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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA DIVISION)

Case No. 58044/2015

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

DATE: 21/8/2017

In the matter between:

MASEGO GAORAELWE                                                                                   APPLICANT

and

MERCEDES-BENZ FINANCIAL SERVICES (PTY) LTD                              RESPONDENT

JUDGMENT

MILLAR, AJ

1. This is an application for the recission of a judgment granted by default on 2 September 2015 in favour of the respondent/plaintiff against the applicant/defendant.

2. The applicant brought an application for the recission of the default judgment on 14 September 2015, having become aware of it on 10 September 2015 I shall refer to this as the first application.

3. The first application was set down for hearing on 12 September 2016 and this application was dismissed. The applicant, intending to represent herself had gone to and remained in the incorrect court room. By the time that she ascertained the error, the first application had been called in the court hearing it and in her absence dismissed with costs.

4. The dismissal of the first application on 12 September 2016 thereafter resulted in the applicant bringing an application for the recission of the dismissal of the first application. This application will be referred to as the second application and was served on 16 September 2016.

5. The relief sought in both the first and second applications is essentially the same, the applicant seeks the recission of the default judgment granted on 2 September 2015. In the circumstances, I propose to deal primarily with the first application but will refer to the second application where necessary. I intend to dispose of both in this judgment.

6. The applicant has raised a number issues:

6.1.1   Firstly, that the summons was not properly served or at all,

6.1.2   Secondly that she was not alerted to the impending legal action by the respondent;

6.1.3   Thirdly that the court order granted on 2 September 2015 is vague in a number of respects and that the order was granted in error.

7. The test to be applied in applications of this nature is one which:

“ ..involves three essential elements: .the applicant must (1) give a reasonable (and obviously acceptable) explanation for his default; (2) show that his application is made bona fide; and (3) show that on the merits he has a bona fide defense which  prima facie carries some prospects of   success”[1]

8. The applicant in this matter can hardly be said to have delayed. By all accounts as soon as she had become aware of the granting of the judgment she had brought the first application and again when she learnt of the dismissal of the first application she reacted with haste and brought the second application.

9. The applicant explains in some detail the restrictions in access to the estate where she lives. The applicant also asserts that she was at home on the day that the summons was served and that she did not receive  any request for access  to the premises from the

sheriff. Both parties refer to the sheriffs return of service but a copy of that document does not form part of either parties' papers.[2]

10. Similarly, both parties refer to the summons and particulars of claim but neither has placed a full copy of those documents before me. A copy of the summons and particulars of claim without annexures forms part of the second application.[3]

11. The summons was as a probability served at the main gate to the premises as the sheriff was unable to gain access. Both parties who have apparently seen the return of service concede as much.[4]

12. There was no obligation on the respondent to give the applicant any notice other than that contemplated in terms of s 129 of the National Credit Act[5] For the same reasons as regard to the service of the summons it is a matter of probability that the notice was

indeed dispatched to the applicant.[6]

13. The discussions between the debt collection agent of the respondent who happens to be in the employ of a firm of attorneys does not assist the applicant. It is not suggested that the agent concerned gave any undertakings to the applicant on behalf of the respondent which would have had the effect of the waiver of its right to proceed with summons.[7]

14. A reading of the particulars of claim and the default judgment that was granted make it clear that the court order is not vague. The applicant's contention that the order is vague because it does not specify where she must deliver the vehicle is disingenuous when regard is had to her stated intention that:

"Despite my unemployment (and its implications), I chose to retain the vehicle as it is not a luxury but a necessity in my life. I transport my children to and from school daily, plus use it for other related family commitments."[8]

The argument in regard to the cancellation of the agreement is equally so when regard is had to a reading of the particulars of claim. It is clear that the respondent sought an order confirming it cancellation, a prerequisite for the court to order the return of the vehicle.[9]

15. The applicant' did not even attempt to set out a defence to the claim of the respondent.

The high watermark of her case in this regard was that she was unemployed and needed to be given more time to extricate herself from the consequences of such unemployment.[10] This is simply not a defence in law to the claim of the respondent.

16. Even If I accept that the applicant meets the first leg of the test, for the reasons set out above I find that she has not met the other two legs and in the circumstances her applications must fail.

17. In the circumstances, I make the following order:

17.1      The  application  for  recission  of  the  judgment granted on 2 September 2015 is

dismissed with costs.

17.2       The application  for recission  of the order  granted on 12 September   2016 is dismissed with costs.

_________________________

A MILLAR

ACTING JUDGE OF THE HIGH COURT

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