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2023
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[2023] ZAGPPHC 1765
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Ngobeni v Biomerieux S.A 69280 and Others (45597/2019) [2023] ZAGPPHC 1765 (12 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case Number
: 45597/2019
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
E.M. KUBUSHI
DATE: 12 OCTOBER
2023
In
the matter between:
JOHANNES
MOGAU NGOBENI
APPLICANT
and
BIOMERIEUX
S.A 69280
FIRST RESPONDENT
BIOMERIEUX
SOUTH AFRICA (PROPRIETARY)
SECOND
RESPONDENT LIMITED
In
re:
BIOMERIEUX
S.A
69280
FIRST PLAINTIFF
BIOMERIEUX
SOUTH AFRICA (PROPRIETARY)
SECOND PLAINTIFF LIMITED
And
JOHANNES
MOGAU NGOBENI
DEFENDANT
JUDGMENT
KUBUSHI
J
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by e-mail. The date and
time for
hand-down is deemed to be 12 October 2023.
[1]
This matter served before me in the Unopposed Motion Court.
[2]
The Applicant sought default judgment against the First Respondent.
No order was sought
against the Second Respondent specifically. The
default judgment was sought because the First Respondent failed to
deliver its
plea within the time period prescribed by an order of the
Court.
[3]
The Respondents have filed a Notice to oppose the application. They
oppose the application
on the ground that the Applicant ought to have
barred the Respondent, that is, issued a Notice of Bar, before it
could launch a
default judgment application.
[4]
However, when the parties appeared before me in open court the
Respondents' representative
raised an
in limine
point arguing
for the dismissal of the application on the basis that the default
judgment application was wholly defective in that
it does not provide
the Court with all the correct facts that the Court would require in
order to grant the default judgment.
[5]
The Applicant on the other hand, arguing against the
in limine
point of the Respondents' representative, conceded that the
Respondents had filed a plea but contended that such plea was filed
out of time and the Respondents were supposed to have in terms of
Rule 27(1) applied for condonation, which they failed to do.
[6]
I do not intend to deal with all the issues that were raised in
argument before me
by the respective parties but simply to conclude
that the Default Judgment Application is defective and ought to be
dismissed on
the reasons that follow hereunder.
[7]
It is common cause that when the parties appeared before me in open
court, the Respondents
argued
for the
dismissal of the application on the ground that the papers in which
the application is based are wholly defective and insufficient
to
sustain the application as they relate to a factual situation that
pertained around February 2022 and that a lot has happened
since then
which the Applicant has failed to bring to the attention of the Court
in the application.
[8]
As an example of the lot that have since happened, the Respondents
contends that,
in the first instance, the Applicant has in its papers
failed to inform the Court that the Respondent has subsequent to the
filing
of the default judgment application, applied for leave to
appeal the judgment and order on which the default judgment is based,
which application was dismissed by the Court. Secondly, the Applicant
failed to inform the Court that after the application for
leave to
appeal was dismissed, the Respondents filed their plea, even though
as the Applicant avers, was out of time.
[9]
The Respondents’ representative argued further that the
Applicant purported
to make out a case for the default judgment
relief, through submissions of evidence and facts from the
Applicant’s representative’s
practice note and short
heads of argument. The application for default judgment did not speak
to all the events that transpired
since February 2022, when the
default judgment was launched.
[10]
In order to rectify this obvious defect in the application for
default judgment the Applicant’s
representative gives evidence
in his short heads of argument such as paragraph 3.11 of the short
heads of argument. This, according
to the Respondents’
representative, is not appropriate but, also, the submissions that
the Applicant’s representative
made to this Court did not
originate in the affidavits in the application for the default
judgement. Where the application for
default judgment does not
provide evidence upon which default judgment may be granted, the
Applicant’s representative may
not give evidence from the Bar
or through his heads. This Court, so the Respondents’
representative argued, can only adjudicate
the default judgment on
the strength of the application and the affidavits before Court, and
thus the application for default judgment
is materially defective and
the Applicant has failed to make out a case for default judgment.
[11]
The Respondents’ representative is correct. In order for this
Court to consider the submissions
made by the Applicant’s
representative in oral argument and his short heads or argument, the
Applicant should have supplemented
the founding affidavit to the
default judgment application. The application was launched well
before the application for leave
to appeal and the plea were filed.
It was thus incumbent upon the Applicant to take the Court into his
confidence and divulge all
the facts of the case, particularly as the
Applicant was in the unopposed motion court where the Respondent was
not expected to
make an appearance.
[12]
Consequently, the application falls to be dismissed with costs.
E.M
KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
APPEARANCES
:
APPLICANT
COUNSEL:
ADV
KENNEDEY TSATSAWANE SC
APPLICANT
ATTORNEYS:
EDWARD
NATHAN SONNENBERGS INC.
RESPONDENTS’
COUNSEL:
ADV
ANTHONIE P JANSEN VAN VUUREN
RESPONDENTS’
ATTORNEYS:
SNYMAN
ATTORNEYS