Benson and Another v Standard Bank of South Africa and Others (2011/17143) [2022] ZAGPJHC 334 (17 May 2022)

Benson and Another v Standard Bank of South Africa and Others (2011/17143) [2022] ZAGPJHC 334 (17 May 2022)

The court found that the applicants had failed to provide any reasonable or adequate explanation for the 7.5-year delay in prosecuting the application for leave to appeal. The delay caused significant prejudice to the respondents, particularly the fourth respondent who had purchased the property and obtained an eviction order. The issues raised by the applicants had already been adjudicated in previous proceedings, rendering the appeal res judicata and moot. The applicants' attorneys failed to disclose material developments, including the eviction order and the refusal of leave to appeal by the Supreme Court of Appeal, which constituted a serious breach of professional ethics. The court...

Citation
[2022] ZAGPJHC 334
Parties
Applicant: Johan Marvin Benson; Applicant: Gloria Valentia Benson; Respondent: The Standard Bank of South Africa; Respondent: Sheriff JHB Wes H.M. Botha; Respondent: The Registrar of Deeds: Johannesburg; Respondent: Gert Cornelius du Plessis
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
17 May 2022
Case Number
2011/17143
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application
Outcome
Application for leave to appeal dismissed with punitive costs; applicants' attorneys referred to the Legal Practice Council for investigation.
Judges
Weiner
Legal Topics
Leave to Appeal, Rescission of Judgment, Sale in Execution, Eviction, Punitive Costs, Professional Ethics
Civil Procedure Land and Property Leave to Appeal Rescission of Judgment Sale in Execution Eviction Punitive Costs Professional Ethics

Case Brief

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Parties

Johan Marvin Benson

Applicant

Gloria Valentia Benson

Applicant

The Standard Bank of South Africa

Respondent

Sheriff JHB Wes H.M. Botha

Respondent

The Registrar of Deeds: Johannesburg

Respondent

Gert Cornelius du Plessis

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application

Legal Issues

  1. 1 Whether the application for leave to appeal should be granted after an unexplained delay of 7.5 years.
  2. 2 Whether the applicants' attorneys acted unprofessionally by failing to disclose material developments to the court.
  3. 3 Whether the application for leave to appeal has any prospects of success given the res judicata status and prior judgments.

Ratio Decidendi

The court found that the applicants had failed to provide any reasonable or adequate explanation for the 7.5-year delay in prosecuting the application for leave to appeal. The delay caused significant prejudice to the respondents, particularly the fourth respondent who had purchased the property and obtained an eviction order. The issues raised by the applicants had already been adjudicated in previous proceedings, rendering the appeal res judicata and moot. The applicants' attorneys failed to disclose material developments, including the eviction order and the refusal of leave to appeal by the Supreme Court of Appeal, which constituted a serious breach of professional ethics. The court...

Court Disposition

Application for leave to appeal dismissed with punitive costs; applicants' attorneys referred to the Legal Practice Council for investigation.

Orders

  • The application for leave to appeal is dismissed with costs on the attorney and client scale.
  • The applicants’ attorneys, Ms van Schalkwyk and Mr Hadebe, are to be reported to the Legal Practice Council for investigation.