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

Asked by DDanon on 05-02-2024 14:37:07
Question posted in the General Law category relating to Gauteng

Good day

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 default that i had not notfied of my intention to defend.

Below was the replying affidavit i prepared and served them

Message from the Lawyer

Posted by Att. Patrick on 05-02-2024 15:26:36

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. 

Your paragraph 28 where you say that you personally delivered the notice to defend the summons on 10 June 2021 should be emphasised right at the top. It is a very important fact. Hopefully this was delivered to the attorneys and not to BMW itself. But you need to hammer home the fact that you did deliver the notice. 

The crux of your argument (para 55) is good. Well done. 

Are you looking for any specific advice?

Message from the client

Yes, thank you for the response I want to know what comes next. BMW lawyers has posted Heads of argument on the case online. in the Heads of argument they still insist on getting the default judgement. I would like advise on

1. What is the next process do I need to respond to their heads of argument
2. I will be able to pay of the outstanding balance owed if I get a good repayment plan in 6 months and bring my account to good standing. what's the best legal approach to do it

Thank you

Message from the Lawyer

Posted by Att. Patrick on 06-02-2024 08:18:08

You will need to file your own heads of argument. Essentially, it would be your argument on the law and how it applies to your case. Your affidavit is the evidence that you are presenting to the court. Your heads of argument is the law. Think of it as an oral that you will present to the court. You must take the court through the background (briefly) and then what the law says, and finally how the law applies to the facts and what the outcome of the application should be. i.e. dismiss the application!

Regarding the second part of your question - this is something that you must negotiate with BMW's attorneys. Make them the offer. I doubt that they will accept the offer now, because they have applied to court. But if they lose the application for default judgment, I can assure you that they will accept the offer because otherwise they will wait 1 or 2 years for a trial date! 

Message from the client

Thank you. so in terms of where we are now. Can you advise on the following

1. How long do I have before I also file my own heads of argument. I have not been served anything physically.
2. After I file my heads of arguments how long does it roughly take before the court sets the date to hear the matter
3. Are you able to help draft the Heads of arguments on this matter as an new matter at a new cost.

Message from the Lawyer

Posted by Att. Patrick on 06-02-2024 16:01:41

Re 1) - you have 5 days to file your heads. If you can't make that deadline, let the attorneys know, but be sure to file your heads at least 5 court days before the hearing! 

Re 2) - it depends on the court. It could be 5 or 8 months.

Re 3) - unfortunately not. You would need to hire a private attorney to assist you in drafting the heads, or an advocate. 

Message from the client

ok thank you. one last question . Do the five days start when the post on coastlines or when I am served the documents in person considering I am no lawyer and have currently not used an attorneys for my matter.

Message from the Lawyer

Posted by Att. Patrick on 06-02-2024 16:09:19

It would commence from the date that they post it on CourtOnline.  But if you do not have a date for the hearing allocated yet, don't worry too much. Try to get it to them within 5 days. Otherwise write to them and say that you are a lay person drafting the heads of argument and that you will upload it to CourtOnline by ____ date. 

Message from the client

Att Patrick

Good day to you. I am little bit worried that my conversation in my internal box which are confidential are being made public. I have come across this thread via google search and is accessible public. can this be urgently rectified.

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