Good day1. I have a on going case with m...

Asked by Anonymous on 05-02-2024 14:06:22
Question posted in the General Law category relating to Gauteng

Good day

1. I have a on going case with my home loan financer BMW. They are applying for a default judgment on the basis that

i am in defaultthat i had not notfied of my intention to defend.

Below was the repplying affidavit i prepared and served them IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, PRETORIA

Case Number: 27086/2021

In the matter between:

 DANFORD DAMBA                                                                  Respondent

-and-

BMW FINANCIAL SERVICES SOUTH AFRICA(PTY) LTD              Applicant

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 main action.

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 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.

5.1.           firstly, after receiving a notice from the sheriff that I had to contact him to which I complied, the applicant proceeded to serve me with the above said documents on 7 August 2023, on the residence where my wife and children resides.

5.2.           I was on the 7th of August 2023 served with an Application for a Default Judgment against me in terms of Rule 31 (5) by the applicant.

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 applicant.

5.4.           thirdly, the applicant’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 applicant alleges that the respondent 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

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

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

9.         The allegation that the dies induciae (10) days has expired by the applicant is incorrect.

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

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

   CONDONATION FOR LATE FILING OF ANSWERING AFFIDAVIT

12.     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 an Application for Default Judgement Notice at 22 Johnson Road, St Andrews, Bedfordview, Gauteng Province to me.

13.     Subsequently after arranging a suitable date with the sheriff, he served me with the Application for Default Judgement by the applicant on the 7th of August 2023

14.     Despite serving my notice to defend on the 11th day of August 2023 the applicant did not invite me to caselines as I wanted to access all the information related to the matter given that it was a matter which goes all the way to 2021. 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 31st of August after being invited via judiciary.org.za non-reply mailbox. (Annex A1)

15.     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 thus I did not immediately go to hospital or visit the Doctor. ( Annex A2, A3 and A4)

16.     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 A5)

17.     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 A6)

18.     I have subsequently been booked for radiology examination. This problem has been troubling me for the past 3 years. (Annex A7)

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

20.     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 14 days calculated from 31st August 2023 will not cause any undue prejudice to the applicant 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.

21.     In the circumstance it is respectfully prayed that this Honourable Court grant the condonation for the late filing of my answering affidavit.

22.     I will now proceed to deal with setting out my bona fide defence in relation to the application for default judgment by the applicant.

BACKGROUNG

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

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

25.     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.

26.     Due to the Covid pandemic my company which is in logistics struggled financially and resulted in me failing to service my debts.

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

28.     On receiving summons from BMW Financial Services on the 10th of June 2021 from the applicant I personally delivered the notice of intention to defend the summons to the applicant (Annex A8)

29.     In following up I personally went to BMW Financial Services offices at 1 Bavaria Avenue, Randjespark Extension 17, Midrand and met with the applicant’s employee or person responsible for handling my home loan account.

30.     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.

31.     On engagement I was advised by the applicant that nothing could be no longer done at the office level as the account had been handed over to the applicant’s lawyers MacRobert Attorneys.

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

33.     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.

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

35.     With me was my answering affidavit which I handed over to her in submission to my defense.

36.     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 with the legal route with regards to the matter.

37.      She advised me to hold on to my affidavit in light of my proposal. She further 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 to submit my answering affidavit but could submit my affidavit on case lines which she would invite me to.

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

39.     After my follow up I received e-mail from Mamello Molotsi on the 8th of July 2021 herewith confirming our engagement and promising me to invite me to caselines (Annex A9)

40.     On the 12th of July 2021 I received an e-mail from Mamello Molotsi addressed to me copied to BMW recoveries (Annex A10). 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

41.     On the 27th of July I submitted all the requested documents information in two e-mails. (Annex A11 and Annex A12)

42.     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 A13).

43.     On the 6th of August I received further correspondence from the applicant advising that that the proposal must address how i intended to settle the current arrears whilst continuing with my normal monthly instalment (Annex A13).

44.     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 A14)

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

46.     I did not receive any e-mail correspondence thereafter from the applicant.

47.     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."

48.     On the 12th of July I paid the 1st R 50 000.00 towards my debt as per our agreement with the applicant. 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.(Annex A15, A16, A17, A18, A19 and A20 respectively)

49.     All these payments were made in light of the agreement we had with regards to the 10th of June 2021 summons served on me by the applicant.

