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2023
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[2023] ZAGPJHC 240
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Sussman v Nedbank Ltd (30501/2020) [2023] ZAGPJHC 240 (15 March 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
no: 30501/2020
In
the application of:
ROSLYN
SUSSMAN
Applicant
and
NEDBANK
LTD
Respondent
In
re:
NEDBANK
LTD
Plaintiff
and
ROSLYN
SUSSMAN
Defendant
JUDGMENT
TURNER
AJ:
1.
In this matter the defendant, Ms Sussman,
applied in terms of Rule 30 to strike out the plaintiff's (Nedbank’s)
application
for summary judgment on grounds that the Nedbank
application had been delivered late.
2.
The lateness was two hours and 45 minutes
and Nedbank has now applied for condonation for the late filing.
3.
At the hearing of the matter today on 15
March 2023, Ms Sussman was not present and not represented.
4.
I have considered the papers in this matter
and the heads of argument submitted by both parties, and I am
satisfied that Nedbank
has discharged its onus to obtain condonation,
and so I am prepared to grant condonation for the late delivery of
the summary judgment
application.
5.
Having done so, I it is appropriate for me
to dismiss the application to strike out in terms of Rule 30. As a
result the Summary
Judgment application is confirmed as being
competent and Nedbank may proceed to pursue the Summary Judgment
procedure.
6.
I note, however, and as was conceded
by Ms Oschman for Nedbank that the Rule 30 notice itself was not
unjustified, and consequently
Ms Sussman cannot be criticized for
having delivered that notice. However, pursuing the application in
the face of the condonation
explanation does not appear to me to be
reasonable.
7.
Nedbank has, in its answering affidavit to
the Rule 30 application, counterclaimed for relief under headings
Claim A, which is for
condonation, and Claim B, which is for an
interim interdict pending the finalization of the main matter.
8.
I have considered the grounds relied upon
by Nedbank, the defences put up by Ms Sussman, and the arguments by
both parties. In my
view Nedbank has established a
prima
facie
right as well as the other
grounds for an interdict. It is consequently entitled to the
protection sought pending the finalization
of the dispute.
9.
In the circumstances I grant the following
order:
9.1 The late delivery and
non-compliance with Rule 6 in the service of the application for
summary judgment is condoned;
9.2 Pending the
finalization of the dispute under case no: 2020/3051 between the
plaintiff and the defendant:
9.2.1 the defendant is directed
to forthwith deliver into the possession of the Sheriff the motor
vehicle described in the
papers, being a 2020 Toyota Hilux 2.8 GD-6,
RB Raider P/U D/C, with engine number [....] and chassis number
[....] (the motor vehicle);
9.2.2 the Sheriff is hereby
forthwith authorized to take possession of the motor vehicle;
9.2.3 Thereafter the Sheriff
shall return the motor vehicle to the plaintiff, who shall:
9.2.3.1 store the
motor vehicle at a place of its choosing; and
9.2.3.2 not use the
motor vehicle or permit that it be used;
9.3 Cost of the opposed
application are payable by the defendant on a party and party scale.
TURNER
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION OF THE HIGH COURT,
JOHANNESBURG
COUNSEL FOR PLAINTIFF/RESPONDENT:
I OSCHMAN
COUNSEL FOR DEFENDANT/APPLICANT:
NO APPEARANCE
DATE HEARD:
15 MARCH 2023
DATE OF JUDGMENT:
15 MARCH 2023