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Lodi and Another v ABSA Home Loans Guarantee Company (RF) Proprietary Limited and Another (2022-003946) [2025] ZAGPPHC 731 (21 July 2025)

47 Reportability
Civil Procedure
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Brief Summary

Urgent Applications — Striking off the roll — Applicants sought interim relief pending recission application — Applicants failed to appear at hearing of recission application due to legal representative's misunderstanding of court schedule — Court found urgency was self-created and represented an abuse of urgent court processes — Application struck from the roll with costs on an attorney and client scale.

Comprehensive Summary

Case Note


Bareend Tati Lodi and Lillian Sebola v. Absa Home Loans Guarantee Company (RF) Proprietary Limited and Absa Bank Limited

Case No: 2022-003946

Date: 21 July 2025


Reportability


This case is reportable due to its implications on the urgency of applications in the context of legal representation and the responsibilities of litigants. The judgment highlights the court's stance on the limits of leniency afforded to parties based on the actions of their legal representatives, thereby reinforcing the importance of diligence in legal proceedings.


Cases Cited



  • Salojee & Ano. v Minister of Community Development [1965] (2) 135


Legislation Cited


No specific legislation was cited in the judgment.


Rules of Court Cited


No specific rules of court were cited in the judgment.


HEADNOTE


Summary


In this case, the applicants sought urgent interim relief following the dismissal of their recission application. The court found that the applicants failed to demonstrate sufficient urgency and that their predicament was largely self-created due to the lack of diligence from their legal representatives. Consequently, the application was struck from the roll with costs.


Key Issues


The key legal issues addressed in this case include the determination of urgency in applications for recission, the responsibilities of litigants regarding their legal representation, and the court's discretion in granting relief based on the circumstances presented.


Held


The court held that the applicants did not establish a prima facie right to the relief sought and that the urgency claimed was self-created. The application was therefore struck from the roll, and the applicants were ordered to pay the respondents' costs on an attorney and client scale.


THE FACTS


The applicants, Bareend Tati Lodi and Lillian Sebola, approached the court for urgent interim relief following the dismissal of their recission application on 22 April 2025. This dismissal occurred in their absence, as their legal representative misjudged the timing of the court proceedings. The applicants contended that they were not present due to their attorney's misunderstanding of the court roll, which led to the dismissal of their recission application stemming from a default judgment granted on 14 June 2024.


The applicants argued that the court should exercise its discretion to prevent an injustice without delving into the merits of the previous judgments. However, the court noted that the applicants had to demonstrate urgency and a prima facie right to the relief sought, which they failed to do.


THE ISSUES


The court had to decide whether the applicants had established sufficient urgency for their application and whether their failure to appear at the previous hearing constituted a valid basis for recission. Additionally, the court considered the implications of the applicants' legal representatives' actions on the case's urgency and the overall responsibility of the litigants.


ANALYSIS


The court analyzed the timeline of events leading to the application and concluded that the applicants' predicament was largely self-inflicted. It emphasized that there comes a point where litigants cannot rely on the lack of diligence of their attorneys as a valid excuse for their failures. The court referenced the principle established in Salojee & Ano. v Minister of Community Development, which underscores the importance of accountability in legal representation.


The court found that the applicants had not acted with the necessary diligence and that their claims of urgency were not substantiated by the facts. The judgment highlighted the need for litigants to take responsibility for their legal affairs and not to abuse the urgent court processes.


REMEDY


The court ordered that the application be struck from the roll due to a lack of sufficient urgency. Furthermore, the applicants were ordered to pay the respondents' costs on an attorney and client scale, reflecting the court's disapproval of the manner in which the application was pursued.


LEGAL PRINCIPLES


The key legal principles established in this judgment include the necessity for litigants to demonstrate urgency in their applications and the limits of leniency that can be afforded to parties based on the actions of their legal representatives. The court reinforced the idea that a lack of diligence from attorneys cannot serve as a blanket excuse for litigants' failures in legal proceedings.

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

Case number: 2022-003946
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
DATE: 21/7/2025

In the matter of:

BAREND TATI LODI First Applicant
(ID NO: 7[...])

