Mogale v BMW Finance Services (South Africa) (Pty) Ltd (5528/2020) [2024] ZALMPPHC 117 (11 September 2024)

Mogale v BMW Finance Services (South Africa) (Pty) Ltd (5528/2020) [2024] ZALMPPHC 117 (11 September 2024)

The court found that the opposing affidavit was not properly commissioned because the Commissioner of Oaths certificate confusingly described the deponent as both male and female, using contradictory pronouns. This irregularity created a disjoint between the deponent's declaration and the certificate, undermining the reliability of the affidavit and suggesting non-compliance with the Regulations. No supporting affidavits were provided to demonstrate substantial compliance. The court declined to condone the non-compliance and sustained the applicant's objection. The respondent was granted leave to re-attest or supplement its affidavit, but was ordered to pay the costs of the application.

Citation
[2024] ZALMPPHC 117
Parties
Applicant: Mohale Raofe Ezekiel Mogale; Respondent: BMW Finance Services (South Africa) (Pty) Ltd
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
11 September 2024
Case Number
5528/2020
Procedural Posture
Civil Application / Objection to Opposing Affidavit; Application for Condonation
Outcome
Objection to the attestation of the respondent's opposing affidavit sustained; respondent granted leave to re-attest or supplement affidavit; respondent to pay costs.
Judges
Ledwaba LGP
Legal Topics
Commissioner of Oaths, Affidavit Attestation, Regulations Governing Oaths, Condonation Application
Civil Procedure Commissioner of Oaths Affidavit Attestation Regulations Governing Oaths Condonation Application

Case Brief

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Parties

Mohale Raofe Ezekiel Mogale

Applicant

BMW Finance Services (South Africa) (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Objection to Opposing Affidavit; Application for Condonation

Legal Issues

  1. 1 Whether the opposing affidavit was properly commissioned in accordance with the Regulations Governing the Administering of an Oath or Affirmation.
  2. 2 Whether contradictory pronouns in the Commissioner of Oaths certificate render the affidavit irregular and inadmissible.
  3. 3 Whether the late filing of the opposing affidavit without a condonation application should be condoned.

Ratio Decidendi

The court found that the opposing affidavit was not properly commissioned because the Commissioner of Oaths certificate confusingly described the deponent as both male and female, using contradictory pronouns. This irregularity created a disjoint between the deponent's declaration and the certificate, undermining the reliability of the affidavit and suggesting non-compliance with the Regulations. No supporting affidavits were provided to demonstrate substantial compliance. The court declined to condone the non-compliance and sustained the applicant's objection. The respondent was granted leave to re-attest or supplement its affidavit, but was ordered to pay the costs of the application.

Court Disposition

Objection to the attestation of the respondent's opposing affidavit sustained; respondent granted leave to re-attest or supplement affidavit; respondent to pay costs.

Orders

  • The objection of the applicant to the attestation of the respondent's opposing affidavit is sustained.
  • The respondent is granted leave to have its opposing affidavit re-attested or supplemented, if so advised.