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REPUBl:;IC ~F ~OUTft\A~RICA
• _, • ,',•, { '• • •I • .:
IN THE HIGH COURT OF SOUTH AF.RICA .
GAUTE.NG DIVISION, PRETORIA ' . !
(1) . REPORTABLE: NO . • ..
(2)' OF.INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO''
Date: 3 February 2025
In the matter between:
HLANGU'S 86 TRADING ENTERPRISES CC ..
and
MAN FINANCIAL SERVICES (PTY) LTD t/a
MAN FINANCIAL SERVICES .,.
JUDGMENT
Van d'er Schyff J
Introduction CASE NO.: 2022-015113 . .
,•.·."'
Applicant
Respondent
[1] The parties are involved in litigation wherein the respondent ("MAN") i·s the plaintiff,
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and \he ,applicant ("Hlangu'86") is the defendant. , -the matter was enrolled in the
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.2.'.
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unopposed motion court for hearing on ~g, January 2025. MAN sought that default
judgment be granted against Hlangu'86.
[2] It is common cause that a simple sumii1ons was issued against Hlangu'86. It was
served by the Sheriff of the court on 22 and 25 August 2022. Hlangu'86 entered
' app~arance. It raised an exception agair:i~t the particulars of claim in March 2023.
It did not prosecute the exception but withdrew it in July 2024 when MAN enrolled
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the exception for hearing. Hlangu'86 'failed to file a _plea despite being served with
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a notice of bar on 20 August 2024. 'The· matter was subsequently enrolled for
default judgment, and a -~otice of s~t down wit~ respect to .the default judgment
application was served on Hlangu'86is attorneys of record on 19· December 2024.
On 28 January 2024, a day before the application for default judgment was to be
heard, an application for the upliftment of the bar was issued and delivered.
[3] When the matter was called in the unopposed motion court, I indicated that I would
deal first with the application to uplift the bar, unless MAN would want to file
' answering ; papers. MAN's counsel indicated that no answering papers needed to
be filed and that she was ready to make submissions. I stood the application down
to Friday, 31 January 2025, to deal with the application to uplift the bar and,
depending on the outcome thereof,. with the application for default judgment.
The litigation
[4] The parties entered into installment sale agreements in terms of which Hlangu'86
purchased two used MAN. trucks from MAN. The parties agreed that MAN
retrained ownership and that ownership of the trucks would not pass to Hlangu'86
at any time during the existence of the agreement and until Hlangu'86 paid ali its
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financial obligations in full. The parties also agreed that in the event of non
compliance by Hlangu'86, MAN would be entitled to terminate the agreement and,
subject to the provisions of the agreement, be entitled to the return and possession
of the trucks and demand payment of all arrear installments and finance charges.
Hlangu'86 failed to keep up with its monthly installments. After a notice of default
was dispatched to Hlangu'86's domicillium address, MAN cancelled the
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agreements. MAN issued summons seeking confirmation of the cancellation of the
agreements, repossession of the goods, damages, interest and costs.
[5] In the default judgment application before me, MAN initially sought an order
confirming the cancellation of the agreements. During argument, MAN's counsel
indicated that the contracts 'have since lapsed due to ~he effluxion of time. MAN
also seeks an order to repbssess the trucks. The monetary claims are ·to be
postponed.
The application to uplift the bar
[6] On a technical level. Hlangu'8.6 took issue with the notice of bar being served on its
[7] . .
attorney of record via email on 20 August 2024, but only filed with tMe Registrar of
the Court on 15 January 2025. Although Hl·angu'86 did not file its plea within five
days of 15 January 2025, its objection is that the enrollment of the application for
default judgment was premature.
Just as is the case in applications for su~mary judgment, the rules should be
applied strictly to barring parties. Had Hlangu'86 filed its plea within five days from
15 January 2025, the position might have been different. But no such plea was
filed. Section 173 of the Constitution allows a Court to regulate its own process.
Since the setting down of the application for default judgm~nt is a procedural issue,
there is no bar to this court considering the application for default judgment in the
absence of a plea, unless the application is determined in the applicant's favour.
[8] Hlangu'86 also avers that its attorney informed that he never received the notice of
bar. Unfortunately for Hlangu'86 no confirmatory affidavit by its attorney
accompanied its application. The notice of bar was delivered by email, as the
parties agreed to such service, and it was sent to the email address provided.
There is, thus, no merit in this contention, particularly if it is considered that
Hlangu'86 does not (i) tender any explanation at all for its failure to file a plea
timeously and (ii) does not set out any defence to MAN's claims. In light of the
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inherent shortcomings of the application, the technical issues raised are neither
here nor there.
[9] Hlangu'86 failed to show good cause for the uplifting of the bar. No explanation
was furnished to enable the court to understand how it came about that the plea ,
was not filed timeously or to assess the Hlangu'86's conduct and motives. In the
absence of any explanation for th,e' delay, and since no defence was raised, I
cannot but agree with MAN's counsel that this application was made solely with the
intention of delaying MAN's claim.1
[1 O] A court cannot sculpt a contract for the parties. Hlangu's 86 request to uplift the bar
because it now succeeded in obtaining a government contract and can earn
income to pay MAN what it is owed in_ a year's time, necessitates a new agreement
' ' to be concluded between the parties. It is not a defence to the existing claims. As a
result, the application for uplifting ·the bar stands to be dismissed. As a
consequence, the application for default judgment will be considered, and if MAN
succeeds in making out a case for default judgment, an order to that effect will be
granted. This will be dealt with in a separate order.
[11] The parties agreed iri the initial agreer:r,ents that costs would be taxed on attorney
and client scale.
ORDER
In the result, the following order is granted:
1. The application for the uplifting of the bar is dismissed with costs on an
attorney and client scale.
E van der Schyff
Judge of the High Court
1 Smith NO v Brummer NO 1954 (3) SA 352 (0) at 358A; lngosstrakh v Global Aviation
Investments (Pty) Ltd 2021 (6) SA 352 (SCA) at para [21].
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Delivered: This.judgment is handed down electronically by uploading it to the electronic file of
this matter on Caselines.
For the applicant:
Instructed by:
For the respondent:
Instructed by:
Date of the hearing:
Date of judgment: ""' Mr. Mashamiate
Mashamaite Attorneys Inc.
Adv. Z. Marx du Plessis
VZLR Attorneys
-31 January 2025
3 February 2025