First National Bank a Division of First Rand Bank Ltd v Abt (2012/7071) [2013] ZAGPJHC 79 (10 April 2013)
The court found that the orders made were not final in effect and therefore not appealable. The respondent had specifically sought a postponement, which was granted, and the only defence raised—non-compliance with the National Credit Act—was addressed by ordering compliance. The argument that the respondent was...
Source-derived case information.
- Citation
- [2013] ZAGPJHC 79
- Parties
- Applicant: First National Bank a division of First Rand Bank Ltd; Respondent: Godfrey Wilfred Abt
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 2012/7071
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Interlocutory Order.
- Outcome
- Leave to appeal refused with costs awarded against the respondent.
- Judges
- FHD Van Oosten
- Legal Topics
- Leave to Appeal, Finality of Orders, National Credit Act Compliance
Source-derived case record
Summary, issues, holding and outcome
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Parties
First National Bank a division of First Rand Bank Ltd
Applicant
Godfrey Wilfred Abt
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Interlocutory Order.
Legal Issues
- 1 Whether the orders made in the previous judgment are final in effect and therefore appealable.
- 2 Whether the respondent is deprived of a possible defence at the final hearing by the order for compliance with the National Credit Act.
- 3 Whether there are reasonable prospects of success on appeal.
Ratio Decidendi
The court found that the orders made were not final in effect and therefore not appealable. The respondent had specifically sought a postponement, which was granted, and the only defence raised—non-compliance with the National Credit Act—was addressed by ordering compliance. The argument that the respondent was deprived of a defence was rejected as unfounded and indicative of a delaying tactic. The application for leave to appeal was found to be ill-conceived, with no reasonable prospects of success.
Court Disposition
Leave to appeal refused with costs awarded against the respondent.
Orders
- Leave to appeal is refused.
- The respondent is ordered to pay the costs of this application.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO:2012/7071
In the matter between
FIRST NATIONAL BANK a division of FIRST RAND BANK LTD APPLICANT And GODFREY WILFRED ABT RESPONDENT
Appeal - application for leave to appeal - orders sought to be appealed against not final in effect and therefore not appealable - contention that respondent by the order that was made deprived of a possible defence at the final hearing of the matter rejected - leave to appeal refused with costs.
J U D G M E N T
(LEAVE TO APPEAL)
VAN OOSTEN J:
[1] The respondent now seeks leave to appeal against the whole of my judgment in terms of which the matter was postponed sine die, compliance with sections 129 and 130 of the National Credit Act 34 of 2005 ordered and costs reserved.
2. At the commencement of the argument before me I enquired from counsel for the respondent whether the orders made, were appealable, as they are not final in effect. Counsel readily and correctly conceded that paragraphs 1 and 3 of the order were not appealable. As for paragraph 2 of the order, counsel submitted that it was final in effect as it deprives the respondent of the only possible defence the respondent might raise at the final hearing of the matter. The contention it hardly needs to be stated, is fallacious and for the reasons that follow, falls to be rejected.
[2] The respondent specifically, in the alternative, sought an order postponing the matter. A postponement, albeit for other reasons, was ordered. The only defence raised and relied on concerned the applicant’s alleged lack of compliance with the relevant provisions of the NCA. This was cured in ordering compliance in terms of the provisions of s 130(4) (b) of the NCA. The astounding complaint now advanced, that the respondent will no longer be able to raise the defence of non-compliance as a ground for rescission of the default judgment in terms of his counter application is so far-fetched and devoid of any substance, that it must be rejected out of hand. What the argument does show is that the defence was seemingly raised for no other purpose than delaying the matter. This Court would dismally fail in its duty if any recognition is afforded to the contention.
[3] The orders made are neither final in effect nor of negative impact on the respondent and for thosereasons alone the application must fail. The application is ill-conceived and no reasonable prospects of a successful appeal exist. I seriously considered ordering a punitive costs order against the respondent but, in the absence of a request for such an order, decided against it.
[4] In the result the following order is made:
1. Leave to appeal is refused.
2. The respondent is ordered to pay the costs of this application.
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
COUNSEL FOR APPLICANT ADV C DÉNICHAUD
APPLICANT’S ATTORNEYS GLOVERINC
COUNSEL FORRESPONDENT ADV AP DEN HARTOG
RESPONDENT’S ATTORNEYS HARVEY NOSSEL
DATE OF HEARING 10 APRIL 2013
DATE OF JUDGMENT 10 APRIL 2013