About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 293
|
|
1st Class Vehicle Inspections (Pty) Ltd (formely known as Safe Drive Midrand (Pty) Ltd) v Safe Drive Holdings (Pty) Ltd (56749/2010) [2013] ZAGPPHC 293 (15 October 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 56749/2010
Date:
15 October 2013
In
the matter between:
1ST
CLASS VEHICLE INSPECTIONS (PTY)
LTD
....................................................
Applicant
(FORMELY
KNOWN AS SAFE DRIVE MIDRAND (PTY) LTD)
and
SAFE
DRIVE HOLDINGS (PTY)
LTD
.........................................................................
Respondent
APPLICATION
FOR LEAVE TO APPEAL JUDGMENT
PRETORIUS
J.
[1]
The applicant is applying for leave to appeal against the judgment
and order of 5 September 2013. The application for rescission
of
judgment was dismissed on that date. The respondent is opposing the
application for leave to appeal. The applicant has not set
out which
part of the judgment it is appealing against, but the court heard the
application for leave to appeal in any event.
[2]
The first ground set out by the applicant is that the court erred in
finding that there is no indication in the founding affidavit
that Mr
Deon Delport represented the respondent in the conclusion of the sale
agreement and the addendum agreement. It is clear
that the addendum
agreement had not been signed by Mr Delport’s wife, but by a Ms
Yolande Barnard and therefor the applicants
contention in the
application for leave to appeal is incorrect.
[3]
The equipment was never physically delivered after the sale
agreement, but the applicant found the equipment at the premises.
[4]
It must be reiterated that on 25 July 2007 the applicants entered
into a sale agreement with 1st Car Inspect Midrand Franchise,
who was
not the respondent. Even the addendum agreement of 31 January 2008
did not involve the respondent, but 1st Car Inspect
Midrand
Franchise.
[5]
There is absolutely no indication on the papers before court that Mr
Delport represented the respondent at all during the conclusion
of
the agreement and the addendum agreement. I am of the opinion that
another court will not find that the applicant has provided
a bona
fide defence which would entitle it to have the rescission
application granted.
[6]
In terms of Rule 31(2)(b) the application for recission of judgment
should be made timeously. The applicant did not deny that
on 1 June
2012 the Applicant was present during a section 417 enquiry and that
was the date that the applicant had to be aware
of the default
judgment. The applicant waited until 10 August 2012 to file and serve
the application for rescission of judgment.
There is no explanation
for the long delay of at least 71 days before action is taken. There
is no explanation as to why it is
out of time.
[7]
The applicant contends that the court erred by finding that proper
service had taken place at the domicilium et executandi.
The
applicant provided no particulars as to the business where the
summons was served being open on the particular day, but makes
a
broad allegation that:
“
normally
be open for business and as such the summons was supposed to have
been served on either one of the Applicant’s employees”
This
allegation does not contend that the summons was not served properly
in terms of the rules.
[8]
The fourth ground, according to the applicant, is that the court did
not find that Delport’s estate should be joined,
cannot be
entertained as it did not form part of the evidence at all, but was
only mentioned during argument.
[9]
In these circumstances I am of the opinion that there is no prospect
that another court will come to a different conclusion.
[10]
Therefore the application for leave to appeal is dismissed with
costs.
Judge
Pretorius
Case
number : 56749/2010
Heard
on : 10 October 2013
For
the Plaintiff : Adv Ngustshane
Instructed
by : Koikanyang INC
For
the Defendant : Adv Venter
Instructed
by : Carter Smith
Date
of Judgment : 15 October 2013