Benson v The Standard Bank of South Africa and Others

• Jurisdiction: South Africa
• Court: Gauteng Local Division, Johannesburg
• Judge: S Weiner J
• Judgment Date: 17 May 2022
• Citation: 2022 JDR 1243 (GJ)
• Docket Number: 2011/17143

Weiner J:

1.

The Applicants apply for leave to appeal against the judgment and order which I handed down on 14 October 2014, dismissing a rescission application against the judgment of Mia AJ. Mia AJ had dismissed an earlier rescission application brought by the applicants against the order of Kgomo J, in which he declared the property [1] previously owned by the applicants specifically executable The sale in execution took place and the fourth respondent purchased the property.

2.

The application for leave to appeal was delivered on the last day allowed for in terms of Rule 49(1), on 4 November 2014. This application was then left standing, with no effort made to have it heard for some 7.5 years. There was initially no explanation proffered by the applicants as to why it took such time have this matter set down for hearing.

3.

Despite the applicants admitting the breach of the loan agreement and the arrears owing, there have been a myriad of applications brought by the applicants to rescind various previous judgments in this matter. In this regard default judgments

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were granted by Kathree-Setloane J [2] and Kgomo J [3] ; rescissions of those judgments failed. [4]

4.

I dismissed the application to rescind Mia AJ's judgment on the ground that rescission was inappropriate; an appeal should have been launched. [5] This issue formed the basis of the application for leave to appeal before me. Although there are conflicting judgments on this issue, it is not necessary to deal with this issue as the merits of the application for leave to appeal have no prospects of success and thus leave to appeal is not warranted for the reasons set out below.

5.

I was informed in the affidavits filed by the attorneys referred to below that Mr Van Zyl, the fourth respondent's attorney had stated at a previous hearing that he had obtained an eviction order against the applicants. The eviction application was heard on 12 August 2020. Judgment was delivered on 16 February 2021. The applicants and their attorneys did not inform me of this. [6] The applicants, in the eviction application, raised the same defences that they have relied upon for the past decade i.e that the sale in execution should be cancelled as the relevant documents contained an incorrect description of the property. Ally AJ, who heard the eviction application, dealt with this issue and the attack on the fourth

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respondent's ownership and title in the property. The defences raised in the present matter were dealt with by Ally AJ.

6.

Ally AJ referred to this leave to appeal before me. He stated that '[n]othing has been done to prosecute this appeal. The First and Second Respondents have not responded nor explained the delay in prosecuting the appeal. It is my view that the Applicant's rights cannot be held in abeyance simply by the First and Second Respondents failing to prosecute their leave to appeal or appeal.' Ally AJ held that no defence had been raised and ordered the eviction of the applicants herein. Leave to appeal was refused. The applicants petitioned the Supreme Court of Appeal (the SCA) for leave to appeal. This was refused on 30 January 2022. No doubt, this is the reason the applicants suddenly decided to pursue the appeal against my judgment when they did. It is noteworthy and unprofessional that the applicants failed to...