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2023
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[2023] ZAECQBHC 31
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Lazarus and Another v ABSA Bank Limited - Leave to Appeal (676/2017) [2023] ZAECQBHC 31 (30 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
Case
No.: 676/2017
Date
Heard: 26 May 2023
Date
Delivered: 30 May 2023
In
the matter between:
CRAIG
ANTONIO LAZARUS
First
Applicant/Defendant
ROSEMARY
VIRGINIA LAZARUS
Second
Applicant/Defendant
And
ABSA
BANK LIMITED
Respondent/Plaintiff
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
RONAASEN
AJ:
Introduction
[1]
On
13 December 2022 I gave judgment in favour of the plaintiff against
the defendants, jointly and severally, the one paying the
other to be
absolved, for:
1.1.
payment of the sum of R168 700.96;
1.2.
payment of interest on this sum at the rate
of 7.45% per annum, calculated daily on the outstanding balance and
capitalised mostly
in arrears from 12 May 2022 to date of payment,
both days included; and
1.3.
costs, on the scale as between attorney and
own client, that being the scale on which the parties had agreed.
[2]
The
defendants have applied for leave to appeal against what they
describe as my “
unfair and
prejudice
[sic]
judgment
”.
The notice of application for leave to appeal is a poorly drafted
document and is rather in the form of an affidavit.
As the
defendants are unrepresented, I shall assume in their favour that
they seek leave to appeal against the order I made on
13 December
2022.
[3]
This
judgment, which is directed at the application for leave to appeal,
must be read in conjunction with my judgment handed down
on 13
December 2022.
The grounds on which the
defendants seek leave to appeal
[4]
As
stated, the defendants’ notice seeking leave to appeal does not
cogently set out the grounds on which they seek such leave.
Essentially the document is a repeat of the “defence”
equally poorly set out in their amended plea.
[5]
In
the notice of application for leave to appeal it is contended that I
erred in finding that the defendants had contracted with
the
plaintiff. At the trial this was the mainstay of their defence
that they were not indebted to the plaintiff.
Discussion
[6]
The
only evidence adduced at the trial by the defendants was that of the
second defendant, who was adamant that there indebtedness
was not to
the plaintiff but rather to an entity known as Milnex. She,
however, readily conceded in cross-examination that
she and the first
defendant had:
6.1.
signed the mortgage loan agreement on which
the plaintiff relied at the trial and that this document, in large
bold letters, identified
the plaintiff as the entity advancing them a
loan; and
6.2.
executed a debit order on their bank
account, in favour of the plaintiff and that all the payments they
made in reduction of the
loan amount they had received, had been made
to the plaintiff over a period of eight years; and
6.3.
received regular statements from the
plaintiff, which they did not query.
[7]
The
defendants did not challenge the amount being claimed from them by
the plaintiff, but only disputed that the plaintiff was their
creditor. The disingenuity of this “defence” was
confirmed by the objective documentary evidence, particularly
the
loan agreement referred to above, which in clear and unambiguous
terms identified the plaintiff as their creditor, as did the
regular
statements they received. Furthermore, one could ask for no
clearer indication that the plaintiff was their creditor
than their
conduct in executing a debit order in favour of the plaintiff and
paying the plaintiff for eight years in reduction
of the loan amount.
[8]
It
is difficult to discern how another court would view this objective
and unchallenged evidence differently.
Conclusion
[9]
In
terms of
section 17(1)
of the
Superior Courts Act, 10 of 2013
I may
only give leave to appeal in circumstances where the appeal would
have a reasonable prospect of success or there is some
other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.
[10]
In
view of the clear and unchallenged objective evidence which confirms
the indebtedness of the defendants to the plaintiff an appeal
would
not have a reasonable prospect of success. There is no other
compelling reason why the appeal should be heard.
Order
[11]
Thus,
the application for leave to appeal is dismissed with costs, such
costs to be taxed or agreed on the scale as between attorney
and own
client, that being the scale agreed by the parties.
O
H RONAASEN
ACTING
JUDGE OF THE HIGH COURT
The
parties were represented as follows:
First
Applicant/Defendant:
Mr
CA Lazarus in person
Second
Applicant/Defendant:
Mrs
RV Lazarus in person
For
Respondent:
Adv
P Marais
Instructed
by:
McWilliams
& Elliot Inc.