Huysamen and Another v Absa Bank Limited and Others (660/2019) [2020] ZASCA 127 (12 October 2020)

Huysamen and Another v Absa Bank Limited and Others (660/2019) [2020] ZASCA 127 (12 October 2020)

The Supreme Court of Appeal held that the applicants and their attorney failed to provide a full and reasonable explanation for the delay in filing the notice of appeal and reinstating the lapsed appeal. The attorney's gross negligence and lack of supervision, combined with the applicants' own inaction, did not justify condonation. The applicants' misleading disclosures and apparent abuse of the surrender process under the Insolvency Act further undermined their bona fides. The court found that the prospects of success were weak, as the sale in execution was not unlawful under section 5(1) of the Insolvency Act, given the sheriff's lack of knowledge of the surrender notice and absence of...

Citation
[2020] ZASCA 127
Parties
Appellant: Wilhelm George Huysamen; Appellant: Constantia Tonia Huysamen; Respondent: Absa Bank Ltd; Respondent: Kolman, Jarod; Respondent: Du Plessis, Philip; Respondent: Registrar of Deeds, Pretoria; Respondent: The Sheriff, Sandton South; Respondent: Investec Bank Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 October 2020
Case Number
660/2019
Procedural Posture
Condonation Application / Application for Condonation and Reinstatement of Lapsed Appeal
Outcome
Application for condonation and reinstatement of the appeal dismissed with costs on an attorney and client scale, including costs of two counsel, payable by the applicants and their attorney de bonis propriis, jointly and severally.
Judges
Cachalia, Dambuza, Dlodlo, Nicholls, Matojane
Legal Topics
Condonation, Sale in Execution, Insolvency Act Section 5, Mortgage Bond Enforcement, Attorney Negligence
Civil Procedure Banking and Finance Condonation Sale in Execution Insolvency Act Section 5 Mortgage Bond Enforcement Attorney Negligence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Wilhelm George Huysamen

Appellant

Constantia Tonia Huysamen

Appellant

Absa Bank Ltd

Respondent

Kolman, Jarod

Respondent

Du Plessis, Philip

Respondent

Registrar of Deeds, Pretoria

Respondent

The Sheriff, Sandton South

Respondent

Investec Bank Limited

Respondent

Procedural Posture

Condonation Application / Application for Condonation and Reinstatement of Lapsed Appeal

Legal Issues

  1. 1 Whether the applicants provided an adequate explanation for the delay in filing the notice of appeal.
  2. 2 Whether the conduct of the applicants' attorney justifies condonation for non-compliance with court rules.
  3. 3 Whether the prospects of success on appeal warrant the granting of condonation.

Ratio Decidendi

The Supreme Court of Appeal held that the applicants and their attorney failed to provide a full and reasonable explanation for the delay in filing the notice of appeal and reinstating the lapsed appeal. The attorney's gross negligence and lack of supervision, combined with the applicants' own inaction, did not justify condonation. The applicants' misleading disclosures and apparent abuse of the surrender process under the Insolvency Act further undermined their bona fides. The court found that the prospects of success were weak, as the sale in execution was not unlawful under section 5(1) of the Insolvency Act, given the sheriff's lack of knowledge of the surrender notice and absence of...

Court Disposition

Application for condonation and reinstatement of the appeal dismissed with costs on an attorney and client scale, including costs of two counsel, payable by the applicants and their attorney de bonis propriis, jointly and severally.

Orders

  • The application for condonation of the late filing of the notice of appeal and reinstatement of the appeal is dismissed with costs on an attorney and client scale, including costs consequent upon the employment of two counsel.
  • The costs are to be paid by the applicants and their attorney de bonis propriis, jointly and severally, the one paying the other to be absolved.