IDGH C OURT OF SO U TH AFRICA
(GAUTENG DIVISION , PRETORIA)
C ASE N O: 114422/2023
(I) RE PO RT ABL E: N O .
(2) OF INT E R EST T O OTH E R JU D GES: N O
(3) R EV ISED .
SlGN A TU RE
In the matter between:
ABSA BANK LTD P laintiff
and
PATIENCE BOITUMELO TSWAGO D efendant
JUDGMENT (in the application for leave to appeal)
The m atter was heard in open court and the judgment was prepared and authored
by thejudge whose name is reflected h Pre;n and is handed down electronically by
circulation to the parties' legal representatives by email and by uploading it to
the electronic file of this matter on Caselines. The date for hand-down is deemed
to be 29 July 2025.
2
DAVIS,J
Introduction
[l] On 11 November 2024 this court granted summary judgment in favour of
the plaintiff against the defendant for the return of the plaintiffs motor vehicle
pursuant to a cancelled credit agreement.
[2] The plaintiff is a commercial bank and the defendant is a natural person.
The parties shall be referred to herein as in the main action.
[3] The defendant had not delivered an affidavit resisting summary judgment
and she was in default of appearance at the hearing of the summary judgment
application.
[ 4] On 19 February 2025 the defendant requested reasons for the summary
judgment, which has subsequently been delivered.
[5] The defendant now seeks leave to appeal the summary judgment. For
purposes of her application for leave to appeal, she also sought condonation for
the late delivery thereof. In order to avoid any prejudice to either party and in
order to achieve finality in this matter, condonation is hereby granted.
Appealability
[6] Upon receipt of the application for leave to appeal, delivered together with
the request for reasons, the defendant's attorneys were informed of the judgment
of Lee v RAF
1
.
1 2024 (1) SA 183 (GP).
3
[7] In that judgment Wilson J determined that no appeal lies against an order
granted by a court where a party was in default of appearance at the hearing
thereof.
[8] Despite the above, the defendant elected to proceed with her application
for leave to appeal. At the hearing thereof, counsel for the defendant did not
contend that Lee v RAF had been incorrectly decided, but contended that the
defendant's case falls within one of the exceptions to the general proposition
stated by Wilson J.
[9] The exception contemplated by this argument is that referred to by Wilson
Jin par [14] of his judgment. For the sake of context, the relevant part of this
paragraph needs to be quoted: "A court of appeal ought generally only to
intervene when the proceedings in the court a quo are complete. For so long as
the court a quo can, in principle, alter or reconsider its order, an aggrieved
party's remedy lies there. One exception to the rule is where it is in the interest
of justice to entertain an appeal against an interim interdict that would cause
irreparable harm to the party against whom it operates (see National Treasury
and Others v Outa and Others 2012 (6) SA 223 (CC)".
[10] The reliance on the aforementioned exception is misplaced. In the present
matter no interim interdict had been granted and neither was there any evidence
of irreparable harm.
[11] Accordingly this court should follow the decision in Lee v RAF, the
reasoning of which is both compelling and apposite.
[12] The application for leave to appeal is therefore fatally defective and should
fail on this ground alone.
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The application for leave to appeal itself
[13] In the written application for leave to appeal, it is alleged that this court
had en-ed in not having applied sections 83, 84 and 85 of the National Credit Act2
and by not having declared the defendant over-indebted. None of these sections
featured in the defendant's plea and their application or not did not feature as
disputes in the summary judgment application.
[14] Accordingly, there is no reasonable prospect that a court of appeal would
consider an issue which never featured in the hearing before the court a quo and
in respect of which no evidence had been presented by the defendant.
The jurisdictional hurdle
[15] As a last-ditch attempt, the defendant argued that the plaintiff had not been
entitled to apply for summary judgment due to the fact that a jurisdictional
requirement for such applications, namely the delivery of a plea, was absent.
[ 16] In order to illustrate the fallacy of this contention, procedural context is
necessary. It is the following:
- On 7 June 2023 the plaintiff instituted action against the defendant in
Case no 066934/2023, claiming cancellation of the credit agreement
between the parties and return of the plaintiff's Renault motor vehicle.
- On 26 July 2023 the defendant delivered her notice to defend that
action.
- On 29 August 2023 the defendant was placed under a bar to plead.
2 34 of 2005.
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- The defendant failed to deliver a plea, but despite this failure, the
plaintiff withdrew that action against the defendant on 6 September
2023.
- On 5 October 2023 the plaintiff instituted the current action against the
defendant. The new certificate of balance annexed to the particulars of
claim indicated that the arrears have increased by about 20% since the
previous action.
- On 5 December 2023 the defendant delivered her notice of intention to
defend the action.
- On 13 February 2024 the plaintiff served a notice of bar on the
defendant.
- On 20 February 2024 the defendant delivered her plea. This was the
plea that was considered in the summary judgment application and
which featured in the reasons furnished.
Subsequent to the delivery of the plea, the parties entered into
settlement negotiations and agreed to suspend further legal proceedings.
The written confirmation hereof feature in par [17] of the furnished
reasons.
- On 3 April 2024 the parties reached an "in principle" settlement. This
agreement and its breakdown on 15 August 2024 feature in paragraph
[18] of the furnished reasons. This led to the continuance of
proceedings and the service of the summary judgment application on
the defendant's erstwhile attorneys.
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[17] lt appears that the plea delivered by the defendant's erstwhile attorneys on
13 February 2024, incorrectly displayed the case number of the previously
withdrawn action (Case No 066934/2023). This was clearly a typographical
error. No plea could have been delivered at that time in respect of an already
withdrawn action and the parties during their settlement negotiations clearly
relied on this latter plea in the then pending action. It also featured in the affidavit
delivered in support of the application for summary judgment, without any demur
from the attorneys who had delivered it.
[18] The attempt by the defendant's current attorneys to now, more than a year
after the delivery of the plea and after everything that has taken place since, to
rely on the typographical error referred to above as a purported defence, is so
opportunistic that it amounts to an abuse of process. It has no real foundation and
should be rejected.
[ 19] In the reasons for judgment, the basis for having granted summary
judgment had been fully set out. No substantive element thereof has been
attacked during the application for leave to appeal. The summary of the position
still remains that the defendant has simply not disclosed any defence to the
plaintiffs claim.
[20] I find that the application for leave to appeal is both fatally flawed and
without any merit as contemplated in Section 17(1) of the Superior Courts Act3.
Costs
[21] There is no reason why costs should not follow the event. The defendant
was forewarned that her application was fatally defective. In addition, arguments
which amount to an abuse of process were relied on, which were clearly without
3 10 of 2013.
7
merit. In the exercise of thjs court's discretion, this justifies a punitive costs
order.
Order
The application for leave to appeal is dismissed with costs on the scale as
between attorney and client.
Date of Hearing: 24 July 2025
Reasons delivered: 29 July 2025
APPEARANCES:
For the Plaintiff:
Attorney for the Plaintiff:
For the Defendant:
Attorney for the Defendant:
Adv J Eastes
Judge of the High Court
Gauteng Division, Pretoria
Delberg Attorneys, Pretoria.
Adv SN Lebilwane
Tswago Inc, attorneys, Pretoria