THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 660/2019

In the matter between:
WILHELM GEORGE HUYSAMEN

FIRST APPELLANT
CONSTANTIA TONIA HUYSAMEN

SECOND APPELLANT
and
ABSA BANK LTD

FIRST RESPONDENT
KOLMAN, JAROD

SECOND RESPONDENT
DU PLESSIS, PHILIP

THIRD RESPONDENT
REGISTRAR OF DEEDS, PRETORIA

FOURTH RESPONDENT
THE SHERIFF, SANDTON SOUTH

FIFTH RESPONDENT
INVESTEC BANK LIMITED

SIXTH RESPONDENT

Neutral citation:
Huysamen & another v Absa Bank Limited & others
(660/2019) [2020] ZASCA 127 (12 October 2020)

Coram:
CACHALIA, DAMBUZA, DLODLO NICHOLLS JJA and
MATOJANE AJA

Heard:
25 August 2020
Delivered:
This judgment was handed down electronically by circulation
to the parties’ legal representatives by email, publication on
the Supreme Court of Appeal website and release to SAFLII.
The date and time for hand-down is deemed to be at 10h00
on 12 October 2020.

Summary:  Application for condonation – adequacy of explanation for delay –
attorney remiss – section 5 (1) of the Insolvency Act 24 of 1936 considered.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Manamela AJ
sitting as court of first instance):
1. The application for condonation of the late filing of the notice of appeal and
reinstatement of the appeal is dismissed with costs on an attorney and client scale
including costs-consequent upon the employment of two counsel.
2 The costs in (1) above are to be paid by the applicants and their attorney de
bonis propriis, jointly and severally, the one paying the other to be absolved.
________________________________________________________________
JUDGMENT
________________________________________________________________

Dlodlo JA (Cachalia, Dambuza, Nicholls JJA and Matojane AJA concurring):

[1] This is an application for condonation for the late filing of a notice of appeal
and the reinstatement of a lapsed appeal. The appeal is against a judgment of the
Gauteng Division of the High Court, Pretoria (the high court) dismissing an
application by the applicants  to set aside a sale in execution of immovable property
for being offensive to the provisions of s 5(1) of the Insolvency Act  24  of 1936
(the Act). The applicants’ complaint was that the sale was unlawful because they
had already published notices surrendering their estates in terms of s 4(1) of the
Act at the time of the sale, which had the effect of prohibiting the sale from
proceeding. The applicants currently reside on the property known as Erf 397
Parkmore, Johannesburg (the property). After dismissing the application the high
court granted leave to appeal to this court.

Facts
[2] The applicants, who jointly owned the property, defaulted on their bond
repayment obligations. This prompted Absa to proceed with legal action against
them by way of summons. On 16 April 2012, judgment was granted against the

applicants for payment of R1 691 958 together with interest at a rate of 15.5% per
annum compounded monthly, calculated from 7 November 2008 to date of
payment and costs on an attorney and client scale. On 28 February 2013, the
property was declared executable.

[3] The applicants’ indebtedness to Absa was secured by three mortgage
bonds registered against the property, securing the capital and additional sums
mentioned therein and interest. The mortgage bonds served as continuing
covering security for ‘each and every sum in which the mortgagor may now or
hereafter become indebted to (Absa)’. A writ of attachment of the property was
served on the first appellant personally on 3 May 2013. On 31 May 2013, Absa
caused advertisements of the sale in execution, scheduled for 18 June 2013, to be
published.

[4] On 13 June 2013, the notice was served on the first applicant personally.
On the same date, the applicants applied for the voluntary surrender of their
estates. They also lodged a statement of their affairs as contemplated in s 4(3) of
the Act with the Master of the High Court. On 14 June 2013, the applicants caused
a notice of their intention to apply for the surrender of their estates to be published
in the Government Gazette.

[5] The applicants did not, at the time, inform the Sheriff or Absa of the
aforementioned publications or their intended surrender applications. According to
Absa, by June 2013, they were indebted to it in the sum of R3 292 106. Absa
obtained a judgment debt against them, and the property, which Absa held as
collateral, was declared executable. In their statement of affairs, the applicants did
not disclose the existence of the judgment debt against them. Neither did they
disclose the full extent of their indebtedness to Absa. They declared the sum total
of their joint indebtedness to Absa to be only R1 741 310 (R870 655 each). They
valued the property at R2 400 000. According to their statement of affairs, the first

applicant’s security was limited to R869 400. This was not true because Absa’s
security was unlimited.

