argued was in Polokwane. On this basis, it was argued that the
entire
cause of action arose in Limpopo.
9.
The written agreement between the
parties provides:
"22.1 You will
pay to us the instalments or rentals and any other charges specified
in the Schedule (page 1) at
the time or times as set out therein
without any deduction , free of exchange
and at our address
by way of debit order only." (my emphasis)
10.
It was not disputed that the
respondent's address is within the jurisdiction of this court. The
applicant argued however that a
debit order cannot be paid at an
address and that for that reason the words
"and
at our address"
were of no
consequence.
11.
The entire argument advanced by the
applicant was predicated on this court finding that the applicants
bank account is indeed located
in Polokwane in Limpopo. Neither the
written agreement entered into between the parties nor the founding
affidavit makes any reference
to the applicant's bank account being
in Polokwane. The high-water mark is a passing reference to this made
in the replying affidavit.
Nothing has been placed before this court
establishing this fact, fundamental to the applicant's case for
rescission
[2]
.
12.
The applicants counsel also urged me
from the bar to consider transferring the matter to the Polokwane
High Court, arguing that
the applicant had been prejudiced by the
institution of the proceedings in this court. I was referred to First
National Bank v
Lukhele and Seven Other Cases
[3]
as authority. This would of course only require consideration were
the order for rescission granted. If the rescission is refused
then
there is nothing to transfer, the matter being
res
judicata
and there no longer being
any triable issue between the parties capable of transfer.
13.
I find that the applicant has failed to
make out a case for rescission of the judgment granted on 25 January
2018.
14.
In the circumstances I make the
following order:
14.1 The
application is dismissed with costs.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
18 MARCH 2019
JUDGMENT
DELIVERED ON:
20 MARCH 2019
COUNSEL
FOR THE APPLICANT:
ADV. J
GROENEWALD
INSTRUCTED
BY:
ESPAG MAGWAI ATIORNEYS
REFERENCE:
MR SHIRINDA
COUNSEL
FOR THE FIRST RESPONDENT: ADV. C RICHARD
INSTRUCTED
BY:
STRAUSS DALY INCORPORATED
REFERENCE:
MR LAUBSCHER
[1]
Gallo Africa v Sting Music (Ply) Ltd
2010 (6) SA 329
(SCA) at 333C-D
[2]
See Mokoena and Others v Lengoabala; In re: Lengoabala v Nhlapo and
Others (1166/2012) [2016) ZAFSHC 4 (22 January 2016)"
[7] In
motion proceedings the affidavits constitute both the pleadings and
the evidence and the issues and averments in support
of the parties'
cases should appear clearly therefrom. See
Minister of
Land Affairs and Agriculture v D
&
F Wevell
Trust
2008 (2) SA 184
(SCA) at 2000 . It is trite that
the applicant in application proceedings must make out his/her case
in the founding affidavit.
A litigant should not be allowed to try
and make out a case in the replying affidavit. The founding
affidavit must contain sufficient
facts in itself upon which a court
may find in the applicant's favour. An applicant must stand or fall
by his/her founding affidavit.
See
Director of Hospital
Services v Mistry
1979 (1) SA 626
(AD) at 635H- 6360.
[3]
[2016] ZAGPPHC 616 (16 May 2016)