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[2] The Applicant states in paragraph 5.2 of the Founding Affidavit that he only became
aware of the judgment on or about 10 April 2025.
[3] The Applicant acknowledges having been served with the summons, and states in his
Founding Affidavit that he immediately contacted the Respondent’s Attorneys, Strauss
Daly Inc. He states that he understood from these communications that they would not
proceed with the action, as he was negotiating with them. He also states that he does
not know “how legal issues work“. He asserts that he did not deliberately fail to serve
notice of intention to defend.
[4] The Applicant also alleges that in April 2024, he was shot due to taxi violence and was
admitted to hospital. He attributes this as one of the reasons for the fact that he did
not pay the instalments due on the vehicle.
[5] The Applicant goes on to state in paragraph 8.12 of the Founding Affidavit that in
September 2024 there was taxi violence in the industry, and as a result his taxi did not
get to operate. In consequence, so he says, he did not have the money to service the
car payment instalments, and he failed to effect payment (according to him) for the
months of September, October and November 2024. He asserts that he paid only
R13,000.00.
[6] The Defendant’s defense to the action is encapsulated in paragraph 9.1.1 of the
Founding Affidavit, which I quote as follows:
“I herein humbly submit that I have a bona fide defence against the Respondent
as my failure to pay the instalments was due to the nature of the industry that I
am involved in and the Respondent is expected to understand that there might
have been some instances where there is violence within the taxi industry. As a
result we will fail to service the instalments of the cars .”
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[7] Applications for rescission of this nature are governed by Rule 31(2)(b) of the Uniform
Rules of Court, which states: A defendant may within 20 days after acquiring knowledge
of such judgment apply to court upon notice to the plaintiff to set aside such judgment
and the court may, upon good cause shown, set aside the default judgment on such
terms as it deems fit.
[8] The Applicant’s version as to his failure to timeously enter notice of intention to defend
is not contested by the Respondent, who does not oppose this application. I thus accept
that he was not in wilful default of the entry of appearance to defend, as his
understanding, as a layperson, was that the action would not be proceeded with
because he was ostensibly in negotiation (or so he thought) with the Respondent’ s
attorneys.
[9] That said, the requirements for an application for rescission under the above quoted
rule have been stated to be as follows:
(a) The Applicant must give a reasonable explanation of his default. I accept, as
signified above, that the Applicant has done this;
(b) The application must be bona fide and not be made with the intention of merely
delaying the Plaintiff’s action;
(c) He must show that he has a bona fide defense to the Plaintiff’s claim. It is sufficient
if he makes out a prima facie defense in the sense of setting out averments which,
if established at the trial, would entitle him to the relief asked for. He need not deal
fully with the merits of the case and produce evidence ( See Erasmus – Superior
Court Practice Vol. 2 at page D1-366 ).
[10] It is this last requirement of showing where he has a bona fi de defence, that the
Applicant in this matter does not begin to satisfy the requirements.
[11] From the Applicant’s Founding Affidavit, it is crystal clear that he admits being in breach
of the agreement, and that he is in arrear with his monthly instalments. The reason