Labuschagne and Another v Van Straaten (819/2019) [2021] ZAFSHC 257 (28 October 2021)

Labuschagne and Another v Van Straaten (819/2019) [2021] ZAFSHC 257 (28 October 2021)

The court found that although the applicants' explanation for the delay in filing the application for leave to appeal lacked detail, their conduct demonstrated that they did not passively accept the outcome and took steps to seek remedies. The applicants have reasonable prospects of success on appeal because the instalment sale agreement was not registered as required by the Alienation of Land Act, and thus the seller was not entitled to receive consideration prior to registration. This fact undermines the basis for the cancellation of the agreement and the default judgment. The good prospects of success compensate for the tardiness in bringing the application. The court granted...

Citation
[2021] ZAFSHC 257
Parties
Applicant: Maureen Labuschagne; Applicant: Willem Adriaan Labuschagne; Respondent: Ella Van Straaten
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 October 2021
Case Number
819/2019
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application and Default Judgment
Outcome
Condonation for the late filing of the application for leave to appeal is granted. Leave to appeal is granted to the Full Court of this Division. Costs of this application shall be costs in the appeal.
Judges
P.E. Molitsoane
Legal Topics
Alienation of Land Act, Condonation, Leave to Appeal, Default Judgment, Instalment Sale Agreement
Land and Property Civil Procedure Alienation of Land Act Condonation Leave to Appeal Default Judgment Instalment Sale Agreement

Case Brief

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Parties

Maureen Labuschagne

Applicant

Willem Adriaan Labuschagne

Applicant

Ella Van Straaten

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application and Default Judgment

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the application for leave to appeal.
  2. 2 Whether the applicants have reasonable prospects of success on appeal regarding the default judgment and cancellation of the instalment sale agreement.

Ratio Decidendi

The court found that although the applicants' explanation for the delay in filing the application for leave to appeal lacked detail, their conduct demonstrated that they did not passively accept the outcome and took steps to seek remedies. The applicants have reasonable prospects of success on appeal because the instalment sale agreement was not registered as required by the Alienation of Land Act, and thus the seller was not entitled to receive consideration prior to registration. This fact undermines the basis for the cancellation of the agreement and the default judgment. The good prospects of success compensate for the tardiness in bringing the application. The court granted...

Court Disposition

Condonation for the late filing of the application for leave to appeal is granted. Leave to appeal is granted to the Full Court of this Division. Costs of this application shall be costs in the appeal.

Orders

  • The applicants are granted condonation for the late filing of the application for leave to appeal.
  • The application for leave to appeal is granted to the Full Court of this Division.