Van Rhyn v Kwenda (9362/2009) [2010] ZAWCHC 125 (2 June 2010)

Van Rhyn v Kwenda (9362/2009) [2010] ZAWCHC 125 (2 June 2010)

The court found that, although the applicant's reasons for non-compliance with the rules were unsatisfactory, she should not be penalized for her attorneys' delay. The applicant provided an arguable defence regarding the interpretation of the contract and the appointment and termination of the conveyancer's mandate. The defence was not patently unfounded, and the court exercised its discretion in favour of the applicant, granting condonation and uplifting the bar. The applicant was ordered to pay the costs of the application, while the costs of opposition would be costs in the main action.

Citation
[2010] ZAWCHC 125
Parties
Applicant: Rosa Susanna van Rhyn; Respondent: ABSA Bank Beperk; Respondent: Ephraim Kwenda
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
2 June 2010
Case Number
9362/2009
Procedural Posture
Urgent Application / Application for Condonation and Upliftment of Bar Under Rule 27
Outcome
Application granted; bar uplifted; applicant to pay costs of application; costs of opposition to be costs in the main action.
Judges
K J Klopper
Legal Topics
Condonation of Non Compliance, Upliftment of Bar, Written Sale Agreement, Transfer of Property, Agency of Conveyancer
Civil Procedure Land and Property Condonation of Non Compliance Upliftment of Bar Written Sale Agreement Transfer of Property Agency of Conveyancer

Case Brief

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Parties

Rosa Susanna van Rhyn

Applicant

ABSA Bank Beperk

Respondent

Ephraim Kwenda

Respondent

Procedural Posture

Urgent Application / Application for Condonation and Upliftment of Bar Under Rule 27

Legal Issues

  1. 1 Whether the applicant has shown sufficient cause for condonation of late filing and upliftment of bar.
  2. 2 Whether the applicant has a bona fide defence to the respondent's claim regarding the property transfer.
  3. 3 Whether the applicant's reasons for non-compliance with the rules are satisfactory.

Ratio Decidendi

The court found that, although the applicant's reasons for non-compliance with the rules were unsatisfactory, she should not be penalized for her attorneys' delay. The applicant provided an arguable defence regarding the interpretation of the contract and the appointment and termination of the conveyancer's mandate. The defence was not patently unfounded, and the court exercised its discretion in favour of the applicant, granting condonation and uplifting the bar. The applicant was ordered to pay the costs of the application, while the costs of opposition would be costs in the main action.

Court Disposition

Application granted; bar uplifted; applicant to pay costs of application; costs of opposition to be costs in the main action.

Orders

  • The application succeeds and the bar on the filing and service of the applicant's plea is uplifted.
  • The applicant is ordered to serve and file her plea on or before Tuesday, 15 June 2010.