Bobotyana v Nedbank Limited (174/2017, 184/2017) [2017] ZAECGHC 115 (31 October 2017)

Bobotyana v Nedbank Limited (174/2017, 184/2017) [2017] ZAECGHC 115 (31 October 2017)

The applicant failed to disclose a bona fide defence to summary judgment, as his assertion of non-receipt of the section 129 notice was unsupported by reasons and contradicted by evidence that the notice was properly sent and a notification slip delivered. The respondent discharged its obligations under the National Credit Act, and the applicant did not explain why the notice did not reach him. The application for leave to appeal had no prospects of success and was found to be an abuse of process intended to delay delivery of the vehicles, causing prejudice to the respondent. The applicant, a practising attorney, disregarded procedural rules by filing late without condonation and failing...

Citation
[2017] ZAECGHC 115
Parties
Applicant: Mzwandile Tonny Cedric Bobotyana; Respondent: Nedbank Limited
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
31 October 2017
Case Number
174/2017 and 184/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Summary Judgment
Outcome
Application for leave to appeal dismissed with punitive costs order against the applicant.
Judges
G H Bloem
Legal Topics
Summary Judgment, Section 129 Notice, National Credit Act, Punitive Costs, Condonation, Abuse of Process
Civil Procedure Banking and Finance Summary Judgment Section 129 Notice National Credit Act Punitive Costs Condonation Abuse of Process

Case Brief

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Parties

Mzwandile Tonny Cedric Bobotyana

Applicant

Nedbank Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Summary Judgment

Legal Issues

  1. 1 Whether the applicant disclosed a bona fide defence to summary judgment as required by rule 32(3)(b).
  2. 2 Whether the respondent complied with section 129 of the National Credit Act regarding delivery of notice.
  3. 3 Whether the application for leave to appeal has prospects of success.

Ratio Decidendi

The applicant failed to disclose a bona fide defence to summary judgment, as his assertion of non-receipt of the section 129 notice was unsupported by reasons and contradicted by evidence that the notice was properly sent and a notification slip delivered. The respondent discharged its obligations under the National Credit Act, and the applicant did not explain why the notice did not reach him. The application for leave to appeal had no prospects of success and was found to be an abuse of process intended to delay delivery of the vehicles, causing prejudice to the respondent. The applicant, a practising attorney, disregarded procedural rules by filing late without condonation and failing...

Court Disposition

Application for leave to appeal dismissed with punitive costs order against the applicant.

Orders

  • The application for leave to appeal in case numbers 174/2017 and 184/2017 is dismissed.
  • The applicant must pay the respondent's costs of the application for leave to appeal on the scale as between attorney and client.