50.     The payments were well received by the applicant, and statements issued to me on monthly basis.

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

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

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

54.     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

55.     From the background provided to this Honourable Court I submit that a bona fide defence against the Application for Default Judgement of the applicant is provided to wit:

55.1.       I engaged the applicant on receiving the 10th of June 2021 summons.

55.2.       The applicant agreed to engage with the respondent to stop litigation.

55.3.       My proposal to service my monthly outstanding debt was accepted by the applicant. This resulted in the  aforesaid settlement agreement being reached, which resolved the claim as set out in the summons

55.4.       In the default application for judgement by the applicant, the applicant acknowledges on page 9 that indeed a proposal by the applicant was made to settle the matter. The applicant further acknowledges that this agreement was accepted by the applicant and therefore settled the summons. (item no 7 Annex 21)

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

55.6.       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.

55.7.       The applicant did not share or invite the respondent to case line as per their communication because the litigation of the matter had been stopped by the agreement.

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

55.9.       The exclusion of Annex A9 e-mail by the applicant and other key e-mails correspondences in the Application for default Judgement, under Index 5 of the applicant’s Application for default judgment is questionable. Index 5 headlined” CRORRESPONDENCE BETWEEN APPLICANT/PLAINTIFF APPLICANT/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 respondent which is that the 10th of June 2021 summons were addressed when the plaintiff and defendant engaged and found common ground thereby settling the 10th of June 2021 summons.

55.10.    The same summons served on the applicant 10th June 2021 cannot be used in an application for a default Judgement on a violation if if any to an agreement which was reached on the 12th of August 2021 because it was only following the serving of the very same summons to which the 12th of August 2021 agreement was reached.

55.11.    The conclusion of the agreement on the 12th of August 2021(the repayment plan) between the applicant and applicant settled the overall dispute, and that the settlement agreement constituted a novation of the original claim as set out in the summons.

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

55.13.    The plaintiff only started litigation when I failed to make payment to my account and defaulted by failing to pay in January 2023.

55.14.    No summons has been served on the respondent with regards to this failure to service make the payments.

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

55.16.    The applicant’s statement of Account Annex BC4 on page 83 attached to the application for default judgement is incorrect as it does not reflect the payments since made by the respondent towards the agreement. (Annex A22)

FAILURE TO SERVE THE COMBINED SUMMONS PERSONALLY

56.     This matter goes to the heart of the applicant's application for default judgment.

56.1.       The applicant’s request for a default judgment is misleading as no letter of demand or summons which were served on the respondent for any alleged breach to the settlement agreement reached on 12 August 2021.

56.2.       It is therefore submitted to this Honourable Court that I have a bona fide defence, and the application for default judgement should not stand as it has not followed procedure and is inappropriate before this honourable court.

56.3.       In amplification, it should be considered that the applicant had alternatives methods formaking me aware of the default to our agreement via a letter of demand then combined summons.

56.4.       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.

                          FAILURE TO SERVE THE SERVE NOTICE OF BAR

57.     Should the applicant even had wished to apply for the default judgement in

ignorance to the settlement agreement reached then the proper procedure

was supposed to be followed.

57.1.       The applicant was served with a notice of intention to defend on the 28th of June 2021 by the respondent which was duly received.

57.2.       The applicant did not make any application to have the notice of intention to defend set aside as an irregular step or proceeding.

57.3.        The respondent’s notice to defend thus has legal standing.

57.4.       The allegation that the dies induciae (10) days has expired by the applicant is incorrect because a notice of intention to defend was served.

57.5.       If no agreement had been reached, then the applicant should have served the respondent notice of bar before proceeding to apply for default judgement. The application for default judgment thus is inappropriate before court in that it doesn’t comply with Rule 31(5) which requires a notice of bar be served on the respondent.

                                        CONCLUSION

58.     This Honourable Court having considered the above facts and also the

circumstances to which the applicant has approached this Honourable Court

must take cognisance that no prejudice will be suffered by the applicant

should its application for Default judgement be dismissed as the applicant

has legal avenues to pursue their matter.

59.     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.

60.     Shown from the facts as set out in my founding affidavit it is showed that

the applicant will not be prejudiced as applicant is resuming making

payments in the month end of September 2023.

61.     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.

62.     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.

