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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 220500/2025
In the matter between:
EBD TRADING AND PROJECTS (PTY) LTD Applicant
and
MERCEDES-BENZ FINANCIAL SERVICES SA (PTY) LTD Respondent
_____________________________________________________________________
JUDGMENT
Mahosi J
[1] The applicant seeks an order , in terms of Rule 45A of the Uniform Rules,
suspending and staying the operation and execution of a default judgment granted
against it on 21 April 2026, pending the determination of its rescission application.
[2] The respondent opposes the application on two preliminary grounds . The first is
that the application lacks urgency and should be struck from the roll . The second is that
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
10 June 2026 _________________________
DATE SIGNATURE
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the applicant has failed to establish a prima facie right to the vehicle. The Respondent
further contends that, on the merits, the applicant failed to illustrate a bona fide defence
to the claim.
[3] The factual matrix , as distilled in the pleadings, is as follows . The applicant, a
private company operating a restaurant business , entered into an instalment sale
agreement with the r espondent on 29 April 2022 to purchase a Mercedes -Benz C200
motor vehicle. At that time, the applicant was represented by a director, Mr Ebhonu, who
provided his personal residential address (2[ …] W[…] Street, C[…] , Vanderbijlpark) as
the company’s chosen domicilium citandi et executandi. On 06 August 2024, there was
a change in directorship. Mr Ebhonu resigned, and Ms Merriam Mirrah DumaKude
became the sole director of the applicant.
[4] On 23 October 2025, the applicant defaulted on the payment of instalments and
fell into arrears. As a result, the respondent issued a summons against the applicant on
18 November 2025. The applicant did not file a notice of intention to defend. On 21 April
2026, a default judgment ordering cancellation of the agreement and authorizing the
repossession of the vehicle was granted. It is the execution of this judgment that the
applicant seeks to stay pending the determination of the rescission application.
[5] Rule 6(12)(b) of the Uniform Rules requires an applicant to set out explicitly the
circumstances that render the matter urgent and why substantial redress cannot be
obtained in the ordinary course. As aforesaid, t he respondent contends that this
application is not urgent. The applicant’s founding affidavit is silent on the precise date it
acquired knowledge of the judgment. In the replying affidavit, it merely states that it only
became aware of the judgment “on or about 19 May 2026” when its director contacted
the respondent to enquire about the arrears on the account with the intention of settling
it.
it.
[6] The applicant launched this application on 2 June 2026 and set down the hearing
on 9 June 2026. It provided no explanation why it took from 19 May to 02 June 2026,
some fourteen days, to launch this application, especially given that it had already
launched the rescission application on 26 May 2026. If the threat of imminent execution
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was as grave as alleged, the applicant should have sought a stay immediately upon
discovering the judgment, or at the very latest when it filed the rescission application.
[7] Moreover, the applicant did not comply with this Court’s practice directive
requiring that papers be filed and completed before noon on the Thursday preceding the
Tuesday hearing, and that proper consideration be given to the appropriate note period
for the respondent. The applicant failed to show that a sale in execution i s imminent, as
it provides no evidence that the Sheriff had been instructed to attach the vehicle or that
any attachment was pending. Therefore, its apprehension of execution was not so
immediate as to justify the extreme abridgment of time periods it imposed on the
respondent, requiring a notice of intention to oppose within one court day and an
answering affidavit within two court days, in a matter involving a substantial judgment
debt and complex factual disputes. In light of the above, it is apparent that urgency is
self-created. For that reason alone, the application ought to be struck off the roll.
[8] Regarding the second point in limine that the applicant lacks a prima facie right to
the vehicle, the respondent referred this Court to Erasmus v Sentraawes Kooperasie
Beperk. In that case, it was held that, in determining the factors to be taken into account
in exercising its discretion under rule 45A, the Court could draw on the requirements for
granting an interlocutory interdict . These are the requirements that the applicant must
show
“(a) that the right which is the subject -matter of the main action and which he
seeks to protect by means of the interim relief is clear or, if not clear, is
prima facie established though open to some doubt;
(b) that, if the right is only prima facie established, there is a well -grounded
apprehension of irreparable harm to the applicant if the interim relief is not
granted and he ultimately succeeds in the establishing of his right;
granted and he ultimately succeeds in the establishing of his right;
(c) that the balance of convenience favours the granting of interim relief; and
(d) that the applicant has no other satisfactory remedy.”1
1 See [1997] 4 All SA 303 (O), at 307F-G
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[9] The respondent further referred the Court to Hlapi v Le Grange; Mlambo v Le
Grange, where the Court said:
“… the applicant for an interim interdict must show that, in the
proceedings for final relief to which the proceedings for interim relief
relate, there is a serious question to be tried. In assessing whether or not
there is a serious question to be tried, the Court will not tie itself to a
particular degree of proof. Rather it will ensure that the issue raised in the
proceedings for final relief is not frivolous or vexatious or devoid of any
merit. It will enquire into the balance of convenience. In coming to its
decision regarding the grant or refusal of interim relief, and, if granted, the
nature of that relief, the Court exercises a discretion. That process
requires it primarily to weigh the apparent strength of the applicants’ case
in relation to the final relief, on the one hand, against the balance of
convenience, on the other. If the balance of convenience strongly favours
the second respondent, the applicant will have to show strong prospects
of success in relation to the final relief before interim relief will be
considered. If the balance of convenience strongly favours the applicants,
their burden in relation to the “serious question to be tried” test is
diminished.”
