IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No 20932/10
In the matter between:

and
ALPHERA FINANCIAL 
SERVICES (A DIVISION OF BMW FINANCIAL

JUDGMENT

GRIESEL J:

[1] This is an application in terms of Uniform rule 3 l(2)(b) for rescission of a default judgment granted by the registrar of this court on 20 April 2011 in favour of the respondent (plaintiff in the main action) against the applicant (as defendant). (For convenience, I refer to the parties by their respective designations in the main action.)

Factual background
[2] The claim arises from a written 'instalment sale agreement' concluded on or about 24 May 2007 ('the agreement') in respect of a certain 2005 Volkswagen Touareg 4.2 V8 TIP motor vehicle. In the agreement, attached to the particulars of plaintiffs claim, the defendant is described as the purchaser, whereas the seller is described as 'Alphera Financial Services (A Division of BMW Financial Services (South Africa) (Pty) Ltd)'. The document also bears the company registration number '1990/004670/07' which, according to the undisputed CIPC company report on record, is the number allocated to BMW Financial Services (South Africa) (Pty) Ltd.

[3] The principal debt amounted to R407 675 plus interest, payable in monthly instalments of R8 782,14 commencing on 1 July 2007. The agreement also contains the usual reservation of ownership clause until the full purchase price has been paid.

[6] Subsequently, on 14 July 2010, a second notice in terms of s 129(l)(a) of the Act was sent to the defendant, the arrears having escalated to R134 276,91 in the meantime. In the absence of a response from the defendant, summons was issued in this court in the present matter, the plaintiff now being cited as 'Alphera Financial Services (A Division of BMW Financial Services (South Africa) (Pty) Ltd)'.

Application for rescission

Discussion

(a) The applicant must give a reasonable explanation of his default. If it appears that his default was wilful or that it was due to gross negligence the court should not come to his assistance.

[12] The first requirement, although not conceded on behalf of the plaintiff, was not seriously challenged on its behalf in these proceedings and I shall accept in favour of the defendant, without so finding, that hehas furnished a reasonable explanation for his default. The focus therefore shifts to the second and third requirements.

[13] Although a host of 'defences' were raised on behalf of the defendant in the magistrate's court proceedings (mostly of a hyper-technical nature), the defences raised on the merits in the present proceedings were succinctly summarised in the defendant's heads of argument as follows:

(I will deal with these defences in inverse order.)

Locus standi

Leveson J dealt with this argument as follows:

"are designed to solidify and facilitate actions and applications by or against partnerships, firms and associations which at common law cannot generally sue or be sued in their own names apart from the members constituting it".

I have no doubt that the respondent falls squarely within the definition of "firm". It has a sole proprietor, the name of which is set out in the citation in the summons as "Bankorp Bpk". [. . . ] In my opinion, while the word "division" may not be the most appropriate ("firm" or "business" would have been better), it is perfectly clear that the respondent is a business concern owned by the company Bankorp Bpk.

Contractual capacity
[21] The defendant also relied on the same argument regarding the citation of the plaintiff to substantiate his claim that the plaintiff -allegedly being a 'non-existent entity' - lacked contractual capacity to have concluded a valid agreement with the defendant. This argument, likewise, is based on nothing but semantics. It is abundantly clear that the entity contracting with the defendant was BMW Financial Services (South Africa) (Pty) Ltd) with the registration number as stated in the contract.

Res judicata

Bona fides

[27] It is well established that the court has a wide and equitable discretion in matters of this kind, influenced by considerations of justice and fairness. In my view, the court should not be astute, in the exercise of its equitable discretion, to come to the defendant's assistance in the circumstances as set out above.

client scale and no reasons have been advanced as to why it should not be ordered accordingly.

Order
[29] For the reasons set out above, the application is DISMISSED with costs on the attorney and client scale.

B M GRIESEL
Judge of the High Court