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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No.: 2022/002174
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
19 September 2025
In the matter between:
BONFACE TINTIN NDAWALA Applicant
and
NEDBANK LIMITED First Respondent
City of Johannesburg Second Respondent
ERF 1[…] SUNNINGHILL EXTENSION 91
HOMEOWNERS ASSOCIATION Third Respondent
Date Heard: 12 September 2025
JUDGMENT
Bhengu AJ
Introduction
[1] This is an opposed application for leave to appeal the money judgment order
and an order declaring the Applicant’s (“Mr Ndawala” ) immovable property
especially executable in terms of Rule 46A granted on 04 June 2024. The
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operation of the order was suspended for 6 months in order to allow Mr
Ndawala to bring his arrears up to date.
[2] The Application for leave to appeal was filed on 08 January 2025, 6 mont hs
later. Uniform Rule 49(1) provides that an application for leave to appeal shall
be made within 15 days after the date of the order appealed against . In this
matter, the application for leave to appeal should have been filed on 25 June
2024. An application for condonation was heard together with the application
for leave to appeal.
Condonation application
[3] Both counsels referred this Court to the trite principles for condonation as
referred to in the Constitutional decision in Van Wyk v Unitas Hospital and
Another (Open Democratic Advice Centre as Amicus Curiae) 1 where the Court
held that:
“The standard for considering an application for condonation is the interests of
justice. Whether it is in the interest of justice to grant condonation depends on
the facts and circumstances of each case. Factors that are relevant to this
enquiry include but are not limited to the nature of the relief sought, the extent
and cause of the delay, the effect of the delay on the administration of justice
and other litigants, the reasonableness of the explanation for the delay, the
importance of the issue to be raised in the intended appeal and the prospects
of success.”
[4] Mr Ndawala stated the following as his explanation for the delay:
“The delay was not intentional. It is a delay b orn out of ignorance and financial
difficulty. I did not fully appreciate my rights after the court order was issued, as
I am not a lawyer. And I have had no funds which I could use to pay my
attorneys. It was by a sheer act of divine grace that in the last couple of days. I
1 Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA
472 (CC) at para 20
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managed to find some cash, which I sent to my attorneys. After receiving the
funds, my attorneys were able to draft, finalize and serve my application for
leave to appeal”.
[5] In opposing both applications , the First Respondent contended that the
Applicant failed to meet the trite requirement s for condonation. The Applicant
failed to fully explain the period of the delay and provide good reasons t hereof.
The First Respondent averred that t he defence of ignorance and being a
layman cannot be accepted in the context of Mr Ndawala's level of education,
being an Accountant and a CEO of a telephony company . The First
Respondent contended that Mr Ndawala has been using the same excuse of
being a layman and lack of funds throughout the litigation against him . It
pointed out that this i s not the first condonation application brought by the
applicant for g ross non-compliance with the Rules of Court , citing that Mr
Ndawala’s Answering Affidavit was filed a year out of time.
[6] Regarding the lack of legal representation, the First Respondent contended that
the timeline of Mr Ndawa la’s attorneys’ withdrawal as his attor neys of record
two hours before the hearing of 24 June 2024, after having failed to negotiate a
postponement of the hearing, suggests that the withdrawal was a delaying
tactic. The First Respondent contended further that despite Mr Ndawala’s
supposed lack of funds , he failed to approach the offices of Legal Aid or other
Bro Bono service to obtain legal assistance for free ; he instead re- appointed
the same attorneys who had abandoned him two hours before the hearing of
the main proceedings at a fee.
Discussion
[7] It is trite that the applicant in a condonation application must show sufficient
cause why condonation should be granted. The basic principles, as enunciated
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by Holmes JA, in Melane v Santam Insurance Co. Ltd 2 includes, among others,
the degree of lateness, the explanation for the delay, the prospects of success,
and the importance of the case.
[8] It is common cause that Mr Ndawala’s leave to appeal application was brought
over 6 months late. He attributed the delay to his being a layperson, ignorant of
his rights , and a lack of funds to pay for an attorney . The record of the
proceedings on 04 June 2024 showed the following statement made by Mr
Ndawala in his quest for postponement of the matter:
“The fact is , I am in financial difficulty… I will have to go and see someone at
Legal Aid to represent me…if you could allow me time to do that, because I
cannot argue myself.”
[9] This statement showed that Mr Ndawala was aware as of 04 June 2024 that he
needed to seek assistance from Legal Aid due to his financial problems. The
Applicant’s papers however , did not state what efforts were undertaken by Mr
Ndawala to try and obtain the assistance referred to in his statement from 04
June 2024 when the order was granted until 08 January 2025 when he filed his
application for leave to appeal. As a person with f inancial difficulties, Mr
Ndawala failed to bring the Court into his confidence as to how and when the
purported “sheer act of divine grace” that solved his legal fees problems took
place. The Court held in Van Wyk supra that the applicant for condonation must
give a full explanation for the entire period of delay. The counsel for the
Applicant conceded that the explanation for the delay provided by Mr Ndawala
fell short of the required standard. The explanation, therefore, falls to be
rejected.