[6] On 18 June 2013 (as scheduled), the property was sold in execution. It was
bought by the second and third respondents (the purchasers). The applicants’
attorneys posted a notice of the surrender application to all creditors, including
Absa. This was a day after the purchase of the property. The notice was received
by Absa’s insolvency department on 5 July 2013. Absa’s attorneys involved in the
foreclosure action against the applicants first acquired knowledge of publication of
the surrender notices and the intended applications when they were informed
telephonically by the applicants’ attorney on 5 August 2013. On 18 November
2014, the transfer of the property to the purchasers was registered.

[7] In April 2015, the applicants unsuccessfully brought an application in the
high court to set aside of the sale in execution. In their application, they contended
that the sale was unlawful because the notice of the surrender had the effect of
suspending any sale in execution in accordance with the provisions of s 5(1) of the
Act. In the alternative, the applicants contended that they had entered into a
settlement agreement with Absa. The high court dismissed their application on 14
August 2017. Leave to appeal to this court was granted by the high court on 21
September 2018. The notice of appeal should have been lodged with the Registrar
of this Court by 22 October 2018, but was not and the appeal lapsed. The
applicants have thus brought an application for condonation for the late filing of the
notice of appeal and reinstatement of the appeal. Absa and the purchasers resist
the condonation application on various grounds.

Condonation
[8] The notice of appeal to this court (as mentioned above) was due on or
before 22 October 2018. It was not filed until 13 June 2019. On 23 October 2018,
the applicants’ attorney was advised by counsel that the appeal would lapse on 23
October 2018 if the notice of appeal was not served on the Registrar of this Court

by then. Counsel was then requested to attend to the preparation of the notice of
appeal. The notice was only forwarded to the correspondent attorneys in
Bloemfontein (Honey Attorneys) on 23 October 2018 with instructions to file it with
the Registrar of this Court. On the same date, the Registrar declined to accept the
notice because it was late. Honey Attorneys informed the instructing attorneys
promptly by email. The email was received by one of the firms’ secretaries (Ms
Olivier) who did not alert the applicants’ attorney of its contents. She, instead,
discussed this with a candidate attorney, who undertook to draft a condonation
application. But he never did. The applicants’ attorney only became aware of this
months later.

[9] The applicants’ attorney does not explain why the appeal was dealt with by
a candidate attorney or why he made no enquiries from the candidate attorney or
Honey Attorneys regarding the status of the appeal. On his calculation of the
relevant time periods, the appeal would have lapsed on 24 February 2019 in terms
of Rule 8(3) for failure to file the record.  According to him, efforts were made from
11 January 2019 to 13 May 2019 to obtain a transcript of the argument in the high
court. But the delay amounting to 104 days is not explained. It was only on 21 May
2018 that he discovered that the notice of appeal had never been filed. He was
apparently advised on 22 May 2019 that it was not necessary to include the
transcript of the argument in the appeal record. Lastly, although the founding
affidavit in the condonation application was deposed to on 6 June 2019, it was only
on 10 June 2019 that the notice of motion was signed. The condonation application
was filed in this Court only on 13 June 2019.

[10] The approach this Court adopts in determining whether to grant
condonation is well-known. In Dengetenge Holdings1 Ponnan JA held that factors
relevant to the discretion to grant or refuse condonation include ‘the degree of non-
compliance, the explanation therefor, the importance of the case, a respondent’s

1 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and
Others (619/12) [2013] ZASCA 5; [2013] 2 All SA 251 (SCA) para 11.

