South Africa: North Gauteng High Court, Pretoria

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: 19772/2015

DATE: 06/09/2017

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

In the matter between:

NM MTSHAULANA                                                                                                 Applicant

(In the application for leave to appeal)

and

NEDBANKLTD                                                                                                   Respondent

(In the application for leave to appeal)

JUDGMENT

AC BASSON, J

[1] This is an application for leave to appeal against my ex tempore judgment dated 17 October 2016 in terms of which an application to rescind was dismissed.

[2] The applicant's grounds for leave to appeal against the judgment are set out in the application for leave to appeal. I do not intend repeating all these grounds. Suffice to point out that I have considered all of these grounds as well as the submissions made in court on behalf of both parties.

[3] I am not persuaded that there is any merit in any of the grounds raised. More in particular, it was conceded by counsel on behalf of the applicant when the rescission application was argued, that the section 129 notice was sent to the correct address as reflected by the tract and trace reports. Counsel also conceded that the summons was served at the correct address (the domicilium as per the loan agreement) and that the applicant in fact resided at the time at the mortgaged property. No facts were placed before the court as to why the section 129 notice and the summons did not come to the knowledge of the applicant.

[4] The applicant also took issue with this court's decision condoning the late filing of the respondent's answering affidavit. There is no merit in this ground. A party seeking condonation must make out a case entitling it to the court's indulgence. A party should give a proper explanation for the delay which explanation must be reasonable. The explanation tendered by the applicant (in the application for condonation) was accepted and condonation was granted.

[5] Having regard to the papers, the transcript of the proceedings and the judgment, I am of the view there are no reasonable prospects that another court would come to a different decision in respect of the conclusions reached by this court.

[6] In respect of the cost order I am likewise of the view that there are no prospects of success that another court would come to a different conclusion.

Order

In the event the application for leave to appeal is dismissed with costs.

_________________________

AC BASSON

JUDGE OF THE HIGH COURT

Appearances:

On behalf of the applicant:

Mr Lebethe

David Lebethe & Associates

On behalf of the respondent:

Adv.

Instructed by: Van der Merwe Du Toit Inc