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[2022] ZAECMKHC 1
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Dlodlo and Others v Omega Construction and Building (Pty) Ltd (CA85/2022) [2022] ZAECMKHC 1 (1 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
REPORTABLE
Case No.:
CA85/2022
Date Heard: 14
February 2022
Date Delivered: 1
March 2022
In
the matter between:
KHETHIWE
DLODLO
First Appellant/Defendant
ADMIRE
MOYO
Second
Appellant/Defendant
BHC
BUILT ENVIRONMENT PROFESSIONALS
(PTY)
LTD
ThirdAppellant/Defendant
and
OMEGA
CONSTRUCTION AND BUILDING (PTY) LTD
Respondent/Plaintiff
JUDGMENT
EKSTEEN
J:
[1]
This matter concerns an appeal against a
judgment granted by default in the High Court, Makhanda in favour of
the respondent, Omega
Construction and Building (Pty) Limited (Omega)
in the amount of R1 250 390,47, together with interest thereon.
The appeal
is with leave of the judge
a
quo
.
[2]
On 22 January 2020 Omega issued summons
against the appellants for damages in the aforesaid amount. It
alleged that it had
concluded a Principal Building Agreement (the
agreement) with the third appellant, BHC Built Environment
Professionals (Pty) Limited
(BHC), to undertake certain construction
work (the works) at 27 Walton Road, Mill Park, Gqeberha (the
property). The first
appellant, Ms Dlodlo, a businesswoman in
Gqeberha, is the sole director of BHC and she is married to the
second appellant, Mr Moyo,
who had previously been a co-director of
BHC. Mr Moyo is qualified as a quantity surveyor and holds a
LLB degree. He
represented BHC in the conclusion of the
agreement. Omega alleged that, at the time of the conclusion of
the agreement, Mr
Moyo had failed to disclose to it that the property
did not belong to BHC, which was no more than an empty shell, owning
no assets
and having no income. In fact, the property was
registered in the name of a family trust, of which Mr Moyo is a
trustee,
and it is reflected in the summons as the residential
address of Ms Dlodlo and Mr Moyo.
[3]
Omega alleged that it had completed the
works and that BHC had failed to make certain progress payments due
to it notwithstanding
the issue of payment certificates, issued in
terms of the agreement by BHC’s principal agent. Disputes
relating to
the construction of the works followed and Omega was
unable to obtain payment from BHC. This, in turn, prompted the
issue
of summons. It was Omega’s case that Ms Dlodlo and
Mr Moyo had intentionally and fraudulently fabricated a series of
events, and employed a strategy, designed to obtain the result that
BHC would not make any further payment to Omega in respect
of the
building project, regardless of the fact that such amounts were and
would be due, and regardless of its lawful obligation
to do so.
It contended that they had contrived a scheme to secure that they
would obtain full use and enjoyment of the building
project attended
to by Omega, without it receiving payment in respect of the full
contract value. It accordingly claimed
damages in the amount
which it contended that it would have been entitled to recover from
BHC in terms of the contract, but for
the fraudulent conduct of Ms
Dlodlo and Mr Moyo.
[4]
The
summons was duly served on each of the appellants on 22 January 2020
and on 6 February 2020 a notice of intention to oppose
was delivered
by their nominated attorney. A deathly silence followed, until
4 March 2020, when Omega delivered a notice
of bar calling upon the
appellants to deliver a plea within 5 days, failing which they would
be
ipso
facto
barred.
[1]
The notice did not illicit a plea, however, the appellants filed a
notice in terms of rule 23 of the Rules of Court (the
rules) in which
they raised a number of points that they alleged were vague and
embarrassing. They afforded Omega 15 days
to remove the cause
of their complaint failing which an exception was threatened.
Omega was apparently unmoved as it failed
to seek any amendment to
their particulars of claim. However, when the 15 days expired
the appellants failed to pursue their
exception.
[2]
Thus, the threatened exception lapsed, which led, in turn, to the
delivery of a fresh notice of bar on 28 April 2020.
Again the
appellants were called upon to file their plea within 5 days, failing
which they would be
ipso
facto
barred. They failed to heed the notice and were accordingly
barred. Ultimately, during October 2020 Omega filed an
application for judgment by default, as the defendant’s had
failed to file their plea.
[3]
The application for default judgment was set down for hearing on 3
November 2020 and notice was accordingly given to the
appellants on
13 October 2020.
[4]
On
Friday, 30 October 2020 the appellants proceeded, without the consent
of Omega or leave of the court, to file an “answering
affidavit” attested to by Mr Moyo comprising more than 70 pages
together with annexures running into more than 200 pages.
On 2
November 2020, the day prior to the hearing, the appellants proceeded
to file 140 pages of pleadings comprising special pleas
and counter
claims, in defiance of the notice of bar.
[5]
Ms Dlodlo and Mr Moyo attended at court on
the day of the hearing purporting to oppose the application for
default judgment.
