Lazarus and Another v ABSA Bank Limited - Leave to Appeal (676/2017) [2023] ZAECQBHC 31 (30 May 2023)

Lazarus and Another v ABSA Bank Limited - Leave to Appeal (676/2017) [2023] ZAECQBHC 31 (30 May 2023)

The application for leave to appeal was dismissed because the applicants failed to demonstrate any reasonable prospect of success. The objective documentary evidence, including the signed mortgage loan agreement, executed debit order, and regular statements from the plaintiff, unequivocally established the applicants' indebtedness to ABSA Bank Limited. The applicants did not challenge the quantum of the claim, only the identity of the creditor, which was refuted by the evidence. There was no other compelling reason for the appeal to be heard, and the defence advanced was found to be disingenuous and unsupported by the facts.

Citation
[2023] ZAECQBHC 31
Parties
Applicant: Craig Antonio Lazarus; Applicant: Rosemary Virginia Lazarus; Respondent: ABSA Bank Limited
Court
Eastern Cape High Court, Gqeberha
Jurisdiction
South Africa
Judgment Date
30 May 2023
Case Number
676/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Merits
Outcome
Application for leave to appeal dismissed with costs.
Judges
O H Ronaasen
Legal Topics
Leave to Appeal, Mortgage Loan Agreement, Indebtedness, Costs Award
Civil Procedure Banking and Finance Leave to Appeal Mortgage Loan Agreement Indebtedness Costs Award

Case Brief

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Parties

Craig Antonio Lazarus

Applicant

Rosemary Virginia Lazarus

Applicant

ABSA Bank Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment on Merits

Legal Issues

  1. 1 Whether the defendants have shown reasonable prospects of success for leave to appeal against the judgment granted in favour of the plaintiff.
  2. 2 Whether the defendants were indebted to the plaintiff under the mortgage loan agreement.
  3. 3 Whether there is any compelling reason for the appeal to be heard.

Ratio Decidendi

The application for leave to appeal was dismissed because the applicants failed to demonstrate any reasonable prospect of success. The objective documentary evidence, including the signed mortgage loan agreement, executed debit order, and regular statements from the plaintiff, unequivocally established the applicants' indebtedness to ABSA Bank Limited. The applicants did not challenge the quantum of the claim, only the identity of the creditor, which was refuted by the evidence. There was no other compelling reason for the appeal to be heard, and the defence advanced was found to be disingenuous and unsupported by the facts.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs, such costs to be taxed or agreed on the scale as between attorney and own client, as agreed by the parties.