Huysamen & another v Absa Bank Limited & others

The appellants, joint owners of immovable property in Parkmore, Johannesburg, defaulted on their mortgage bond obligations to Absa Bank. Judgment was granted against them and the property was declared executable. Absa proceeded with a sale in execution scheduled for 18 June 2013. Shortly before the sale, the appellants lodged statements of affairs and published notices of intention to surrender their estates under the Insolvency Act 24 of 1936, but they did not inform Absa or the sheriff. The property was sold in execution and later transferred to the purchasers. The appellants subsequently sought to set aside the sale, alleging that it was unlawful under s 5(1) of the Insolvency Act because of the publication of the surrender notices. Their application was dismissed by the High Court, which granted leave to appeal. The appellants failed to lodge a notice of appeal timeously and applied to the Supreme Court of Appeal for condonation and reinstatement of the appeal.

The application for condonation for the late filing of the notice of appeal and reinstatement of the appeal was dismissed with costs on an attorney-and-client scale, including the costs of two counsel. The costs were ordered to be paid jointly and severally by the appellants and their attorney de bonis propriis.

The case reinforces the strict approach of South African appellate courts to condonation applications, particularly where delays are extensive and inadequately explained. It underscores that attorney negligence will not readily excuse non-compliance with court rules and that litigants bear some responsibility for supervising their litigation. The judgment also clarifies the limits of s 5(1) of the Insolvency Act, confirming that surrender notices may not be abused to frustrate sales in execution and must be published bona fide.