The judge
a quo
afforded them an opportunity to address her before granting
judgment. The material portion of her judgment was brief and
it
is instructive to set it out in full. The court
a
quo
held:
‘
The
defendants did not seek the lifting of the bar. They sought to
persuade the court that they were not in wilful default
of filing
their plea. … Defendants apparently filed an “answering
affidavit” comprising 70 odd pages,
deposed to by the second
defendant on the 30 October 2020, together with annexures thereto
running into well over 200 unpaginated
pages. On the day
preceding the hearing of the default judgment application, two
volumes each comprising 70 or so pages said
to be defendants’
special pleas were filed. All of these are directed at
assailing the allegations in the summons and
at disclosing defences.
The defendants have a right to raise special pleas, exceptions, put
up defences – but to do
so procedurally. As far as I
could glean from the voluminous, out of time papers, there is no
attempt to seek the lifting
of the bar. …’
[6]
The
history, to the extent to which it relates to the process of court,
is not in dispute. It is common cause that the appellants
were
procedurally barred in terms of rule 26 of the rules. The
effect thereof is that the pleadings are deemed to be closed
and the
appellants were accordingly barred from filing a plea. The
consequence of a bar is that a defendant is not entitled
to appear
either personally or by counsel (save in matrimonial disputes).
[5]
However, the court retains a discretion to permit a party to appear
to make a statement.
[6]
A
party that has been barred may apply to court for the upliftment of
the bar on good cause shown
[7]
and the court retains an inherent jurisdiction to raise the bar.
[8]
[7]
Accordingly, the appellants were not
entitled to file a plea or to appear at the hearing, subject to the
discretion of the presiding
judge. She permitted Ms Dlodlo and
Mr Moyo to appear, albeit that they made no application for the
upliftment of the bar.
They sought to persuade her that their
failure to file their plea timeously was not due to their wilful
default. After
hearing them she considered their argument and
concluded:
“
There
is no evidence, none has been placed before me by way of affidavit/s
why the defendants cannot be found to be in wilful default
in filing
a plea.”
As
appears from the passage quoted earlier from her judgment she refused
to consider the extensive documentation which was unilaterally
and
improperly filed and she declined to admit their pleas or
exceptions. Accordingly, she granted judgment by default.
[8]
As
I have said, leave to appeal was granted by the judge
a
quo
.
However, Mr Williams, who appeared on behalf of Omega, contended that
the judgment is not appealable. In
Pitelli
[9]
the Supreme Court of Appeal (SCA) reiterated that for an order to be
appealable it must have as one of its features that the order
is
final in its effect, which means that it is not susceptible to being
revisited by the court that granted it. It explained
that an
order is not final, for purposes of an appeal merely because it takes
effect unless it is set aside. It is final
when the proceedings
of the court of first instance are complete and that court is not
capable of revisiting the order. That
leads one ineluctably to
the conclusion that an order that is taken in the absence of a party
is ordinarily not appealable.
It is not appealable because such
an order is capable of being rescinded by the court that granted it
and it is thus not final
in its effect. In some cases an order
that is granted in the absence of a party might be rescindable under
rule 42(1)(a),
and if it is not covered by that rule it is in any
event capable of being rescinded under rule 31 or the common law.
[10]
[9]
We
were advised from the bar, and it is not in dispute, that
applications for rescission had been launched on behalf of the
appellants.
Whilst it is unclear what the outcome of these
applications have been, at least one application for rescission is
currently pending
before the high court. As the SCA explained,
the appealability of an order is dependent upon whether it is capable
of being
revisited and not upon whether such an application will
succeed and it makes no difference if it has been dismissed.
[11]
If an application for rescission is dismissed that order may be
appealed.
[10]
Before us Mr
Beyleveld
,
for the appellants, sought to distinguish the facts of the present
matter from the findings in
Pitelli
.
He argued that rescission of judgment could only be obtained where
judgment had been granted in the absence of a defendant.
Where,
as in this case, Ms Dlodlo and Mr Moyo had participated in the
proceedings and were heard, so the argument proceeded, it
was not
open to seek rescission of the judgment. Thus, he argued, the
default judgment is final in this instance.
[11]
Rule 31(2) provides for default judgment
where a defendant had failed to file a plea. Rule 31(2)(b)
stipulates that a defendant
may, within 20 days after acquiring
knowledge of such judgment, apply to court upon notice to the
plaintiff to set aside such judgment
and the court may, upon good
cause shown, do so on such terms as it deems fit. I shall
accept, for purposes of the present
judgment, that the rule envisages
a judgment granted in the absence of a defendant. However, as
Mr
Beyleveld
was constrained to acknowledge the rule does not envisage physical
absence of a defendant. He contended, nevertheless, as adumbrated
earlier, that where a party had been heard and had participated in
the proceedings the rule could find no application.
