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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

CASE NO : 56/2022

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO THE JUDGES: YES/NO

(3) REVISED

DATE: 10/11/2024

SIGNATURE

 

In the matter between :

 

MOSIMANEGAPE DANIEL MONGALE                                                 APPLICANT

Identity Number : 6[…]

 

and

 

VOLKSWAGEN FINANCIAL SERVICES

SOUTH AFRICA (PTY) LTD                                                                   RESPONDENT

Registration Number : 2013/133698/07

 

JUDGMENT

 

BOTES, AJ

 

A         INTRODUCTION

 

1.         The Applicant[1] applies for an order in terms of which : –

 

1.1       condonation be granted for the late filing of this application;

 

1.2       the default judgment granted by this Court[2] on 9 May 2022 be rescinded;

 

1.3       the warrant of execution authorized subsequent to the aforementioned order be suspended; and

 

1.4       the Respondent be held liable for the costs of the application, in the event of opposition.

 

2.         The Respondent[3] filed its notice of intention to oppose the application on 20 April 2023, whereafter it filed a succinct answering affidavit on 28 July 2023.

 

3.         The Applicant decided or elected not to file a replying affidavit.

 

4.         The Applicant made no effort or attempt to pursue this application since the Respondent’s answering affidavit was delivered on 28 July 2023.

 

5.         The Respondent’s attorney indexed and paginated the papers and applied for a trial date for the hearing of this application on 16 February 2024.

 

6.         The notice of set down was transmitted electronically to the Applicant’s email address on 25 March 2024.

 

7.         The Applicant, unfortunately, did not file heads of argument.

 

B.        THE VINCULUM JURIS BETWEEN THE PARTIES

 

8.         The Respondent initiated action proceedings against Applicant in this Court on 14 January 2022. The Respondent’s cause of action is premised upon a written instalment sale agreement[4] entered into and concluded between the parties on 31 August 2017.

 

9.         The Applicant purchased a 2017 model Audi A5 Sportback 2.0 TDI Stronic[5] from the Respondent in the total amount of R1 270 848.92. The parties agreed that the aforementioned amount would be recoverable in monthly instalments commencing on 29 October 2017 in the amount of R15 096.77 per month payable over a period of 72 months, with the final payment to be effected on 29 September 2023, as well as a balloon payment in the amount of R198 884.70.

 

10.       The Respondent remains the titleholder and the legal owner of the motor vehicle until the full purchase price, including the balloon payment, has been paid. Ownership of the motor vehicle will only pass to the Applicant if all the amounts due and payable under the agreement are paid to the Respondent.

 

11.       The Applicant agreed to pay all legal costs, as well as any collection costs, which may arise in connection of his failure to comply with any of the terms and conditions of the agreement.[6]

 

12.       The Applicant fell in arrears with his instalments and the outstanding arrears accumulated to R70 255.53 as on 3 November 2021.[7]

 

13.       The Applicant failed and omitted or neglected to pay the arrear amount, which entitled the Respondent to cancel the agreement, to claim payment of the full outstanding balance and to cancel the agreement.

 

14.       The combined summons was served by the sheriff on the Applicant at the latter’s chosen domicilium citandi et executandi on 10 March 2022 by affixing a copy thereof at the main entrance gate of the Applicant’s aforementioned address. It appears from the sheriff’s return of service that the Applicant’s chosen domicilium citandi et executandi consists of student accommodation and it is furthermore apparent that the Applicant no longer resides at the aforementioned address.

 

15.       Snyman J was satisfied that the Respondent has made out a proper case for the relief it applied for and granted default judgment against the Applicant on 5 May 2022.

 

16.       The Applicant initiated this application for the rescission of the aforementioned default judgment on 18 April 2023. The Applicant applies for condonation for the late bringing of this application for rescission, as well as for an order that the default judgment granted by Snyman J on 5 May 2022 be rescinded.

 

C.        CONDONATION FOR THE LATE FILING OF THIS APPLICATION FOR THE RESCISSION OF THE JUDGMENT GRANTED ON 5 MAY 2022

 

17.       The Applicant applies for condonation for the late filing of this application as he became aware of the default judgment dated 5 May 2022 :

 

17.1    When his debt counsellor enquired from the Respondent’s attorneys about his indebtedness towards the Respondent; and

 

17.2    During April 2023 when the sheriff of this Court attempted to execute the warrant of execution which authorized the sheriff to remove and to take possession of the motor vehicle, in accordance with the provisions contained in and provided for in paragraph 2 of the order dated 5 May 2022.[8]

 

18.       The grounds upon which the Applicant relies for condonation are flimsy, unorthodox, vague and sketchy. The grounds relied upon by the Applicant in this regard can be summarized as follows:

