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2024
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[2024] ZAGPPHC 34
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Smith and Others v Sasfin Bank Limited and Another (Leave to Appeal) (25458/21) [2024] ZAGPPHC 34 (25 January 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
Case No:
25458/21
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED. NO
SIGNATURE
DATE: 25 January
2024
In the matter between:
DEON
SMITH
1
ST
APPLICANT
ELLEN LOUISE SMITH
2
ND
APPLICANT
NADELEI
CC
3
RD
APPLICANT
and
SASFIN BANK
LIMITED
1
ST
RESPONDENT
SUNLYN (PTY)
LTD
2
ND
RESPONDENT
JUDGEMENT –
APPLICATION FOR LEAVE TO APPEAL
MOOKI J
1
The
applicants sought leave to rescind default judgements against them at
the instance of the first respondent. The application
was
refused. They now seek leave to appeal.
2
The
grounds of appeal are essentially that:
The
court ought to have found that the applicants did not have
knowledge of the proceedings leading to judgement being made
against them.
2.2
The way the two default judgements were given.
2.3
The court went beyond what is required regarding
the requirement for disclosure of a bona fide defence.
2.4
The applicants met the requirements for
rescission in terms of the common law, and that the court did
not
take this into account.
3
The
applicants failed to substantiate several averments in their
application. For example, the absence of confirmation
that
the master sale agreement was intended to be a different
instrument. There was no confirmation by their erstwhile
attorneys. There is no suggestion that various communication
addressed to them was not made.
4
The
delay in bringing the application is extreme and it makes no
difference whether the application was premised on Rule 31(2)(b),
Rule 42, or the common law.
5
The
plaintiff issued summons against the three defendants. The
plaintiff obtained default judgement against each defendant.
The applicants have not shown that the first respondent obtained
default judgement other than in terms of the summons.
6
The
applicants have not met the stringent requirement for the grant of
leave to appeal. They have not shown that the facts
and the
law are such that a court of appeal could reasonably arrive at a
conclusion different to that of this court.
7
The
judgement was ready for delivery on 27 October 2023. It appears
that the parties were not notified at the time.
8
I make
the following order:
8.1
The application is dismissed.
8.2
The applicants are ordered to pay the costs of the first respondent,
jointly and severally, the one paying
to be absolved.
Omphemetse Mooki
Judge of the High Court
Heard on:
10 October 2023
Delivered on:
25 January 2024
For the Applicants:
J. H. Sullivan
Instructed by:
Waldick Jansen van
Rensburg Inc.
For the first
Respondent:
E. Fasser
Instructed by:
Wright Rose Innes Inc.