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South Africa Judgment

South Gauteng High Court, Johannesburg

ABSA Bank Limited v Howell and Others (16168/17) [2024] ZAGPJHC 739 (2 August 2024)

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Source document

01

Holding and result

The court found that the Howells had not provided any information about their financial circumstances and had lived in the property for over seven years without making any payments towards the bond. They also owed the municipality a substantial amount in municipal charges. The judge concluded that there were no reasonable prospects of success on appeal and no compelling reasons to grant leave. Accordingly, the application for leave to appeal was dismissed, and costs were awarded against the Howells.

Court disposition

Application for leave to appeal dismissed.

Orders

  • The application for leave to appeal is dismissed.
  • Mr and Ms Howell are jointly and severally to pay ABSA’s costs.

02

Material facts

Parties

ABSA Bank Limited

Applicant Counsel: Adv M Msomi

Phillip Marshall Howell

Respondent Counsel: Adv LL Makoko

Noelene Jane Howell

Respondent Counsel: Adv LL Makoko

Sheriff of the High Court – Roodepoort North

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

Amounts and remedies

  • Municipal Charges Owed (approximate Proportion of Property Value): ZAR 33.33

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Judgment Reducing Reserve Price for Auction of Property.

04

Questions and positions

Legal issues

Party arguments

Applicant
ABSA Bank Limited opposed the application for leave to appeal, arguing that the Howells had failed to disclose their financial circumstances and had not paid anything towards the bond for over seven years. ABSA maintained that the reserve price reduction was justified and that the Howells had no reasonable prospects of success on appeal.
Respondent
Mr and Ms Howell sought leave to appeal the order reducing the reserve price for the auction of their house, contending that the order was unjust. However, they did not provide any information regarding their financial circumstances or address the outstanding municipal charges.

05

Court’s reasoning

  1. 01

    Section 17(1) of the Superior Courts Act 10 of 2013

    Leave to appeal should only be granted where there are reasonable prospects of success or compelling reasons for the appeal to be heard.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the Howells had not provided any information about their financial circumstances and had lived in the property for over seven years without making any payments towards the bond. They also owed the municipality a substantial amount in municipal charges. The judge concluded that there were no reasonable prospects of success on appeal and no compelling reasons to grant leave. Accordingly, the application for leave to appeal was dismissed, and costs were awarded against the Howells.

Obiter and limits

  • The Howells have lived in the house for over seven years without paying anything towards the bond.
  • They owe the municipality more than a third of the value of the property in municipal charges.

Court disposition

Application for leave to appeal dismissed.

  • The application for leave to appeal is dismissed.
  • Mr and Ms Howell are jointly and severally to pay ABSA’s costs.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment text

The complete available source text.

Source document

South Gauteng High Court, Johannesburg

Judgment

[2024] ZAGPJHC 739

IN THE HIGH COURT OF

SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 16168/17

1.Reportable: No

2. Of interest to other judges: No

3.Revised:

2 August 2024

In the matter between:

ABSA

BANK LIMITED Applicant and HOWELL,

PHILLIP MARSHALL First Respondent HOWELL,

NOELENE JANE Second Respondent

SHERIFF OF THE HIGH COURT –

ROODERPOORT

NORTH Third Respondent

CITY

OF JOHANNESBURG METROPOLITAN

MUNICIPALITY Forth Respondent

JUDGMENT –

APPLICATION FOR LEAVE TO APPEAL

WRIGHT J

1. Mr and Ms Howell, the 1st and 2nd respondents in the main application, seek leave to appeal my order of 3 June 2024.

2. Absa then had sought and been granted a reduction in the reserve price at which the Howell’s house could be auctioned by the sheriff in satisfaction of a judgment granted some seven years ago.

3. It bears mention that the Howells have lived in the house in question for over seven years without paying anything towards the bond. They owe the municipality more than a third of the value of the property in municipal charges. In the main application they chose to tell the court nothing about their financial circumstances.

4. The Howells have no reasonable prospect on appeal and there is no compelling reason to grant leave. In my view, party and party costs on scale A suffice in this application.

ORDER

1. The application is dismissed.

2. Mr and Ms Howell are jointly and severally to pay Absa’s costs.

GC Wright

Judge of the High Court

Gauteng Division, Johannesburg

HEARD : 2 August 2024

DELIVERED : 2 August 2024

APPEARANCES:

Absa Adv M Msomi 082 229 4363 Instructed by Lowndes Dlamini Attorneys Mr and Ms Howell Adv LL Makoko Instructed By Att Gary Segal

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Superior Courts Act 10 of 2013

Legislation

Legislation referenced in the available case record.

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