Erasmus v Absa Bank Limited and Others (A982/13) [2017] ZAGPPHC 890 (8 December 2017)

IN

THE HIGH COUT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case Number: A982/13

Not reportable

Not of interest to other judges

Revised.

8/12/2017

In the matter between:

ANDRE

CARL ERASMUS Appellant

and

ABSA

BANK LIMITED First Respondent

SHERIFF OF THE HIGH COURT, PRETORIA Second Respondent

THE REGISTRAR OF DEEDS, PRETORIA Third Respondent

JUDGMENT

POTTERILL J

[1] The appeal before us is pursuant to a petition filed to the Supreme Court of Appeal granting leave to appeal on 12 November 2013. The appeal was previously set down for hearing on 9 September 2015. On this date the appeal was struck from the roll with costs, consequent upon the applicant's non-compliance with Uniform Rules 49(6 )(a), 49(7)(a) and 49(13)(a) . The appeal has lapsed. The appellant is thus applying for condonation for the non-compliance with Rules 49(6)(a), 49( 7)(a) and 49 (13 )(a) i.e. the reinstatement of the appeal.

[2] At the heart of the appeal is a default judgment granted by the Registrar on 5 November 2007 and the refusal of the rescission

thereof on 2 5 May 2011. The crux of the matter before us is whether condonation for the non-compliance with Rules 49(6)(a}, 49(7)(a) and 49(13)(a) should be granted allowing for the reinstatement of the appeal. For the sake of convenience I refer to the applicant in the condonation application as the appellant ["Erasmus"].

[3]·The chronology set out below sketches the background as well as the timeframes in, this matter:

· A loan agreement was concluded between Erasmus and Absa Bank Limited (Absa) during 2006 under the security of a mortgage bond.

· The section 129 letter in terms of the National Credit Act 34 of 2005 ("the Act'') was sent on 3 October 2007.

· On 18 October 2007 Erasmus contacted the bank and requested a letter confirming the outstanding amount. On the same date Absa sent such a letter.

· On 5 November 2007 default judgment was granted by the Registrar.

· On 2 9 November 2007 the Sheriff attached the property.

· On 15 January 2008 Absa did not proceed with the sale of execution despite Erasmus not fulfilling his promise to make full payment of the arrears.

· On 18 January 2008 Absa wrote to Erasmus requesting further payment to prevent a further sale of execution to be scheduled.

· On 20 November 2008 Erasmus launched an application for rescission of the judgment. Erasmus never set down this application.

· On 25 November 2008 Erasmus launched an urgent application to interdict Absa from proceeding with sale in execution. The urgent application was struck from the roll.

· On 30 March 2011 the arrears were R580 582.20 and a new sale of execution was to proceed on 25 May 2011. On this date Absa bought the property.

· On 16 November 2011 Absa informed Erasmus that transfer was to take place in Absa's name and that Erasmus must obtain a court order in order to stay the transfer, if he so wished. Erasmus did nothing.

· On 18 November 2011 the property was duly registered in Absa's name.

· On 16 November 2011 Erasmus serves a second application for rescission of judgment.

· On 18 December 2012 the rescission application is refused.

· On 12 November 2013 pursuant to a petition to the Supreme Court of Appeal leave is granted to a full bench of this Division.

· On 26 November 2013 a notice of appeal is filed and served.

· On 24 February 2014 the appeal lapsed.

· On 15 May 2014 Erasmus' attorney filed the record of appeal on Absa.

· On 9 September 2015 the appeal was struck from the roll.

· On 22 April 2016 an application for condonation is filed with the purpose to reinstate the appeal.

[4] An appeal will only be reinstated when upon application good cause is shown for such reinstatement - Byron v Duke Inc 2002 (5) SA 483 (SCA) para [2 ]:

"The principles governing condonation applications and the facts which weigh with this Court are well-known and have been often restated. The main principles are succinctly formulated in Federated Employers Fire & General Insurance Co ltd and Another v McKenzie 1969 (3) SA 360 (A) at 362F- H as follows:

'(T)he factors usually weighed by the Court include the degree of non-compliance, the explanation therefor, the importance of the case, the prospects of success, the respondent's interest in the finality of his judgment, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice; ...'"

The filing of security in terms of section 49 (13)(a)

[5] Rule 49(13)(a) requires that an ' .. appellant shall, before lodging copies of the record on appeal with the registrar, enter into good and sufficient security for the

respondent's costs of appeal." It is common cause that no security was filed before the lodging of the copies of the record with the Registrar. Erasmus must thus apply for condonation for the late filing of security; yet no security has been filed. In Erasmus' affidavit in support of condonation the following bald statement is made: "Security was provided to the Registrar of the above Honourable Court."[1] This bald averment does not set out a single necessary fact as to when security was filed or why it was not filed and most importantly

why it was not filed before the lodging of the copies of the record. The most astonishing volte face is then made in the replying affidavit to Absa's averment that no security was filed with the following:

“... I respectfully submit that I made a bona fide error and incorrectly stated that security was filed. I simply was confused."[2]

It does however not stop there. Erasmus then proceeded to state: "I had not accepted their advices and refused to file security based on their opinion."[3]

[6] This court can come to no other conclusion but that Erasmus is not playing open cards with the court and is in fact mala fide. It is contradictory and nonsensical to under oath aver that security was paid, then that this statement was a mistake due to confusion followed by a statement that Erasmus refused to file security. Erasmus then shifts the blame to Absa stating that Absa had to refer the security of costs to the Registrar. This statement is bad in law and can never sustain a reasonable explanation for condonation because Rule 49(13 )(b) expressly states that only the Court granting the appeal can release an applicant or decide the amount of security and not the Registrar. The further argument bad in law is that this court should dispense with the requirement of security. As already pointed out; Rule 49(13)(b) denies this Court jurisdiction to do so.