Prospects of success in the appeal
2 Melane v Santam Insurance Company Limited 1962 (4) SA 531 (AD) at 532 C - F
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[10] Section 17(1)(a) of the Superior Courts Act 10 of 2013 provides that leave to
appeal may only be given where the judge or judges concerned are of the
opinion that the appeal would have reasonable prospects of success or there is
some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.
[11] In Ramakatsa and Others v African National Congress and Another
3, the SCA
held that:
“If a reasonable prospect of success is established, leave to appeal should be
granted. Similarly, if there are some other compelling reasons why the appeal
should be heard, leave to appeal should be granted. The test of reasonable
prospects of success postulates a dispassionate decision based on the facts
and the law that a court of appeal could reasonably arrive at a conclusion
different to that of the trial court. In other words, the appellants in this matter
need to convince this Court on proper grounds that they have prospects of
success on appeal. Those prospects of success must not be remote, but there
must exist a reasonable chance of succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to exist”
[12] With regards to the prospects of success in the appeal, Mr Ndawala averred
that the appeal would succeed “ as a different court/judge is likely to arrive at a
different conclusion when presented with the facts and circumstances that were
before the judge a quo.” In support of this averment, he referred the Court to
the grounds for leave to appeal. He reasoned that dealing with prospects in his
founding affidavit would inundate it “ unnecessary”. Clearly, this is a misplaced
belief, as an affidavit is a sworn statement and cannot be substituted for the
grounds of appeal in the application for leave to appeal.
[13] The Applicant’s counsel submitted that even though the Applicant failed to
[13] The Applicant’s counsel submitted that even though the Applicant failed to
provide a reasonable explanation for his delay in bringing the application, the
3 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31at para 10.
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Court must exercise its discretion in favour of the Applicant and grant leave to
appeal because the immovable property that the First Respondent seeks to sell
in execution is Mr Ndawala’s primary residence. He further submitted that Mr
Ndawala was not legally represented when the order was granted, and that the
prejudice that would be suffered by Mr Ndawala if his property is sold in
execution far outweighs that of the First Respondent.
[14] The First Respondent’s counsel submitted that even if the Court were to
overlook Mr Ndawala’s non- compliance with the Rules of Court, however, his
application for leave to appeal does not satisfy the requirements as set out in
Section 17(1)(a) of the Superior Courts Act 10 of 2013 in that the main
application lacked prospects of success . He asked the Court to consider that
the indebtedness on the mortgage loan agreement is not disputed, the arrears
on the bond had increased to over R1,6013,65.11 as at March 2025. The last
factor is that Mr Ndawala admitted that he has financial problems and is unable
to discharge his indebtedness under the mortgage loan.
[15] The First Respondent contended that i t is prejudiced in that the debt has not
been serviced since 2021, and that the arrears are escalating. He submitted
there Mr Ndawala has not suffered any prejudice as he has been staying in the
property for free for 4 years without servicing his bond. The First Respondent is
forced to defend the application for leave to appeal when the Applicant is in a
position of impecunity , rendering the likelihood of recovering the costs for
defending the matter slim.
[16] Considering that the Applicant admits his indebtedness under the mortgage
loan and that he is unable to pay, it appears from paragraph 5 of the application
for leave to appeal that the sole ground for appeal is that the Court misdirected
itself in proceeding with the application when he was not legally represented. I
itself in proceeding with the application when he was not legally represented. I
have already stated in my judgment in the main application that before the
withdrawal of his attorneys of record, he had always been legally represented in
the matter. His version was before the Court and was considered in the
judgment. I also considered that there had been historical delays in the matter
occasioned at the instance of Mr Ndawala.
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[17] I agree with the First Respondent’s submission that there is no indication on the
Applicant’s papers how the presence of a legal representative would have
changed the outcome, as in motion proceedings, his legal representative would
have been bound by the answering affidavit filed on his behalf . The fact
remains that he is indebted to the First Respondent with arrears amounting to
over R1,6013,65.11 and still escalating. It is common cause that he has no
means to service the debt , as confirmed in his papers. I am therefore of the
view that there are no reasonable prospects of a different court/judge arriving at
a different conclusion.
[18] Further, I am of the view that there is no other compelling reason why the
appeal should be heard as required in terms of Section 17(1)(a) of the Superior
Courts Act 10 of 2013. The appeal raises no novel question of law as Rule 46A
has been ventilated in numerous decisions from various courts . The matter ,
therefore, falls to be dismissed.
[19] As a result, the following order is made:
1. The application for condonation is dismissed.
2. The application for leave to appeal is dismissed.
3. The Applicant is ordered to pay the First Respondent’s costs on an
attorney and client scale as per the mortgage loan agreement.
______________________________
JL BHENGU
ACTING JUDGE OF HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Appearances
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For the Applicant: Adv SL Mbuzu
Instructed by: Kalima Attorneys
For the First Respondent: Adv L Peter
Instructed by: Lowndes Dlamini Attorneys
Date: 19 September 2025