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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO:  672/2019,  674/2019, 675/20

In the matter between:

LUNIKO SECURITY & CLEANING SERVICES (PTY) LTD                          

t/a LUNIKO SECURITY & CLEANING SERVICES                   Applicant

And

FIRSTRAND BANK LIMITED t/a WESBANK                            Respondent

JUDGMENT

BESHE J:

[1]      This matter is concerned with three applications for the rescission of three default judgments. These were granted on the 4 June 2019 in favour of the respondent and against the applicant. Respondent had instituted action against the applicant in respect of all three matters on the basis that applicant had failed to comply with its obligations in terms of three Instalment Sale Agreements it had entered into with the respondent in respect of three motor vehicles.

[2]      Judgment in the following terms was granted, applicant having been in default of filing a notice of intention to defend the action:

(1) The agreement is hereby cancelled.

(2) The return of that specific motor vehicle (as it appears in the particulars of claim in respect of each of the 3 matters).

(3) Costs of suit.

[3]      The founding affidavit to this application is deposed to by the sole member of the applicant, Mr Welcome Gede. Therein, he explains his failure to enter an appearance to defend, by asserting that he was not aware that action in respect of the three matters had been brought against the applicant by the respondent. He only became aware when one of the vehicles concerned was taken by the respondent / or at the instance of the respondent pursuant to the judgment by default.

[4]      The summons were served on applicant’s domicilium citandi. Mr Gede does not explain why the applicant did not receive the three sets of summonses.

[5]      Mr Gede conceded that applicant had fallen into arrears regarding payment of instalments in respect of the vehicle finance facilities. That, however the arrears that were settled on 24 May 2019. This is denied by the respondent. That, in any event, when the actions were instituted / summonses issued and respondent opted to cancel the agreements on the basis of the breach by the applicant, the applicant was in arrears with its payments. Further that the arrears were not paid in full.

[6]   Applicant also complains that he did not receive a notice in terms of Section 129 of the National Credit Act[1]. There is no merit in this complaint or defence as applicant is a juristic person amongst other things. (See Section 4 (a) (1) of the National Credit Act).

[7]      Applicant puts forward as some form of defence that respondent knows that applicant generates income as and when it is awarded a tender to render its services. That it is therefore unreasonable for the respondent to institute action for cancellation of the agreements when applicant is still awaiting payments and or procurement processes to unfold.

[8]      A week prior to a date scheduled for the hearing of the applications (rescission applications) applicant’s attorneys withdrew. So, there was no appearance for or by the applicant (through its sole member Mr Gede).

[9]      Ms Sephton argued for the dismissal of the applications with costs.

[10]    I am not persuaded that applicant has satisfied the requirements for the rescission of the judgments in question. Those being:

A reasonable explanation of applicant’s default;

applicant’s bona fides in making the application; and that applicant has bona fide defence to the claims.

[11]    I have already alluded to the fact that there is no explanation why applicant did not receive the summonses which were served at its domicilium citandi. An address Mr Gede still cites in the application for rescission of the judgments as applicant’s domiciluim citandi et executandi.

[12]    Applicant does not even attempt to put forward bone fide defences to respondent’s claims. Applicant concedes that it is not always in a position to meet the terms of agreement as it relies on being awarded tenders to render its services. That applicant makes payment towards the arrears whenever it has funds available at its disposal. The terms of the agreements between the parties are clear and unambiguous as to when and what payments should be made. As well as the consequences of a breach of the said terms.

[13]    I am not persuaded that the applicant has made out a case for the rescission of the judgments granted against it on the 4 June 2019 in respect of the three matters whose case numbers are listed on the appellation of this matter.

[14]    Accordingly, the three applications are dismissed with costs.

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N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicant       :           No Appearance

Instructed by               :           Withdrawn

For the Respondent    :           Adv: Sephton

Instructed by               :           HUXTABLE ATTORNEYS

                                                26 New Street

                                                GRAHAMSTOWN

                                                Ref: JM de Klerk/01L001517

                                                Tel.: 046 – 622 2692

Date Heard                 :           27 February 2020      

Date Reserved            :           27 February 2020

Date Delivered            :           10 March 2020

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