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

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

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.

Citation
[2017] ZAGPPHC 591
Parties
Applicant: NM Mtshaulana; Respondent: Nedbank Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 September 2017
Case Number
19772/2015
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application
Outcome
Application for leave to appeal dismissed with costs.
Judges
AC Basson
Legal Topics
Leave to Appeal, Rescission of Judgment, Condonation, Service of Process
Civil Procedure Leave to Appeal Rescission of Judgment Condonation Service of Process

Case Brief

Summary, issues, holding and outcome

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Parties

NM Mtshaulana

Applicant

Nedbank Ltd

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the applicant has reasonable prospects of success on appeal against the dismissal of the rescission application.
  2. 2 Whether the section 129 notice and summons were properly served on the applicant.
  3. 3 Whether the court correctly condoned the late filing of the respondent's answering affidavit.

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.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

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