Nqaba Guarantee SPV (Pty) Ltd and Another v Khayelihle Trust and Another (47603/2017) [2023] ZAGPJHC 1371 (27 November 2023)

Nqaba Guarantee SPV (Pty) Ltd and Another v Khayelihle Trust and Another (47603/2017) [2023] ZAGPJHC 1371 (27 November 2023)

Condonation for late filing was granted as the respondents were not aware of the judgment due to lack of access to CaseLines, and the delay after notification was not significant. However, the application for leave to appeal was dismissed as none of the grounds advanced had merit. There was no evidence of fraudulent...

Source-derived case information.

Citation
[2023] ZAGPJHC 1371
Parties
Applicant: Nqaba Guarantee SPV (Pty) Ltd; Applicant: Eskom Finance Company SOC Ltd; Respondent: Khayelihle Trust; Respondent: Dalingcebo Emmanuel Ngutshane
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
27 November 2023
Case Number
47603/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 29 June 2023.
Outcome
Application for condonation granted; application for leave to appeal dismissed; costs awarded against the trust on attorney and client scale.
Judges
Anthony Bishop
Legal Topics
Leave to Appeal, Condonation for Late Filing, Fraudulent Misrepresentation, Variable Interest Rate, Debt Review Order, Jurisdiction
Civil Procedure Banking and Finance Leave to Appeal Condonation for Late Filing Fraudulent Misrepresentation Variable Interest Rate Debt Review Order Jurisdiction

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Parties

Nqaba Guarantee SPV (Pty) Ltd

Applicant

Eskom Finance Company SOC Ltd

Applicant

Khayelihle Trust

Respondent

Dalingcebo Emmanuel Ngutshane

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 29 June 2023.

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the application for leave to appeal.
  2. 2 Whether the applicants have demonstrated reasonable prospects of success on appeal.
  3. 3 Whether there was fraudulent misrepresentation or non-disclosure by the applicants regarding the loan agreement.

Ratio Decidendi

Condonation for late filing was granted as the respondents were not aware of the judgment due to lack of access to CaseLines, and the delay after notification was not significant. However, the application for leave to appeal was dismissed as none of the grounds advanced had merit. There was no evidence of fraudulent misrepresentation or a duty to disclose legal opinions at the time of contracting. The loan agreement expressly permitted variation of the interest rate, and no requirement existed for an affordability assessment under the National Credit Act in respect of the trust. The debt review order applied only to Mr Ngutshane personally and did not preclude enforcement against the...

Court Disposition

Application for condonation granted; application for leave to appeal dismissed; costs awarded against the trust on attorney and client scale.

Orders

  • The application for condonation brought by the Khayelihle Trust and Mr Dalingcebo Emmanuel Ngutshane is granted.
  • The application for leave to appeal brought by the Khayelihle Trust and Mr Ngutshane is dismissed.