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REPUBLIC OF SOUTH AFRICA

THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

REPORTABLE

Case number: 386/05

In the matter between:

ABSA BANK LIMITED Appellant

and

TRENT GORE FRASER First Respondent

PORTION 3 LAVIANTO CC Second Respondent

CORAM: MPATI DP, CAMERON, NUGENT,

MLAMBO JJA and NKABINDE AJA

HEARD: 19 SEPTEMBER 2005

DELIVERED: 24 MARCH 2006

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JUDGMENT

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MLAMBO JA:

The order made by this court on 24 November 2005 was later deleted due to certain patent errors and a new order substituted for it. A further patent error has now been brought to the court’s attention and in order to correct it the latter order is deleted and the following order is substituted:

1. The appeal against the dismissal of ABSA’s application to intervene is upheld.

2. ABSA is granted leave to appeal against the order made by the court a quo in favour of the first respondent. The costs of that application are to be costs in the appeal.

3. The appeal by ABSA against the order granted in favour of the first respondent is upheld to the extent set out below.

4. Paragraph A of the order of the court below is set aside and the following is substituted:

‘A. With respect to the application for leave to intervene:

1. ABSA is granted leave to intervene in the proceedings.

2. The costs of ABSA’s application to intervene are to be costs in the main application.’

5. Paragraph 5(a) of paragraph B of the order of the court below is set aside.

6. Paragraph 8 of paragraph B of the order of the court below is set aside and the following paragraphs are added to the remainder of paragraph B:

‘8. The orders set out above are all subject to the provision that no moneys for payment of the first applicant’s legal expenses shall be advanced in excess of an amount that results in the moneys being retained by the curator falling below the sum of R1 028 214.

9. The costs of the application are to be borne by the first respondent.’

7. The costs of the appeal are to be borne by the first respondent.

D MLAMBO

JUDGE OF APPEAL

CONCUR:

MPATI DP

CAMERON JA

NUGENT JA

NKABINDE AJA

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