[7] The appellant has not complied with Rule 49 ( 13)(a) i.e. the filing of security before the lodging of the record of appeal with the Registrar. Erasmus has not explained at all the reasons for the non-compliance in doing so within the time limits required. The arguments as to why security has not been filed is contradictory and void of any reasonable explanation as to why security was not filed, let alone why condonation for this failure must be granted. Erasmus has not shown good cause and on this ground alone the appeal should not be reinstated.

Non-compliance with Rule 49 (6)(a) - failure to apply for a date of the hearing within 60 days

[8] However this matter requires that the application for condonation for the non-compliance with Rule 49( 6)(a) also be addressed to circumvent any further attempts at reinstatement of the appeal.

[9] In terms of Rule 49(6 )(a) an appellant shall within 60 days after the delivery of the notice of appeal make a written application to the Registrar for the hearing of the appeal. If no such application is made the appeal shall be deemed to have lapsed.

[10] The appellant should have applied for a date of the hearing of the appeal on or before 24 February 2014. The appellant however only applied on 29 April 2014, more than two months late in the application for condonation this vague and sketchy averment is made: ''An application for a hearing of the appeal was also served on the first respondent's attorney on 29 April 2014 and I annex hereto as annexure ''l" the said application. Although between the tramlines it states ''APPLICATION FOR

TRIAL DATE': the first paragraph states that this relates to the hearing of the appeal."[4]

[11] Condonation of the non-observance of the Rule is not a mere formality and an applicant for condonation is obliged to satisfy the court that there is sufficient cause for excusing him or her from compliance. Condonation may be refused where there has been a flagrant breach of the rules especially where no explanation is proffered. No case has been made out for Erasmus' failure to comply with the provisions of Rule 49(6)(a) in respect of the first hearing of the appeal. Subsequent to the appeal being struck from the roll with costs on 9 September 2015, Erasmus waited a further seven months until 22 April 2016 to lodge a formal application for condonation for the non-compliance with the Rules. Erasmus merely caused an application for appeal date on the opposed roll (sic) to be served on Absa 's attorney, thus once again failing to comply with the provisions of Rule 49 ( 6 )(a) in relation to the hearing before us.

[12] The degree of non-compliance with the Rules speaks for itself; the timeframes of the Rules are simply ignored and then in the

application for condonation no explanation whatsoever is proffered for the non-compliance. A court has to exercise its inherent

discretion judicially in deciding to grant condonation or not. In Van Wyk v .Unitas Hospital (Open Democratic Advice Centre as amicus curiae) [2007] ZACC 24; 2008 (2) SA 472 (CC) at 477A-B it was found that a court also has to consider an application for condonation in the interests of justice. One of these

considerations is the prospects of success on appeal. This matter has no "prospects of success on appeal due to the fact that Erasmus cannot reinstate the credit agreement because reinstatement of any credit agreement could only occur before a sale in execution at a public auction. "In Ferris and Another v Firstrand Bank Limited and Another 2014 (3) SA 39 (CC) Moseneke ACJ, delivering the unanimous judgment of the Constitutional Court, affirmed the principle that the NGA does not exist merely to advance the interests of consumers but also of credit providers as well. Endless cat-and-mouse games between credit

providers and consumers serve the interests of neither class. Indeed, they undermine the whole system of credit provision in the country. Added to Moseneke ACJ's judgment in Ferris is the fact that the interests of the general public, when they bid at public auctions, are relevant as well.'[5] Absa has an interest in the finality of this judgment as well as the consumer who has in the meanwhile bought this property from Absa. Transfer into that party's name has also taken place. Erasmus took four years after judgment to bring an application for rescission. The appeal before us is 10 years after default judgment had been granted. It took Erasmus seven months after the last striking of the appeal from the roll to file and serve an application for condonation. Counsel for Erasmus also failed to comply with Rule 49 (15) by not filing heads 15 days before the appeal is heard and tried to do so four days before the hearing. All of these are further facts and circumstances that render the granting of condonation unfair towards Absa with Erasmus having little prospect of success on appeal.

Non-compliance with the provisions of Rule 49(7)(a) i.e. failure to lodge the record timeously

[13] It is common cause that the record was to be delivered simultaneously with the application for the date of the hearing of appeal at the latest on 24 February 2014. The record was however only delivered on 15 May 2014.

[14] In view of the findings on the non-compliance of the filing of security and the application for a trial date it suffices to say that herein Erasmus also failed to explain the entire period of the delay. The periods of the delay that are explained are terse rendering the explanation unreasonable.

[15] It thus follows that condonation for the non-compliance of Rule 49(7)(a) should be dismissed.

[16]·I accordingly make the following order:

Application for condonation for reinstatement of the appeal is dismissed with costs.

_______

S.

POTTERILL

JUDGE

OF THE HIGH COURT

I agree

W

HUGHES

______

S.S.

MPHAHLELE

CASE NO: A982 / 2013

HEARD ON: 22 November 2017

FOR THE APPELLANT: ADV. J.W. KLOEK

INSTRUCTED BY: CMM Attorneys Inc.

FOR THE FIRST RESPONDENT: ADV. U. LOTTERING

INSTRUCTED BY: Hack Stupel & Ross Attorneys

DATE OF JUDGMENT: 8 December 2017

[1] Paragraph 30

[2] Paragraph 19

[3] Paragraph 20.2

[4] Pararaph 29

[5] Firstrand Bank v Nkata 2015 (4) SA 417 (SCA) para 43