Nedbank Limited v Frederick (1483/2011) [2016] ZAGPJHC 236 (24 August 2016)

Nedbank Limited v Frederick (1483/2011) [2016] ZAGPJHC 236 (24 August 2016)

The court held that, although the decision regarding the invalidity of the certificate of balance clause in the suretyship was made obiter and did not dispose of any part of the relief claimed, the interests of justice require that the decision be appealable due to its far-reaching consequences for the applicant. The court accepted that there is a reasonable prospect of success on appeal, particularly given the complexities of interpreting written instruments. The application for condonation was granted as the delay was adequately explained and there was no prejudice to the respondent. Leave to appeal was granted to the full court of the division against the decision in paragraph [19] of...

Citation
[2016] ZAGPJHC 236
Parties
Applicant: Nedbank Limited; Respondent: Joseph Frederick
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 August 2016
Case Number
1483/2011
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Trial Judgment
Outcome
Leave to appeal granted; condonation for late filing granted; no order as to costs.
Judges
WHG van der Linde
Legal Topics
Leave to Appeal, Suretyship Certificate Clause, Appealability, Condonation
Civil Procedure Commercial and Corporate Leave to Appeal Suretyship Certificate Clause Appealability Condonation

Case Brief

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Parties

Nedbank Limited

Applicant

Joseph Frederick

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Trial Judgment

Legal Issues

  1. 1 Whether the decision regarding the invalidity of the certificate of balance clause in the suretyship is appealable.
  2. 2 Whether condonation for the late filing of the application for leave to appeal should be granted.
  3. 3 Whether there is a reasonable prospect of success on appeal regarding the interpretation of clause 6 of the suretyship.

Ratio Decidendi

The court held that, although the decision regarding the invalidity of the certificate of balance clause in the suretyship was made obiter and did not dispose of any part of the relief claimed, the interests of justice require that the decision be appealable due to its far-reaching consequences for the applicant. The court accepted that there is a reasonable prospect of success on appeal, particularly given the complexities of interpreting written instruments. The application for condonation was granted as the delay was adequately explained and there was no prejudice to the respondent. Leave to appeal was granted to the full court of the division against the decision in paragraph [19] of...

Court Disposition

Leave to appeal granted; condonation for late filing granted; no order as to costs.

Orders

  • The application for condonation for the late filing of the application for leave to appeal, dated 17 August 2016, is granted.
  • The applicant is granted leave to appeal to the full court of this division against the decision in paragraph [19] of the judgment of 7 April 2016, in which clause 6 of the suretyship was found invalid and unenforceable.