Monama and Another v Nedbank Limited (41092/16) [2020] ZAGPPHC 263 (3 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED

CASE NO: 41092/16

In the matter between:

LLENGA PAULOS MONAMA

FIRST APPLICANT

ANNA MAPULA MONAMA

SECOND APPLICANT

and

NEDBANK LIMITED

RESPONDENT

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

COLLIS J:

INTRODUCTION

[1] In the present application, the first and second applicants are seeking leave to appeal the judgment of this court handed down on 14 October 2016.[1]

[2] The application is premised on the grounds as listed in the Application for Leave to Appeal dated 5 May 2017. The application for leave to appeal having been brought out of time, the applicants also sought condonation for the delay which was unopposed. At the commencement of the hearing the court granted condonation for the delay caused by the applicants.

LEGAL PRINCIPLES

[3] Section 17 of the Superior Court's Act provides as follows:[2]

(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b) the decision sought to appeal does not fall within the ambit of section 16(2)(a);

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

[4] The applicants and the respondent on request by this court filed written Heads of Argument in order to facilitate the virtual hearing of the matter.

APPLICANTS' SUBMISSIONS

[5] Counsel for the applicants contended that leave to appeal should be granted in that the appeal would have a reasonable prospect of success. In essence the grounds advanced by the applicants in seeking leave to appeal is that by virtue of annexure "LPM2" annexed to their affidavit resisting summary judgment, they disputed particular entries relating to legal costs on their account held with the respondent. Furthermore, that this response constituted a written notice of dispute as envisioned in section 111 of the National Credit Act ('NCA'), and that the respondent had failed to reply to this section 111 notice. Consequently, so they contend, the respondent was not entitled to proceed with seeking summary judgment as these proceedings qualified as "enforcement proceedings" for the purposes of section 111(2)( b), which is prohibited. Having taken this step, they argued that the court a quo erred by entering judgment against them; instead the court should have been granted leave to defend.

RESPONDENT'S SUBMISSIONS

[6] On behalf of the respondent, counsel had argued that the notice in terms of section 111 of the National Credit Act was sent to the respondent's attorney on 2 June 2016, wherein the applicants had raised certain issues relating to legal fees debited to their account. This is the same day that the summons was served on them. The notice was sent outside of the period of ten (10) business

days after the delivery of the section 129 notice, provided for in section 130 of the NCA. In addition to this, counsel had argued that the said notice did not constitute a reply as envisaged in the provisions of section 129 of the NCA. As a consequence, the

respondent was correct in electing not to respond to the said notice. This is the same reasoning employed by the court a quo when entering judgment against the applicants. In addition to this, the applicants having admitted that they had fallen into arrears with their account and having last made a payment on their home loan account, on 8 August 2014, was indicative of a failure on their part of a defence to the respondents claim. As to their challenge mounted against the legal fees charged, counsel had further argued that they were not without recourse and remained at liberty to challenge such costs, at taxation stage, where they would receive notice to attend and participate. It is on this basis that it was contended on behalf of the respondent that there exists no reasonable prospect of success on appeal.

[6] Now it appears the main thrust of the arguments advanced by the applicants is that provisions of section 111(2) (b) prohibited the respondent from beginning with enforcement proceedings and as they see it, this prevented the respondent from applying for summary judgment. This argument, I however cannot find favour with for the following reasons:

6.1 Enforcement proceedings is provided for under Chapter 6 of the National Credit Act. and the provisions of section 129 and section 130 resort under this Chapter.

6.2 Furthermore, as soon as the section 129 notice is dispatched and the time period set out in section 130 (or any extended period agreed upon) has expired, a creditor in terms of the NCA would be entitled to commence proceedings by issuing of summons.

6.3 As a result the argument cannot hold water that enforcement proceedings only began with the launching of the application for summary judgment. Quite to the contrary, it had already commenced, with the issuing of summons.

[7] Therefore, having considered the arguments presented before this court, including the cases made reference to, I am not persuaded that the appeal would have a reasonable prospect of success.

ORDER

[8] Consequently I make the following order:

8.1 The applicants are granted condonation for the late filing of the application for leave to appeal; and

8.2 the application for leave to appeal is dismissed, with costs.

C. J. COLLIS

JUDGE OF THE HIGH COURT

GAUTENG DIVISION PRETORIA

APPEARANCES:

FOR DEFENDANTS/APPLICANTS: ADV.H.J. VAN DER MERWE

INSTRUCTED BY:

B.M MUDZULI ATTORNEYS

FOR PLAINTIFF/RESPONDENT: ADV. A.P. ELLIS

INSTRUCTED BY:

BEZUIDENHOUT VANZYL

& ASSOCIATES INC.

DATE OF HEARING:

29 MAY 2020

DATE OF JUDGMENT:

03 JUNE 2020

Judgment electronically transmitted.

[1] Judgment Maluleke J delivered 14 October 2016

[2] Act 10 of 2013