Singh N.O and Others v ABSA Bank Limited (5034/2020P) [2023] ZAKZPHC 74 (28 July 2023)

Singh N.O and Others v ABSA Bank Limited (5034/2020P) [2023] ZAKZPHC 74 (28 July 2023)

The court found that the applicants failed to demonstrate reasonable prospects of success on appeal. The refusal to allow a further answering affidavit was a proper exercise of judicial discretion, as the reason advanced—a change of attorneys—was not compelling. The deeds of suretyship expressly permitted the respondent to release security, and no breach of legal duty or obligation was established. The applicants' defences were considered and rejected in the original judgment. The application for leave to appeal lacked merit and was dismissed with costs.

Citation
[2023] ZAKZPHC 74
Parties
Applicant: Hemanth Rajkumar Singh N.O.; Applicant: Balan Naidoo N.O.; Applicant: Pravesh Rajkumar Singh N.O.; Applicant: Hemnath Rajkumar Singh; Respondent: ABSA Bank Limited
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
28 July 2023
Case Number
5034/2020P
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Merits
Outcome
Application for leave to appeal dismissed with costs.
Judges
Mossop
Legal Topics
Leave to Appeal, Suretyship, Discretionary Affidavit Admission, Prejudice to Surety, Costs Order
Civil Procedure Banking and Finance Leave to Appeal Suretyship Discretionary Affidavit Admission Prejudice to Surety Costs Order

Case Brief

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Parties

Hemanth Rajkumar Singh N.O.

Applicant

Balan Naidoo N.O.

Applicant

Pravesh Rajkumar Singh N.O.

Applicant

Hemnath Rajkumar Singh

Applicant

ABSA Bank Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment on Merits

Legal Issues

  1. 1 Whether the applicants have demonstrated reasonable prospects of success for leave to appeal.
  2. 2 Whether the refusal to allow a further answering affidavit was a proper exercise of judicial discretion.
  3. 3 Whether the applicants, as sureties, were prejudiced by the respondent's conduct in advancing a loan without insisting on a general notarial bond.

Ratio Decidendi

The court found that the applicants failed to demonstrate reasonable prospects of success on appeal. The refusal to allow a further answering affidavit was a proper exercise of judicial discretion, as the reason advanced—a change of attorneys—was not compelling. The deeds of suretyship expressly permitted the respondent to release security, and no breach of legal duty or obligation was established. The applicants' defences were considered and rejected in the original judgment. The application for leave to appeal lacked merit and was dismissed with costs.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

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