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2022
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[2022] ZAECELLC 23
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Mdazane and Another v Nene and Another (799/2020) [2022] ZAECELLC 23 (6 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON LOCAL CIRCUIT DIVISION)
Reportable: No
Date Heard: 23 August
2022
Date Delivered: 6
September 2022
Case No: 799/2020
In the matter between:
MAWONGA
MDAZANE
First Plaintiff
MDAZANE INVESTMENTS
(PTY) LTD
Second Plaintiff
and
PHUMLANI
NENE
First Defendant
NUTIGEN (PTY)
LTD
Second Defendant
JUDGMENT
Ntlama-Makhanya AJ
1
This is an application by the Plaintiffs (Mawonga Mdazane and Mdazane
Investments
(PTY) LTD for a default judgment against the first and
second Defendants (Phumlani Nene and Nutigen (PTY) LTD) for the
latter’s
non-appearance in this Court on 23 August 2022 which
was an agreed date that was arranged with their attorney for the
determination
of the merits of the claim in respect of the services
that were offered by the Plaintiffs to the Defendants.
2
For purposes of this judgment, I will respectively refer to both
parties
to the dispute as the Plaintiffs and Defendants.
3
This judgment will not deal with the merits of the claim other than
the
reflection on the non-appearance of the Defendants in this Court.
4
This matter arose out of the partnership that was entered between the
parties
for the procuring of a tender for the provision of surgical
masks for the Department of Health, Eastern Cape (Department).
5
The common intention was to improve the financial muscle of each and
to
share the joint profit and payment of the supplier upon receipt of
payment by the Department.
6
It is not the intention to exhaust the facts of this claim as the
Defendants
on their notice to oppose it:
6.1
they did not dispute the existence of their agreement;
6.2
they tendered to pay an amount of R650 000.00; and
6.3 the
said amount would be paid only on the resolution of the dispute
raised by the Plaintiffs.
7
With this in mind, the Defendants or their representative did not
appear
in court to oppose or defend the application for default
judgment which was prompted by the initial application by the
Applicants
for breach of contract.
8
This matter has a history in this court:
8.1 It
was postponed on 02 June 2022 by agreement that it be deferred to 23
August 2022 before my Colleague: Honourable
Swartbooi AJ.
8.2 The
postponement was due to the Defendants instructing new attorneys on
the matter.
8.3 The
Defendants tendered the wasted costs of the postponement because of
the instruction of the new attorneys
on the matter by the Defendants.
8.4 On
the above said day of appearance the Defendants did not appear in
Court.
8.5 The
Defendants did not provide or tender any explanation in any form of
communication to the Court.
8.6 The
said date was agreed by consent and the Defendants were aware of
their needed appearance in this Court.
9
The crux of this application lies in compliance with the initial
prescripts
relating to the delivery of the summons by the Plaintiffs
to the Defendants and in turn the latter submitting the notice to
oppose
the claim to the Court but on the day of the 23
rd
August 2022 to deal with the merits of the claim, the Defendants did
not appear in Court without any justifiable reason of such
non-appearance.
10
Thereof, the Plaintiffs thereof, applied for the default judgment
against the Defendants
and sought payment of the monies due to them.
11
The order sought by the Plaintiffs was for the Defendants:
11.1 to pay an
amount of R1071500 .00 (One million and seventy-one thousand five
hundred rands) as and for monies owed by
the Defendants to the
Plaintiffs which arose from the oral agreement between them
11.2 to pay the
Plaintiffs the above-mentioned amount within 14 days from the date of
the judgment.
11.3 to also pay
interests at the prevailing prescribed legal rate from 21 July 2020
(date of demand) to date of payment.
11.4 to pay the
Plaintiffs taxed or agreed costs on a punitive scale.
11.5 to pay the
plaintiffs interests on the costs of the suit at the prescribed legal
rate from 14 days after the allocator.
11.6 for the
payment of capital, costs and interest into the Trust account of the
Plaintiff’s attorneys of record with
the details provided.
12
With no reason proffered for non-appearance, this Court find it
difficult to equally
establish any legitimate reason for such
non-appearance.
13
It is reasonable to believe that the Defendants do not have a
legitimate defence on
the claimed amount.
14
It is for this Court to find the conduct of the Defendants despicable
and constitute
a deliberate disregard of the integrity of this Court
and its processes.
15
Accordingly, it is ordered that the Defendants should pay the
Plaintiffs:
15.1 an amount of
R1071500 .00 (One million and seventy-one thousand five hundred
rands) as and for monies owed by the Defendants
to the Plaintiffs
which arose from the oral agreement between them.
15.2 the
above-mentioned amount within 14 days from the date of the judgment.
15.3 the interest
at the prevailing prescribed legal rate from 21 July 2020 (date of
demand) to date of payment.
15.4 the taxed or
agreed costs on a punitive scale.
15.5 the interest
on the costs of the suit at the prescribed legal rate from 14 days
after the allocator.
15.6 the payment of
capital, costs and interest into the Trust account of the Plaintiff’s
attorneys of record with the
details provided.
16
It is for this Order to be made available to the Defendants and for
the claim to be
paid within 14 days of such delivery.
N Ntlama-Makhanya
ACTING JUDGE OF THE
HIGH COURT
For the first plaintiff:
Mr
S. Vapi, of Vapi Incorporated, Mthatha.