Kukard N.O and Others v ABSA Bank Limited and Others (Leave to appeal) (115284/2023) [2025] ZAGPPHC 146 (13 February 2025)

Kukard N.O and Others v ABSA Bank Limited and Others (Leave to appeal) (115284/2023) [2025] ZAGPPHC 146 (13 February 2025)

The court found that the applicants had raised grounds that warranted consideration by a higher court, particularly regarding the procedure for hearing exceptions and the issue of early discovery. The transcript revealed some ambiguity about whether the applicants had conceded that early discovery was unnecessary if the exceptions were upheld. Given these circumstances, leave to appeal was granted to the Full Court. Regarding the variation application, the court identified ambiguity in the original cost order and clarified that the costs of the fourth defendant for both the postponement application and the exception, including counsel on scale C, are to be paid by the first to fifth...

Citation
[2025] ZAGPPHC 146
Parties
Applicant: Colleen Michelle Kukard N.O.; Applicant: Hillbrow Inn (Pty) Ltd; Applicant: Joubert Park Maxime Hotel (Pty) Ltd; Applicant: Maxime Hotel (Pty) Ltd; Applicant: New World Hotels (Pty) Ltd; Applicant: Jeshco (Pty) Ltd; Applicant: Dream Weaver Trading 139 (Pty) Ltd; Applicant: Warwick Paul van den Berg N.O.; Applicant: Darryl Hurwitz N.O.; Respondent: ABSA Bank Limited; Respondent: Access Bank of South Africa Limited; Respondent: Standard Bank of South Africa Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 February 2025
Case Number
115284/2023
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Variation of Order
Outcome
Leave to appeal is granted to the Full Court of this Division. The order of 23 October 2024 is varied to clarify the allocation of costs.
Judges
N.P. Mali
Legal Topics
Leave to Appeal, Exception Procedure, Postponement Application, Costs Order, Variation of Order
Civil Procedure Leave to Appeal Exception Procedure Postponement Application Costs Order Variation of Order

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Parties

Colleen Michelle Kukard N.O.

Applicant

Hillbrow Inn (Pty) Ltd

Applicant

Joubert Park Maxime Hotel (Pty) Ltd

Applicant

Maxime Hotel (Pty) Ltd

Applicant

New World Hotels (Pty) Ltd

Applicant

Jeshco (Pty) Ltd

Applicant

Dream Weaver Trading 139 (Pty) Ltd

Applicant

Warwick Paul van den Berg N.O.

Applicant

Darryl Hurwitz N.O.

Applicant

ABSA Bank Limited

Respondent

Access Bank of South Africa Limited

Respondent

Standard Bank of South Africa Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and Variation of Order

Legal Issues

  1. 1 Whether leave to appeal should be granted against the refusal of postponement and upholding of exceptions.
  2. 2 Whether the original order contains ambiguity or error justifying variation under Rule 42(1)(c).
  3. 3 Whether the applicants were entitled to early discovery before exceptions were heard.

Ratio Decidendi

The court found that the applicants had raised grounds that warranted consideration by a higher court, particularly regarding the procedure for hearing exceptions and the issue of early discovery. The transcript revealed some ambiguity about whether the applicants had conceded that early discovery was unnecessary if the exceptions were upheld. Given these circumstances, leave to appeal was granted to the Full Court. Regarding the variation application, the court identified ambiguity in the original cost order and clarified that the costs of the fourth defendant for both the postponement application and the exception, including counsel on scale C, are to be paid by the first to fifth...

Court Disposition

Leave to appeal is granted to the Full Court of this Division. The order of 23 October 2024 is varied to clarify the allocation of costs.

Orders

  • Leave to appeal is granted to the Full Court of the Gauteng Division, Pretoria.
  • The order of 23 October 2024 is varied as set out in paragraph 12 of this judgment.