Smith and Others v Sasfin Bank Limited and Another (Leave to Appeal) (25458/21) [2024] ZAGPPHC 34 (25 January 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 34 | Noteup | LawCite sino index ## Smith and Others v Sasfin Bank Limited and Another (Leave to Appeal) (25458/21) [2024] ZAGPPHC 34 (25 January 2024) Smith and Others v Sasfin Bank Limited and Another (Leave to Appeal) (25458/21) [2024] ZAGPPHC 34 (25 January 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_34.html sino date 25 January 2024 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, PRETORIA Case No: 25458/21 (1)       REPORTABLE: NO (2)       OF INTEREST TO OTHER JUDGES: NO (3)       REVISED. NO SIGNATURE DATE:  25 January 2024 In the matter between: DEON SMITH                                                                                   1 ST APPLICANT ELLEN LOUISE SMITH                                                                  2 ND APPLICANT NADELEI CC                                                                                    3 RD APPLICANT and SASFIN BANK LIMITED                                                               1 ST RESPONDENT SUNLYN (PTY) LTD                                                                      2 ND RESPONDENT JUDGEMENT – APPLICATION FOR LEAVE TO APPEAL MOOKI J 1 The applicants sought leave to rescind default judgements against them at the instance of the first respondent.  The application was refused.  They now seek leave to appeal. 2 The grounds of appeal are essentially that: - The court ought to have found that the applicants did not have knowledge of the proceedings leading to judgement being made against them.2.2     The way the two default judgements were given.2.3     The court went beyond what is required regarding the requirement for disclosure of a bona fide defence.2.4     The applicants met the requirements for rescission in terms of the common law, and that the court did not take this into account.3The applicants failed to substantiate several averments in their application.  For example, the absence of confirmation that the master sale agreement was intended to be a different instrument.  There was no confirmation by their erstwhile attorneys.  There is no suggestion that various communication addressed to them was not made.4The delay in bringing the application is extreme and it makes no difference whether the application was premised on Rule 31(2)(b), Rule 42, or the common law.5The plaintiff issued summons against the three defendants.  The plaintiff obtained default judgement against each defendant.  The applicants have not shown that the first respondent obtained default judgement other than in terms of the summons.6The applicants have not met the stringent requirement for the grant of leave to appeal.  They have not shown that the facts and the law are such that a court of appeal could reasonably arrive at a conclusion different to that of this court.7The judgement was ready for delivery on 27 October 2023. It appears that the parties were not notified at the time.8I make the following order: The court ought to have found that the applicants did not have knowledge of the proceedings leading to judgement being made against them. 2.2     The way the two default judgements were given. 2.3     The court went beyond what is required regarding the requirement for disclosure of a bona fide defence. 2.4     The applicants met the requirements for rescission in terms of the common law, and that the court did not take this into account. 3 The applicants failed to substantiate several averments in their application.  For example, the absence of confirmation that the master sale agreement was intended to be a different instrument.  There was no confirmation by their erstwhile attorneys.  There is no suggestion that various communication addressed to them was not made. 4 The delay in bringing the application is extreme and it makes no difference whether the application was premised on Rule 31(2)(b), Rule 42, or the common law. 5 The plaintiff issued summons against the three defendants.  The plaintiff obtained default judgement against each defendant.  The applicants have not shown that the first respondent obtained default judgement other than in terms of the summons. 6 The applicants have not met the stringent requirement for the grant of leave to appeal.  They have not shown that the facts and the law are such that a court of appeal could reasonably arrive at a conclusion different to that of this court. 7 The judgement was ready for delivery on 27 October 2023. It appears that the parties were not notified at the time. 8 I make the following order: # ## 8.1     The application is dismissed. 8.1     The application is dismissed. ## ## 8.2     The applicants are ordered to pay the costs of the first respondent, jointly and severally, the one paying to be absolved. 8.2     The applicants are ordered to pay the costs of the first respondent, jointly and severally, the one paying to be absolved. ## # Omphemetse Mooki Omphemetse Mooki # Judge of the High Court Judge of the High Court # Heard on: Heard on: # 10 October 2023 10 October 2023 # Delivered on: Delivered on: # 25 January 2024 25 January 2024 # For the Applicants: For the Applicants: # J. H. Sullivan J. H. Sullivan # Instructed by: Instructed by: # Waldick Jansen van Rensburg Inc. Waldick Jansen van Rensburg Inc. # For the first Respondent: For the first Respondent: # E. Fasser E. Fasser # Instructed by: Instructed by: # Wright Rose Innes Inc. Wright Rose Innes Inc. # sino noindex make_database footer start