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South Africa Ruling

South Gauteng High Court, Johannesburg

Malefane v Nedbank (2019/41530) [2022] ZAGPJHC 196 (25 March 2022)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court found that the applicant raised a legitimate concern regarding the procedural regularity of the Registrar's actions in granting default judgment after previously referring the matter to open court. The potential irregularity may have infringed the applicant's right of access to court. Given these circumstances, the court held that there are prospects of success on appeal and granted leave to appeal to the Full Bench of the High Court.

Court disposition

Leave to appeal is granted to the Full Bench of the High Court of South Africa, Gauteng Local Division.

Orders

  • Leave to appeal is granted to the Full Bench of the High Court of South Africa, Gauteng Local Division.
  • The costs of the application for leave to appeal will be costs in the appeal.

02

Material facts

Parties

Nqhanasana Sivuyile Malefane

Applicant

Nedbank

Respondent Counsel: Adv B Brammer

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission of Judgment.

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contends that the Registrar erroneously granted default judgment on 12 August 2020 after previously referring the matter to open court on 2 March 2020. He argues this irregularity violated his right of access to court and that the judgment should be rescinded.
Respondent
The respondent maintains that the default judgment was properly granted by the Registrar in accordance with the rules. The respondent asserts that the applicant failed to disclose a bona fide defence and that there is no merit in the application for leave to appeal.

05

Court’s reasoning

  1. 01

    Section 23 of the Superior Courts Act 10 of 2013

    A judgment by default may be granted and entered by the registrar of a division of the High Court in the manner and circumstances prescribed by the rules, and such judgment is deemed to be a judgment of that division.

  2. 02

    Rule 31(5) of the Uniform Rules of Court

    Registrars consider applications for default judgment in the first instance, relieving Judges of the burden of dealing with all default judgment applications.

  3. 03

    ERASMUS Superior Court Practice, Volume 2

    Where an earlier order has been granted by a Registrar regarding the same application, the reconsideration of a default judgment application must be scrutinized for procedural regularity.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant raised a legitimate concern regarding the procedural regularity of the Registrar's actions in granting default judgment after previously referring the matter to open court. The potential irregularity may have infringed the applicant's right of access to court. Given these circumstances, the court held that there are prospects of success on appeal and granted leave to appeal to the Full Bench of the High Court.

Obiter and limits

  • The electronic delivery of this judgment is deemed effective at 10h00 on 25 March 2022.
  • The costs of the application for leave to appeal will be costs in the appeal.

Court disposition

Leave to appeal is granted to the Full Bench of the High Court of South Africa, Gauteng Local Division.

  • Leave to appeal is granted to the Full Bench of the High Court of South Africa, Gauteng Local Division.
  • The costs of the application for leave to appeal will be costs in the appeal.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment text

The complete available source text.

Source document

South Gauteng High Court, Johannesburg

Ruling

[2022] ZAGPJHC 196

REPUBLIC OF SOUTH

AFRICA

IN THE HIGH COURT OF

SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2019/41530

REPORTABLE:

NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: NO

25/03/2022

In the matter between:

NQHANASANA SIVUYILE

MALEFANE

APPLICANT

and

NEDBANK

RESPONDENT

JUDGMENT ON LEAVE TO

APPEAL

FLATELA AJ

Introduction

[1] This is an application for leave to appeal against my judgement delivered on 23 December 2021 wherein I dismissed the applicant’s rescission of judgement application with costs on the basis that he failed to disclose a bona fide defence to the applicant’s claim.

[2] The main ground of appeal against my judgement is that I erred in not considering that the default judgement of 12 August 2020 obtained by the respondent was erroneously obtained and granted by the Registrar. The Registrar had earlier considered the same default of judgement application on 2 March 2020 and granted an “order “in terms of Rule 35 (1) (b) (v) that stipulated that the matter must be referred to open court. This irregularity has violated his right to access to court.

[3] I am of the opinion that the applicant has prospects of success on appeal.

[4] Section 23 of the Superior Courts Act 10 of 2013 provides that a judgement by default may be granted and entered by the registrar of a division of the High Court in a manner and in the circumstances prescribed by the rules, and that a judgement so entered is deemed to be a judgement of court of that division.[1]

[5] Subrule 31(5) deals with judgments by default by Registrars. They consider the applications for default judgment in the first instance, relieving the Judges of the burden of dealing with all the default judgements applications.

[6] The question that must be considered on appeal is whether the Registrar/s can reconsider an application for default judgement where there was an earlier order that was granted by the same or the other Registrar regarding the same application.

ORDER

[7] In the circumstance the following order is granted.

1. Leave to appeal is granted to the Full Bench of the High Court of South Africa Gauteng Local Division.

2. The costs of the application for leave to appeal will be the costs in the appeal.

FLATELA

LULEKA

ACTING

JUDGE OF THE HIGH COURT

This Judgment was handed down electronically by circulation to the parties’ and or parties representatives by email and by being uploaded to CaseLines. The date and time for the hand down is deemed to be 10h00 on 25 March 2022

Date of Hearing :

18 March 2022

Date of Judgment: :

25 March 2022

Applicant:

: In person

Email

: malefane.n.s@gmail.com

Cell

: 071 719 5218

Respondent’s Counsel: Adv B Brammer

Instructed by: Victor and Partners (011 831 0000 / melissa@victorandpartners.co.za )

[1] ERASMUS Superior Court Practise , Volume 2

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Superior Courts Act 10 of 2013

Legislation

Legislation referenced in the available case record.

Uniform Rules of Court

Legislation

Legislation referenced in the available case record.

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