 

18.1    The Rules of this Court do not presuppose an application for the rescission of a judgment being brought in excess of four months since the grant of such judgment where the debtor has at all relevant times been aware of the judgment as is the position herein;[9]

 

18.2    The Applicant is therefore advised that the application for condonation is noted way out of the usual timeframes within which such application should ordinarily be filed;[10]

 

18.3    The Applicant is advised that this Court has original jurisdiction and that the Rules of this Court are made for convenience of the Court and not the Court for the Rules;[11]

 

18.4    The Applicant is furthermore advised that this Court has the power to relax its Rules and condone non-compliance therewith where convenience and justice may so demand. This Court is otherwise not meant to be a slave of its own Rules;[12]

 

18.5    The Applicant is furthermore advised that one critical consideration in the decision to condone the late filing of his application for rescission of the default judgment is whether or not any actual prejudice will be suffered by either of the parties if condonation is granted;[13] 

 

18.6    The Applicant avers that in the event that condonation is granted in this matter no party stands to be prejudiced. On the other hand if condonation is refused, the Applicant stands to suffer extreme prejudice given that as a person reliant on credit like all other consumers in the credit economy, he will remain listed as a bad debtor and unable to access credit from financial institutions;[14]

 

18.7    The Applicant therefore pleads that it is just and equitable for condonation to be granted in this matter;[15] and

 

18.8    The Applicant, during argument, submitted that he established a cordial relationship with the Respondent, as the motor vehicle is the fifth Audi motor vehicle he bought from the Respondent.

 

19.       The Applicant applies for the rescission of the default judgment dated 5 May 2022 on either the common law or in terms of the Uniform Rules of this Court.[16]

 

20.       The Applicant, however, failed and omitted to elaborate on what basis his application for rescission is actually premised.

 

21.       Be that as it may, it is trite that condonation is not to be had merely for the asking.

 

21.1    The Applicant is dutybound to furnish a full, detailed and accurate account of the causes of the delay and their effects so as to enable this Court to understand clearly the reasons and to assess the merits of the Applicant’s version.

 

21.2    If the non-compliance is time related, the date, duration and extent of any obstacle on which the Applicant placed reliance on must be spelled out.[17]

 

22.       The overriding consideration is that the matter rests in the judicial discretion of this Court, to be exercised with regard to all the circumstances of the case.[18]

 

23.       It is well settled that, in considering applications for condonation, this Court has a discretion to be exercised judicially upon a consideration of all the facts, and that in essence it is a question of fairness to both parties.

 

23.1    In this enquiry, relevant considerations may include the degree of non-compliance with the Rules, the explanation therefore, the prospects of success in the action, the importance of the case, the Respondent’s interest in the finality of its judgment, the convenience of this Court, and the avoidance of unnecessary delay in the administration of justice.

 

23.2    The aforementioned factors are not individually decisive but are interrelated and must be weighed one against the other. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong.[19]

 

24.       The Constitutional Court confirmed the aforementioned principle as follows :

 

“An applicant for condonation must give a full explanation for the delay. In addition, the explanation must cover the entire period of delay. And, what is more, the explanation given must be reasonable.”[20]

 

25.       It is for the Applicant to satisfy this Court that there is sufficient cause for excusing him from compliance. Condonation for the non-observance of this Court’s Rules is by no means a mere formality.[21]

 

26.       Where application is made for condonation of an Applicant’s failure to comply with the prescribed procedural requirements provided for in this Court’s Rules, it is advisable that the Applicant should set forth briefly and succinctly such essential information as to enable this Court to assess the Applicant’s prospect of success.[22]

 

27.       It is therefore for the Applicant to satisfy this Court that there are sufficient grounds in support of his application for condonation. The fullest disclosure should be made of all the facts relevant to this matter.[23]

 

28.       An application for condonation should be lodged without any delay.[24]

 

29.       Regard being had to the aforementioned principles, it is evident that the Applicant has not satisfied the minimum threshold. The Applicant, as a matter of fact, made no effort or attempt to take this Court into his confidence and to provide a full explanation for the delay. Condonation is not a basic right which every litigant is automatically entitled to. Condonation can only be granted if this Court is satisfied that the Applicant has provided a full explanation for the delay and that it is in the interest of justice that condonation should be granted.

 

30.       The Respondent’s interest in finality should also be taken into consideration.   Each case must be decided on its own facts and merits, specifically to avoid a travesty of justice.

