MAN GETS TO KEEP HIS BMW M5 The applicant missed paying instalments during the Covid-19 lockdown. The respondent caused a section 129 notice in terms of the National Credit Act 34 of 2005 to be sent to the applicant. The applicant contacted the respondent wanting to agree to a restructuring payment plan. The respondent informed the applicant that the file had already been handed over for legal proceedings, which occurred prior to the 20-day cut-off period referred to in the section 129 notice. The respondent and the applicant nevertheless entered into a debt restructuring agreement. Now before court is the rescission application sought because of a judgment obtained by default. A previous judgment was granted dealing with the applicant’s urgent relief to stay the sale in execution of the vehicle. That judge noted that that although the applicant and the respondent’s attorneys had entered into a debt restructuring agreement, which the applicant honoured by paying more than agreed amount, the respondent, only within seven days of the debt restructuring agreement, proceeded with litigation by issuing summons in the High Court. This was not in the spirit of the debt restructuring agreement. The notice of application for default judgment was a cut and paste which failed to set out the procedural position correctly. The founding papers deposed to by the manager and asset and loss recovery at BMW, in support of the application for default judgment, was silent on the fact that the applicant filed a plea under bar, silent about the Uniform Rule 27(3) application, and silent on the debt reconstruction agreement. The deponent merely stated, as advised by the attorneys, that she believed they were entitled to judgment and that the agreement had been cancelled. In consequence, the judge was not appraised of all the facts on affidavit and under oath, and the applicant was precluded from appearing to appraise the judge of material issues. The judgment was erroneously sought by the respondents as envisaged in terms of Rule 42(1)(a). The judgment is rescinded and set aside. The respondent is ordered to return the 2012 BMW M5 to the applicant. The respondent is to reinstate the agreement. Pieterse v BMW Financial Services SA (Pty) Ltd (32048/2020) [2024] ZAGPPHC 599 (7 June 2024) https://lnkd.in/dbxspG8B
Emile Myburgh
1mo
It is really refreshing to see the high courts being alive to the changes brought about to our law by the NCA, CPA and new Companies Act. The SCA still seems to have to wake up to the new world.
BMW Financial Services got what they asked for...
Well-reasoned Judgement 👏
Strategic, Tactical and Operational Problem solver, GRC, BCM, DRP, ITIL, Info/CyberSec Consultant
1moNow that is a cluster F and rightly so. One wonders if BMW Finance still has the motor vehicle and whether it is in the same state as it was when retrieved with no mechanical, electrical, or fittings issues. Ooh boy, how can a company screw up so big and then contest their screw up. Guess what? There will be no accountability in BMW. The applicant must review their credit report to ensure BMW has removed the summary judgment.