interest in the finality of the judgment of the court below, the convenience of this
court and the avoidance of unnecessary delay in the administration of justice.’
Fleshing out the aforementioned general considerations, Plewman JA in the
Darries2 stated the following:
‘Condonation of the non-observance of the rules of this court is not a mere formality. In all
cases, some acceptable explanation, not only of, for example, the delay in noting the
appeal, but also, where this is the case, any delay in seeking condonation, must be given.
An appellant should whenever he realises that he has not complied with a rule of court
apply for condonation as soon as possible. Nor should it simply be assumed that, where
non-compliance was due entirely to the neglect of the appellants’ attorney that
condonation will be granted. In applications of this sort the applicants’ prospects of
success are in general an important though not decisive consideration. When application
is made for condonation it is advisable that the petition should set forth briefly and
succinctly such essential information as may enable the Court to assess the appellant’s
prospects of success. But appellant’s prospect of success is but one of the factors relevant
to the exercise of the court’s discretion, unless the cumulative effect of the other relevant
factors in the case is such as to render the application for condonation obviously unworthy
of consideration. Where non-observance of the Rules has been flagrant and gross an
application for condonation should not be granted, whatever the prospects of success
might be.’3
It does not follow that if the cause of delay in complying with the rules is the conduct
of the applicants’ attorney, condonation will be granted. Thus in Saloojee, Steyn
CJ held:
‘I should point out, however, that it has not at any time been held that condonation will not
in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond
which a litigant cannot escape the results of his attorney’s lack of diligence or the
insufficiency of the explanation tendered. To hold otherwise might have disastrous effect
upon the observance of the Rules of this Court. Considerations ad misericordiam should
not be allowed to become an invitation to laxity. In fact, this Court has lately been burdened
with an undue and increasing number of applications for condonation in which the failure

2 Darries v Sheriff Magistrate’s Court, Wynberg and Another [1998] ZASCA 18; 1998(3) SA 34
(SCA) at 40H-41E.
3 Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A).

to comply with the Rules of this Court was due to neglect on the part of the attorney. The
attorney, after all, is the representative whom the litigant has chosen for himself, and there
is little reason why, in regard to condonation of a failure to comply with a Rule of Court,
the litigant should be absolved from the normal consequences of such relationship, no
matter what the circumstances of the failure are.’
Similarly, in Tshivhase Royal Council and another, Nestadt JA stated that this
Court ‘has often said that in cases of flagrant breaches of the Rules, especially
where there is no acceptable explanation therefor, the indulgence of condonation
may be refused whatever the merits of the appeal are; this applies even where the
blame lies solely with the attorney.’4

[11] An applicant for condonation must give a reasonable and full explanation
covering the entire period of the delay.5 The applicants and their attorney have
failed in this regard. It is totally unhelpful for the applicants’ attorney to tell this court
that he was waiting for funds to brief counsel to draft the notice of the appeal. This
Court has long held that the drafting of a notice of appeal is ordinarily an attorney’s
work.6 There is no reason why an attorney has to brief counsel to draft a notice of
appeal. It is also no excuse for him to attribute the delay to the applicants’
impecuniosity because, as we gather, he is acting on a contingency basis.

[12] It is not acceptable for an attorney to place reliance on his inexperience in
conducting appeals in this Court. In terms of Rule 8(b)(j)(i) the record shall not
contain argument. In any event, an attorney who is instructed to note an appeal is
duty bound to acquaint him or herself with the rules of the court in which the appeal
is to be prosecuted.7 One searches in vain for an explanation of his failure to
comply with this basic duty. The delay in the preparation of the record during the
period covered by the months November and December 2018 has not been
explained. The attorney merely says that he attempted to obtain the transcript of

4 Tshivhase Royal Council and Another v Tshivhase and Another [1992] ZASCA 185; 1992 (4)
SA 852 (AD) at 859E-F.
5Van Wyk v Unitas Hospital and Another [2007] ZACC 24; 2008 (2) SA 472 (CC) para 22.
6 Darries fn 2 above at 42A-B.
7 Ferreira v Ntshingila [1989] ZASCA 149; 1990 (4) SA 271 (A) at 281G-E.

the argument in the court a quo. Of course this was a misguided endeavour. But
at the very least one would have expected that the nature, extent and timing of
those attempts would be set out. There are some explanations of what transpired
during January to 13 May 2019. The applicants’ attorney informs this court that
Honey Attorneys told him on 22 May that it was not necessary to have the
argument transcribed for appeal purposes. But he then waited until 27 May 2019
to obtain a quotation from Pro Recordings, a professional recording and
transcription service, to prepare the record. The record had still not been lodged
at the time of deposing to his affidavit, despite the inordinate delay and patent
urgency of the matter. The respondents’ interest in the finality of the judgment of
the court a quo remains a factor which will always weigh with this court.8