 

31.       On a proper interpretation and analysis of the allegations and averments contained in the Applicant’s founding affidavit, the following is evident :

 

31.1    The Applicant failed and omitted to give any explanation for the delay;

 

31.2    The Applicant made no effort or attempt to disclose his defence in relation to the Respondent’s cause of action premised on the agreement that was entered into and concluded between the parties on 31 August 2017; and

 

31.3    The Applicant relies on bald, vague, general and sweeping statements in support of his application for condonation.

 

32.       It is evident that the Applicant still “resides” at his chosen domicilium citandi et executandi situated at 2[…] M[…] Street, Unit 1, Mmabatho, 2790.[25]

 

33.       The Applicant confirmed his aforementioned place of residence in the notice of motion and in paragraph 1.1 of his founding affidavit in support of this application, dated 18 April 2023.

 

34.       The inescapable conclusion is therefore that the application for condonation is fundamentally misconceived, ill-founded and stillborn.

 

D.        DOES THE APPLICANT HAVE A DEFENCE IN RELATION TO THE RESPONDENT’S CAUSE OF ACTION?

 

35.       The agreement was terminated by effluxion of time on 29 September 2023.[26]

 

36.       The Applicant made no payments (pursuant to the conclusion of the agreement) to the Respondent since January 2022.[27]

 

37.       The Applicant confirmed during argument that he is still in possession of the motor vehicle, notwithstanding the fact that he has breached the provisions of the agreement and remains in arrears in a substantial amount of money. The Respondent, on the other hand, suffers irreparable harm and damage on a daily basis, specifically by virtue of the fact that the value of the motor vehicle depreciates continuously. The Respondent has every right to be placed in possession of the motor vehicle without any further delay.

 

38.       The Applicant made no attempt to elaborate on his defence in relation to the Respondent’s cause of action. The Applicant, as a matter of fact, remains silent on this important and decisive issue. It is therefore evident that the Applicant has no defence against the Respondent’s cause of action.

 

39.       Absent a bona fide and sustainable defence in relation to the Respondent’s cause of action, this Court can, unfortunately, not exercise its judicial discretion in any manner whatsoever. This Court can only exercise its judicial discretion on specific facts or grounds, commonly known as “evidence” or “primary facts”.  

 

E.        CONCLUSION AND COSTS

 

40.       This application constitutes a tactical manoeuvre for the purpose of obtaining an advantage to which the Applicant is not legitimately entitled. The sole reason why the Applicant initiated this application is to delay the effective administration of justice. The Applicant is not entitled to “kick the can down the road” any longer. The Respondent is entitled to finality.

 

41.       Litigants, generally speaking, should be discouraged from applying Stalingrad tactics which are in their very nature designed to delay the  effective administration of justice, to the detriment and prejudice of ordinary litigants.

 

42.       It is evident that the Applicant lost his appetite for this application, as the Applicant made no effort to pursue this application. The Applicant failed and omitted to file a replying affidavit and no heads of argument were forthcoming from the Applicant. The Applicant, furthermore, failed and omitted to set this application down for hearing. This comes as no surprise, as the Applicant is staring down the barrel of a loaded gun. The Applicant is the author of his own misfortune.

 

43.       The Respondent moves for an order in terms of which the application should be dismissed with costs.  

 

43.1    This application warrants a punitive cost order, as it is evident that this application was initiated with the mala fide and disingenuous intent to obstruct the effective administration of justice pursuant to the order made by Snyman J on 5 May 2022.

 

43.2    More than 2½ years have lapsed since this Court made the aforementioned order, but the Applicant remains in possession of the motor vehicle at the Respondent’s prejudice and financial detriment.

 

43.3    This Court is therefore inclined to express its dissatisfaction with the approach adopted by the Applicant, as alluded to herein supra.

 

In the premises an order in the following terms is made:  

 

1.         The Application is dismissed; and

 

2.         The Applicant is ordered to pay the costs of this application on the scale as between attorney and client.

 

 

FW BOTES

ACTING JUDGE OF THE HIGH COURT

OF SOUTH AFRICA

 

 

For the Applicant :                            In person          

Email :                                                Email : mongalemd@gmail.com

                                                            Cell : 072-391-6919

 

For the Respondent :                  

 

Instructed by :                                   Van Velden-Duffey

                                                            North Block 04

                                                            @Office Building

                                                            cnr. Kock & Brink Streets

                                                            Rustenburg

                                                            Tel : (014) 592-1135

                                                            Email : angeliquec@vvd.co.za

                                                            Ref : MAT120638/AC/Est-Marie McCallaghan

                                                            c/o CJP Oelofse Attorneys

                                                            9 Aerodrome Crescent

                                                            Mahikeng Industrial

                                                            Mahikeng

                                                            Tel : (018) 632-2744

                                                            Email : mhk3@cjpo.co.za

                                                            Ref : PJO/jh/MHK462  

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