Mashele v BMW Financial Services (Pty) Ltd and Another (29899/2018) [2021] ZAGPPHC 105 (25 February 2021)

Mashele v BMW Financial Services (Pty) Ltd and Another (29899/2018) [2021] ZAGPPHC 105 (25 February 2021)

The application for leave to appeal was dismissed as moot because neither party actively pursued it and both indicated a preference for resolving the dispute outside of the appeal process. The court found that it was not functus officio and was required to make a ruling on the application. The draft settlement...

Source-derived case information.

Citation
[2021] ZAGPPHC 105
Parties
Applicant: Sonto Elizabeth Mashele; Respondent: BMW Financial Services (Pty) Ltd; Respondent: The Sheriff of the High Court, Johannesburg East
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 February 2021
Case Number
29899/2018
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application
Outcome
Application for leave to appeal dismissed as moot; each party to pay their own costs.
Judges
S D J Wilson
Legal Topics
Leave to Appeal, Rescission of Judgment, Credit Agreement Enforcement, Costs Orders
Civil Procedure Commercial and Corporate Leave to Appeal Rescission of Judgment Credit Agreement Enforcement Costs Orders

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Summary, issues, holding and outcome

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Parties

Sonto Elizabeth Mashele

Applicant

BMW Financial Services (Pty) Ltd

Respondent

The Sheriff of the High Court, Johannesburg East

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application

Legal Issues

  1. 1 Whether the application for leave to appeal should be granted in circumstances where the parties have reached a purported settlement.
  2. 2 Whether it is competent for the court to make the draft settlement agreement an order of court in leave to appeal proceedings.
  3. 3 Whether the application for leave to appeal is moot given the parties' conduct.

Ratio Decidendi

The application for leave to appeal was dismissed as moot because neither party actively pursued it and both indicated a preference for resolving the dispute outside of the appeal process. The court found that it was not functus officio and was required to make a ruling on the application. The draft settlement agreement could not be made an order of court due to lack of satisfactory evidence of agreement and provisions contrary to public policy. On the merits, the application for leave to appeal had no prospects of success, as the small variances in the applicant's indebtedness did not affect BMW's right to judgment for repossession, and there was no evidence that the applicant had...

Court Disposition

Application for leave to appeal dismissed as moot; each party to pay their own costs.

Orders

  • The application for leave to appeal is dismissed.
  • Each party is to pay their own costs.