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[2016] ZAECPEHC 39
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Jordaan v Blue Dot Properties 310 (Pty) Ltd (934/2010) [2016] ZAECPEHC 39 (18 August 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH)
CASE
NO.: 934/2010
In
the matter between:
ANDREW
CHARLES
JORDAAN
Applicant
And
BLUE
DOT PROPERTIES 310 (PTY)
LTD
Respondent
JUDGMENT – APPLICATION FOR
LEAVE TO APPEAL
BESHE
J:
[1]
This is an application for leave to appeal against an order I issued
on the 28 October 2014 dismissing an application for the
rescission
of a default judgment granted against the applicant in favour of the
respondent. The default judgment which was sought
to be rescinded was
granted by the Registrar on the 3 of June 2010 against the applicant
who was the second defendant in the matter
and two others.
[2]
According to the applicant, Sapphire Dawn Trading 154 CC, first
defendant in the matter has since been deregistered. He also
avers
that he is the sole trustee of the third defendant a trust against
which default judgment was also granted. He further avers
that the
trust in question has never been active and had no assets or
liabilities. This explains why applicant, who I indicated
earlier, is
the only one who applied for the rescission of the default judgment
in question.
[3] The grounds upon which rescission of the default
judgment was sought were that:
(i) The defendants’ failure to enter an appearance
to defend was not due to their negligence or neglect but was due to
the
fact that that they were not aware that an action had been
instituted against them – as the service of summons never came
to their attention.
(ii)
The defendants have a
bona
fide
defence
against plaintiff’s claim – being that the suspensive
conditions to which the sale agreement that is the subject
of this
matter, were not met by the plaintiff. Allied to this, is that, so
applicant contends, plaintiff’s particulars of
claim are
excipiable in that they did not disclose a cause of action as there
is no allegation in them that the suspensive conditions
were
fulfilled.
[4]
For the reasons provided in my judgment on the rescission
application, I did not find any merit in both grounds. Having found
that the defendants were aware of the institution of the action
against them, and they did not show that they had a
bona
fide
defence
against the claim.
[5]
The abovementioned decision is assailed on the grounds,
inter
alia
, that I erred
in not finding that applicant had established a
bona
fide
defence to the
claim by failing to find that applicant’s defence of
non-fulfilment of suspensive conditions was a complete
defence to the
plaintiff’s claim. Further that I erred in not considering that
the defendants have strong defence that mitigated
any deficiencies in
applicant’s explanation for the default in entering an
appearance to defend the action timeously.
[6]
It is further contended on behalf of the applicant that I erred in
finding that the default judgment was not erroneously sought
and / or
granted in the circumstances.
[7]
It is trite that leave to appeal can only be granted where the judge
concerned is of the opinion that the appeal would have
a reasonable
prospect of success, or that there is some other compelling reasons
why the appeal should be heard.
[1]
[8]
Having heard
Mr
Moorhouse
for the
applicant whose argument concentrated on the submission that
applicant has a
bona
fide
defence
against the claim and having heard
Mr
Wagener
for the
respondent, and for the reasons provided in the judgment sought to be
appealed against – I am not persuaded that the
appeal would
have a reasonable prospect of success.
[9]
I am mindful of the fact that applicant was not required to prove his
defence or defendants’ defence during the rescission
application. All that was required was for the defendants to show
that they have a
bona
fide
defence. The
respondent (plaintiff in the action) refuted the allegation that they
had not fulfilled the suspensive conditions
in their detailed
answering affidavit. No replying affidavit was filed by the applicant
to counter what the plaintiff stated in
their answering affidavit in
this regard.
[10]
I am therefore still of the view that the applicant did not succeed
in showing that he has a
bona
fide
defence
against respondents’ claim and that therefore the appeal does
not have any prospects of success.
[11]
Accordingly the application for leave to appeal is dismissed with
costs.
_____________
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicants
:
Adv: Moorhouse
Instructed
by
:
KUBAN CHETTY INC.
2
nd
Floor, FNB Building
582/6 Govan Mbeki Avenue
North End
PORT ELIZABETH
Tel.: 041 – 484 2554
Ref.: K Chetty/ce/CJ48
For
the Respondents
:
Adv: S D Wagener SC
Instructed
by
:
BROWN BRAUDE & VLOK INC
317 Cape Road
Newton Park
PORT ELIZABETH
Tel.: 041 – 365 3668
Ref.: VLOK/MS
Date
Delivered
:
18 August 2016
[1]
Section 17
(1) (a) of the
Superior Courts Act No. 10 of 2013
.