2
[10] Rule 45A provides that the Court may, on application, suspend the operation and
execution of any order for such period as it may deem fit. The rule confers a wide and
equitable discretion on the Court , to be exercised in light of all the circumstances,
including the strength of the underlying challenge to the judgment.
[11] In the current matter, it is undisputed that the summons was served at the
applicant’s chosen domicilium address as set out in the agreement. Considering the
principle that a party who chooses a domicilium bears the risk of non‑ receipt, t he
respondent is correct that it was entitled to serve at the address recorded in the
2 [1999] 3 AII SA 125, at para 9
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agreement. However, the purpose of service is not a tick‑box exercise, but to give actual
or reasonably likely notice.3
[12] While the merits of the rescission application are not finally determinable now,
the existence of a genuine dispute concerning whether the applicant was ever properly
notified of the proceedings is directly relevant to the exercise of the discretion under
Rule 45A. Where a company’s chosen domicilium is the personal address of a director
who has resigned, and the Sheriff merely affixes the summons to a locked door at that
address, there is a real question as to whether that constitutes effective service on the
company.
[13] The applicant contends that its new director could not rectify or amend the
chosen domicilium because its current director had no knowledge of the agreement in
question. This is contrary to its averment that its new director only became aware of the
judgment when she contacted the r espondent to enquire about the arrears on the
account “with the intention of settling it ”. The question is : how does one settle arrears
arising from an agreement of which they have no knowledge ? This explanation for the
default is not only contradictory but also implausible and unsatisfactory.
[14] Moreover, given that the agreement was concluded on 29 April 2022, the transfer
of ownership occurred on 06 August 2024, and the applicant defaulted in October 2025,
there is no explanation of who paid the installments between 06 August 2024 and
October 2025. T o this end, t he respondent correctly contends that it is inconceivable
that a newly appointed director would assume control of a company without conducting
even the most basic due diligence into its assets, liabilities, contractual obligations, and
pending litigation.
3 See Nedbank Limited v Conco (4582/2024 ; 8854/2024 ; 17151/2024 ; 2025/02753) [2026] ZAWCHC 38
(6 February 2026)
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[15] Turning to the defence, the a pplicant disputes the arrears but provides no
alternative calculation, no specific payments allegedly misallocated, and no
documentary proof to support its bare denial. The r espondent has annexed a statement
of account showing arrears of R37 848.21 as at 23 October 2025, which increased to
R89 334.91 by March 2026. T he applicant’s assertion that the summons lacked a
certificate of balance is not a defence to the indebtedness . It is , at most, a procedural
complaint that would not prevent the grant ing of default judgment where the claim, as in
this case, is otherwise adequately pleaded. Considering the above, t he applicant’s
defence is insufficient to constitute a bona fide defence. In these circumstances, this
Court is satisfied that the applicant has no reasonable prospects of success in the
rescission application.
[16] The applicant claims that it would suffer substantial and irreparable harm as the
vehicle is utilised extensively in its day-to-day operations and is therefore essential to its
restaurant business. However, it has produced no financial statements, no delivery
records, and no alternative transport assessment to demonstrate that the repossession
would irreparably harm its operations. In any event, any prejudice it suffers flows directly
from its own breach of the agreement and its failure to meet its contractual obligations.
A contracting party cannot create its own hardship and then invoke that hardship to
deny the other party its lawful rights.
[17] The applicant cannot simply use an expensive vehicle without paying for it, while
the respondent continues to suffer prejudice from being deprived of possession of the
vehicle, which constitutes its primary security under the agreement. The prejudice that
the respondent is suffering by being a victim of this unlawful conduct far outweighs any
prejudice that the applicant might purportedly suffer. In light of the above, the balance of
prejudice that the applicant might purportedly suffer. In light of the above, the balance of
convenience favours the immediate return of the vehicle to its lawful owner.
[18] The applicant’s explanation for default is poor, and its defence is at best a bare
denial that does not answer the alternative claim for return of the vehicle. In these
circumstances, this Court is satisfied that the a pplicant has no reasonable prospects of
success in the rescission application. For this reason, the application stands to be
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dismissed. The installment sale agreement provides for costs on an attorney and client
scale, and there is no reason to depart from that contractual provision.
Order
[19] Accordingly, the following order is made:
1. The application is dismissed.
2. The applicant is ordered to pay the respondent’s costs on an attorney and
client scale.
Mercedes-Benz
___________________________
D. Mahosi
Judge of the High Court
Gauteng Division, Johannesburg
Heard: 09 June 2026
Delivered: 10 June 2026
Appearances:
For the applicant: Adv L Matoko
Instructed by: Radebe MB and Associates Attorneys
For the respondent: Adv CJ Welgemoed
Instructed by: Strauss Daly Incorporated Attorneys