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[2016] ZAGPPHC 87
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Madalani v BMW Financial Services South Africa (Pty) Limited and Another (84182/2014) [2016] ZAGPPHC 87 (17 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
D
I
VISION, PRETORIA)
CASE
NO: 84182/2014
DATE:
17/2/2016
In
the matter between:
NONKULULEKO
MADALANI
APPLICANT
and
BMW
FINANCIAL SERVICES SOUTH AFRICA
(PTY)
LIMITED FIRST
RESPONDENT
SHERIFF
(SOWETO
EAST) SECOND
RESPONDENT
JUDGMENT
FOURIE
CP,
AJ
[1]
The Applicant (the Defendant in the action), an admitted attorney,
brought an application for the rescission of a default judgment
granted by the registrar of this Court on 9 February 2015. The First
Respondent (the Plaintiff in the action) opposes the application.
For
the sake of convenience the parties will be referred to as in the
action. The Defendant does not seek any relief against the
Second
Respondent.
[2]
The
application
for
rescission
is
brought
in terms
of
Uniform
Rule
31(2)(b).
There
appears to be some uncertainty as to whether a Defendant who is
dissatisfied
with a
judgment
by the
registrar should utilise the provisions of Uniform Rule 31(5)(b)
for
reconsideration
by the
court,
as opposed
to applying
for
a
rescission
in terms
of Uniform
Rule 31(2}(b). The argument
seems to be
that the use of the word "such" in
Uniform
Rule
31(2}(b),
read with
the
provisions
of
Uniform
Rule
31(2)(a),
probably
disentitles
the Defendant from using it where the registrar gave
judgment.
[1]
Section 23
of the
Superior
Courts Act,
10 of
2013
provides
that
a
judgment
by
default
may
be
granted
and entered
by the
registrar
of
a
division
in the
manner
and
in
the
circumstances
prescribed and
that a
judgment so
entered is
deemed
to be
a
judgment of
that
division. In
view of
these provisions,
I
am
satisfied that the application for rescission of default
judgment
may be
brought in
terms of
Un
i
form
Rules 31(2)(b).
The Plaint
i
ff
did not raise this in
i
ts
opposition to this application and in any event,
I
am of the
view that not much would
have turned
hereon, as
even in reconsidering the default judgment
granted
by
the
registrar in
terms of
Uniform
Rule 31(5)(d)
, the requirement of "good cause"
would
in
my
view
still
have
to
be
satisfied.
I
agree
that
Uniform
Rule
31(5)(d)
is
primarily
intended
for
use
by a Plaintiff who
is unable
to obtain judgment
or who
has
obtained
judgment
for
l
ess
than applied for.
[2]
[3]
The requirements for rescission of judgment in terms of Uniform
Rule
31(2)(b)
that must be satisfied, are well established. Good cause
must be shown and that entails:
(a)
Giving a reasonable explanation for the default;
(b)
Showing that the application is made
bona fide;
and
(c)
Showing that there is a
bona fide
defence to the Plaintiff's
claim which
prima
facie
has some prospect of
success.
[4]
The Plaintiff instituted action against the Defendant based on the
provisions of a written instalment sale agreement, claiming
the
following relief:
"(1)
Delivery of the BMW 118i 5 DR A!T(F20) motor vehicle with
engine number A200J549 and
chassis number OVY67311 to the Plaintiff;
(2)
An order confirming the cancellation of the agreement;
(3)
As pre-estimated liquidated damages, the total amount of payables not
yet paid by the Defendant
whether same are due for payment or not,
less the proceeds of the sale of the goods or the proceeds of any
insurance policy paid
to the Plaintiff in respect of the goods to be
calculated at a later stage, thus postponed
sine die;
(4)
Interest atthe rate of 9.00% from date of
Section 129(1)
, being 9
October 2014 to date of final payment; and
(5)
Cost of suit on the scale as between an attorney and client as
provided for clause 14.2 of the
Agreement;
(6)
Further and
I
or alternative relief."
[5]
Summons was served at the Defendant's chosen
domici/ium
citandi
address on 12 December 2014 at 14:40, by
affixing a copy thereof to the outer principal door. The address of
service corresponds
with the chosen
domicilium
address as
reflected on the face of the agreement.
[6]
No appearance to defend was entered into and the Plaintiff applied
for default judgment. On 9 February 2015 the registrar granted
default judgment in accordance with prayers 1, 2 and 5, with the
relief claimed in prayer 3 being postponed
sine die.
[7]
On 23 February 2015 the Defendant served her application for
rescission of judgment on the Plaintiffs attorneys of record. In
her
application the Defendant
inter
alia
raised
certain arguments, apparently in
limine,
but during
argument abandoned same and it is therefore not necessary to further
deal therewith.
[8]
Although the Defendant does not deny that service was effected at her
chosen
domicilium
address, she alleges that she was not
in wilful default of entering an appearance to defend as she did not
receive the summons,
nor did she have knowledge of the default
judgment prior to 19 February 2015. The Plaintiff accepted that the
Defendant was not
in wilful default to defend the action and the
Defendant thus satisfied the first requirement for an application for
rescission
of judgment in terms of Uniform
Rule 31(2)(b).
