Need assistance to 1 proof read the cond...

Asked by Danford Damba 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: 21/27086

In the matter between:

 DANFORD DAMBA                                                                     Applicant

-and-

BMW FINANCIAL SERVICES SOUTH AFRICA(PTY) LTD          Respondent

In re:

BMW FINANCIAL SERVICES SOUTH AFRICA(PTY) LTD                Plaintiff

-and-

DANFORD DAMBA                                                                     Defendant

FOUNDING AFFIDAVIT

I, the undersigned,

DANFORD DAMBA

declare under oath as follows:

1.         I am adult male, with identity number 780925 6280 18 8, with place of residence located at 22Johnson Road, St Andrews, Bedfordview, 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.

3.         The statements of fact that are contained in this affidavit are also, to the best of my knowledge and belief, both true and correct.

4.         The contentions in law that are contained in this affidavit are made on the on the basis of my personal knowledge.

INTRODUCTION

5.         The delivery of this affidavit is necessary –

5.1.           firstly, I was served with an Application for a Default Judgment against me in terms of Rule 31 (5) by the respondent.

5.2.           After receiving a notice from the sheriff (Annex 1 A) that I had to contact him to which I complied, the respondent proceeded to serve me with the above said documents on 7 August 2023, on the residence where my wife and children resides.

5.3.           secondly, the application for default judgment is applied for on basis of Summons which were served on me on the 10th of June 2021 by the respondent.

5.4.           thirdly, the respondent’s application for default judgement is on the basis that the dies induciae (10) days as per the 10th of June 2021 summons has allegedly expired.

5.5.           fourth, that the respondent alleges that the applicant has allegedly not entered any defense to the action pertaining to the summons served on the 10th of June 2021.

6.         These aspects and the need to deal with them came to my attention after the sheriff of this Honourable Court left a notice at my home to contact him on 3rd of August 2023 and subsequently delivered the Application for Default Judgement on the 7th of August 2023.

THE PURPOSE OF THIS APPLICATION

1.         The purpose of this application is to show that the respondent has erred in applying for a default judgement in terms of Rule 31(5) & 46A using the summons issued and delivered to the applicant on the 10th of June 2021 because the issue raised by the 10th of June 2021 summons was resolved on the 12th of July 2021 when an agreement was reached between me and the respondent.

2.         Not only will I show to this Honourable Court that the summons served on the applicant on the 10th of June 2021 were attended to and resolved, but also that the respondent’s is withholding sharing information with this Honourable Court which shows the engagements between applicant and respondent which led to the common ground being found.

3.         The applicant responded to the summons served on the 10th of June 2021. The matter was resolved, and the summons ceased to have any legal standing.

4.        The applicant can resolve the core issue which is that the applicant has defaulted and is an arears. The applicant is able to service the monthly debt as a well as the arrears in question.

CONDONATION FOR LATE FILING OF ANSWERING AFFIDAVIT

5.         On the 3rd of August 2023, I received a notice from the Sheriff of Germiston North to arrange for a date when I was available for them to serve a warrant of execution at 22 Johnson Road, St Andrews, Bedfordview, Gauteng Province.

6.         Subsequently after arranging the sheriff served me the Application for Default Judgement by the respondent on the 7th of August 2023

7.         Despite serving my notice to defend on the 11th day of August the respondent did not invite me to caselines. After visiting the Pretoria High Court Administration block twice for assistance, I finally through calling the Pretoria High Court only got granted access to case lines on the 31stof August (Annex A) after being invited via judiciary.org.za non-reply mailbox.

8.         I had been sick from the 17 of September with a recurring back pain and neck for which I have been treated numerous times and have ready medications to take this I did not immediately go to hospital.

9.         On the 31st of August due to me getting worse I visited the Dr who booked me off sick until the 02nd of September 2023 (Annex AA)

10.     I did not get better saw the Dr again on the 6th of September and got booked off to rest till the 7th of August 2023 (Annex BB)

11.     I have subsequently been booked for radiology examination again on the This problem has been troubling me for the past 3 years. (Annex BC)

12.     The sickness kept me in bed as it affects my back and neck thus, I could not attend to the respondent’s Application for Default timeously.

13.     It is therefore respectfully submitted that although my answering affidavit in terms of the provisions of Rule 31(2)(b) should have been brought within 15 days after serving the notice of intention to defend, that the delay of 7 days calculated from 31st August 2023 will not cause any undue prejudice to the respondent in the following:

1.1.           An application for default judgment entered erroneously in absence of my answering affidavit to defend will cause significant more prejudice to myself and make me and my family homeless on a debt which I am able to service.

14.     In the circumstance it is respectfully prayed that this Honourable Court grant the condonation for the late filing of my application for rescission of judgment

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.

