---

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

CASE NO: 16168/2017

(1)  REPORTABLE

(2)  OF INTREST TO OTHER JUDGES

(3)  REVISED

1/10/2020

 

In the matter between:

 

PHILLIP MARSHALL HOWELL	First applicant for leave to appeal
NOELENE JANE HOWELL	Second applicant for leave to appeal
and
ABSA BANK LIMITED	Respondent

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

 

COWENA J

 

1.  This is an application for leave to appeal against an order I made on 13 December 2018 in the above matter ('the December 2018 order). The applicants for leave to appeal are Philip Howell and Noelene Howell and the respondent is Absa Bank Limited.

 

2.  The December 2018 order sets a reserve price for the sale in execution of certain immovable property being Erf 7[…], Discovery Extension 2 Township, Registration Division IQ in the province of Gauteng ('the property') and regulates what must happen if the reserve price is not realised. Absa Bank Limited applied for the order in proceedings in which the Howells were respondents.

 

3.  The December 2018 order was preceded by an order which Mokose AJ granted on 21 September 2017 in summary judgment proceedings ('the September 2017 order'). In the September 2017 order, Mokose AJ granted judgment in favour of Absa Bank Limited in the amount of R734 753.82 and declared the property specially executable. On 14 March 2019 Philip and Noelene Howell applied for leave to appeal against the September 2017 order. That application was unsuccessful. On 12 December 2019, Notshe AJ granted an order, inter alia, declaring that the related notice of application for leave to appeal had lapsed.

 

4.  The application for leave to appeal against the December 2018 was delivered on 12 March 2019, which is out of time. The grounds of appeal pleaded are substantially the same as those pleaded in respect of the September 2017 order. The application was signed by the applicants for leave to appeal, apparently unrepresented. It expressly indicated that an application for condonation would be delivered but this did not happen. Moreover, the applicants failed to prosecute the application for leave to appeal.

 

5.  I became aware of the application for leave to appeal only on 2 September 2020 when the respondent's attorneys notified me. The matter was then set down for argument on 30 September 2020. It was heard via Microsoft Teams in view of the ongoing COVID-19 pandemic. Mr Fehler appeared for the applicants and Mr Scholtz appeared for the respondent. Mr Fehler informed the Court that he had been instructed on 29 September 2020.

 

6.  At the commencement of the hearing Mr Fehler informed the Court that his clients wished to postpone the application to enable them to apply for condonation. There was no formal application for a postponement nor was any explanation given as to why the condonation application had not already been brought. However, during the course of argument, Mr Scholtz informed the Court that the respondent accepted the late application for leave to appeal and requested the Court to entertain it on its merits. Mr Fehler offered no further reason for requesting any postponement and confirmed that he had considered the application during the course of the day yesterday. Even overlooking the absence of any formal application, there is no adequate reason to postpone the application in these circumstances. Moreover, having heard argument on the merits of the application, I am satisfied that it has no prospect of success.

 

7.  In the result, to the extent that any postponement application remains before me, it is refused. In view of the respondent's stance to the condonation application, I proceed to consider the application for leave to appeal on its merits.

 

8.  The bulk of the grounds of appeal pleaded relate to the grant of the September 2017 order, which is not before me. The grounds of appeal that relate expressly to the December 2018 order are found in paragraphs 11 and 13 of the application for leave to appeal. These amount to contentions that the respondent ought to have included the reserve price in the conditions of sale and that the conditions of sale were ambiguous in this regard.

 

9.   Section 17(1) of the Superior Courts Act 10 of 2013 provides that leave to appeal may only be given where the judge is of the opinion that

"(a)  the appeal would have a reasonable prospect of success; or

(b)  there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration."

 

The SCA has held that

 

"[a]n applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appear .[1]

 

10.  I am not persuaded that there is a reasonable prospect or realistic chance of success on appeal. The proposed conditions of sale were placed before the Court in circumstances where the respondent was specifically requesting the Court to determine a reserve price. No such price had been determined at that time and thus the respondent was in no position to insert the price into the conditions of sale. In any event, the very purpose of the December 2018 order was to determine a reserve price for purposes of any sale in execution. Even if the respondent had inserted a reserve price, the price set in terms of the December 2018 order would prevail, as Mr Scholtz submitted. The respondent is not entitled to proceed with any sale in execution save to the extent consistent with that order. Mr Scholtz did not contend otherwise and confirmed that his client had no intention of doing so.

 

11.  One ground upon which leave to appeal is sought concerns the accuracy of the description of the property and whether it comports with the description of the property in the mortgage bond. As this is fundamental to the effectiveness of both orders, I have satisfied myself in this regard. I have further satisfied myself that the remaining grounds of appeal concern the September 2017 order and do not provide any adequate basis independently to overturn the December 2018 order given its narrow ambit.

 

12.  In the result, I have concluded that the appeal would not have a reasonable prospect of success. No other compelling reason to grant leave to appeal was suggested or is apparent. In the result the application cannot succeed.

 

13.  Mr Scholtz requested the Court to order costs against the applicants on an attorney and client scale on the basis that the applicants' conduct should not be tolerated or sanctioned by this Court. The conduct complained of concerned the delivery of what amounted to two substantially similar applications for leave to appeal in respect of the September 2017 and December 2018 orders and a failure to prosecute the application for leave to appeal. In this regard, it was submitted that the Court should not regard the applicants as indigent unrepresented persons but rather as persons assisted by an unnamed person by the name of Azhar who has legal knowledge. On the information before me, I am unable to draw the conclusions contended for and I accept that the applicants have been without legal representation until recently when Mr Fehler stepped in. Moreover, while it is correct that the applicants did not prosecute the application for leave to appeal after its delivery, the applicants were not only unrepresented but are not, alone, responsible for the delay. I only became aware of the application, notwithstanding its delivery, on 2 September 2020, when I was contacted by the respondent's attorneys. I have drawn the fact that the application only came to my attention at this time and in this way to the attention of the Judge President. Moreover, the respondent was in a position to mitigate any prejudice to itself by contacting the Registrar at any stage. In these circumstances, I have concluded that costs should follow the result but that no punitive costs order should be made.

 

14.  I make the following order:

 

14.1.  The application for leave to appeal is dismissed.

14.2.  The applicants for leave to appeal are ordered, jointly and severally, to pay the respondent's costs on a party and party scale.

 

COWENA J

Acting Judge of the High Court: Gauteng

Local Division Johannesburg

 

Date of hearing: 30/09/2020

Date of delivery: 01/10/2020

 

Appearance for the applicant:	Mr MeNin Fehler (Attorney)
Appearance for the respondent: Instructed by: Lowndes Dlamini Attorneys	Mr R Scholtz

---

---