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The Gauteng High Court in Johannesburg dismissed Mohamed Alli Dawood’s application to set aside a legal notice served by BMW Financial Services, saying the company had not followed the court rules.
The dispute started after BMW Financial Services sued Dawood over an instalment sale agreement for a 2021 BMW X3 xDrive 30d M-Sport. According to court papers, Dawood was behind on his repayments by R159,700.62 as of March 15 2024.
After receiving the summons, Dawood indicated that he would defend the matter. However, he failed to file his plea within the required time.
BMW then served him with a notice of bar through the sheriff at the address he had chosen for legal documents. Dawood later argued that the notice had not been properly served because it was handed to another person at the property and that he only found it days later after it had allegedly blown onto his driveway.
He asked the court to declare BMW’s later notice, informing him that it would seek default judgment, an irregular step.
But acting judge Shadrack Tebeile rejected that argument.
“The complaint regarding service of the notice of bar therefore lacks merit,” the judge said.
The judge found that court rules do not require the notice to be handed personally to the motorist. Instead, serving it by hand at the address chosen by Dawood was enough.
“Rule 4A(1)(a) does not require personal service on the applicant himself. Service by hand at the nominated physical address, whether on the applicant, an occupier, or a responsible person, constitutes compliance,” Tebeile said.
The court also noted that Dawood admitted he eventually received the notice.
“The purpose of service is to bring the document to the attention of the party, and actual knowledge may cure any technical irregularity,” the judge said.
BMW Financial Services also admitted that its first attempt to apply for default judgment did not follow the correct procedure because it failed to give enough notice. However, the company withdrew that application and served a fresh notice that complied with the rules.
The judge said the company acted correctly by fixing the mistake instead of waiting.
“There is no rule that precludes a party from remedying non-compliance before the expiry of the 10-day period. Indeed, the purpose of Rule 30A is to afford an opportunity to cure, and a party who cures early should be commended, not penalised,” he ruled.
Tebeile also rejected Dawood’s argument that BMW should have waited before continuing with the case.
“Rule 30A does not operate as a stay of proceedings,” the judge said, adding that BMW was entitled to continue seeking default judgment because Dawood had not filed his plea.
Though the court dismissed Dawood’s application, the judge said he still has another option if he wants to continue defending the claim.
“If he wishes to deliver a plea out of time, he may apply for condonation and for the upliftment of the bar,” the judge said.
The application was dismissed, and Dawood was ordered to pay BMW Financial Services’ legal costs on scale B, including the costs of counsel.
Sowetan