BACKGROUNG

16.     I am a married father of four children aged 4,9,14 and 17 years respectively.

17.     I stay with my 71-year-old mother who is crippled and her helper. She relies on me for her livelihood.

18.     I am the owner and director of a company called Dantak Incorporated with registration number 2013/073820/21 (hereinafter “Dantak Incorprated”), which deals with the selling and transportation of petroleum products.

19.     Due to the Covid pandemic the applicant’s company which is in logistics struggled financially and resulted in the applicant failing to service debts.

20.     The respondent being the holder of the applicant’s mortgage was thus negatively impacted as the applicant ran into arrears with payments.

21.     On receiving summons from BMW Financial Services on the 10th of June 2021 the applicant I personally delivered the notice of intention to defend. (Annex 1 B)

22.     The applicant personally went to BMW Financial Services offices at 1 Bavaria Avenue, Randjespark Extension 17, Midrand and met with the person responsible for handling the applicant’s home loan account.

23.     The purpose of my visit was to put across my personal circumstances and find a way to resolve the matter without the involvement of lawyers as the process would add more costs to me at a time, I was neck deep in financial problems.

24.     On engagement I was advised by the respondent that nothing could be no longer done at the office level as the account had been handed over to MacRobert Attorneys.

25.     I was however advised to engage the respondent’s attorneys directly as a resolution could still be reached without continuing the costly legal route.

26.     I thus visited again the MacRobert Building at Cnr Justice Mahomed and Jan Shoba Street, Brooklyn. Pretoria and requested to meet with the attorney responsible for my case, case number 27086/21.

27.     I briefly met with Mamello Molotsi at MacRobert who advised me that she was handling the respondent’s matter against me.

28.     With me was my founding affidavit which I handed over to her in submission to my defense.

29.     I put to her my situation and my desire to resolve the matter outside litigation. I expressed my desire to find a way to settle the outstanding amount without incurring legal costs and advised her that the affidavit I had prepared was in no way an expression of wanting to proceed the legal route to the matter.

30.      She advised me to hold on to my affidavit in light of my proposal. She advised that if my initiative to resolve the matter outside litigation was not acceptable then I did not have to travel to the PTA offices again but could submit my affidavit on case line which she would invite me too (Annex 2 A)

31.     She took my e-mail and promised to revert to me via e-mail.

32.     After my follow up I received e-mail from Mamello Molotsi on the 8th of July 2021 herewith confirming our engagement (Annex 2 A)

33.     On the 12th of July 2021 I received an e-mail from Mamello Molotsi addressed to me copied to BMW recoveries (Annex 2 B). The email stated the amount I owed and advised that the client was indeed amenable to my request and requested further information which was:

                                     i)       Written payment proposal

                                     ii)       Proof of Income

                                     iii)      Months bank statement

                                     iv)      list of expenses

                                      v)      Proof of insurance dated July 2021

34.     On the 27th of July I submitted all the requested documents information in two e-mails. (Annex 2 C and Annex 2 D)

35.     On the 27th of July I received an email confirming receipt of the documents and advising that the said documents were being submitted to the client BMW Financial Services for consideration (Annex 2 E).

36.     On the 6th of August I received further correspondence from the respondent advising that that the proposal must address how i intended to settle the current arrears whilst continuing with my normal monthly instalment (Annex 2 F).

37.     On the 12th of August I responded and confirmed that I would settle the two being the, one the outstanding and two the monthly debt as per my proposal in my e-mail. (Annex 2 G)

38.     I also advised of my readiness to start payments and requested the account I could use for the payments.

39.     I did not receive any e-mail correspondence thereafter from the respondent.

40.     On follow up with phone calls, I was advised that my proposal had been accepted and I should proceed as per my proposal. The Applicant's claim, as set out in its summons, was therefore settled in terms of the accepted proposal."

41.     On the 12th of July I paid the 1st R 50 000.00 towards my debt as per our agreement with the respondent. The following payments followed on the 21st of July R 50 000.00, 1st August R 50 000.00, 24th September R 25 000.00, 9th November 25 000.00 and on the 10th of December R 25 000.00.

42.     All these payments were made in light of the agreement we had on the 10th of June 2021 summons.

43.     The payments we well received, and statements issued to me on monthly basis.

44.      In January 2023 a client of the applicant defaulted on payments and threw the company Dantak Inc under financial stress once again as we were just recovering.

45.     The applicant called the respondent to seek relief but was advised that they could not put any facility in place for me so that I could have a break from making payments as per agreement with respondent.

46.     This resulted in me defaulting on my payments as per our agreement in January 2023

47.     The applicant’s business had not been doing well up until June 2023 hence I have been in default.

48.     The business has picked up again and vastly improved and I am able to address the defaulting and pay my monthly debt. Through learning and experience the applicant had to make sure that business should work in a secure environment this time around. The applicant’s financial standing has vastly changed and is able to service his debt and the arrears.