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 OF OATHS

________________________________________end of affidavit ________________________________________________

2. After this affidavit BMW has since posted this ( Below) on caseonline. I would like to know what it means in terms of the processes . Do i need to respond , if so how. Thank you

IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) Case No.: 27086/2021 In the matter between:

BMW FINANCIAL SERVICES (SOUTH AFRICA) (PTY)LTD (REGESTRATION NO.: 1990/004670/07) Applicant

And DANFORD DAMBA (Identity No.: 7S0925 6280 1SS) Respondent

APPLICANT'S HEADS OF ARGUMENT

A. INTRODUCTION:

1. This is an opposed application for default judgment in terms of Rules 31(5) and 46A of the Uniform Rules of Court. B. BRIEF FACTUAL BACKGROUND:

2. It is submitted, that the above Honourable Court has jurisdiction to entertain the matter.

3. The Respondent concluded a written Mortgage Loan Agreement incorporating the Quotation (hereinafter "the Loan Agreement" ) with the Applicant on 20 March 2014 in terms of which the Applicant lent or advanced a principal debt amount of R 2 437 500,00 and total cost of credit amounting to R 5 675 592,08 to the Respondent.

4. In terms thereof, the Respondent would pay the initial payment set out in the Loan Agreement and repay the balance of the total cost of credit in 240 monthly instalments of R 23 648,30, of which the first payment fell due on the I" day of the month following the registration of the immovable property.

5. The express, alternatively implied, alternatively tacit terms which are material and relevant to the proceedings before the above Honourable Court is set out fully in the Particulars of Claim.'.

6.The Applicant has complied with all its obligations in terms of the National Credit Act 34 of 2005 and the Loan Agreement and retains a continuing covering mortgage bond over the property.'.

7. In breach of the Loan Agreement between the Parties, the Respondent failed, alternatively refused, further alternatively neglected to pay all monthly instalments on the due dates and were in arrears as at 31 December 2020 in an amount of R 248 637,00 (TWO HUNDRED AND FORTY-EIGHT THOUSAND, SIX HUNDRED AND THIRTY-SEVEN RANDS).

8. Due to the Respondent's default and failure to pay the monthly instalments, the full balance owing in terms of the Loan Agreement in the sum of R 2 380 225,59 (TWO MILLION, THREE HUNDRED AND EIGHTY THOUSAND, TWO HUNDRED AND TWENTY- FIVE RANDS AND FIFTY-NINE CENTS) is fully due, owing and payable.

9. Further on 16 July 2014, the Respondent hypothecated the property known as: 'aselines 4-3: Particulars of Claim at para. 4 'aselines 4-48- 4-50 Caselines: 4-39- 4-46

ERF 31 ST ANDREWS TOWNSHIP, REGISTRATION DIVISION I.R, THE PROVINCE OF GAUTENG, IN EXTENT 3346 (THREE THOUSAND THREE HUNDRED AND FORTY-SIX), HELD UNDER TITLE DEED OF TRANSFER: T000026808/2014 (hereinafter "the Property" ) to the Applicant, as security for the punctual performance of the Respondent's obligations in terms of the debts set out above in a written Continuing Covering Mortgage Bond No.: B18148/2014.

10. Accordingly, the Applicant is entitled to an order declaring the Property executable.

11. Service of the Combined Summons was duly affected upon the Respondent on 10 June 2021'n the Respondent's domiciliuttt address.

12. The period within which the Respondent ought to have entered an appearance to defend expired on 9 July 2021, the Respondent was accordingly ipso facto barred.

13.It is against this background, which the Applicant instituted the current Application for Default Judgment and Execution of the immovable property.

 14. The application became opposed on 11 August 2023, when the Respondent served it's Notice of Intention to Defend'nd it's Answering Affidavit on 22 September 2023. 4 Caselines 4-51- 4-63 'aselines 5-1 Caselines Bundle 001-1-001-002-33 7 Caselines Bundle-9.7-1-9.7-2

C. ISSUE

15.The above Honourable Court is herein called upon to consider:

15.1. the application for default judgment;

15.2. all relevant circumstances prior to ordering execution against the Immovable Property, in light of the fact that the Property wherewith this application is concerned is a primary residence; and

15.3. Setting a reserve price. D. RELEVANT LEGAL PRINCIPLES

16. Rule 31 of the Uniform Rules of Court provide that a whenever a defendant is in default of the delivery of a notice of intention to defend or of a plea, the p1ainti ff may apply for judgment by default.