[13] The applicants wrongly contend that the respondents would suffer no
prejudice if the condonation application is granted. One gathers from the record in
this matter that the applicants have made no payments to Absa in respect of the
property since 2011. They have also made no payments to the purchasers of the
property after the sale and transfer thereof. In essence, they have been living on
the property for 8 years rent free while the purchasers remain liable for insurance
of the property, municipal charges in relation thereto and their mortgage bond
instalments to Investec Bank. This is prejudice enough. The explanation the
applicants have given in the present case is neither full nor satisfactory. There was,
I must add, gross negligence on the part of the applicants’ attorney in leaving the
matter in the hands of an unsupervised candidate attorney.

[14] The question is whether the applicants’ condonation application should be
granted despite their attorney having been remiss in fulfilling his duty to them.
Courts, in general, are ordinarily loath to penalise a litigant on account of his
attorneys’ negligence. But in Reinecke,9 this Court warned litigants that the time

8Ferreira supra, see also Federated Employers Fire General Insurance Co Ltd and Another v
McKenzie 1969 (3) SA 360 (A).

9 Reinecke v Incorporated General Insurances Ltd 1974 (2) SA 84 (A) at 92F.

had come that it should be no excuse. Attorneys are members of the Court. The
Court expects them to know and uphold the Rules of the court in which they
practise.  A litigant can derive no benefit from the ineptitude of his attorney. After
all the attorney is the litigant’s chosen legal representative. If one’s legal
representative has poorly executed the mandate, one must suffer the
consequences. In any event, the applicants themselves are not without blame. It
would be unreasonable to accept that once a client has given instruction to an
attorney, he or she can sit back and do nothing. The applicants herein, it would
seem, hardly enquired from their attorney as to the progress with the appeal.  They
sprang into action only upon receipt of an eviction application served on them on
13 May 2019 at the instance of the purchasers. This, seemingly, prompted the
applicants and their attorney to launch this condonation application on 10 June
2019. The purchasers thus contend that this condonation application is not bona
fide and is merely designed to delay the ultimate eviction of the applicants from the
property. One cannot take issue with the purchasers’ contention in this regard.
Accordingly, the applicants have not satisfied the onus on them to show that
condonation should be granted.

[15] The application for condonation must also fail because the prospects of
success are weak. Absa, in its answering affidavit, contended that the publication
of the notices to surrender the applicants’ respective estates on 14 June 2013 was
with the ulterior motive of frustrating Absa’s endeavours to execute upon its
judgment. There was no bona fide intention to benefit the body of creditors as a
whole. This was not refuted in reply by the applicants. It constitutes a formidable
obstacle for the applicants. There is no explanation why they resorted to abuse of
s 5(1) of the Act. In Firstrand Bank Limited,10 Binns-ward J stated the following in
paragraph 7 of the judgment:
‘Nothing in the relevant provisions of the Act supports the notion that a notice of surrender
may, or can, legitimately be given with the primary object of frustrating sales in execution,

10 Firstrand Bank Limited v Consumer Guardian Services (Pty) Limited and others [2014]
ZAWCHC 27.

or to provide a debtor with a moratorium against the sale in execution of his property while
he considers his position and decides whether or not he should proceed with the
presentation of an application for the acceptance of his surrender. Compare Ex parte
Stepney, in which even the postponement of an application for voluntary surrender
brought bona fide was refused because such a course would in substance “sanction the
device of putting a notice in the Gazette without a real intention to surrender, and thus
locking up the assets, while the estate is left in the hands of the insolvent”- something
which a court could not be seen to countenance.’
Binns-ward J made it clear in paragraph 8 that:
‘The notice of surrender tells the world, the debtor’s creditors and his employees that he
will be applying for acceptance of surrender of his estate. “It does not inform them he is
taking time to consider his options.” To use the notice procedure for a purpose for which
it is not intended is to misrepresent the debtor’s position to the legally interested third
parties and, when there are pending sales in execution involved, to cause s 5(1) of the Act
to operate in circumstances in which it clearly was not intended to apply; in other words,
to act not only contra legem, but also in fraudem legis. The misrepresentation is plainly
mala fide when it occurs in the context of deliberate misuse of the statutory provisions.’

