Gaoraelwe v Mercedes-Benz Financial Services (Pty) Ltd (58044/2015) [2017] ZAGPPHC 826 (21 August 2017)

Gaoraelwe v Mercedes-Benz Financial Services (Pty) Ltd (58044/2015) [2017] ZAGPPHC 826 (21 August 2017)

The applicant acted promptly upon learning of the default judgment and subsequent dismissal of her first recission application. However, she failed to establish a bona fide defence with prospects of success, as her arguments centered on her unemployment and need for more time, which do not constitute a legal defence. The court found that service of the summons and s129 notice was probably effected in accordance with the rules, given the restricted access to the applicant's estate. The order was not vague, and the applicant's contentions regarding its vagueness were unfounded. Consequently, both the first and second applications for recission were dismissed with costs.

Citation
[2017] ZAGPPHC 826
Parties
Applicant: Masego Gaoraelwe; Respondent: Mercedes-Benz Financial Services (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 August 2017
Case Number
58044/2015
Procedural Posture
Recission Application / Final Judgment
Outcome
Both the application for recission of the judgment granted on 2 September 2015 and the application for recission of the order granted on 12 September 2016 are dismissed with costs.
Judges
Millar
Legal Topics
Default Judgment, Recission of Judgment, Service of Process, National Credit Act, Bona Fide Defence
Civil Procedure Commercial and Corporate Default Judgment Recission of Judgment Service of Process National Credit Act Bona Fide Defence

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Parties

Masego Gaoraelwe

Applicant

Mercedes-Benz Financial Services (Pty) Ltd

Respondent

Procedural Posture

Recission Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant provided a reasonable explanation for her default.
  2. 2 Whether the applicant's application for recission was bona fide.
  3. 3 Whether the applicant established a bona fide defence with prospects of success.

Ratio Decidendi

The applicant acted promptly upon learning of the default judgment and subsequent dismissal of her first recission application. However, she failed to establish a bona fide defence with prospects of success, as her arguments centered on her unemployment and need for more time, which do not constitute a legal defence. The court found that service of the summons and s129 notice was probably effected in accordance with the rules, given the restricted access to the applicant's estate. The order was not vague, and the applicant's contentions regarding its vagueness were unfounded. Consequently, both the first and second applications for recission were dismissed with costs.

Court Disposition

Both the application for recission of the judgment granted on 2 September 2015 and the application for recission of the order granted on 12 September 2016 are dismissed with costs.

Orders

  • The application for recission of the judgment granted on 2 September 2015 is dismissed with costs.
  • The application for recission of the order granted on 12 September 2016 is dismissed with costs.