17.It is submitted, that default judgment cannot be competently given where a defendant has given due and proper notice of his intention to defend the action.'

18. It is trite that the Constitution of South Africa provides for justiciable socio-economic rights and this includes the right to have access to adequate housing which is enshrined in s 26 of the Constitution.

19. The underlying rationale of rule 46A of the Uniform Rules of Court is to impose procedural rules to give effect to that fundamental right'. Rule 46A must therefore be interpreted purposively against the backdrop of s 26 of the Constitution. 'hlokonya v Company Unique Finance (Pty) Ltd (ECG) (unreported case no CA04/2012, 18-10-2012;Mthanthi v Pepler 1993 (4) SA 368 (D) at 371 — 372) Karpakis v Mutual and Federal Insurance Co Ltd 1991(3) SA 489 (0) at 492F

20. The sale in execution of a person's home limits the right to housing, and such limitation must be justifiable in terms of s 36 of the Constitution. Thus, judicial oversight is an essential element of the application for the sale in execution of a residential home.'

21. In Gundwana v Steko Development CC and Others (National Consumer Foram as Amicus Curiae)", the Constitutional Court had opportunity to clarify that the Jaftha decision applies not only in exceptional cases but also in typical mortgage foreclosure cases brought before the High court.

22. Gundwana further determined that (a) execution may only follow upon a judgment by a court of law; and (b) where execution against the homes of indigent debtors who run the risk of losing their security of tenure is sought, judicial oversight of the execution process by a court of law is essential. Simply put, rule 46A was meant to protect indigent debtors who were in danger of losing their homes and give effect to s 26 of the Constitution.'

23. It therefore follows, where a person's right in terms of section 26(1) of the Constitution is found to be implicated, Rule 46A must be applied."

24. As correctly stated in Jaftha, 'judicial oversight... is constitutionally required so that the judicial officer can "en a e in a balancin rocess" and "consider all the relevant "Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC)("Jaftha"); Lesapo v North West Agricultural Bank and Another [1999]ZACC 16; 2000 (1) SA 409; 1999 (12) BCLR 1420 "Gundwana v Steko Development CC and Others (Nahonal Consumer Forum as Amicus Curiae)2011 (8) BCLR 792 (CC) ("Gundwana") 'z investec Banks Limited v Fraser NO and Another [2020] ZAGPJHC 107; 2020 (6) SA 211 (GJ) at para 39. 's Petrus Johannes Bestbier and Others v Nedbank Limited (150/2021) [2022] ZASCA 88 (13June 2022)

circumstances of a case" to determine whether there is good cause to order execution against the immovable property concerned'."

25. Relevant circumstances which a court may consider, but not be limited to, would include the circumstances in which the debt was incurred; any attempts by the debtor to pay off the debt; the financial situation of the parties; the amount of the debt; and/or whether the debtor is employed or has a source of income to pay off the debt and any other factors relevant to the particular facts of the case before the Court.'

26. In Firstrand Bank v Folscher," the court also listed an extensive range of factors that could be considered when deciding whether a writ should be issued. Nevertheless, the court was careful to note, that not each and every factor had to be taken into account for every matter; rather, the enquiry had to be fact-bound to identify the criteria that was relevant to the case in question.

27. Regarding the question of executability of the property it is important to note the following remark by the Constitutional Court in Gundwanat "It must be accepted that execution in itself is not an odious thing. It is part and parcel ofnormal economic life. It is only when there is disproportionality between the means used in the execution process to exact payment of thejudgment debt, compared to other available ineans to attain the same purpose, that alarm bells should start ringing. If '4 Mkhize v Umvoti Municipality and Others [2011]1 All SA 144 (2010 (4) SA 509) (KZP) fn 8 para 18;Jaftha fn 3 paras 42-43 and 55. 's Jaftha at para. 60 'irstrand Bank v Fo(scher 2011 (4) SA 314 (GNP) at para 41there are no other proportionate means to attain the same end, execution may not be avoided."'.

ANALYSIS

28. It is submitted, at length, by the Respondent, that the Summons issued by the Applicant during 2021 had been resolved due to the fact that the Respondent had concluded a settlement proposal for the arrears amount and that same had been settled in full until such time that he fell in arrears in January 2023 again.