LILLIAN SEBOLA Second Applicant
(ID NO: 7[...])

and

ABSA HOME LOANS GUARANTEE COMPANY (RF) First Respondent
PROPRIETARY LIMITED
(REG NO : 2003/029628/07)

ABSA BANK LIMITED Second Respondent
(REG NO: 1986/004794/06)

In re:

ABSA HOME LOANS GUARANTEE COMPANY (RF) First Plaintiff
PROPRIETARY LIMITED
(REG NO: 2003/029628/07)

ABSA BANK LIMITED Second Plaintiff

(REG NO: 1986/004794/06)

and

BAREND TATI LODI First Defendant
(ID NO: 7[...])

LILLIAN SEBOLA Second Defendant
(ID NO: 7[...])


JUDGMENT

Coram Ferreira AJ
1. In this application, the applicant s approached the court on an urgent basis for
interim relief claiming:

1.1 Pending the finalization of a recission application of the judgment order
granted on the 22 April 2025 and the leave to appeal or finali sation of
the recission judgment order application granted on the 14 th of June
2024.

2. Most importantly, the order of 22 April 2025 was the dismissal of a then
existing recission application (“the April 2025 recission application”).

3. The April 2025 recission application was dismissed in the absence of the
applicants.

4. The applicants, whilst being represented by legal practitioners, failed to appear
at the hearing of the April 2025 recission application. The applicants
explanation for this failure is that their legal representative arrived at court on
the morning of the hearing but, seeing the motion court roll with allocated time
slots, assumed that the matter (being low on the roll) would be heard only after
lunch; she then left the court, only returning at around 11:40, by which time the

case had been called and dismissed.1

5. The April 2025 recission application follows from a default judgment, pursuant
to a notice of bar, granted by M illar J on 14 June 2024. The applicant
repeatedly implored this court, as contained in, inter alia, paragraph 5.1.1 of
the applicants’ heads of argument dated 12 July 2025, not to consider the
merits of the aforesaid judgment and order , but to exercise a discretion to
prevent an injustice.

6. Without consideration of the merits of the default judgment of 14 June 2024
and the resultant dismissal of the April 2025 recission application, it is not
clear, how this court from which interim relief is sought ought to establish the
applicants’ requisite prima facie right. In light of the conclusion hereunder a
finding in this respect need not be made.

7. The above being said, the applicants have to overcome the hurdle of
establishing a case to be heard on an urgent basis with the timeframes that
they so chose. In this matter the applicants ’ knowledge of the sale in
execution is by no means the only material point in time for consideration in
respect of urgency. This court is approached on an urgent basis after a
number of omissions, errors and delays resulting in the applicants ’ current
predicament.

8. It is trite that there comes a point where litigants can no longer hide behind
the lack of diligence of their legal representatives. In Salojee & Ano. v
Minister of Community Development [1965] (2) 135 at 141 C to D , the
Appellate Division, as it then was, states:
“There is a limit beyond which a litigant cannot escape the results of
his attorney’s lack of diligence or the insufficiency of the explanation
tendered. To hold otherwise might have a disastrous effect upon the
observance of the Rules of the Appellate Division. Considerations ad
misericordiam should not be allowed to become an invitation to laxity.”

9. By the examination of the chronological development in the present matter,

1 CaseLines 0000057-22

this court has difficulty in coming to any other conclusion that the applicants
and their legal representatives, to a larger or lesser degree, are the authors
of the applicants ’ current misfortune and that any urgency that there may
exist was self-created.

10. The present application, in my view, represents the textbook example of an
abuse of the urgent court processes.

11. In the result the matter stands to be struck from the roll with costs on an
attorney and client scale.

12. The following order is made:
“1. The matter is struck from the roll due to lack of sufficient urgency.
2. The first and second applicant , the one paying, the other to be
absolved, is to pay the first and second respondent’s costs on an
attorney and client scale.”


EJ FERREIRA
Acting Judge of the High Court
Gauteng Division


Date of hearing: 16 July 2025
Judgment delivered: 21 July 2025
For the Applicants: Maranti Kgomo Inc Attorneys
Counsel for the Applicants: Adv MPT Maluleke
Attorney for the Respondents: Haasbroek & Boezaart Inc.
Counsel for the Respondents: Adv E van As

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