Knoesen and Others v Absa Bank Limited (1187/2015) [2020] ZAFSHC 138 (25 June 2020)

Knoesen and Others v Absa Bank Limited (1187/2015) [2020] ZAFSHC 138 (25 June 2020)

The court found that the defendants failed to provide a reasonable explanation for the late filing of their application for leave to appeal, as no explanation was given for the critical period between 5 and 9 September 2019. The delay, though short, was not excused by any substantive reason. On the merits, the defendants did not present evidence to rebut the plaintiff's proof that payments were not received as required by the debt restructuring order. The plaintiff was not obliged to call the payment distribution agent; the burden was on the defendants to show punctual payment. The other arguments raised by the defendants, including the alleged improper signing of the credit agreement and...

Citation
[2020] ZAFSHC 138
Parties
Defendant: Willem Daniel Knoesen; Defendant: Johanna Cornelia Knoesen; Defendant: Willem Daniel Knoesen N.O.; Defendant: Johanna Cornelia Knoesen N.O.; Plaintiff: Absa Bank Limited
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
25 June 2020
Case Number
1187/2015
Procedural Posture
Leave to Appeal / Application for Condonation and Leave to Appeal Following Judgment in Civil Action
Outcome
Application for condonation for late filing and leave to appeal dismissed with costs.
Judges
P.J. Loubser
Legal Topics
Condonation for Late Filing, Leave to Appeal, National Credit Act, Debt Restructuring, Mortgage Bond Enforcement
Civil Procedure Banking and Finance Condonation for Late Filing Leave to Appeal National Credit Act Debt Restructuring Mortgage Bond Enforcement

Case Brief

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Parties

Willem Daniel Knoesen

Defendant

Johanna Cornelia Knoesen

Defendant

Willem Daniel Knoesen N.O.

Defendant

Johanna Cornelia Knoesen N.O.

Defendant

Absa Bank Limited

Plaintiff

Procedural Posture

Leave to Appeal / Application for Condonation and Leave to Appeal Following Judgment in Civil Action

Legal Issues

  1. 1 Whether the defendants provided a reasonable explanation for the late filing of the application for leave to appeal.
  2. 2 Whether the defendants have reasonable prospects of success on appeal regarding the judgment enforcing the mortgage bond and debt restructuring.
  3. 3 Whether the plaintiff was required to call the payment distribution agent to prove default by the defendants.

Ratio Decidendi

The court found that the defendants failed to provide a reasonable explanation for the late filing of their application for leave to appeal, as no explanation was given for the critical period between 5 and 9 September 2019. The delay, though short, was not excused by any substantive reason. On the merits, the defendants did not present evidence to rebut the plaintiff's proof that payments were not received as required by the debt restructuring order. The plaintiff was not obliged to call the payment distribution agent; the burden was on the defendants to show punctual payment. The other arguments raised by the defendants, including the alleged improper signing of the credit agreement and...

Court Disposition

Application for condonation for late filing and leave to appeal dismissed with costs.

Orders

  • The application for condonation for the late filing of the application for leave to appeal is dismissed with costs.
  • Leave to appeal is not granted.