Nedbank Limited v Kuni and Others (31087/2019) [2022] ZAGPPHC 357 (25 May 2022)

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 >> 2022 >> [2022] ZAGPPHC 357 | Noteup | LawCite sino index ## Nedbank Limited v Kuni and Others (31087/2019) [2022] ZAGPPHC 357 (25 May 2022) Nedbank Limited v Kuni and Others (31087/2019) [2022] ZAGPPHC 357 (25 May 2022) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2022_357.html sino date 25 May 2022 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION PRETORIA) CASE NO : 31087/2019 REPORTABLE: NO/YES OF INTEREST TO OTHER JUDGES: NO/YES REVISED 25 May 2022 In the matter between: NEDBANK LIMITED                                                                      APPLICANT (REGISTRATION NO: 1951/1000009/06) And RENOVGAVATHIE KUNI                                                               1 ST RESPONDENT (ID NO: [....]) S B GUARANTEE CO RF (PTY) LTD                                           2 ND RESPONDENT (REGISTRATION NO: 2006/021576/07) LABOLILANO TRADING 50 (PTY) LTD                                       3 RD RESPONDENT This judgment is issued by the Judge whose name is reflected herein and is submitted electronically to the parties/their legal representatives by email. The judgment is further uploaded to the electronic file of this matter on Caselines by the Judge or his/her secretary. The date of this judgment is deemed to be 25 May 2022. JUDGMENT MAUBANE AJ INTRODUCTION 1. On the 25 th January 2022, the applicant made an application to the above honourable court in terms of Rule 46 and 46(A) of Uniform Rules of Court for the following relief: a. That the 1 st Respondent’s immovable property known as: ERF [....], BRACKENHURST Ext 2 TOWNSHIP, CITY OF EKHURULENI METROPOLITAN MUNICIPALITY HELD BY DEED OF TRANSFER NO T[....] (also known as [....] Lotus Street Brackenhurst) And ERF [....] LENASIA EXT 6 TOWNSHIP LOCAL MUNIPALITY OF THE CITY OF JOHANNESBURG, HELD BY DEED OF TRANSFER NO: T[....] ( also known as [....] Teak Avenue, Lenasia) Be declared specifically executable in accordance with the provisions of Rule 46 (1) and the Registrar is requested to issue a writ in accordance herewith. b. That the First Respondent be ordered to pay the costs in this application on a scale as between attorney and client c. Further and/or alternative relief 2. The application was heard before Ladyship Justice Tlhapi who made the following order: 2.1 . The 1 st Respondent’s immov able property known as: ERF [....] Len asia Ext 6 TOWNSHHIP LOCAL MUNICIPALITY OF THE CITY OF JOHANNESBURG HELD BY DEED OF TRANSFER No T[....] ( also known as [....] Teak Avenue, Lenasia) is decl ared specifically executable in accordance with the provisions of Rule 46(1) of the Uniform Rules of Court. The registr ar is authorized to execute a writ to this effect in terms of Rule 46. 2.2 . No reserve is set for the property known as [....] Teak Avenue, Lenasia. 2.3 The application to declare the immovable property known as- ERF [....], BRACKENHURST Be ackenhurst Ext 2 TOWNSHIP CITY OF EKHURULENI METROPOLITAN MUNICIPALITY HELD BY DEED OF TRANSFER NO T[....] (also known as [....] Lotus Street Brackenhurst) is postponed sine die and the first Respondent is directed to file his answering affidavit if any within 10(ten) days from date of this order, failing which the applicant will be entitled to enrol the matter on unopposed roll. 3. The 1 st Respondent is to pay costs of the applicant as on the scale between attorney and client. EVIDENCE 4. The 1 st Respondent, on the 31 st January 2022, served and uploaded a notice in terms of Rule 49(1)(b) requesting Her Ladyship Justice Tlhapi to provide written reasons for granting the order on the 25 th January 2022 with specific reference to the findings of the fact and/or rulings of law relied upon in granting such order. 5. On the 16 th May 2022, the applicant came before court seeking an order that: ERF [....], BRACKENHURST Ext 2 TOWNSHIP CITY OF EKHURULENI METROPOLITAN HELD BY DEED OF TRANSFER NO T[....] (also known as [....] Lotus Street Brackenhurst) be declared especially executable in accordance with the provisions of Rule 46(1) of the Uniform Rules of Court and the Registrar be authorised to issue a writ in accordance herewith and the first respondent be ordered to pay the costs on a scale between attorney and client. 6. It is worth noting that the First Respondent did not file his answering affidavit within 10 days from Ladyship Justice Tlhapi’s order but he instead, on the 31 st January 2022, requested to be furnished with written reasons for granting the order on the 25 th January 20022. On the 16 th May 2022 the applicant’s Counsel appeared before this court and moved the application on an unopposed basis requesting that the above referred property be declared specially executable and the Registrar be authorised to issue a writ. On the date of the hearing, that is 16 th May 2022, the First Respondent uploaded the recently served application for leave to appeal. The Counsel for the applicant argued before court that the application for leave to appeal was filed late and as such the matter should proceed as unopposed. 7. The 1 st Respondent, through Counsel, argued that in terms of the Uniform Rules of Court, he is within time to note an application for leave to appeal in that he is still to receive the reasons for judgement. Analysing the law 8. Rule 49(1) (a)&(b) state that: a. When leave to appeal is required, it may on a statement of the grounds therefor be requested at the time of the judgement, or order b. When leave to appeal is required and it has not been requested at the time of the judgement or order, application for such leave shall be made and the grounds therefor shall be furnished within fifteen days after the date of the order appealed against : Provided that when the reasons or the full reasons for the Court 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. 9. Taking into consideration the provisions of Rule 49(1) (a)&(b) and the fact that the First Respondent is still to be furnished with written reasons for granting the order on the 25 th January 2022 with specific reference to the findings of fact and/or rulings of law relied upon granting such order, it cannot be said that the 1 st Respondent is out of time to note an application for leave to appeal. The 1 st Respondent is within his rights to note an application for leave to appeal within fifteen days of receipt of reasons for the Court’s order as contemplated by Rule 49(1)(b). 10. In view of the above facts and consideration I make the following order: 10.1 The Applicant’s application on an unopposed basis is postponed pending receipt of reasons for an order granted on the 25 th January 2022, by Ladyship Justice Tlhapi, to the First Respondent. 10.2 That the 1 st Respondent should file his leave to appeal within (15) fifteen days of receipt of reasons for judgment or order, of the 25 th January 2022, granted by Ladyship Justice Tlhapi. 10.3 Costs are reserved. MAUBANE AJ JUDGE OF THE HIGH COURT Appearances Counsel for the Applicant                    : Adv. C. Richard Attorney for the Applicant                    : Weavind & Weavind Incorporated Counsel for the 1 st Respondent          : Adv. M. Kohn Attorney for the 1 st Respondent          : Jaffer Incorporated Attorneys Date of Hearing                                   : 16 May 2022 Date of Judgment                                : 25 May 2022 Judgment transmitted electronically sino noindex make_database footer start