Khiba v Nel and Another, Tyabazayo v Nel and Another, Tyabazayo v Nel and Another (2765/2016, 2497/2016, 3316/2016) [2017] ZAECGHC 47 (11 April 2017)

Khiba v Nel and Another, Tyabazayo v Nel and Another, Tyabazayo v Nel and Another (2765/2016, 2497/2016, 3316/2016) [2017] ZAECGHC 47 (11 April 2017)

The court found that in all three matters, the applicants brought review proceedings after a grossly unreasonable and largely unexplained delay, which caused considerable prejudice to the respondent bank and little or no prejudice to the applicants, who had no defence to the merits of the underlying debts. The technical procedural complaints raised did not amount to gross irregularity or substantial wrong, and the applicants failed to demonstrate any substantial prejudice. In terms of established legal principles, the delay itself validated the judgments, and the court had no authority to entertain the reviews. Even if the technical points were correct, the absence of any defence on the...

Citation
[2017] ZAECGHC 47
Parties
Applicant: Bongani Bethwell Khiba; Applicant: Andiswa Ashleigh Tyabazayo; Respondent: Magistrate Nel, King Williams Town; Respondent: Capitec Bank Ltd
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
11 April 2017
Case Number
2765/2016, 2497/2016, 3316/2016
Procedural Posture
Review Application / High Court Review of Magistrates' Court Default Judgments
Outcome
Applications dismissed with costs on the attorney and client scale; applicants' attorneys required to show cause why they should not be joined and ordered to pay costs de bonis propriis.
Judges
M.J Lowe
Legal Topics
Review of Magistrates Court Proceedings, Default Judgment, National Credit Act Compliance, Delay in Review, Gross Irregularity, Emoluments Attachment Orders
Civil Procedure Banking and Finance Review of Magistrates Court Proceedings Default Judgment National Credit Act Compliance Delay in Review Gross Irregularity Emoluments Attachment Orders

Case Brief

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Parties

Bongani Bethwell Khiba

Applicant

Andiswa Ashleigh Tyabazayo

Applicant

Magistrate Nel, King Williams Town

Respondent

Capitec Bank Ltd

Respondent

Procedural Posture

Review Application / High Court Review of Magistrates' Court Default Judgments

Legal Issues

  1. 1 Whether the delay in bringing review proceedings was unreasonable and, if so, whether it should be condoned.
  2. 2 Whether alleged procedural irregularities in the Magistrates' Court proceedings amounted to gross irregularity justifying review.
  3. 3 Whether the applicants suffered substantial prejudice as a result of the alleged irregularities.

Ratio Decidendi

The court found that in all three matters, the applicants brought review proceedings after a grossly unreasonable and largely unexplained delay, which caused considerable prejudice to the respondent bank and little or no prejudice to the applicants, who had no defence to the merits of the underlying debts. The technical procedural complaints raised did not amount to gross irregularity or substantial wrong, and the applicants failed to demonstrate any substantial prejudice. In terms of established legal principles, the delay itself validated the judgments, and the court had no authority to entertain the reviews. Even if the technical points were correct, the absence of any defence on the...

Court Disposition

Applications dismissed with costs on the attorney and client scale; applicants' attorneys required to show cause why they should not be joined and ordered to pay costs de bonis propriis.

Orders

  • The three applications in case numbers 2765/2016, 2497/2016 and 3316/2016 are individually dismissed with costs on the scale as between attorney and client.
  • The attorneys for Applicants in each matter, N J Du Plessis and Associates Inc., are required to show cause on affidavit by 29 April 2017 why they should not be joined as a party to the proceedings and why they should not pay the costs of all three matters de bonis propriis on the scale as between attorney and client.