Mtshaulana v Nedbank Ltd (19772/2015) [2017] ZAGPPHC 591 (6 September 2017)
- Citation
- [2017] ZAGPPHC 591
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- AC Basson
- Case number
- 19772/2015
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- AC Basson
- Case number
- 19772/2015
On this page
Professional case brief
Research organized from the available case record
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 LebetheNedbank Ltd
Respondent Counsel: Adv.03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application
04
Questions and positions
Legal issues
- 01
Whether the applicant has reasonable prospects of success on appeal against the dismissal of the rescission application.
- 02
Whether the section 129 notice and summons were properly served on the applicant.
- 03
Whether the court correctly condoned the late filing of the respondent's answering affidavit.
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
Legal principles
- 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.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
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
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