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[2021] ZAECPEHC 4
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Omega Construction and Building v Dlodlo and Others (100/2020) [2021] ZAECPEHC 4 (21 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 100/2020
In
the matter between:
OMEGA
CONSTRUCTION AND BUILDING
Plaintiff / Respondent
And
KHETHIWE
DLODLO
First
Defendant / Applicant
ADMIRE
MOYO
Second
Defendant / Applicant
BHC
BUILT ENVIRONMENT PROFFESSIONALS
(PTY)
LTD
(REGISTRATION
NUMBER 2013/188545/07)
Third Defendant / Applicant
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
BESHE
J:
[1]
This is an application for leave to appeal
against a default judgment I granted on the 5 November 2020
against
the applicants 1 to 3. Defendants in the action. The parties will be
referred to as they are in the main action. The defendants
having
been
ipso facto
barred from filing their plea, the plaintiff
applied for default judgment.
[2]
On the day appointed for the hearing of the
application for default judgment, first and second defendants
without
a legal representative and sought to argue based on the merits of the
case that the default judgment application should
not be granted.
This, without applying for either the lifting of or a postponement of
the matter. In which case they would have
been required to show good
cause for the indulgence they seek.
[3]
It is now submitted that judgment should not
have been granted
inter alia
because:
The
Particulars of Claim do not disclose a cause of action in respect of
first and second defendants. Evidence should have been
placed before
court to show / prove the fraudulent actions complained of. Also on
the basis that the claim was not for a liquidated
amount.
The
suggestion here being that such evidence should have been
viva
voce
evidence.
[4]
The application for default judgment was
supported by an affidavit deposed to by the Contract Director
of the
plaintiff:
Mr Richard Andrew Hutton
.
[5]
Even though I was satisfied based on the
averments made in the said affidavit and the Particulars of
Claim
that a cause of action had been disclosed, and that the claim was for
a liquidated amount, I am unable to say that another
court may not
find otherwise and that therefore the appeal has a reasonable
prospects of success. This is also in view of the fact
that the issue
of the difficulties brought about by the declaration by the State
President of the state of disaster during the
conduct of this
litigation having been caused, coupled with the fact that the
defendants were not legally represented at the time
of the granting
of the default judgment.
[6]
Accordingly, leave to appeal is granted to the
full bench of this division. Costs to be costs in the appeal.
NG
BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Plaintiff/Respondent
:
Adv: Adv:
Beyleveld SC
Instructed
by
:
PAGDENS
ATTORNEYS
18
Castle Hill
Central
PORT
ELIZABETH
Ref:
M Kemp/ME/ALP9/0001
Tel.:
041 – 502 7285
For
the Defendants /Applicants
:
Adv: Williams
Instructed
by
: SIYILA
ATTORNEYS
2
Salisbury Road
Mill
Park
PORT
ELIZABETH
Ref:
Pers / BHC/OOI
Tel.:
041 – 373 0736
Date
Heard
: 22
January 2021
Date
Reserved
: 22
January 2021
Date
Delivered
: 26
January 2021