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[2022] ZAGPJHC 196
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Malefane v Nedbank (2019/41530) [2022] ZAGPJHC 196 (25 March 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 2019/41530
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
25/03/2022
In the matter between:
NQHANASANA SIVUYILE
MALEFANE
APPLICANT
and
NEDBANK
RESPONDENT
JUDGMENT ON LEAVE TO
APPEAL
FLATELA
AJ
Introduction
[1]
This is an application for leave to appeal
against my judgement delivered on 23 December 2021 wherein I
dismissed the applicant’s
rescission of judgement application
with costs on the basis that he failed to disclose
a
bona fide
defence to the applicant’s
claim.
[2]
The main ground of appeal against my judgement
is that I erred in not considering that the default judgement of 12
August 2020 obtained
by the respondent was erroneously obtained and
granted by the Registrar. The Registrar had earlier considered the
same default
of judgement application on 2 March 2020 and granted an
“order “in terms of Rule 35 (1) (b) (v) that stipulated
that
the matter must be referred to open court. This irregularity has
violated his right to access to court.
[3]
I am of the opinion that the applicant has prospects of success on
appeal.
[4]
Section
23
of the
Superior Courts Act 10 of 2013
provides that a judgement by
default may be granted and entered by the registrar of a division of
the High Court in a manner and
in the circumstances prescribed by the
rules, and that a judgement so entered is deemed to be a judgement of
court of that division.
[1]
[5]
Subrule 31(5) deals with judgments by default by Registrars. They
consider the applications
for default judgment in the first instance,
relieving the Judges of the burden of dealing with all the default
judgements applications.
[6]
The question that must be considered on appeal is whether the
Registrar/s can reconsider
an application for default judgement where
there was an earlier order that was granted by the same or the other
Registrar regarding
the same application.
ORDER
[7]
In the circumstance the
following order is granted.
1.
Leave to
appeal is granted to the Full Bench of the High Court of South Africa
Gauteng Local Division.
2.
The costs of
the application for leave to appeal will be the costs in the appeal.
FLATELA
LULEKA
ACTING
JUDGE OF THE HIGH COURT
This
Judgment was handed down electronically by circulation to the
parties’ and or parties representatives by email and by
being
uploaded to CaseLines. The date and time for the hand down is deemed
to be 10h00 on 25 March 2022
Date
of Hearing
:
18 March 2022
Date
of Judgment:
:
25 March 2022
Applicant:
:
In person
Email
:
malefane.n.s@gmail.com
Cell
:
071 719 5218
Respondent’s
Counsel: Adv B Brammer
Instructed
by: Victor and Partners (011 831 0000 /
melissa@victorandpartners.co.za
)
[1]
ERASMUS Superior Court Practise , Volume 2