He wants sex with both Andy and Jeff and everyone knows there is nothing Andy won't do for his sweetheart.Also known as: Don't blame me, those assholes are hot together and it's comic con. The applicant applies for the issue of a writ of execution against the primary residence of the respondent and I am required to declare such immovable property specially executable in terms of the provisions of Rule 46(1)(a)(ii) of the Uniform Rules.
Moreover, respondent argues that the application should not be granted because he intends to launch an application for a rescission of judgment obtained against him on which this application is premised. On the 11th November 2013 this court (Manaka AJ) granted default judgment against the respondent in favour of the plaintiff for payment of the sum of R114,765.55, together with interest thereon and cost of suit. Judgment was granted after the respondent had failed to deliver notice of appearance to defend the action instituted against him and after the expiry of the dies induciae on the 21st February 2013.
Ironically, the respondent had served notice of intention to oppose applicant’s application for default judgment on the 4th October 2013, which resulted in a removal from the roll of the said application on the 14th October 2013. Subsequently there were numerous attempts on the part of the applicant to recover from the respondent the judgment debt, all of which attempts were unsuccessful.
Notably, the applicant caused a warrant of execution against the property of the respondent to be issued and subsequently movable property was attached on no less than two occasions.
On both occasions the property was released from attachment.
On the first occasion an agreement was reached between the parties, including the claimants in an interpleader proceeding (the wife and son of the respondent), in terms whereof a payment arrangement of sorts was reached with applicant.
A motor vehicle which was subsequently attached was released to the bank, being the title holder of the vehicle. Thereafter, there were numerous attempts to amicably resolve the dispute, all seemingly to no avail. Respondent has indicated in his answering affidavit that he intends launching an application for a rescission of the default judgment obtained against him.I hasten to add that respondent has been threatening to bring this application from at least the date on which he deposed to the Answering Affidavit, that being the 26th May 2015, but to date the application has not materialised.He alleges that he has bona fide defences, which would entitle him to a rescission of the judgment. The requirements for obtaining rescission of a default judgment are well-established: Firstly, the existence of a reasonable and acceptable explanation for the default in appearance and secondly that a bona fide defence, carrying some prospect of success, exists (see Chetty v Law Society Transvaal, 1985 (2) SA 756 (A); Silber v Ozen Wholesalers (Pty) Ltd, 1954 (2) SA 345 (A)). I turn now to consider whether the applicant would satisfy these requirements. The difficulty I have with the respondent’s intended rescission application is that there is neither an explanation by the respondent for the default nor an explanation by him as to why the application has to date, that is some 2 (two) years after judgment has been granted, not been launched.I am therefore of the view that it will be difficult, if possible at all for the respondent to demonstrate to a court that his application for rescission is bona fide. No reason has been proffered for the respondent’s failure to launch the application for rescission as a counter – application to the present application before me.Respondent has expended a considerable amount of effort and time to oppose the present application on the basis that he intends applying for a rescission of the default judgment against him.That time and energy could have been better spent in preparing, filing and moving the application for rescission. Furthermore, the bona fide defences which respondent intends raising in support of the rescission application appear to be on the flimsy side at best for the respondent. On the merits, respondent denies liability on the basis that the applicant obtained a judgment for an amount being in respect of professional services rendered and disbursements incurred by the applicant, a firm of attorneys, for and on behalf of the defendant, without an attorney and own client bill of costs having been presented to him and / or taxed by the Taxing Master.