DMB Truck Hire (Pty) Ltd and Another v MFC Financial Services (Pty) Ltd (2022/1752) [2023] ZAGPJHC 1188 (16 October 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2023 >> [2023] ZAGPJHC 1188 | Noteup | LawCite sino index ## DMB Truck Hire (Pty) Ltd and Another v MFC Financial Services (Pty) Ltd (2022/1752) [2023] ZAGPJHC 1188 (16 October 2023) DMB Truck Hire (Pty) Ltd and Another v MFC Financial Services (Pty) Ltd (2022/1752) [2023] ZAGPJHC 1188 (16 October 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2023_1188.html sino date 16 October 2023 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NO: 2022/1752 NOT REPORTABLE NOT OF INTEREST TO OTHER JUDGES REVISED 16/10/23 In the matter between: DMB TRUCK HIRE (PTY) LTD (“DMB’’) 1 ST APPLICANT NEFALE ARIFANI MAVIN (‘’MAVIN”) 2 ND APPLICANT And MFC FINANCIAL SERVICES (PTY) LTD (‘’MFS”) (APPLICATION IN THE MAIN APPLICATION) – ABSA BANK LIMITED RESPONDENT JUDGMENT WRIGHT J 1. Absa bank, the present respondent, lent money to the present first applicant, DMB Truck Hire. Mr Nefale, the moving force behind DMB signed surety. He is the present second applicant. 2. DMB fell into arrears. Absa launched an application for judgment against both DMB and Mr Nefale which was granted on a default basis on 3 August 2022. The present applicants now seek rescission of the default judgment. 3. The present applicants admit missing payments for December 2021 and January 2022. They say that they were not behind with payments as at date of judgment. They refer in their founding affidavit to certain payments made, after they were admittedly in arrears, which they say brought the account up to date. 4. The answering affidavit gives chapter and verse, showing that the account was well in arrears as at date of judgment. 5. In the replying affidavit, the detail in the answering affidavit is not challenged. The point is made that if Mr Nefale had been aware of the arrears he would have settled them. Despite this assertion, the arrears have not been settled. 6. The application therefore does not disclose a triable issue on the merits of the case. 7. The question remains whether or not the judgment was properly granted. Had there been any irregularity in the proceedings, not brought to the attention of the court when judgment was granted, the judgment falls to be rescinded even in the absence of good cause. See Promedia Drukkers v Kaimowitz 1996(4) 411 CPD at 417 G-I. 8. The original application was served on the second present applicant, Mr Nefale at his chosen domicilium. He admits moving and not informing the bank of his change of address or that of DMB. There was no irregularity regarding the judgment granted against him. 9. In the written agreement the bank concluded with DMB, the registered address of DMB is recoded as [...] Centurion. The physical address is recorded as [...] Centurion. 10. Under clause 16, DMB agreed always to provide Absa with DMB’s current physical address, phone, email and cellphone numbers. It was also there expressly agreed that Absa could use “ the contact details that were last provided to us for all legal purposes.” 11. In short, the chosen domicilium, to use outdated language, was [...] Centurion. That is where the original application was served. There is no suggestion, nor could there sensibly be such suggestion, that the omission of reference to Modisane Street in the choice of physical address is relevant. 12. There was accordingly no irregularity in the seeking of judgment against DMB. 13. The applicants were not in court or represented when the case was called. 14. Mr Alli, for the respondents handed up a draft, seeking dismissal and punitive costs. ORDER 1. X - GC Wright Judge of the High Court Gauteng Division, Johannesburg HEARD  :  16 October 2023 DELIVERED :  16 October 2023 APPEARANCES  : APPLICANT  Adv CN Rangalulu rangalulu@gmail.com 071 598 8667 Instructed by Maake MJ Attorneys maakemjattorneys@gmail.com 063 337 3963 RESPONDENTS Adv N Alli nadeem@law.co.za 082 938 8177 / 011 895 9000 Instructed by Jay Mothobi Inc 011 268 3500 lavinia@jay.co.za sino noindex make_database footer start