South Africa Judgment

North Gauteng High Court, Pretoria

Mtshaulana v Nedbank Ltd (19772/2015) [2017] ZAGPPHC 591 (6 September 2017)

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Source document

01

Holding and result

The court found that the applicant failed to demonstrate any merit in the grounds for leave to appeal. It was conceded that both the section 129 notice and the summons were served at the correct address, and the applicant resided at the mortgaged property. No facts were presented to explain why the documents did not come to the applicant's attention. The court also held that the explanation for the late filing of the respondent's answering affidavit was reasonable and condonation was properly granted. There were no reasonable prospects that another court would reach a different conclusion regarding either the merits or the costs order.

Court disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.

02

Material facts

Parties

NM Mtshaulana

Applicant Counsel: Mr Lebethe

Nedbank Ltd

Respondent Counsel: Adv.

03

Procedural history

  1. Posture

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

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contended that the section 129 notice and summons did not come to his attention and challenged the court's decision to condone the late filing of the respondent's answering affidavit. He argued that these procedural irregularities warranted the rescission of the judgment and justified leave to appeal.
Respondent
The respondent maintained that the section 129 notice was sent to the correct address as confirmed by tract and trace reports, and that the summons was served at the applicant's domicilium address as per the loan agreement. The respondent argued that the applicant had not provided any facts explaining why the documents did not come to his knowledge and that the explanation for condonation was reasonable and properly accepted by the court.

05

Court’s reasoning

  1. 01

    General principles of condonation in South African civil procedure

    A party seeking condonation must provide a reasonable explanation for the delay, and the court has discretion to grant condonation if satisfied with the explanation.

  2. 02

    Loan agreement; section 129 of the National Credit Act

    Proper service of legal documents at the domicilium address as agreed in the contract satisfies the requirements for service.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant failed to demonstrate any merit in the grounds for leave to appeal. It was conceded that both the section 129 notice and the summons were served at the correct address, and the applicant resided at the mortgaged property. No facts were presented to explain why the documents did not come to the applicant's attention. The court also held that the explanation for the late filing of the respondent's answering affidavit was reasonable and condonation was properly granted. There were no reasonable prospects that another court would reach a different conclusion regarding either the merits or the costs order.

Obiter and limits

  • The court reiterated that condonation is not granted as a matter of course and requires a proper and reasonable explanation for the delay.
  • The court noted that service at the domicilium address is sufficient unless compelling evidence to the contrary is presented.

Court disposition

Application for leave to appeal dismissed with costs.

  • The application for leave to appeal is dismissed with costs.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment text

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Source document

North Gauteng High Court, Pretoria

Judgment

[2017] ZAGPPHC 591

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: 19772/2015

DATE: 06/09/2017

REPORTABLE:

NO

OF INTEREST TO OTHER JUDGES: NO

In the matter between:

NM MTSHAULANA Applicant

(In the application for leave to appeal)

and

NEDBANKLTD

Respondent

JUDGMENT

AC BASSON, J

[1] This is an application for leave to appeal against my ex tempore judgment dated 17 October 2016 in terms of which an application to rescind was dismissed.

[2] The applicant's grounds for leave to appeal against the judgment are set out in the application for leave to appeal. I do not intend repeating all these grounds. Suffice to point out that I have considered all of these grounds as well as the submissions made in court on behalf of both parties.

[3] I am not persuaded that there is any merit in any of the grounds raised. More in particular, it was conceded by counsel on behalf of the applicant when the rescission application was argued, that the section 129 notice was sent to the correct address as reflected by the tract and trace reports. Counsel also conceded that the summons was served at the correct address (the domicilium as per the loan agreement) and that the applicant in fact resided at the time at the mortgaged property. No facts were placed before the court as to why the section 129 notice and the summons did not come to the knowledge of the applicant.

[4] The applicant also took issue with this court's decision condoning the late filing of the respondent's answering affidavit. There is no merit in this ground. A party seeking condonation must make out a case entitling it to the court's indulgence. A party should give a proper explanation for the delay which explanation must be reasonable. The explanation tendered by the applicant (in the application for condonation) was accepted and condonation was granted.

[5] Having regard to the papers, the transcript of the proceedings and the judgment, I am of the view there are no reasonable prospects that another court would come to a different decision in respect of the conclusions reached by this court.

[6] In respect of the cost order I am likewise of the view that there are no prospects of success that another court would come to a different conclusion.

Order

In the event the application for leave to appeal is dismissed with costs.

_____

AC

BASSON

JUDGE

OF THE HIGH COURT

Appearances:

On behalf of the applicant:

Mr Lebethe

David Lebethe & Associates

On behalf of the respondent:

Adv.

Instructed by: Van der Merwe Du Toit Inc

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

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

National Credit Act, 34 of 2005

Legislation

Legislation referenced in the available case record.

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