Asked by DDanon on 12-09-2023 10:51:41
Question posted in the General Law category relating to Gauteng

Need assistance to 1) proof read the condonation section and advise if its ok, 

                                  2) Assist with a draft notice of motion for this Answering affidavit.

                                 3) Can you also confirm wether i am the applicant or respondent in the answering affidavit, i have me as the                                applicant and BMW Financial services as the respondent in this affidavit.

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG

Case Number:

In the matter between:

 DD                                                                     Applicant

-and-

BMW FINANCIAL SERVICES SOUTH AFRICA(PTY) LTD          Respondent

In re:

BMW FINANCIAL SERVICES SOUTH AFRICA(PTY) LTD                Plaintiff

-and-

DD                                                                     Defendant

FOUNDING AFFIDAVIT

I, the undersigned,

DD

declare under oath as follows:

1.         I am adult male, with identity number , with place of residence located at Gauteng Province and the defendant in the mainaction.

2.         The statements of fact that are contained in this affidavit fall within my personal knowledge,except where the converse is stated in express terms or where the context in which a statement of fact is made directs otherwise.

Posted by Att. Patrick on 12-09-2023 13:42:14

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

Thank you much appreciated, and section 5-15 on the CONDONATION FOR LATE FILING OF ANSWERING AFFIDAVIT is this ok?

Posted by Att. Patrick on 12-09-2023 13:53:41

As this is an application for default judgment, which BMW has launched, you can't change the parties around. BMW is the applicant and you are the respondent. 

I think that you have the applicant/respondent the wrong way around in your affidavit. 

You would be filing this answering affidavit to dispute BMW's default judgment claim, as previously discussed. 

Before your para 5, I think that you should include the reason for the answering affidavit: "The reason for this answering affidavit being delivered is to dispute the applicant's right to apply for default judgment against me for the reasons set out herein."  Then it will be clear to the judge, up front, what you intend saying.

"The purpose of this application is to show that the respondent has erred..." is not correct. It should be the purpose of this answering affidavit...

In 14, there seems to be confusion.  I thought that you were filing the answering affidavit in opposition to the default judgment application.  But 14 seems to imply that default judgment was already granted and you are now trying to un-do that. 

Also in 15, there is confusion.  "15.     I will now proceed to deal with setting out my bona fide defence in terms of the judgment debt for it to be rescinded."  Shouldn't it be "15.     I will now proceed to deal with setting out my bona fide defence in relation to the application for default judgment."

Para 51 should then change to something like this: "51.     It is therefore humbly requested that this Honourable Court condone the late filing of my answering affidavit and dismiss the applicant's application for default judgment."

Posted by Att. Patrick on 12-09-2023 13:56:50

Yes, section 5-15 on the CONDONATION FOR LATE FILING OF ANSWERING AFFIDAVIT is ok. It sets out good reasons why you are late in filing your answering affidavit.