Standard Bank of South Africa Ltd v Higgs and Another

The First Respondent (Brian Charles Higgs), married out of community of property to the Second Respondent, had a home loan advanced in 2006 for R2,000,000, which was later consolidated in 2008 to R6,490,000. By late 2016, after several payment moratoriums, he was placed under debt review. He terminated debt review in April 2017, and a reckless credit application was rejected. On 10 September 2018, judgment was granted against him for R7,359,064.44. Between March and November 2019, multiple sales in execution of his Stellenbosch property were attempted but repeatedly postponed due to various applications by the First Respondent, including reconsideration of the reserve price and urgent stays. The property was his primary residence accommodating a minor and three elderly persons. At the fifth sale in execution, the highest bid was R2,900,000 (against a reserve of R10,000,000) and was declined. A provisional sequestration order was granted on 3 March 2023, and a final sequestration order was granted on 10 January 2024. The First Respondent sought leave to appeal the final sequestration order but filed his application out of time (on 24 May 2024 instead of by 31 January 2024). After the final order, trustees were appointed and took steps to realize the property, including issuing a notice to vacate on 15 March 2024.

• Whether condonation for the late filing of the application for leave to appeal should be granted in the interests of justice.
• Whether the court erred in finding the First Respondent factually insolvent.
• Whether the court erred in granting the final sequestration order by failing to recognize that sequestration circumvented the provisions of Rule 46A.
• Whether the sequestration order impacted the First Respondent's rights under section 26 of the Constitution (right to housing).

The condonation application was dismissed. Costs were granted in favour of the Applicant, to be borne from the insolvent estate of the First Respondent, including costs of two counsel (Scale B for senior counsel and Scale A for junior counsel).

In considering a condonation application for late filing of leave to appeal, the court must assess whether it is in the interests of justice, considering the extent and cause of delay, reasonableness of the explanation, effect on administration of justice, and prospects of success. An inordinate delay without a reasonable explanation undermines the principle of finality. A litigant is entitled to assume that an unappealed order has become final. Insufficiently explained delay, particularly when motivated by collateral purposes (such as delaying eviction), does not warrant condonation.

Had the court granted condonation, it would nevertheless have found no reasonable prospects of success on appeal, as the grounds were a repetition of arguments already dealt with in the judgment and there was no sound, rational basis to conclude a reasonable prospect of success.

This case affirms the strict approach to condonation applications for late appeals in insolvency matters, emphasizing the importance of finality in sequestration orders. It reinforces the principle from Van Wyk v Unitas Hospital that inordinate delay in appealing induces a reasonable belief that the order is unassailable. It also illustrates the court's oversight role under Rule 46A having been exercised at the execution stage, and confirms that sequestration is not a means to circumvent Rule 46A when all requirements of that rule have been met.