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[2010] ZAGPPHC 84
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Dhlamini v Nedbank Limited and Others (33047/2008) [2010] ZAGPPHC 84 (30 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
No. 33047/2008
DATE:
30/07/2010
SYDNEY
MUDLAZAKHE DHLAMINI Applicant
and
NEDBANK
LIMITED First Respondent
LOUIS
MALAPO Second Respondent
HARVEY
NORTJE Third Respondent
SHERIFF
OF THE HIGH COURT, WITBANK Fourth Respondent
REGISTRAR
OF DEEDS Fifth Respondent
JUDGMENT
: APPLICATION FOR LEAVE TO APPEAL
Van
der Byl, AJ
[1]
In this matter I on 2 June 2010 delivered judgment in which I
dismissed with costs an application by the Applicant launched
on 19
May 2010 for the rescission and setting aside of a judgment granted
by default by the Registrar under Case No. 23047/08 on
19 September
2008.
[2]
The Applicant now seeks leave to appeal against my judgment and order
dismissing the Applicant's application.
[3]
In the Applicant's Notice of Applicant's Application for Leave to
Appeal ("the Notice") it is contended that I erred
or
misdirected myself -
(a)
in dismissing the Applicant's application, notwithstanding the
Applicant having disclosed a bona fide defence and having given
a
reasonable explanation for its failure to enter an appearance to
enter an appearance to defend;
(b)
in not mero motu setting aside the default judgment granted in view
of there having been defective improper service of the summons
of the
summons commencing action, notices and letters to the Applicant;
©
in failing to find that the Respondent willfully used incorrect
addresses which had the effect of notices and letters not
being
brought to the attention of the Applicant;
(d)
in failing to consider the caution expressed by the Sheriff that the
documents were not being properly served;
(e)
in failing to find that it was not just and equitable that the
Applicant's immovable property be sold for an arrear amount of
R1800;
(f)
in failing to properly applying the principles in Jaffa v Schoeman
2005(2) SA 140 (CC)\
(g)
in affirming a sale of the Applicant's home for a trifling debt and
without the Court having regard to all the relevant circumstances;
(h)
in failing to find that the Respondent ought to have called up its
surety with Matla Coal Limited which stood surety for the
indebtedness of the Applicant to the First Respondent.
[4]
It is apparent that in none of these grounds which consist of
contentions that I either erred in having made certain findings
or
that I failed in not making other findings, is a single reason
advanced as to why it is contended that I so erred or so failed.
[5]
In this regard I wish to point out, as I have, referring to various
decisions, indicated in many judgments delivered in this
regard in
various Divisions, that notices in which no reasons are advanced on
which grounds of appeal are based do not comply with
the provisions
of Rule 49 and cannot be accepted as valid notices (See: Tzouras v SA
Wimpy (Pty) Ltd
1978 (3) SA 204
(W) at 205E; S v Maliwa and Others
1986 (3) SA 721
(W) at 726E; Molebatsi v Federated Timbers (Pty) Ltd
1996 (3) SA 92
(B) at 941; and Songomo v Minister of Law and Order
1996 (4) SA 384
(ECD) at 3851)
[6]
In the Songomo case, supra, at 3851 it was, for instance, held
as follows:
"It
seems to me that, by a parity of reasoning, the grounds of appeal
required under Rule 49(1 )(b) must similarly be clearly
and
succinctly set out in clear and unambiguous terms so as to enable the
Court and the respondent to be fully and properly informed
of the
case which the applicant seeks to make out and which the respondent
is to meet in opposing the application for leave to
appeal.".
[7]
In Van der Walt v Abreu 1999(4) SA 85 (W) the learned Judge dealt
with the requirements for a valid notice of appeal in terms
of Rule
51 of the Magistrate's Courts Rules (which in my opinion equally
apply to Rule 49 of the Uniform Rules) at 94E as follows:
"(1)
It must specify the details of what is appealed against (ie the
particular findings of fact and rulings of law that are
to be
criticised on appeal as being wrong); and
(2)
it must also state the grounds of appeal (ie it must indicate why
each finding of fact and ruling of law that is to be to criticised
as
wrong is said to be wrong,......