29. In respect hereof, it is submitted, that the cause of action as set out in the Summons still exists and that an updated Loan statement" and certificate ofbalance" was filed with the application for default judgment, thereby setting out the state of affairs at time of request for default judgment.

30. It is further submitted, that the Respondent's averments that the breach of a settlement proposal takes precedence over the Loan Agreement, is incorrect and has no legal basis. At the heart of the Summons and the application for default judgment is the Respondent's breach of the terms and conditions of the Loan Agreement concluded between the parties on 20 March 2014.

 31.The Respondent further makes averments in respect of the personal service of the Combined Summons, to wit is submitted, that the Sheriff had served the papers on the Respondent's "Gundwana at para 84 'aselines 7-1 's Caselines 8-1

domicilium address as per the proof of service'nd that the Respondent had knowledge thereof as it spurred him into allegedly personally delivering a notice of intention to defend to the summons to the Applicant's offices and further the Offices of their legal representatives, '

32. The Respondent further averred that he then entered into a settlement proposal with the Applicant's legal representatives and acted in terms thereof. It therefore stands to reason that at all times relevant and material hereto, that the Respondent had knowledge of the Summons issued against him.

33.It is clear from a reading of the Respondent's answering affidavit, that he launches an attack on baseless technicalities which should not detract from the facts of the matter.

34. It is repeated herein that the Respondent was served the Summons on 10 June 2021 and that no Notice of Intention to Defend was filed by the Respondent in respect thereof.

35. It is trite law, that no Notice of Bar is required where the Respondent has failed to file and serve a Notice of Intention to Defend.

36. It therefore follows once the dies induciae expired, the Respondent was ipso fact barred from participating in the proceedings and receiving any further notification in terms thereof. r Caselines pg. 5-1 "Answering Affidavit pg. 6 at para 28-38 n Answering Affidavit pg. 7 at para. 39-49

37. It is further submitted that the Summons set out a cause of action which persists to date and the Respondent remains in wilful default thereof. Subsequently the Applicant is entitled to seek default judgment against the Respondent.

38. It is common cause, that the Respondent is the registered owner of Property and that it is his primary residence." Accordingly, Rule 46A of the Uniform Rules of Court is applicable and the Applicant made the Respondent aware of the pending proceedings.

39.In pursuance hereof, the Applicant ensured that the Summons included an appropriate notification to the Respondent, that he is entitled to place information regarding relevant circumstances within the meaning of s 26(3) of the Constitution before the above Honourable Court."

40. Save for the Respondent's submission'hat he and his family would be left homeless if the application for default judgment is successful, the Respondent places no other relevant circumstances before the above Honourable Court for consideration.

41.Despite the above, it is submitted, that there is no evidence suggesting that the Respondent would not be able to afford alternative accommodation. In fact, the Respondent submits that his financial standing has vastly changed, on this basis one can conclude that he should be able to secure alternative accommodation. "Rule 46A(2)(i) '4 Caselines pg. 4-10 at para. 17 "Nedhank Ltd v Jessa and Another 2012 (6) SA 166 (tNCC) Respondent's Answenng Affidavit pg. 13 at para. 61 'r Respondent's Answering Affidavit pg. 9 at para. 54 10

 42.Other than the above, the Applicant bears no knowledge of the Respondent's financial strength and cannot make any further submissions in respect thereof.

 43. It is submitted, that since Summons was served on the Respondent, he has on at least one, occasion made efforts to settle the arrears due to the Applicant. During July and August 2021, a settlement agreement was concluded" between the parties, however, the Respondent had failed to adhere to that agreement as well.

44. As at 1 December 2023, the Respondent's arrears have expanded to R 955 865,00 (NINE HUNDRED AND FIFTY-FIVE THOUSAND, EIGHT HUNDRED AND SIXTY-FIVE RANDS), of which the following is apposite to be placed before the above Honourable Court: 44.1. The Current Outstanding Balance is R 2 849 754,14; 44.2. Current instalment: R 27 035,76; 44.3. Number of months in arrears: 36 months,

45. Despite numerous opportunities granted to the Respondent to bring the arrears up to date and having been informed of the continued default and the consequences of same, the Respondent remains in wilful default.

