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2023
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[2023] ZAGPPHC 1212
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Muchenje and Another v Investec Bank Ltd (Leave to Appeal) (17072/2022) [2023] ZAGPPHC 1212 (28 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 17072/2022
(1) REPORTABLE: NO
(2) OF INTEREST TO
OTHER JUDGES: NO
(3) REVISED: YES
SIGNATURE:
DATE:
28/09/2023
In
the matter between:
MUCHENJE,LAZARUS
First Applicant
MUCHENJE,
JANET
Second Applicant
and
INVESTEC
BANK LTD
Respondent
(Registration
no. 169/004763/06)
LEAVE
TO APPEAL JUDGMENT
SKOSANA
AJ
[1]
Pursuant to my judgment, the applicant ("Investec") has
sought leave to
appeal to the Supreme Court of Appeal (SCA),
alternatively to the Full Court of this Division. The parties have
agreed that there
are only two crisp issues raised in this
application, namely, whether or not a further cancellation notice in
terms of
section 129(3)
of the
National Credit Act 34 of 2005
was
required and whether or not the reinstatement of the home loan
agreement is legally justified.
[2]
The applicant contended that the issue regarding the necessity of a
section 129(3)
notice after a judgment is
res
nova
while the respondent countered that it has been settled by the
judgment of
ABSA
Bank
[1]
.
In my view, the issue was not canvassed
stricto
sensu
in that judgment and may therefore well be
res
nova
.
[3]
However, that is not sufficient on its own as a ground for granting
leave to appeal
in the first place and in the second, leave to appeal
to the SCA. Even the provisions of
section 17(1)(a)(ii)
of the
Superior Courts Act 10 of 2013
, broad as they are, do not in my view
encompass such ground. First, there are no conflicting judgments.
This much was conceded
by counsel for Investec. Second, I find no
persuasive ground that may lead to the alteration of the stance of
this court and therefore
no compelling reason why the appeal should
be heard.
[4]
On the second issue relating to reinstatement, I am still convinced
that payment was
made on behalf of and for the benefit of the
respondents and such payment was accepted by Investec. Paragraphs 26
and 27 of
Mostert
case
[2]
do not, in my view,
assist Investec. On the contrary, they appear to support the
respondents' contentions
[5]
In the circumstances, I make the following order:
1.
The application for leave to appeal is dismissed with costs.
DT
SKOSANA
Acting
Judge of the High Court
APPERANCES
Applicants'
counsel:
Applicants'
attorneys:
Respondent's
counsel:
1
st
Respondent's attorneys:
[1]
ABSA v
Bank Ltd v De Villiers
2009 (5) SA 40
(C) paras 12-14; see also ABSA
Bank Ltd v Havenga
2010 (5) SA 533
(GP) at 537C-D
[2]
Mostert v First Rand Bank
2018 (4) SA 443
(SCA)