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2021
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[2021] ZAECELLC 16
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Magqabi v Metu (632/2019) [2021] ZAECELLC 16 (8 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON CIRCUIT LOCAL
DIVISION)
CASE
NO: 632/2019
Matter
heard on: 27/05/2021
Judgment
delivered on: 08/06/2021
In
the matter between:
PYTHAGOROS
VUYISILE
MAGQABI
Applicant
and
BABALO
METU
Respondent
JUDGMENT:
LEAVE TO APPEAL
SMITH
J
:
[1]
The applicant applies for leave to appeal
against my judgment, delivered on 23 March 2021. He contends that
there are reasonable prospects
that another court will find that I
have erred in finding that he had failed to show good cause for the
rescission of the default
judgment granted by Toni AJ on.
[2]
In my view the application is without any
merit. My findings that the matter had been fully argued before Toni
AJ, that he had ruled
on the merits of the applicantâs opposition
to the application for default judgment, and that the applicant was
accordingly precluded
from applying for rescission of the judgment,
were based on common cause facts. In the event, I did not dismiss the
application on
this basis only.
[3]
I also found that the applicant had failed
to provide an acceptable explanation for his failure to file a plea
in terms of the rules
and to establish that he has a bona fide
defence to the respondentâs claim.
[4]
In argument before me, counsel for the
applicant conceded that the only proffered defence which required
consideration was his contention
that: âthe fees were exorbitant so
as to amount to an overreach and have been referred to the law
society.
[5]
In his answering affidavit, however, the
respondent said that the applicant had been informed by the Legal
Practise Council on 2 September
2019 that since the fees ârelate to
a litigation matterâ, the proper course would be for him to refer
the account for taxation.
He has failed to do so and has taken no
further action to contest the respondentâs fees.
[6]
The applicant has not replied to this
assertion and I was accordingly constrained to accept that the stated
defence was not bona fide.
[7]
I am accordingly of the mind that there are
no reasonable prospects that another court will disagree with my
finding that the said
assertion does not constitute a bona fide
defence to the respondentâs claim.
[8]
In the result the application for leave to
appeal is dismissed, with costs.
__________________________
J.E. SMITH
JUDGE
OF THE HIGH COURT
COUNSEL FOR
APPLICANT:
Adv. White
ATTORNEYS FOR
APPLICANT:
Magqabi Seth Zita Attorneys
9
St Georges Street
Southernwood
East
London
COUNSEL FOR RESPONDENT:
Adv. E.M. Matanda
ATTORNEYS FOR
RESPONDENT:
M.P. Ncame Attorneys
Office
No. 1
Mantis
Business Centre
14
Byron Street
East London