46. It is further submitted, that the Respondent has failed to advance alternative means and/or arrangements to satisfy the arrears and/or indebtedness. 'aselines pg. 3-5 at para 7 11

47. It is submitted, that no alternative means exist that the Respondent may satisfy the judgment debt, other than execution against the Respondent's primary residence.'

48. It is further submitted, that the application for default judgment and execution of the immovable property has not been instituted to abuse the judicial process, but to enforce the Applicant's rights, to which it is entitled.

49. After having placed all relevant factors before the Above Honourable Court't is submitted, that the execution against the Property is warranted."

50. It is submitted, that the Property forms part of the security for the Respondent's indebtedness to the Applicant and must be sold in a sale-in-execution without further delay, as the outstanding balance is increasing. This will result in an increased shortfall once the Property is sold.

51.Any further delay in realising the Applicant's security will only cause the Respondent further prejudice, as the interest and costs- including rates and taxes- are increasing on a daily basis, which in turn increases the Respondent's indebtedness to the Applicant.

52. In the event that the above Honourable Court sets a reserve price and it is not achieved at a sale-in-execution, the prospects of recovering the amount owing to the Applicant, within a reasonable time, are significantly reduced. Rule 46A(2)(ii) Case(ines pg. 3-6 at para. 8 'ule 46A(2)(b)12

 53. In setting a reserve price, the above Honourable Court it is humbly requested to consider that at a sale-in-execution, the purchaser is liable for the outstanding rates and taxes, and as such, this amount ought to be considered, together with the forced sale value, generally accepted as being the market value less 30'/o when setting the reserve price.

54. In furtherance hereof, as at 1 July 2021: 54.1. the forced sale value of the Property was R 2 800 000,00; 54.2. the open market value was R 4 000 000,00 54.3. the municipal value of the Property was R 2 050 000,00"; 54.4. and rates, taxes and utilities were R 122 673,00."

55. In the instance, it is humbly submitted, that setting a reserve price would be in the best interests of all parties and would ameliorate the hardship that the Respondent may endure. F. CONCLUSION

56. In light of the aforementioned submissions, it is clear that the Respondent has failed to make out a proper case to oppose default judgment and execution of the immovable property before the above Honourable Court.

57.0n the contrary, that the Applicant has established good cause for the execution of the immovable property and that same is warranted on a conspectus of all the facts. "Caselines at pg. 9.1 ss Caselines at pg. 9.1-1 s4 Caselines at pg. 9.1-2 13

58. In the premises, it is submitted that a proper case has been made out on the papers, accordingly the Applicant prays for an order as set out in the Notice of Motion. ADV. B.A.LOXTON-KAMBA COUNSEL FOR APPLICANT DECEMBER 2023

14 IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) Case No.: 27086/2021 In the matter between: BMW FINANCIAL SERVICES (SOUTH AFRICA) (PTY)LTD (REGESTRATION NO.: 1990/004670/07) Applicant DANFORD DAMBA (Identity No.: 780925 6280 188) Respondent APPLICANT'S LIST OF AUTHORITIES ~ The Constitution of South Africa;1996 ~ The Uniform Rules of Court ~ Mhlokonya v Company Unique Finance (Pty) Ltd (ECG) (unreported case no CA04/2012, 18-10-2012 ~ Mthanthi v Pepler 1993 (4) SA 368 (D) ~ Nedbank Ltd v Jessa and Another 2012 (6) SA 166 (WCC) ~ Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1)BCLR 78 (CC ~ Lesapo v North West Agricultural Bank and Another [17]Lesapo v North West Agricultural Bank and Another [1999]ZACC 16; 2000 (I) SA 409; 1999 (12) BCLR 1420 ~ Gundwana v Steko Development CC and Others (National Consumer Forum as Amicus Curiae) 2011 (8) BCLR 792 (CC) ~ Investec Banks Limited v Fraser NO and Another [2020] ZAGPJHC 107; 2020 (6) SA 211 (GJ) ~ Karpakis v Mutual and Federal Insurance Co Ltd 1991 (3) SA 489 (0) at 492F ~ Petrus Johannes Bestbier and Others v Nedbank Limited (150/2021) [2022] ZASCA 88 (13 June 2022) ~ Mkhize v Umvoti Municipality and Others [2011] 1 All SA 144 (2010 (4) SA 509) (KZP) ~ Firstrand Bank v Folscher 2011 (4) SA 314 (GNP)

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