Smith and Others v Sasfin Bank Limited and Another (Leave to Appeal) (25458/21) [2024] ZAGPPHC 34 (25 January 2024)
- Citation
- [2024] ZAGPPHC 34
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Omphemetse Mooki
- Case number
- 25458/21
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Omphemetse Mooki
- Case number
- 25458/21
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicants failed to substantiate their claims regarding lack of knowledge of the proceedings and did not provide confirmation from their previous attorneys or evidence that communications were not received. The delay in bringing the application was considered extreme and unjustified, irrespective of the legal basis advanced. The applicants did not meet the requirements for rescission under common law or the relevant rules, nor did they demonstrate a bona fide defence. The court concluded that there was no reasonable prospect that another court would reach a different conclusion, and therefore, leave to appeal was refused.
Court disposition
Leave to appeal is refused. The application is dismissed with costs.
Orders
- The application for leave to appeal is dismissed.
- The applicants are ordered to pay the costs of the first respondent, jointly and severally, the one paying to be absolved.
02
Material facts
Parties
Deon Smith
Applicant Counsel: J. H. SullivanEllen Louise Smith
Applicant Counsel: J. H. SullivanNadelei CC
Applicant Counsel: J. H. SullivanSasfin Bank Limited
Respondent Counsel: E. FasserSunlyn (Pty) Ltd
Respondent03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Refusal of Rescission of Default Judgment
04
Questions and positions
Legal issues
- 01
Whether the applicants had knowledge of the proceedings leading to the default judgments against them.
- 02
Whether the manner in which the default judgments were granted was procedurally correct.
- 03
Whether the court erred in its approach to the requirement for disclosure of a bona fide defence.
- 04
Whether the applicants met the requirements for rescission under common law and relevant rules.
- 05
Whether the delay in bringing the application precluded relief.
Party arguments
- Applicant
- The applicants argued that they were unaware of the proceedings resulting in the default judgments. They contended that the judgments were granted in a manner inconsistent with procedural fairness. They asserted that the court imposed an unduly onerous standard regarding the disclosure of a bona fide defence and that they satisfied the requirements for rescission under common law. They further submitted that the delay in bringing the application should not be fatal, regardless of whether the application was based on Rule 31(2)(b), Rule 42, or common law.
- Respondent
- The first respondent maintained that the applicants failed to substantiate their claims, including the assertion that the master sale agreement was intended as a different instrument. The respondent pointed out the absence of confirmation from the applicants' previous attorneys and argued that there was no evidence that communications were not received. The respondent further submitted that the delay in bringing the application was extreme and that the applicants failed to meet the stringent requirements for leave to appeal, as no reasonable prospect existed for a different outcome on appeal.
05
Court’s reasoning
Legal principles
- 01
Common law; Rule 31(2)(b); Rule 42
An applicant for rescission of judgment must show absence of wilful default, a bona fide defence, and a reasonable explanation for any delay.
- 02
Section 17(1) of the Superior Courts Act 10 of 2013
Leave to appeal will only be granted if there is a reasonable prospect that another court may come to a different conclusion.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicants failed to substantiate their claims regarding lack of knowledge of the proceedings and did not provide confirmation from their previous attorneys or evidence that communications were not received. The delay in bringing the application was considered extreme and unjustified, irrespective of the legal basis advanced. The applicants did not meet the requirements for rescission under common law or the relevant rules, nor did they demonstrate a bona fide defence. The court concluded that there was no reasonable prospect that another court would reach a different conclusion, and therefore, leave to appeal was refused.
Obiter and limits
- The judgment was ready for delivery on 27 October 2023, but it appears the parties were not notified at that time.
Court disposition
Leave to appeal is refused. The application is dismissed with costs.
- The application for leave to appeal is dismissed.
- The applicants are ordered to pay the costs of the first respondent, jointly and severally, the one paying to be absolved.
Source and reliance status
North Gauteng High Court, Pretoria
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Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
Case No: 25458/21
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED. NO
SIGNATURE
DATE: 25 January 2024
In the matter between:
DEON
SMITH
1ST APPLICANT
ELLEN LOUISE SMITH
2ND APPLICANT
NADELEI CC
3RD APPLICANT
and
SASFIN BANK
LIMITED
1ST RESPONDENT
SUNLYN (PTY)
LTD
2NDRESPONDENT
JUDGEMENT –
APPLICATION FOR LEAVE TO APPEAL
MOOKI J
1 The applicants sought leave to rescind default judgements against them at the instance of the first respondent. The application was refused. They now seek leave to appeal.
2 The grounds of appeal are essentially that:
The court ought to have found that the applicants did not have knowledge of the proceedings leading to judgement being made
against them.
2.2 The way the two default judgements were given.
2.3 The court went beyond what is required regarding the requirement for disclosure of a bona fide defence.
2.4 The applicants met the requirements for rescission in terms of the common law, and that the court did not take this into account.
3
The applicants failed to substantiate several averments in their application. For example, the absence of confirmation that the master sale agreement was intended to be a different instrument. There was no confirmation by their erstwhile
attorneys. There is no suggestion that various communication addressed to them was not made.
4
The delay in bringing the application is extreme and it makes no difference whether the application was premised on Rule 31(2)(b),
Rule 42, or the common law.
5
The plaintiff issued summons against the three defendants. The plaintiff obtained default judgement against each defendant.
The applicants have not shown that the first respondent obtained default judgement other than in terms of the summons.
6
The applicants have not met the stringent requirement for the grant of leave to appeal. They have not shown that the facts and the law are such that a court of appeal could reasonably arrive at a conclusion different to that of this court.
7
The judgement was ready for delivery on 27 October 2023. It appears that the parties were not notified at the time.
8
I make the following order:
8.1 The application is dismissed.
8.2 The applicants are ordered to pay the costs of the first respondent, jointly and severally, the one paying to be absolved.
Omphemetse Mooki
Judge of the High Court
Heard on: 10 October 2023 Delivered on: 25 January 2024 For the Applicants: J. H. Sullivan Instructed by: Waldick Jansen van Rensburg Inc. For the first Respondent: E. Fasser Instructed by: Wright Rose Innes Inc.
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