More v BMW Financial Services (1658/17) [2018] ZAGPPHC 583 (31 May 2018)

More v BMW Financial Services (1658/17) [2018] ZAGPPHC 583 (31 May 2018)

The court found that the plaintiff failed to provide evidence that the section 129 notice was properly delivered to the defendant, as the Track and Trace Report did not indicate that notification was sent to the defendant to collect the registered item. The supplementary affidavit relied upon by the plaintiff was inadmissible hearsay and did not cure the defect. Compliance with section 129 is a mandatory statutory requirement, and its absence renders any default judgment erroneously granted. The court held that, in such cases, it is not necessary for the applicant to show a bona fide defence, as non-compliance with section 129 is itself sufficient to justify rescission. The defendant's...

Citation
[2018] ZAGPPHC 583
Parties
Applicant: Thomas Peter More; Respondent: BMW Financial Services
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 May 2018
Case Number
1658/17
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission granted; default judgment set aside; costs awarded against plaintiff on attorney and client scale.
Judges
PM Mabuse
Legal Topics
Default Judgment Rescission, National Credit Act Compliance, Section 129 Notice, Proof of Delivery, Bona Fide Defence
Civil Procedure Banking and Finance Default Judgment Rescission National Credit Act Compliance Section 129 Notice Proof of Delivery Bona Fide Defence

Case Brief

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Parties

Thomas Peter More

Applicant

BMW Financial Services

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the plaintiff complied with section 129 of the National Credit Act before obtaining default judgment.
  2. 2 Whether the absence of proper notification to the defendant invalidates the default judgment.
  3. 3 Whether the defendant must show a bona fide defence when rescission is sought on grounds of non-compliance with section 129.

Ratio Decidendi

The court found that the plaintiff failed to provide evidence that the section 129 notice was properly delivered to the defendant, as the Track and Trace Report did not indicate that notification was sent to the defendant to collect the registered item. The supplementary affidavit relied upon by the plaintiff was inadmissible hearsay and did not cure the defect. Compliance with section 129 is a mandatory statutory requirement, and its absence renders any default judgment erroneously granted. The court held that, in such cases, it is not necessary for the applicant to show a bona fide defence, as non-compliance with section 129 is itself sufficient to justify rescission. The defendant's...

Court Disposition

Application for rescission granted; default judgment set aside; costs awarded against plaintiff on attorney and client scale.

Orders

  • The application for rescission is granted.
  • The defendant's late filing of the application is condoned.