Anthony and Another v Nedbank Limited (54741/2018) [2020] ZAGPPHC 426 (24 August 2020)

IN THE HIGH COURT OF

SOUTH AFRICA

GAUTENG DIVISION,

PRETORIA

1) REPORTABLE YES/NO

2) OF INTEREST TO OTHER JUDGES YES/NO

3)

REVISED

Case number:54741/2018

24/8/2020

In the matter between:

JOAN MARGARET ANTHONY + 1

APPLICANT

versus

NEDBANK

LIMITED

RESPONDENT

JUDGMENT

MAKHOBA J

This is an application for leave to appeal by Ms J M Anthony against an order which I granted on the 11 June 2019. The summary Judgment and the order reads

as follows: “……..SUMMARY JUDGMENT IS GRANTED AGAINST THE SECOND DEFENDANT …for:

(a) Payment of the capital sum of R501,758.99

(b) Payment of interest on the aforesaid sum of R501,758.99 at the finance

charges of 9.00% calculated daily and debited monthly on the first day of each

month from 23 JUNE 2018 to date of final payment:

(c) Costs of suit on the scale as between attorney and client;

(d) An order In terms of which the following property is declared specially

executable:

ERF 217 CHRISVILLE TOWNSHIP, REGISTRATION DIVISION I.R, THE PROVINCE

OF GAUTENG

IN EXTENT: 773 (SEVEN HUNDRED AND SEVENTY THREE) SQUARE METRES

HELD BY DEED OF TRANSFER NO: T10525/2008

(e) An order in terms of Section 30(b) of the administration of Estate’s Act 66 of

1965 directing that the property may be sold.

(f) An order authorizing the sheriff to execute the writ of Execution.,

(g) The Respondents are advised that, subject to the provisions of section 129(3)

and (4) of the National Credit Act 35 of 2005 (“the NCA”), the Applicant may

apply to the Court for Judgment to be granted in favour of the Applicant.

(h) The Respondent may prevent the sale of the property referred to above if they

pay the Applicant all of the arrear amounts owing to the Applicant, together

with the Applicant’s default charges and reasonable costs of enforcing the

agreement up to the time of the re-instatement, prior to the property being sold

in execution.

(i) The arrear amounts, enforced costs and default charges may be obtained from

the Applicant after default judgment has been obtained.

The Respondents are advised that the arrear amount is not the full amount of

the Judgment debt, but the amount owing by the Respondents to the applicant,

without reference to the accelerated amount.

(j) The Respondents are advised that the arrears amount is not the full amount of

the Judgment debt; but the amount by the Respondents to the Applicant, without

reference to the accelerated amount;

(k) A copy of this order is to be served personally on the Respondents, as soon as

practicable, after the order is granted, but prior to any sale in execution.

(L)The property to be sold with the set reserve price of: R850 000.00.

Upon receiving a Notice of Appeal, I instructed my registrar to obtain the transcript of the proceedings as the Ms J.M Anthony failed to do so. Due to the period in which the country was under Covid – 19 lockdown there has been a delay in obtaining the transcripts. This was communicated to the parties during the virtual court session. The parties agreed that the court can determine the application based on the heads of argument.

Counsel for Nedbank raised two points in limine- the first point in limine is based on Rule 49(1)(b) of the Uniform rules of court which reads as follows:

“….when leave to appeal is required and it has not been requested at the time of the Judgment or order, application for such leave shall be made and the grounds therefore shall be furnished within 15 days after the date of the order appealed against:…provided further that the Court may, upon good cause shown, extend the aforementioned period of 15 days”

Counsel submits that the rule is peremptory in nature with regard to the time period

within which such application should be lodged. Counsel submits that the appeal is

void ab initio for being lodged out of time and in contrast with the peremptory

provisions of Rule 49(1)(b).

4.The second point in limine is based on Rule 49(3) which reads as follows:

“ The Notice of Appeal shall state whether the whole or which part only of the Judgment or order is appealed against and if only part of such Judgment or order is appealed against, it shall state which part and shall further specify the finding of fact and / or ruling of law appealed against and the grounds upon which the appeal is founded”.

Counsel for the Respondent submits that the notice for leave to appeal should

imprimis make it clear whether the appeal is on a point or points of law or on fact

or on both. Counsel submitted that the Applicant in this matter attempts to revisit

the entire subject matter of the main application and the application must be

dismissed on this point alone.

5. Furthermore Counsel for the Respondent asks for punitive costs against second

Applicant because she failed firstly to request reasons from the court for its

order.

6. In this application Applicant is represented by an experienced

attorney. It is clear that did not comply with the rules raised by the

Respondent in the points in limine. There is no application before me why the

said rules were not complied with.

7. On either of the points in limine the Respondent succeeds and the application

for leave to appeal is out of time and there is no application for condonation.

8. The application for leave to appeal is dismissed with costs on an attorney and

client scale.

D MAKHOBA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION