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[2009] ZAGPPHC 176
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Charles v BMW Financial Services (SA) (Pty) Ltd (45595/2007) [2009] ZAGPPHC 176 (5 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA)
CASE NO: 45595/2007
DATE:
05/03/2009
NOT
REPORTABLE
In
the matter between:
MANDA
WEBSTER
CHARLES
Applicant
And
BMW
FINANCIAL SERVICES (SA) (PTY) LTD
Respondent
JUDGMENT
LEDWABA, J
[1]
This is an application for the rescission of the judgement granted
against the applicant in the amount of R 444 642, 68 and
R 507 629,
46 plus interest. Applicant was ordered to pay costs on attorney and
client scale.
[2]
The applicant alleged that he has bona fide defences to the
respondent’s (plaintiff’s) claims. The alleged defences
are that the provisions of the National Credit Act 34 of 2005 (NCA),
are applicable to the claims and that there was non- compliance
with
the provisions of the NCA.
[3]
Applicant further alleged that he did not receive summons and he only
knew about the claim for the first time on 2nd April 2008
when the
sheriff attached his moveable properties at his house, house number
29 Bracelet Crescent, Sonheuwel, Nelspruit, his chosen
domicilium
citandi ex executand. Summons was served by affixing on 15th October
2007. He alleged that he knew about the summons,
he would have
defended the action. He therefore, did not wilfully fail to defend
the action.
[4]
He said immediately after the attachment, he consulted his attorneys
in Nelspruit who informed him that they cannot assist him
and would
arrange another firm of attorneys to assist him. He waited for about
two months for the particulars of the new attorneys
who he consulted
with on the 4th June 2008, the day on which the sheriff came to
demand the goods but held the removal in abeyance.
[5]
To prove his bona fide defence, he alleged in his affidavit that he
sold his members interest in the first defendant to the
fourth
defendant on the 30th January 2007. In terms of clause 3.1.2 of the
said sale agreement all risk and benefits were passed
to the fourth
defendant in the main action.
[6]
He now wanted the judgement rescinded so that the first and fourth
defendants who filed notices to defend the action proceedings
should
indemnify him against the claim of the respondent herein (plaintiff
in the action proceedings) and he also wanted to file
a counterclaim
against the said defendants.
[7]
According to the particulars of claim, the instalment sale agreement
between the respondent and first defendant was entered
into on 25th
January 2006 and 7th June 2006. The respondent further alleged in the
particulars of claim that on 7th December 2006
first defendant signed
a voluntary surrender cancelling the above instalment sale agreement
been attached to the particulars of
claim marked ‘C’.
[8]
The respondent recovered the vehicle, caused it to be valued and to
be sold. Respondent claimed damages in the amount of R 444
642, 68 as
calculated as per the statement of account annexed to the particulars
of claim marked ‘D’.
[9]
In terms of annexure ‘M’ to the particulars of claim
applicant signed as surety and co-principal debtor on 25th
January
2006.
[10]
The applicant challenged the locus standi of the respondent to sue,
the lawfulness of the installment sale agreement, the validity
of the
surrender document since the contents were not explained to him and
that the accounts were not properly calculated.
[11]
After perusing the parties affidavits and the supporting documents,
noting that applicant did not file any replying affidavit,
I am
satisfied and convinced that there is no merit in the issues raised
by the applicant mentioned in the above paragraph.
[12]
The summons was properly served. Applicant’s explanation on the
delay of two months before filing this application is
not
satisfactory and it weakens applicant’s case.
[13]
The issues raised by the applicant are too technical and cannot, in
my view, pass the test of qualifying or constituting a
bona fide
defence.
[14]
There is no merit on the issue concerning the sale of the applicant’s
members interest. The agreement cannot and should
not prejudice the
respondent's right to claim.
[15]
On the papers before me, I am satisfied that there was a valid
Instalment Sale Agreement between the respondent and the first
defendant. The Personal Surety agreement is a valid and binding
agreement. The Instalment Sale Agreement was legally cancelled.
The
respondent was therefore legally entitled to sell the vehicle.
[16]
The parties further argued on the applicability of the NCA. After
thoroughly considering the provisions of the NCA and the
submissions
made by the respondent’s counsel, I am convinced that the
provisions of the NCA are not applicable since the
credit agreement
was lawfully cancelled, the vehicle was recovered and sold before the
provisions of the NCA dealing with termination
of agreement as set
out in sections 123, 129 and 130 came into force and effect.
[17] In exercising my
judicial discretion the facts and circumstances of this case
applicant has not proved that there is sufficient
cause justifying
the rescission of the judgement.
[18]
I therefore make the following order
:
(i) Applicant’s
application for the rescission of the
judgment
is dismissed with costs
A.P.
LEDWBA
JUDGE
OF THE HIGH COURT
Date
of hearing: 8 December 2008
Counsel
for Applicants’: Advocate J. P. F. De Klerk
Instructed
by: Smit Jones & Pratt %: Hack Stupel & Ross Attorneys
Counsel
for Respondent: Advocate B. K. Neveling
Instructed
by: Du Preez’s Attorneys %: Venter, Dupper & Smalman