Louw v BMW Financial Services (SA) (Pty) Ltd (729/2017) [2018] ZANCHC 44 (29 June 2018)

Louw v BMW Financial Services (SA) (Pty) Ltd (729/2017) [2018] ZANCHC 44 (29 June 2018)

The court found that the respondent had complied with the procedural requirements for service of both the summons and the section 129(1) notice. The section 129(1) notice was sent to the applicant's chosen domicilium citandi et executandi by registered mail, and the track and trace report confirmed delivery and notification. The applicant failed to provide a reasonable explanation for his default, did not rebut the presumption of delivery, and did not demonstrate a bona fide defence with prospects of success. The applicant also failed to explain the delay in filing the rescission application. Consequently, both the application for condonation and the rescission of the default judgment...

Citation
[2018] ZANCHC 44
Parties
Applicant: Raymond Louw; Respondent: BMW Financial Services (SA) PTY LTD
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
29 June 2018
Case Number
729/2017
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of default judgment and condonation dismissed with costs.
Judges
Williams
Legal Topics
Rescission of Judgment, Service of Process, National Credit Act, Default Judgment, Condonation, Instalment Sale Agreement
Civil Procedure Commercial and Corporate Rescission of Judgment Service of Process National Credit Act Default Judgment Condonation Instalment Sale Agreement

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Parties

Raymond Louw

Applicant

BMW Financial Services (SA) PTY LTD

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant provided a reasonable explanation for his default and delay in filing the rescission application.
  2. 2 Whether service of summons and section 129(1) notice was properly effected in terms of the rules and the National Credit Act.
  3. 3 Whether the applicant has a bona fide defence with prospects of success against the default judgment.

Ratio Decidendi

The court found that the respondent had complied with the procedural requirements for service of both the summons and the section 129(1) notice. The section 129(1) notice was sent to the applicant's chosen domicilium citandi et executandi by registered mail, and the track and trace report confirmed delivery and notification. The applicant failed to provide a reasonable explanation for his default, did not rebut the presumption of delivery, and did not demonstrate a bona fide defence with prospects of success. The applicant also failed to explain the delay in filing the rescission application. Consequently, both the application for condonation and the rescission of the default judgment...

Court Disposition

Application for rescission of default judgment and condonation dismissed with costs.

Orders

  • The application for condonation is dismissed.
  • The application for the rescission of the default judgment is dismissed with costs.