[16] Applicants in voluntary sequestrations have a duty to make full and honest
disclosure of the material facts.11 And it is the duty of the court to consider carefully
a friendly sequestration application to determine whether the process will be of
advantage to the creditors. It is in this sense that an applicant’s good faith is an
important consideration in a sequestration application. The remarks in
Edkins,12which the applicants rely upon, that the mala fides of the insolvent debtor
is irrelevant when considering the lawfulness of a sale in execution, is not a general
principle. It must be understood in the light of the context that in that case the
judgement debtor was in fact sequestrated and a trustee took control of the estate.
It is against this background that the debtor’s lack of good faith there became
irrelevant.

11 Arentzen v Nedbank Ltd 2013 (1) SA 49 (KZP paras [5], [6] and [7].
12 Fourie and Another NNO v Edkins [2013] ZASCA 117; 2013 (6) SA 576 (SCA).

[17] The reliance by the applicants on the judgment of this court in Edkins is
therefore misplaced. In Edkins this court found that the provisions of s 5 did not
apply as the sale in execution preceded the publication of the notice to surrender.
It was found that s 4 was the applicable section, and the court then held that ‘upon
publication of a notice in terms of s 4(1) of the Act, the provisions of section 20(1)(c)
and (2)(a) immediately come into operation. The effect thereof is that control of the
insolvent estate vests in the Master until a trustee has been appointed and
thereafter the estate will vest in the trustee.’ In Edkins, this court also found that
the Sheriff could not have lawfully proceeded to transfer the property to the
purchaser upon becoming aware of the sequestration of the insolvent. Instead the
purchaser should have approached the court in terms of s 20(1)(c) read with
subsection (2)(a) to pass transfer.

[18] Of course s 20 (1)(a) of the Act provides for a stay in execution as soon as
the Sheriff becomes aware of the sequestration of an insolvents’ estate. However
where, as in this case, the sheriff could not have been aware of the publication of
a notice of surrender a sale in execution is not unlawful under s 5. In terms of s 5
a sale in execution becomes unlawful if it occurs after the publication of the notice
of surrender. In principle where a sale is not unlawful under s 5(1) of the Act,
transfer of the immovable property is not prohibited by the publication of a
surrender notice where there has been no supervening sequestration. Edkins is
therefore distinguishable from this case in that it concerned a supervening
sequestration (between the sale in execution and the transfer of immovable
property under attachment).13 In this case it is common cause that the applicants’
estate was never sequestrated until the property was transferred to the
purchasers.

13 For that reason it is unnecessary for us to discuss the academic debate on the dichotomy
between Edkins and De Villiers v Delta Cables(Pty) Ltd 1992 (1) SA 9 (SCA).

[19] In this case it is further discomforting that on 6 November 2013 the
surrender applications were postponed indefinitely and nothing was done until a
year later, when the property was transferred to the purchasers.

[20] The applicants’ misleading statement of affairs lodged with the Master of
the high court on 13 June 2013 in which they understated their indebtedness to
Absa by 50 percent runs contrary to the duty of full and honest disclosure. So is
their misrepresentation to an unsuspecting employee of Absa to the effect that the
bank (Absa) held only two mortgage bonds, when in fact there were three. It is not
surprising that when Absa discovered the extent of deliberate misrepresentation
of facts by the applicants it withdrew from settlement negotiations.

[21]  For these reasons, the following order is made.
1. The application for condonation of the late filing of the notice of appeal and
reinstatement of the appeal is dismissed with costs on an attorney and client scale
including costs-consequent upon the employment of two counsel.
2 The costs in (1) above are to be paid by the applicants and their attorney de
bonis propriis, jointly and severally, the one paying the other to be absolved

_____________________
DLODLO JA
JUDGE OF APPEAL

Appearances

For First and Second appellant:   M H Van Twisk

Instructed by:

DLBM Attorneys Inc, Pretoria
Honey Attorneys, Bloemfontein

For First respondent:

P Stais SC
Instructed by:

Smit Sewgoolam Inc, Durban
Peyper Attoorneys, Bloemfontein.

For Second and Third respondents: M Oppenheimer

Instructed by:

Schilndlers Attorneys, Johannesburg
Webbers, Bloemfontein.