Only
when both of these requirements have been set out in a notice of
appeal has a valid ground of appeal been disclosed according
to the
language of the Rule. ",
[8]
In my view the Notice filed in this matter falls short of these
requirements and may be considered to be an invalid one.
[9]
In the event of I am being wrong on the validity of the Notice, I
proceed to deal with the question as to whether there are
reasonable
prospects of success on appeal.
[10]
As is apparent from my judgment the matter was approached on the
question as to whether the Applicant has disclosed a bona
fide
defence.
[11]
As is likewise apparent from my judgement it is the Applicant's case
that his account with the First Respondent was, notwithstanding
his
contentions that he arranged with the Mineworkers Provident Fund that
monies due to him be used to pay off his bond, indeed
in arrears in
an amount in excess of R20 000 (I may add that the allegation that
his indebtedness amounted to R47 873, together
with interest of R4
787,30, was not disputed).
[12]
As is also apparent from my judgement the only submissions advanced
in support of the Applicant's application are -
(a)
that, relying on the decision in Jaftha v Schoeman; Van Rooyen v
Stoltz
[2004] ZACC 25
;
2005 (2) SA 140
(CC), the property was sold when a minuscule
amount of approximately R3 000 was in arrears without taking into
consideration the
Applicant's personal circumstances;
(b)
that the First Respondent sold the property instead of acting against
Matla Coal Ltd which stood surety for the Applicant's
indebtedness.
[13]
For the reasons set out in my judgement the facts of this matter are
clearly distinguishable in many respects from the situation
with
which the Constitutional Court was faced in the Jaftha case as was,
incidentally, pointed out by the Constitutional Court
itself at 162E,
para [58] which is, furthermore, confirmed by the Supreme Court of
Appeal in Standard Bank ofSA Ltd v Saunderson
2006 (2) SA 264
(SCA)
at 269B and explicitly held in Nedbank Ltd v Mortinson
[2005] ZAGPHC 85
;
2005 (6) SA
462
(W).
[14]
In relation to the contention that the First Respondent should rather
have acted against the surety, I am not aware of any
principle or
authority and my attention was not directed to any such principle or
authority that a bond holder is in any circumstances
bound to act
against a surety first or at all.
[15]
Mr. Bhamjee who appeared on behalf of the Applicant in this
application, indicating that he does not abandon any of the other
grounds of appeal raised in the Notice, relied mainly on the
contention that I erred in not having mero motu granted the
Applicant's
application in view of there having been defective
improper service of the notices referred to in
sections 129
and
130
of the
National Credit Act, 2005
.
[16]
Although it is contended by the Applicant in his affidavit filed in
support of his Application for rescission of the default
judgment
that he did not receive "any letters from the 1st respondent
stating that (his) account was in arrears or that demand
is made for
payment in terms of the
National Credit Act, this
is an issue not
argued in the proceedings a quo. I fail to see on what basis I should
have approached this issue mero motu, particularly,
where no
allegation of over-indebtedness is made. As a matter of fact it was
the Applicant's case that he did have the money to
pay his
indebtedness, but that his provident fund failed at his request the
money over to the First Respondent.
[17]
It is accordingly clear to me that this ground of appeal is, if not
of a mere technical and unrealistic nature, nothing but
an
afterthought.
[18]
I am according unpersuaded that another Court may come to a
conclusion,
irrespective
the Applicant's explanation for his default of appearance, that the
Applicant disclosed a bona fide defence.
In
the result the application for leave to appeal is dismissed with
costs.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE APPLICANT MR Y BHAMJEE
On
the instructions of ZEHIR OMAR ATTORNEYS
c/o
Friedland Hart Attorneys
Momentum
Office Park
79
Steenbok Avenue
Monument
Park
PRETORIA
Ref: MrZ Omar Tel: (011) 815 1720
ON
BEHALF OF THE FIRST RESPONDENT ADV J H WILDENBOER
On
the instructions of BEZUIDENHOUT VAN ZYL & ASSOCIATES INC
c/o
HENDRIETTE MULLER ATTORNEYS
110B
1st Floor, Infotech Building
1090
Arcadia Street Hatfield PRETORIA
Ref
: Mr G van der Merwe/MAT27083 (011)789 3050
DATE
OF HEARING 27 July 2010
JUDGMENT
DELIVERED ON 30 July 2010