                                    BONA FIDE DEFENCE

49.     From the background provided to this Honourable Court I submit that a

bona fide defence against the Application for Default Judgement of the respondent is provided to wit:

49.1.       I engaged the respondent on receiving the 10th of June 2021 summons (E-mail Annex 2 A)

49.2.       The respondent agreed to engage with the applicant stop litigation (E-mail Annex 2 B)

49.3.       My proposal to service my monthly outstanding was accepted by the respondent. This resulted in the  aforesaid settlement agreement being reached, which resolved the claim as set out in the summons (E-mail Annex 2 F)

49.4.       The monthly servicing of the debt order was addressed (E-mail annex 2 G)

49.5.       There is no other communication from the respondent to the applicant citing any unhappiness with the agreement which we reached prior to the application for a default judgement.

49.6.       The payments I made towards settling the default amount clearly show that we had an agreement with regards to the summons issued on the 10th of June 2021.

49.7.       The respondent did not share or invite the applicant to case line as per their communication because the litigation of the matter had been stopped by the agreement. (Annex 2 A and 2 B)

49.8.       The 10th of June 2021 Summons was accordingly resolved, which brought an end to the litigation between the respondent and applicant.

49.9.       The exclusion of Annex 1 B by the respondent and other key e-mails correspondences in the Application for default Judgement, under Index 5 of the respondent’s Application for default judgment is questionable. Index 5 headlined” CRORRESPONDENCE BETWEEN APPLICANT/PLAINTIFF RESPONDENT/DEFENDANT ANNEXURE “BC3” PAGE 80-82” points to withholding of information and which would help this court understand what happened in this matter. It points to exclusion of information which aligns with the facts raised by the applicant that the 10th of June 2021 summons were addressed when the plaintiff and respondent engaged and found common ground.

49.10.    Strangely all communication between plaintiff and respondent where common ground is sought and found Annex 1 A ,1 B and 1 F are excluded by the plaintiff in their attachments of correspondence between applicant and the respondent thereby giving a distorted version of the correspondence between the plaintiff and respondent to this honourable court.

49.11.    The same summons served on the respondent 10th June 2021 cannot be used in an application for a default Judgement on a violation to the agreement which was reached in June 2021.

49.12.    The conclusion of the agreement (the repayment plan) between the respondent and applicant settled the overall dispute, and that the settlement agreement constituted a novation of the original claim as set out in the summons.

49.13.    Therefore, if there is a breach of the settlement agreement, that would be a new cause of action and the respondent should have issued the applicant  with new summons.  

49.14.    The plaintiff only started litigation when I failed to stick to the agreement and defaulted on the agreement by failing to pay in January 2023.

49.15.    No summons has been served on the respondent with regards to this failure to service this agreement.

49.16.    It also not questionable that the amounts paid to service the agreement were received by the respondent and acknowledged monthly by the respondent.

49.17.    The applicant received and continue to receive monthly statement from the respondent because there is an agreement in place.

FAILURE TO SERVE THE COMBINED SUMMONS PERSONALLY

49.18.    This matter goes to the heart of the respondent’s application for default judgment by the respondent.

49.19.    The respondent’s request of a default judgment is misleading as no summons were served on the applicant.

49.20.    It is therefore submitted to this Honourable Court that I have a bona fide defence, and the application for default judgement should not stand.

49.21.    In amplification, it should be considered that the respondent had alternatives methodsfor making me aware of the default to our agreement via a letter of demand then combined summons.

49.22.    Should, I have been afforded with the opportunity of personal services of the Combined Summons, I would have without a doubt entered my appearance to defend and extended my bona fide defence and indeed my proposal to settle the outstanding arrears as well as service my debt.

CONCLUSION

49.23.    This Honourable Court having considered the above facts and also the circumstances to which the respondent has approached this Honourable Court must take cognisance that no prejudice will be suffered by the respondent should its application for Default judgement is dismissed as the respondent has legal avenues to pursue their matter.

49.24.    Further, in terms of Rule 42(1)(a) of this Honourable Court, that alone in the absence of service of the combined summons, that the application is erroneously before court.

49.25.    Shown from the facts as set out in my founding affidavit it is showed that the respondent will not be prejudiced as applicant has resumed making payments

50.     Should this Honourable Court not dismiss this application for default judgment, my person, wife and four kids will be left homeless not even considering my 71 year old, crippled mother.

51.     It is therefore humbly requested that this Honourable Court to grant an order as provided for in the Notice of Motion.

DEPONENT

Signed and sworn before me at .............................................. on this

…………. day of …………………………………………. after the deponent acknowledged and declared that he knows and understands the contents of this affidavit, has no objection to taking the prescribed oath and regards the prescribed oath as binding on his conscience. There has been compliance with the requirements of the Regulations contained in Government Gazette R1258, dated 21 July 1972 (as amended).

COMMISSIONER 

Message from the Lawyer

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. 

Message from the client

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

Message from the Lawyer

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."

Message from the Lawyer

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. 

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