[9]
The Defendant however does not dispute:
(a)
That the Plaintiff and herself entered into the written instalment
sale agreement;
(b)
Being in possession of the motor vehicle;
(c)
Falling into arrears with the monthly instalments payable to the
Plaintiff and as such, the Defendant
does not dispute a breach of the
terms of the agreement on her part;
(d)
That the Plaintiff complied with the provisions of Section 129 of the
National Credit Act, 34
of 2005 ("NCA"); and
(e)
That the Plaintiff was entitled to cancel the agreement and that it
in fact elected to do so.
[10]
The Defendant in her founding affidavit states that she was involved
in pro ceedings before the Commission for Conciliation,
Mediation and Arbitration ("CCMA") based on constructive
dismissal. The Defendant appears to allege that, in the event
that
she might be successful in the proceedings before the CCMA, the award
will be sufficient to settle the arrears owing to the
Plaintiff. In
her heads of argument delivered on 7 December 2015 and without having
filed a replying affidavit, she alleges that
she was successful
before the CCMA, as it was found that her employer constructively
dismissed her and that the dismissal was unfair.
The employer then
launched a review application to set aside the arbitration award and
she in turn on 23 November 2015, launched
an application to the
Labour Court to make the arbitration award an order of court to
enable her to
inter a/ia
attach and execute on the proceeds
found in the bank account of her former employer;
[11]
The Defendant furthermore states:
(a)
Her intention to effect payment of the arrears and to continue with
her monthly obligations in
terms of the instalment sale agreement;
(b)
That she considers it unreasonable for judgment to have been granted
in favour of the Plaintiff
where approximately only ten percent of
the initial total amount repayable, was in arrears at the date of
instituting action;
(c)
That she has a proper defence to the Plaintiff's claim and that she
believes that the Plaintiff
was hasty in seeking the relief claimed
and that since the launching of her application for rescission, the
Plaintiff progressively
acted in an unconscionable manner, and
(d)
That it is within the powers of this Court to develop the law to
ensure that justice is met and
in particular, that it is incumbent
upon this Court to come to the aid and rescue of consumers who are
unlawfully and unfairly
dismissed and where reinstatement of the
employment contract is not possible. In developing the law in this
regard, it will further
assist all stakeholders in the credit market
to meet the purposes of the NCA.
[12]
The unconscionable actions by the Plaintiff, referred to by the
Defendant, can be summarized as follows:
(a)
That after she launched the application for rescission of judgment,
the Plaintiff repossessed
the motor vehicle and despite an
undertaking from the Plaintiff that the motor vehicle will not be
sold until the application for
rescission of judgment has been dealt
with , the Plaintiff proceeded to sell the motor vehicle; and
(b)
The motor vehicle was allegedly sold by public auction for an amount
of only R242 250.00 on or
about 27 August 2015, which is half of what
the motor vehicle was valued at 12 months prior; and
(c)
The Plaintiff continued to endeavour to enforce the debit order in
terms of the instalment sale
agreement.
[13]
In its answering affidavit the Plaintiff admits the attempts to
continue to run the debit order, but endeavour to justify same
by
stating that the Defendant's liability toward the Plaintiff did not
cease on the day the agreement was cancelled, I find it
difficult to
accept. As far as the sale of the repossessed motor vehicle in
execution is concerned, the Plaintiff in a supplementary
affidavit
admits that the vehicle was sold in error, due to a miscommunication
between the Respondent's legal and remarketing department.
The
Defendant can feel rightfully aggrieved.
[14]
The question to be determined however is whether such conduct assists
the Defendant in any way to satisfy the remaining requirements
that
must be satisfied for rescission of the default judgment. As the
defence must have existed at the time of the judgment, the
answer
must be in the negative. Unless it is found that the Defendant has
disclosed a
bona fide
defence to the Plaintiff's claim for
confirmation of the cancellation of the agreement and return of the
motor vehicle, which
prima
facie
has some
prospect of success and accordingly the judgment is rescinded, the
fact that the motor vehicle has been sold becomes irrelevant.
Furthermore no monetary judgment has been granted against the
Defendant and as such all defences relating to the quantum of damages
suffered by the Plaintiff, are still available to the Defendant.
[15]
Whilst I am prepared to accept that the application was made
bona
fide,
I am in agreement with the Plaintiff that all
the elements of the Plaintiff's cause of action are common cause and
that the Defendant
has failed to show that there is a
bona fide
defence to the Plaintiffs claim which
prima
facie
has some prospect of success. The issues raised by the Defendant
as set out in paragraphs [10] and [11] above, do not in my view
satisfy the requirements to show a
bona
fide
defence. Accordingly, the application must fail.
[16]
The Plaintiff argued that costs should be on the scale as between
attorney and client. Iam not satisfied that a punitive cost
order is
warranted. Iam however satisfied that the costs should follow the
outcome.
[17]
In the result, Imake the following order:
1)
The application for rescission of judgment is dismissed;
2)
The Applicant is to pay the First Respondent's costs of the
application.
______________________________
CP
FOURIE
ACTING
JUDGE OF GAUTENG DIVISION
OF
THE HIGH COURT OF SOUTH AFRICA
For
the Applicant:
In person
For
the First Respondent:
Adv. LW De Beer
Instructed by:
Nel & Richter
Incorporated
Pretoria
DATE
OF HEARING:
9 FEBRUARY
2016.
DATE
OF JUDGMENT: 17 FEBRUARY
2016.
[1]
Harms,
Civil Procedure in the Superior Courts, at B31.21 on page B-210;
[2]
Harms,
supra