[12]
As I have said, where a party is under bar
the court has a discretion to hear such a party and an inherent
discretion to uplift
the bar. The court
a
quo
did hear the appellants and having
considered their submissions held that no evidence had been placed
before her on affidavit to
justify the conclusion that they were not
in wilful default. The effect thereof, as I understand her
finding, was that she
declined to exercise her discretion to uplift
the bar and admit the appellants’ plea. The matter was
decided, as appears
from the portion of her judgment which I have
quoted earlier, on the basis that she refused to have regard to any
of the considerable
volume of papers filed in defiance of the notice
of bar or to the appellants’ submissions in respect thereof.
She explicitly
excluded the pleadings which had not been procedurally
filed and decided the matter without any reference to the appellants’
case. In that sense the judgment was granted in the absence of
the appellants, their argument having been excluded from
consideration. The judgment is therefore subject to rescission in
terms of rule 42(1)(a), rule 31(2) or the common law, provided
a
proper case is made.
[13]
In the circumstances the matter is not
appealable. It falls to be struck from the roll with costs.
[14]
There
is, however, a further matter of concern which arises from the
papers. As I have said the application for default judgment
proceeded in terms of rule 31(2). In terms of the rule, where a
defendant is in default of the delivery of a plea, as in
this case, a
plaintiff is entitled to “set the action down” for
default judgment. It does not postulate the filing
of an
application, as envisaged in rule 6, supported by affidavits.
In the present matter the plaintiff brought its application
for
default judgment on notice of motion supported by a founding
affidavit and annexures running to more than 40 pages. The
approach reflects a tendency that appears to be gaining momentum in
this court and that constitutes an abuse of the process of
court.
The proceedings had been commenced by way of action. Where
there is no notice of intention to defend, or a plea,
filed the
factual averments contained in the particulars of claim are deemed to
be admitted. However, where a claim is made
for unliquidated
damages, as in this case, the court is required to hear evidence in
order to properly assess the issue and to
make an appropriate order.
In
Economic
Freedom Fighters
[12]
the
SCA explained that application proceedings are inappropriate for this
purpose. Generally, in action proceedings, evidence
must be
presented
viva
voce.
[13]
In
exceptional cases evidence may, with the leave of the trial court, be
received on affidavit. Thus, a plaintiff seeking
default
judgment in terms of rule 31 cannot seek to bolster his case by an
extensive affidavit nor is it necessary to repeat the
allegations
made in the particulars of claim on affidavit. The present case
provides an illustration of the consequences
of such an abuse of the
court process.
[15]
As a result of the form of the application
the appellants found it necessary to address all the averments made
in the affidavit
(which should never have been filed) and I have
referred earlier to the extent of the answering papers that
followed. Thus,
the record on appeal, in respect of a default
judgment application, now amounts to 540 pages. To add insult
to injury, a
few days prior to the hearing of the appeal Omega’s
legal representatives found it necessary to deliver a “Supplementary
Appeal Record” containing a further 270 pages of documentation
relating to rescission applications filed by the appellants.
All of this documentation relates to events which occurred after the
judgment was delivered and is entirely irrelevant to the adjudication
of the appeal.
[16]
Had I sat as the judge of first instance I
would have disallowed the costs occasioned by the preparation of the
affidavits in support
of the application for default judgment.
In the appeal it is appropriate to disallow the costs occasioned by
the preparation
and filing of the supplementary appeal record.
[17]
In the result, the appeal is struck off the
roll with costs, such costs to exclude the costs of the supplementary
appeal record
delivered on 8 February 2022.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
DAWOOD
J:
I
agree.
F
DAWOOD
JUDGE
OF THE HIGH COURT
MATEBESE
AJ:
I
agree.
Z
Z MATEBESE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Appellants: Adv A
Beyleveld SC instructed by R S Siyila Attorneys Inc c/o Wheeldon
Rushmere & Cole Inc, Makhanda
For Respondents:
Adv K Williams instructed by Pagdens Attorneys c/o Cloete and
Company, Makhanda
[1]
The
notice of bar was delivered in terms of rule 26 of the Uniform Rules
of Court
[2]
In
terms of rule 23(1) a party intending to take exception on the
ground that a pleading is vague and embarrassing is required
to file
its exception within 10 days after the lapse of the 15 days afforded
to remove the cause of complaint.
[3]
In
terms of rule 31(2)(a) and (4)
[4]
In
terms of rule 31(4)
[5]
Luck
v Owen
(1835)
3 Menz 456
;
Leathern
v Brodrick
(1879) Kotzé 143; and
Langley
v Williams
1907 TH 197
[6]
Tchela
v Delema
1907
EDC 293
[7]
Rule
27
[8]
Nathan
(Pty) Ltd v All Metals (Pty) Ltd
1961
(1) SA 297
(D) at 300B-D
[9]
Pitelli
v Everton Gardens Projects CC
[2010]
4 All SA 357
(SCA) at para [20]
[10]
Pitelli
para
[27]
[11]
Pitelli
para
[34] and [36]
[12]
Economic
Freedom Fighters and Others v Manuel
2021 (3) SA 425
(SCA) at para [93]
[13]
At
para [100] to [104]