Khumalo v Absa Bank Limited (5141/2021) [2022] ZAGPPHC 238 (14 April 2022)

Khumalo v Absa Bank Limited (5141/2021) [2022] ZAGPPHC 238 (14 April 2022)

The court found that the respondent's grounds for leave to appeal were irregular, as they were not raised in an answering affidavit and were not before the unopposed motion court. The interlocutory order granted had no final effect, as the main action was still pending, and thus was not appealable. The respondent had admitted the instalment sale agreement in his plea, making further evidence unnecessary. Absa had produced the best available evidence under the Electronic Communications and Transactions Act, and ownership of the vehicle was not in dispute. The court was not persuaded that reasonable prospects of success existed for the appeal, and accordingly dismissed the application for...

Citation
[2022] ZAGPPHC 238
Parties
Applicant: Ike Thamisani Khumalo; Respondent: Absa Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 April 2022
Case Number
5141/2021
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Interlocutory Order in Main Action
Outcome
Application for leave to appeal dismissed with costs on an attorney and client scale.
Judges
Selby Baqwa
Legal Topics
Leave to Appeal, Instalment Sale Agreement, Electronic Communications and Transactions Act, Prima Facie Right, Interlocutory Order
Civil Procedure Banking and Finance Leave to Appeal Instalment Sale Agreement Electronic Communications and Transactions Act Prima Facie Right Interlocutory Order

Case Brief

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Parties

Ike Thamisani Khumalo

Applicant

Absa Bank Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Interlocutory Order in Main Action

Legal Issues

  1. 1 Whether leave to appeal should be granted against an interlocutory order with no final effect.
  2. 2 Whether the respondent's grounds for leave to appeal, raised without an answering affidavit, are sustainable.
  3. 3 Whether the evidence provided by Absa regarding the instalment sale agreement and compliance with the Electronic Communications and Transactions Act was sufficient.

Ratio Decidendi

The court found that the respondent's grounds for leave to appeal were irregular, as they were not raised in an answering affidavit and were not before the unopposed motion court. The interlocutory order granted had no final effect, as the main action was still pending, and thus was not appealable. The respondent had admitted the instalment sale agreement in his plea, making further evidence unnecessary. Absa had produced the best available evidence under the Electronic Communications and Transactions Act, and ownership of the vehicle was not in dispute. The court was not persuaded that reasonable prospects of success existed for the appeal, and accordingly dismissed the application for...

Court Disposition

Application for leave to appeal dismissed with costs on an attorney and client scale.

Orders

  • The application for leave to appeal is dismissed.
  • Costs are awarded against the applicant on an attorney and client scale.