Oliphant v Firstrand Bank Limited In re: Firstrand Bank Limited v Oliphant (3101/2015) [2017] ZAGPPHC 903 (7 December 2017)

Oliphant v Firstrand Bank Limited In re: Firstrand Bank Limited v Oliphant (3101/2015) [2017] ZAGPPHC 903 (7 December 2017)

The application for leave to appeal is dismissed because the applicant failed to demonstrate reasonable prospects of success. The section 129 notice was properly delivered to the applicant's post office address, and the fact that it was collected by a third party does not affect the validity of delivery. The new evidence introduced by the applicant was not before the court at the original hearing and was rejected. The Vosal Investments case is distinguishable on its facts, as the judgment in that case was erroneously granted, transfer had not yet occurred, and the new owner was cited, none of which applies here. Furthermore, the applicant failed to cite the new property owner, making it...

Citation
[2017] ZAGPPHC 903
Parties
Applicant: Unita Mapuleng Nocwaka Oliphant; Respondent: Firstrand Bank Limited; Plaintiff: Firstrand Bank Limited; Defendant: Unita Mapuleng Nocwaka Oliphant
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 December 2017
Case Number
3101/2015
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 16 October 2017.
Outcome
Application for leave to appeal dismissed with costs.
Judges
Motepe
Legal Topics
Leave to Appeal Test, Section 129 Notice, Sale in Execution, Rescission of Judgment
Civil Procedure Land and Property Leave to Appeal Test Section 129 Notice Sale in Execution Rescission of Judgment

Case Brief

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Parties

Unita Mapuleng Nocwaka Oliphant

Applicant

Firstrand Bank Limited

Respondent

Firstrand Bank Limited

Plaintiff

Unita Mapuleng Nocwaka Oliphant

Defendant

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 16 October 2017.

Legal Issues

  1. 1 Whether the applicant has reasonable prospects of success on appeal.
  2. 2 Whether the section 129 notice under the National Credit Act was properly delivered to the applicant.
  3. 3 Whether new evidence introduced by the applicant is admissible at this stage.

Ratio Decidendi

The application for leave to appeal is dismissed because the applicant failed to demonstrate reasonable prospects of success. The section 129 notice was properly delivered to the applicant's post office address, and the fact that it was collected by a third party does not affect the validity of delivery. The new evidence introduced by the applicant was not before the court at the original hearing and was rejected. The Vosal Investments case is distinguishable on its facts, as the judgment in that case was erroneously granted, transfer had not yet occurred, and the new owner was cited, none of which applies here. Furthermore, the applicant failed to cite the new property owner, making it...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The applicant is ordered to pay the costs of the application.