NB Nyati Attorneys Tel: (021) 8395629
E-mail: [email protected]
CASE NO: CCT SCA CASE NO: 213/2014 WCHC CASE NO: 14272/2010
In the matter between:
NOMSA NKATA Applicant
and
FIRST RAND BANK LIMITED First Respondent
THE SHERIFF IN THE DISTRICT OF
DURBANVILLE, WESTERN CAPE Second Respondent
KRAAIFONTEIN PROPERTIES
EIENDOMME Third Respondent
THE REGISTRAR OF DEEDS, WESTERN
CAPE Fourth Respondent
APPLICATION FOR LEAVE TO APPEAL IN TERMS OF RULE 19
BE PLEASED TO TAKE NOTICE that the above-named applicant hereby applies for an order in the following terms:
1. Granting the applicant leave to appeal against the decision of the Supreme Court of Appeal (including the whole of the judgment and the order) delivered on 26 March 2015 (under case number 213/2014), upholding an appeal by the above-named first respondent with costs (including the costs of two counsel) against the order made by the Western Cape Division of the High Court, Cape Town (under case number 14272/2010), and substituting the order of the High Court with an order that, “The application is dismissed with costs”.
2. In the event that the application for leave to appeal is granted:
2.1 upholding the appeal;
2.2 upholding and reinstating paragraphs (a), (b), (c) and (d) of the order of the High Court, that is:
(a) declaring that on 8 March 2011 the mortgage loan agreements which the respondent sought to enforce in case 14272/10 were reinstated in terms of s.129(3) of the National Credit Act 34 of 2005;
(b) declaring further that, pursuant to such reinstatement, the default judgment granted by the Registrar of the
High Court on 28 September 2010, and the writ of attachment issued by the Registrar on that date directing the Sheriff to attach the mortgaged property, Erf 8832, Durbanville (“the property”), ceased by operation of law to have any force or effect as from 8 March 2011;
(c) declaring further that, by virtue of the declarations in (a) and (b) above, the sale of the property by public auction on 24 April 2013 to the third respondent was invalid, and the said sale is set aside;
(d) restraining the first, second and fourth respondents from causing transfer of the property to be registered in the name of the third respondent;
2.3 ordering the first respondent to pay applicant’s costs in the Supreme Court of Appeal, and in this Court including the costs of two counsel;
2.4 granting such further or alternative relief as this Honourable Court may deem fit to grant.
TAKE NOTICE FURTHER that the affidavits of NOLUNDI NYATI and NOMSA NKATA are attached in support of this application.
TAKE NOTICE FURTHER that the applicant has appointed Pukwana Incorporated situated at 11th Floor, Braamfontein Centre, 23 Jorissen Street
Braamfontein, Johannesburg, Gauteng to accept notice(s) and service of all proceedings.
TAKE NOTICE FURTHER that if you intend to oppose this application you are required within ten days hereof to notify the applicant’s attorneys accordingly in writing and to file an answering affidavit, if any; and further you are required to appoint in such notification an address at which you will accept notice and service of all documents in these proceedings. If no such notice of intention to oppose is given, the applicant will request the Registrar to place the matter before the Chief Justice to be dealt with in terms of Rule 11(4).
DATED AT CAPE TOWN ON THIS DAY OF APRIL 2015.
NOLUNDI NYATI ATTORNEYS
Per: ___________________
Unit 710 7th Floor, 47 On Strand CAPE TOWN 8000 [email protected]
c/o: PUKWANA INCORPORATED 11th Floor Braamfontein Centre
23 Jorissen Street BRAAMFONTEIN JOHANNESBURG GAUTENG Tel: 011 403 011/28 Fax: 011 403 0025
TO: THE REGISTRAR
CONSTITUTIONAL COURT OF SOUTH AFRICA
1 Hospital Hill Constitutional Hill BRAAMFONTEIN JOHANNESBURG
AND TO: COHEN SHEVEL & FOURIE First Respondent’s Attorneys 40 McIntyre Road
PAROW
Western Cape Tel: (021) 939-5120
AND TO: THE SHERIFF IN THE DISTRICT
OF DURBANVILLE, WESTERN CAPE Second Respondent
Sheriff’s Office No.42 John X Merriman Street Oakdale
BELLVILLE Western Cape
AND TO: KRAAIFONTEIN PROPERTIES EIENDOME Third Respondent
91 Dawin Street KRAAIFONTEIN Western Cape
AND TO: THE REGISTRAR OF DEEDS WESTERN CAPE
Fourth Respondent No 90 Plein Street New Revenue Building CAPE TOWN
