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2021
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[2021] ZAGPJHC 401
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Rahme and Another v The Standard Bank of South Africa Limited In re: The Standard Bank of South Africa v Rahme and Another (2017/46904) [2021] ZAGPJHC 401 (6 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2017/46904
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
NO
DATE:
6 September 2021
In
the matter between:
RAHME,
TERENCE MICHALE
First Applicant
RAHME,
KRISTIN ADELE
Second Applicant
And
THE
STANDARD BANK OF SOUTH AFRICA
Respondent
LIMITED
In
re:
THE
STANDARD BANK OF SOUTH AFRICA
Applicant/ Plaintiff
LIMITED
And
RAHME,
TERENCE MICHALE
1
st
Respondent/Defendant
RAHME,
KRISTIN ADELE
2
nd
Respondent/Defendant
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
[1]
The applicants seek the court’s leave to appeal against the
judgment of the
court handed down on 3 September 2019.
[2]
The application for leave to appeal follows a Summary Judgment
Application granted
in favour of the respondents. The court granted
an order against the applicants (1) authorising the payment of the
accelerated
debt due, (2) declaring the sale in execution of the
property registered in their names; and (3) authorised the sale in
execution
of the property.
[3]
On 1 April 2021, the applicants launched an application for Leave to
Appeal against
the judgment and order on several grounds.
[4]
Uniform Rule 49 regulates applications for leave to appeal. In this
instance, Rule
49(1)(b) is applicable and states that:
When leave to appeal is required
and it has not been requested at the time of the judgment or order,
application for such leave
shall be made and the grounds therefore
shall be furnished within fifteen days after the date of the order
appealed against: Provided
that when the reasons for the court’s
order are given on a later date than the date of the order, such
application may be
made within fifteen days after such later date:
Provided further that the court may, upon good cause shown, extend
the aforementioned
periods of fifteen days
[5]
Evidently, as Ms Aswegen contended, the application for leave to
appeal was launched
disproportionately out of time. The application
was not accompanied by an application for condonation. There was no
explanation,
and there were no reasons furnished for the delay in
bringing it. I agree with Ms Aswegen that the application cannot
begin to
get off the starting blocks.
[6]
There are costs considerations that follow as a result, for which the
applicants must
now be held account for.
[7]
I must mention that the applicants were assisted by one Mr Tyron
Azar. His address
is cited as the correspondence address in their
application. Mr Azar, was the representative nominated by applicants
to represent
them during the summary judgment application. He was
present during the hearing of the application for leave to appeal
which was
held virtually, but did not appear to address the court
when the matter was called.
[8]
Instead, Ms Makoko, a member of the Independent Bar appeared on their
behalf. She
advised the court that she was briefed the day before the
hearing by another law firm not on record and, therefore does not act
on Mr Azar’s instructions. The court requested the details of
the law firm from Ms Makoko. Despite undertaking to do so to
the
court, and follow up requests by the Court’s Registrar, she did
not provide the details. In the absence of the verification,
the
impression is that Ms Makoko may have directly taken the brief and
may not be able to verify if as an advocate she holds a
Fidelity Fund
Certificate as required by the Legal Practice Council Rules.
[9]
In addition to the above, it also appeared that Ms Makoko did not
acquaint herself
with the matter or the applicable rules. She could
not advance reasons why she and her instructing attorneys persisted
with the
hearing of the application in the face of the glaring
defects.
[10]
The relevance of the above issues has implication for costs which
must be regrettably be borne
by the applicants. The applicant may
also have no recourse if those representing them were negligent in
the handling of their matter.
It follows that the application for
leave to appeal falls to be dismissed with costs.
[11]
Accordingly, I make the following order:
a. The application for leave to appeal
is dismissed with costs
SIWENDU
J
Judge
of the High Court
Gauteng
Division, Johannesburg
This
Judgment was handed down electronically by circulation to the
parties’ and or parties representatives by email and by
being
uploaded to CaseLines. The date and time for the hand down is deemed
to be 10h00 on 6 September 2021
Date
of Hearing: 30 August 2021
Date
of Judgment: 6 September 2021
Appearances:
For
the Applicant:
Ms Makoko
For
the Respondent:
Adv S Aswegen
Attorneys:
Stupel & Berman Inc