Mkentane v Motor Finance Corporation (Pty) Ltd t/a MFC in re: Motor Finance Corporation (Pty) Ltd t/a MFC v Mkentane (4217/2011) [2012] ZAFSHC 42 (16 March 2012)

Mkentane v Motor Finance Corporation (Pty) Ltd t/a MFC in re: Motor Finance Corporation (Pty) Ltd t/a MFC v Mkentane (4217/2011) [2012] ZAFSHC 42 (16 March 2012)

The court found that the applicant provided a reasonable explanation for her default and that her conduct was neither wilful nor grossly negligent. The applicant raised bona fide defences, including the locus standi of the respondent and the proper citation of parties, which required judicial ventilation. The agreements attached by the respondent were not within the applicant's knowledge at the time of her founding affidavit. The court held that the applicant has an arguable case and, if she establishes that the plaintiff as cited in the summons has no locus standi, she will be entitled to relief. The challenge to the authority of the respondent's deponent was dismissed, as the proper...

Citation
[2012] ZAFSHC 42
Parties
Applicant: Busisiwe Mkentane; Respondent: Motor Finance Corporation (Pty) Ltd t/a MFC; Plaintiff: Motor Finance Corporation (Pty) Ltd t/a MFC; Defendant: Busisiwe Mkentane
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
16 March 2012
Case Number
4217/2011
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission granted; default judgment and warrant for delivery of goods set aside; costs awarded against respondent.
Judges
Naidoo
Legal Topics
Rescission of Default Judgment, Locus Standi, Citation of Parties, National Credit Act Compliance, Authority of Deponent
Civil Procedure Banking and Finance Rescission of Default Judgment Locus Standi Citation of Parties National Credit Act Compliance Authority of Deponent

Case Brief

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Parties

Busisiwe Mkentane

Applicant

Motor Finance Corporation (Pty) Ltd t/a MFC

Respondent

Motor Finance Corporation (Pty) Ltd t/a MFC

Plaintiff

Busisiwe Mkentane

Defendant

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the citation of the respondent in the summons is fatal to its case.
  2. 2 Whether the deponent to the respondent's affidavit had authority to oppose the application.
  3. 3 Whether the applicant provided a reasonable explanation for her default.

Ratio Decidendi

The court found that the applicant provided a reasonable explanation for her default and that her conduct was neither wilful nor grossly negligent. The applicant raised bona fide defences, including the locus standi of the respondent and the proper citation of parties, which required judicial ventilation. The agreements attached by the respondent were not within the applicant's knowledge at the time of her founding affidavit. The court held that the applicant has an arguable case and, if she establishes that the plaintiff as cited in the summons has no locus standi, she will be entitled to relief. The challenge to the authority of the respondent's deponent was dismissed, as the proper...

Court Disposition

Application for rescission granted; default judgment and warrant for delivery of goods set aside; costs awarded against respondent.

Orders

  • The default judgment granted by this court on 27 October 2011 is hereby rescinded.
  • The warrant for delivery of goods issued on 3 November 2011 against the movable property, namely a 2005 Volkswagen City Life 1.6 with engine number AFX077220 and chassis number AAVZZZ17Z5U024221 is set aside.