Smith and Others v Sasfin Bank Limited and Another (Leave to Appeal) (25458/21) [2024] ZAGPPHC 34 (25 January 2024)

Smith and Others v Sasfin Bank Limited and Another (Leave to Appeal) (25458/21) [2024] ZAGPPHC 34 (25 January 2024)

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.

Citation
[2024] ZAGPPHC 34
Parties
Applicant: Deon Smith; Applicant: Ellen Louise Smith; Applicant: Nadelei CC; Respondent: Sasfin Bank Limited; Respondent: Sunlyn (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 January 2024
Case Number
25458/21
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Refusal of Rescission of Default Judgment
Outcome
Leave to appeal is refused. The application is dismissed with costs.
Judges
Omphemetse Mooki
Legal Topics
Rescission of Judgment, Default Judgment, Leave to Appeal, Bona Fide Defence, Rule 31 2 B, Rule 42
Civil Procedure Rescission of Judgment Default Judgment Leave to Appeal Bona Fide Defence Rule 31 2 B Rule 42

Case Brief

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Parties

Deon Smith

Applicant

Ellen Louise Smith

Applicant

Nadelei CC

Applicant

Sasfin Bank Limited

Respondent

Sunlyn (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Refusal of Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants had knowledge of the proceedings leading to the default judgments against them.
  2. 2 Whether the manner in which the default judgments were granted was procedurally correct.
  3. 3 Whether the court erred in its approach to the requirement for disclosure of a bona fide defence.

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.

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.