Mafoko and Another v VBS Mutual Bank (In Liquidation) (2021/34634) [2023] ZAGPJHC 536 (29 May 2023)

Mafoko and Another v VBS Mutual Bank (In Liquidation) (2021/34634) [2023] ZAGPJHC 536 (29 May 2023)

The court found that the applicants failed to demonstrate a reasonable prospect of success on appeal. The main judgment had comprehensively addressed all complaints raised, including the sufficiency of the founding affidavit, the treatment of new matter in the replying affidavit, and the establishment of the quantum of indebtedness. The applicants did not effectively challenge the principal debtor's liability or the supporting documentation. The court noted that the applicants did not seek to cure any alleged prejudice by requesting a postponement or leave to file a supplementary affidavit. However, compelling reasons were advanced for clarification by a superior court on specific legal...

Citation
[2023] ZAGPJHC 536
Parties
Applicant: Itumeleng Mafoko; Applicant: Mabuyi Rowena Memela; Respondent: VBS Mutual Bank (In Liquidation)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 May 2023
Case Number
2021/34634
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment and Order Handed Down on 9 February 2023
Outcome
Leave to appeal to the Supreme Court of Appeal is granted. Costs of the application for leave to appeal are costs in the cause of the appeal.
Judges
Maier-Frawley
Legal Topics
Suretyship Enforcement, Leave to Appeal Threshold, Audi Alteram Partem, Hearsay Evidence, Contractual Liability
Civil Procedure Banking and Finance Suretyship Enforcement Leave to Appeal Threshold Audi Alteram Partem Hearsay Evidence Contractual Liability

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Parties

Itumeleng Mafoko

Applicant

Mabuyi Rowena Memela

Applicant

VBS Mutual Bank (In Liquidation)

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Judgment and Order Handed Down on 9 February 2023

Legal Issues

  1. 1 Whether the appeal would have a reasonable prospect of success or if there are compelling reasons for leave to appeal to be granted.
  2. 2 Whether the lack of objection in the answering affidavit cures alleged defects in the founding papers and reliance on hearsay evidence.
  3. 3 Whether the court erred by considering new matter raised in the replying affidavit and by granting condonation for its late filing without affording the sureties an opportunity to respond.

Ratio Decidendi

The court found that the applicants failed to demonstrate a reasonable prospect of success on appeal. The main judgment had comprehensively addressed all complaints raised, including the sufficiency of the founding affidavit, the treatment of new matter in the replying affidavit, and the establishment of the quantum of indebtedness. The applicants did not effectively challenge the principal debtor's liability or the supporting documentation. The court noted that the applicants did not seek to cure any alleged prejudice by requesting a postponement or leave to file a supplementary affidavit. However, compelling reasons were advanced for clarification by a superior court on specific legal...

Court Disposition

Leave to appeal to the Supreme Court of Appeal is granted. Costs of the application for leave to appeal are costs in the cause of the appeal.

Orders

  • Leave to appeal to the Supreme Court of Appeal is granted.
  • The costs of the application for leave to appeal are costs in the cause of the appeal.